The Impact of Supreme Court Rule 37 & New Operating Standards on Municipal Courts

The Impact of Supreme Court Rule 37 & New Operating Standards on Municipal Courts “The New World Order or Chaos?”

******* SPOILER ALERT ******** • MUCH OF THE LEGISLATION IN THIS AREA WAS TARGETED AT ST. LOUIS • MUCH OF THE LEGISLATION IN THIS AREA CREATED BY MEMBERS OF THE LEGISLATURE THAT CONSIDERED THEMSELVES VICTIMS OF THE ST. LOUIS COUNTY MUNICIPAL COURT PRACTICES. • MUCH OF THE LEGISLATION IN THIS AREA WAS CREATED WITH THE KNOWN RESULT OF FORCING CONSOLIDATION OR CLOSURE ST. LOUIS AREA MUNICIPAL COURTS WITHOUT REGARD FOR THE IMPACT ON THE REST OF THE STATE • LAWMAKERS WERE DETERMINED TO GET SOMETHING DONE

*******SPOILER ALERT ******* • THE NEW LEGISLATION AND RULES IN THIS AREA DO NOT CARE ABOUT ANY INCONVENIENCES TO YOUR MUNICIPALITY! ONLY COMPLIANCE OR DEATH! • THE NEW LEGISLATION AND RULES IN THIS AREA ARE NOT CONCERNED WITH WHETHER OR NOT YOUR CITIES ARE ABLE TO GENERATE REVENUE. • TO THE CONTRARY THEY ARE DESIGNED TO FORCE CONSOLIDATION, STRIP MUNCIPALITIES OF COURTS AND/OR FORCE CITIES TO USE THE ASSOCIATE CIRCUIT COURT SYSTEM WHICH WOULD PROVIDE REVENUES TO THE STATE

Brief History of How We Arrived Here • The Good Old Macks Creek Law • Traffic costs and fees could not exceed 35% of annual general operating revenue, later reduced to 30%, then 20%, then 12.5%, 10%?? • Excess was to go to Department of Revenue to the School Districts • There was no enforcement or regular auditing put in place to record the amount of funds being generated by the municipal courts • Some Mayors/City Councils/City Managers ran their Courts/Judges like a personal business or revenue stream • Courts/Judges were not fully aware of how much revenue they were producing especially from traffic offenses

Brief History… • Limit is on all traffic violations including state roads • No Courts/Judges had or still have any idea what percentage of traffic revenue is in relation to the overall annual operating revenue. • 99% of all municipal judges in the State of Missouri are part time judges. • Therefore their supervision is considered part-time. • Many of the municipal courts in the state are considered part-time (if they were considered to have been even that much)

Brief History… • The Tragic Death of Michael Brown August 9, 2014, in Ferguson, Mo, may be one of the most significant events in Missouri history to have had an impact on Missouri Government and Missouri Municipalities possibly for many years to come.

Brief History… • In March 2015, The Department of Justice (DOJ) published a scathing report on the city of Ferguson’s Municipal Court system, Ferguson’s Police Department, the St. Louis area Municipal Courts and subsequently the Municipal Court’s of the State • The DOJ report brought to light to the nation some of the inadequacies, inequities, insufficiencies and ineffectiveness of the “MissouriMunicipal Courts” • Editorial Note: Missouri Legislature appears to have only focused on the Municipal Courts. Little assistance from the Supreme Court initially to supervise or assist the Municipal Courts

Brief History… • The DOJ report outlined essentially 13 points • 1. Make municipal court processes more transparent • 2. Provide complete and accurate information to a person charged with a municipal violation • 3. Change court procedures for tracking and resolving municipal charges to simply court processes and expand available payment options • 4. Review preset fine amounts and implement system for fine reduction • 5. Develop effective ability to pay assessment system and improve date collection regarding imposed fines • 6. Revise payment plan procedures and provide alternatives to fine payments for resolving municipal charges

Brief History… • DOJ Report (Contd) • 7. Reform trial procedures to ensure full compliance with due process requirements • 8. Stop using arrest warrants as a means of collecting owed fines and fees • 9. Allow warrants to be recalled without the payment of bond • 10. Modify bond amounts and bond and detention procedures • 11. Consistently provide “compliance letters” necessary for driver’s license reinstatement after a person makes an appearance following a license suspension • 12. Close cases that remain on the court’s docket solely because of failure to appear charges or bond forfeitures • 13. Collaborate with other municipalities and the State of Missouri to implement reforms

