MMACJA Benchmark 2-2005
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M ISSOURI MUNICIPAL & ASSOCIATE CIRCUIT JUDGES ASSOCIATION 4721 S. STEWART S PRINGFIELD, MO 65804 February 2005 benchmark REGIONAL SEMINARS President’s Report March 25, 2005 By: Judge Greg Beydler By: Judge Dennis Laster Inside this issue: It is hard to believe that our The Regional Seminar Commit-President’s Report & Regional 1 Seminar Update annual conference is just 3 months tee has prepared an interesting program Judge Dressel Interview away, May 25-27, 2005 at The for this year’s attendees. In addition to 2-6 Lodge of Four Seasons. Larry the case law update presentation and ma-Board Meeting & Annual 7 Butcher and his committee have terials, several exciting and useful ses-Conference Update done an outstanding job of arranging sions have been planned. New Rules Create Challenge 8-11 sessions which will be of interest to Shawn McCarver has prepared our members. There have been sev- an excellent session focusing on signifi-Awards & Nominations 12 eral things that the Board has taken cant changes to Rule 37. The recent 2005 Scholarship Application 13 on this past year for our association. changes to Rule 37 impact all municipal We are developing a packet to assist division judges, and this session will pro-2005 Regional Seminar Form 14 new Judges with their duties. Also, vide helpful guidance and suggestions MMACJA Logo—Shirts 15 the Board has consolidated some of for bringing courts into compliance. the treasurer’s duties for the ...
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M I S S O U R I M U N I C I P A L & A S S O C I A T E C I R C U I T J U D G E S A S S O C I A T I O N 4 7 2 1 S . S T E W A R T S P R I N G F I E L D , M O 6 5 8 0 4 February 2005 b e n c h m a r k
President’s Report By: Judge Greg Beydler
Inside this issue: President’s Report & Regional 1 It is hard to believe that our Seminar Update annual conference is just 3 months Judge Dressel Interview 2-6 away, May 25-27, 2005 at The Larr Board Meeting & Annual 7 BLotdcghee r ofa ndF ouhri s Sceoasmomnist.t ee havye Conference Update u New Rules Create Challenge 8-11 sdeosnsei oanns owuhtistcahn dwiinllg bjoe b oof f ianrtrearensgti ntog Awards & Nominations 12 our members. There have been sev- eral things that the Board has taken 2005 Scholarship Application 13 on this past year for our association. 2005 Regional Seminar Form 14 We aJre ddevelwoiptihn gt hae irp adcukteite st.o aAslssisot, new u ges MMACJA LogoShirts 15 the Board has consolidated some of the treasurer’s duties for the execu-Logo Shirt Order Form 16 tive secretary to assume. Officers & Directors 17 We are getting responses from different directors on visiting Important Dates: various courts in their districts. ♦ MMACJA Regional Seminars - March These courts have been appreciative 25, 2005Columbia, St. Louis, of the visits and we are learning the Springfield, Gladstone, Sikeston strengths and needs of the courts. If ♦ MMACJA Annual Conference May you would like to have a judge visit 25-27, 2005 All events will be held at Lodge of Four ymoeu r acnod urI t, wpillel asme agkeet airnr atnoguechm ewnittsh. Seasons in in Osage Beach. We want to show our members that the directors are more