Brief History… • Missouri Legislature Gets involved: • May 2015, passes SB5, which was to: • 1. Cap traffic revenue used by local governments (municipalities) at 20% of their general operating revenue statewide • 2. Except St. Louis County, where it was to be capped at 12.5 percent. • 3. Fines and court costs for minor traffic offenses would be capped at $300.00 total (including amendments) • 4. No jail time for failure to pay a fine • 5. Citizens would be able to dissolve their local governments if they don’t turn over excess traffic revenue within 60 days. • ******* SPOILER ALERT *******

Brief History… • Foretelling to the Work Group in the report was a letter from Chief Justice Breckenridge was a letter to the committee date September 22, 2015, which requested that group address: • 1. Propriety of judges, prosecutors and staff serving in different capacities in Municipal divisions • 2. Consolidation of municipal divisions, including any authority of the Supreme Court to mandate consolidation • 3. Use of warrants, processes for setting bonds, and time of incarceration • 4. Enforceability of judgements and remedies for nonpayment. • Editorial note: Start noticing the similarities

Brief History… • SO THE SUPREME COURT GETS INVOLVED: • They create what became known as the Municipal Court Work Group • On March 1, 2016, the Group published the (in)famous report known as the REPORT OF THE MUNICIPAL DIVISION WORK GROUP TO THE SUPREME COURT OF MISSOURI. • IT WAS 140 PAGES, 140 PAGES, 140 PAGES, • 140 PAGES!!!!!

Brief history… • Oh NO! The Legislature is not done! SB5 has a lovechild named SB572. Which as of August 28, 2016: • Lowered fines on minor traffic violations (0-4 points) to $225.00 even if an amendment along with certain other municipal ordinance violations. • Written notice necessary for code violations and must give at least 10 days for abatement unless public health or safety risk • Codes violations go from $200, $275, $350, $400 with 12 months • Vote necessary to petition to have an election for disincorporation was reduced from 50% to 25%, and the percent of votes necessary to approve disincorporation was reduced from 60 percent to a majority **SPOILER ALERT**

Brief history??? • SB572 (contd) • No court costs if case is dismissed or person is indigent • No jail except involving • Alcohol or controlled substance • Violations endangering health or welfare of others • Eluding or giving false information to a law enforcement officer

WHERE ARE WE NOW? • CAVEAT: MUNICIPAL GOVERNMENT: MAYOR, CITY COUNCIL, POLICE DEPARTMENTS AND MUNICIPAL COURTS ARE SEPARATE BRANCHES BUT CANNOT OPERATE WITHOUT KNOWLEDGE AND COOPERATION IF THEY ARE TO REMAIN IN EXISTENCE • SAC10 – State Auditor’s Certificate • Every Municipal Judge must attest that their court substantially complies with the following 10 requirements. • Your local officials should make sure you obtain a copy of this for your records to insure your court’s compliance

SAC10 ( Substantial Compliance) • Defendant in custody on “initial arrest warrant” on MTV must have opportunity to be heard by judge within 48 hours (may be phone, video or in person contact) & 72 hours for all other offenses • May put out warrant if no contact with Judge within 48 hours = release with next court date • Defendant cannot be held more that 24 hours without a warrant after arrest

SAC10 – Substantial compliance 3. Defendant cannot be detained in order to coerce payment of fines and costs UNLESS found to be in contempt after strict compliance by the court with the due process procedures mandated by Rule 37.65 (modified by 572) • Defendant has a right to counsel for contempt

SAC10 – Substantial compliance (cont.) • Court must have procedures to allow indigent defendants to present evidence of their financial condition • Court can only assess fines and costs authorized by law • No additional FTA charge for a MTV • Courtroom must be open and large enough to reasonably accommodate the public, parties, and attorneys • Stagger dockets • Associate Circuit Court can not always accomplish this

SAC10 – Substantial compliance (cont.) • Court must offer payment plans (such as alternative community service) • Court makes use of community service alternatives for which no associated costs are charged to defendant (SB572) • Must offer electronic payment system or payment by mail for the payment of MTV

Work Group Recommendations and Implementation Committee • Missouri Supreme Court appointed several attorneys and judges to the Work Group Committee. The Final Report was released in . • Missouri Supreme Court has appointed 18 people including Presiding Judges, Associate Circuit Judges, Municipal Judges, and attorneys to the “Implementation Committee” which is officially called “Committee of Practice And Procedure in Municipal Division Cases.” • Judge Ardie A. Bland is a member of this committee, but “Don’t Shoot the Messenger!”

Implementation Committee The Committee is a standing committee with a final report due November 1, and every year thereafter. Purpose – “assist the Court by reviewing and assessing information regarding the operation of the municipal divisions of the circuit courts; by making recommendations with regard to amendments and revisions to Rule 37 and other Supreme Court rules affecting practice and procedure in the municipal divisions of the circuit courts; by making recommendations with regard to best practices in the operation and administration of the municipal divisions, including in the areas of service to the public, access to municipal divisions case information, and court administration; by making recommendations with regard to beneficial educational programming for municipal division judges, clerks, and other relevant personnel; and directing other Court committees and other entities, working cooperatively and after consultation, to achieve the committee’s purposes. “

Implementation Committee Recommendations • This Committee is working on several of these areas. Some reports have been sent to the Supreme Court. • Minimum Operating Standards for Municipal Court • The Presiding Judges shall be the linchpin of the plan and shall be charged with the task of supervising municipal courts. • Checklists will be completed by municipal judges 2xs a year

Implementation Committee • This is a Standing Committee, unlike the Work Group. • The Committees shall meet periodically and file a report with the Supreme Court yearly. • The next meeting is June 9, 2017, in Kansas City, Missouri

Rule 37.04 • Enforcement Effective 7-1-17 (MOS’s effective NOW)!!! • The Presiding Judge of the Circuit shall have general administrative authority over the judges and court personnel of all divisions of the circuit court hearing and determining ordinance violations within the circuit. Municipal divisions shall operate in substantial compliance with the minimum operating standards set out in Appendix A of this Rule 37.04. The judges of all such divisions shall be subject to the rules of the circuit court that are not inconsistent with this Rule 37.

THE NEW WORLD ORDER (CHAOS)? • Now The Missouri Supreme Court has gotten involved and is supervising all Municipal Courts NEW RULE 37 • The Municipal Courts are being Supervised by the Presiding Judge of each respective circuit. • Potential Spoiler Alert: As a whole this is not a desired task which could mean future peril for municipalities that are not compliant

Indigency Standards • Missouri Supreme Court has released the Indigence Form on 9/19/16 in Rule 69.01. I page form with guideline on second page. • Presume indigent if 1) In custody of Division of Youth Services or Children's Div. 2) a)Has unencumbered assets totaling under $5,000 and b) has total of household monthly income below 125% of Federal Poverty Guidelines JUDGE DISCIPLIINED COURT TAKEN REVENUE REDUCED COMMUNITY SERVICE INSTEAD OF REVENUE

Minimum Operating Standard #1 • MOS #1 Municipal divisions shall ensure that when individuals must be held in jail in the interests of justice, this is done strictly in accordance with the principles of due process of law.

MOS #1 1) The municipal division is in compliance with the following requirements of section 479.360.1 RSMo: • Procedures exist to prevent defendant from being held longer than 48 hours on MTVs and 72 hours on other violations without being heard by a judge in person, by telephone or via video conferencing. • Cities will need to provide necessary equipment for their courts at their own financial cost or release violators. • Maybe more money for part time judges or staff to be available

MOS #1 1) The municipal divisions is in compliance with the following requirements of section 479.360.1 RSMo: B) The municipal division has made reasonable efforts to communicate to local law enforcement the 24 hour rule: “Defendants in municipal custody shall not be held more than 24 hours without a warrant after arrest”

MOS #1 1) The municipal divisions is in compliance with the following requirements of section 479.360.1 RSMo: C) Confinement to coerce payment of fines and costs is utilized only if found in contempt of court after compliance with Rule 37.65

MOS #1 • No additional charge is issued for failure to appear on a minor traffic violation • Monies previously received by courts and municipalities will no longer exist. (Fees for failure to appear were never legal)

MOS #1 The municipal division has a duty judge available at all times to rule promptly upon warrants, bail and conditions of pretrial release, and other matters, without undue delay. * Maybe more money for judges or staff to assist with the court.

MOS #1 • 3) Bond schedules are utilized ONLY for persons arrested without a warrant and held no longer than 24 hours pursuant to sections 479.360.1(2) and 544.170.1, RSMo; Rule 37.17. • Potential frequent violators in community because they cant be held • Increased costs of rearrest • Requires part time judges to be on call at all times or pay for back up judges

MOS #1 • Warrants are issued ONLY upon a finding that reasonable grounds exist to believe that 1) the defendant will not appear upon a summons or 2) that the accused poses a danger to a crime victim, the community, or any other person. Rule 37.43(b). • Make these findings in writing on a docket sheet or on the warrant itself • New Criminal Code – Stealing and Marijuana – fine only- be sure to have discussions with your law enforcement officers • Weigh the costs of arresting on certain violations in your community

MOS #1 • Warrants are signed ONLY by judges unless the exception of a specific warrant ordered by a judge to be signed by a clerk is applicable. Rule 37.45 (b)(6). • No standing orders to clerk • Requires part time judge to be involved

MOS #1 • The municipal division has procedures in place to ensure that when a case is dismissed by the prosecuting attorney or otherwise finally resolved, or when the circumstances that justified issuance of a warrant no longer exist, the judge recalls and cancels any outstanding warrants in that case as soon as practicable. • May require a technology upgrade for already strapped communities

MOS #1 • The municipal division has procedures in place to ensure that the recall and cancellation of outstanding warrants is communicated to law enforcement by the clerk without delay. • Technology upgrades???

MOS #1 • No person is sentenced to confinement on “minor traffic violations” or “municipal ordinance violations” with the exception of violations: involving alcohol or controlled substances; endangering the health or welfare of others; or involving eluding or giving false information to a law enforcements officer. Section 479.353(2) (SAC10) • May result in repeat offenders especially in nuisance style cases • Decreased property values

MOS #1 • Due process procedures of Rule 37.65 are strictly followed before confining defendants for failure to pay fines and costs. Section 479.353(3)

Minimum Operating Standard #2 • MOS #2- Municipal divisions shall inquire of defendants and allow them to present information about their financial condition when assessing their ability to pay and establishing payment requirements for monies due • Opens up doors for fraud on the court • Reduced revenues • No way to actually certify CS in completed in your community especially because of the costs. Maybe no actual benefit to the community of the violation • CS-pay HOKIE POKIE

MOS #2 • The municipal division is in compliance with the following requirements of section 479.360.1 RSMo • Procedures exist to inquire of defendants and allow them to present evidence about their financial condition in assess their ability to pay and establishing payment requirements • Alternative payments plans are utilized. See also Rule 37.65(a)(1)(2). • Community Service is utilized with no fee assessed to the defendant • CS-Pay HOKIE POKIE

MOS #2 • Stay of execution procedures exist for defendant to pay finds and costs within a specified period of time or to make installment payment plans. Rule 37.65(a)(1)(2)

MOS #2 • If the probation fees are assessed, the municipal division does so in compliance with sections 549.525.2, 559.604, and 559.607, RSMo, including consideration of factors exempting a probationer from part or all of the standard monthly probation fee of $30 to $50 per month. The municipal division advised offenders of the right to request individualized consideration of exemption from paying probation fees and surcharged under these statutes. • Cost and procedure to enforce

MOS #3 • MOS #3 – Municipal divisions shall not condition an indigent defendant’s access to a judicial hearing or granting or probation upon the prepayment of fines or fees. • INTERPRETATION – KEEP OFFERING DEALS WHEN THEY HAVEN’T PAID PREVIOUS FINES • It is like giving credit on bad loans? • If a defendant files an application for trial de novo, the payment of the statutory trial de novo fee shall be waived if the defendant qualifies as indigent.

Minimum Operating Standard #4 • MOS #4 – Municipal divisions shall neither assess nor collect unauthorized fines, costs, and surcharges. • Fines and costs assess on MTVs do not exceed $225. once accessed they are uncollectable • Fines and costs assessed on MOVs meet the mandatory maximum schedule of section 479.353(1)(b) • Fines assess on other ordinance violations do not exceed the maximum amount authorized by state law and the city code.

MOS #4 • Court costs are not assessed against indigent defendants • Difficulty determining the indigent • Community service is utilized with no fee assessed to the Defendant • No real way to supervise unless your city has the funds to follow • If it is not really completed then there is no benefit to the community from the violator

Minimum Operating Standard #5- • The municipal division has a mechanism in place to check for judicial conflicts prohibited by Rule 37.53(b)(2), and the judge recuses in all instances when required to do so pursuant to this rule. • Upon successful change of judge requests and recusal, the procedural requirements of Rule 37.53(b) and section 479.230, RSMo are followed. • Following applicable law, the judge follows rules cutting off or limiting their authority to act in a case once a motion to disqualify, motion for jury trial, or motion for trial de novo is filed • Either cases or get sent to Associate Circuit or cost of having a stand in judge. New judge must comply with MJEC rules and be approved by Presiding Judge of the Circuit

Minimum Operating Standard #5- • All municipal judges shall be lawfully selected, lawfully authorized to act in specific cases, and adequately prepared for their duties through appropriate training and continuing education. • All judges serving in the municipality- full-time, part-time, substitute, and provisional- are selected pursuant to municipality’s ordinance or charter before serving.

MOS #5 • When a trial de novo request is filed, the municipal, division certifies the file to the circuit court with 15 days • Previously no specific time period

MOS #5 • Lawyer judges • Orientation course completed within 12 months after beginning service Rule 18.05(d) • 5 hours of judicial CLE completed annually • 2 hours of judicial ethics CLE annually • CLE compliance form is submitted to the circuit court presiding judge • If substitute/provisional judges preside, the name and CLE compliance forms have been provided to the circuit court presiding judge

The Impact of Supreme Court Rule 37 & New Operating Standards on Municipal Courts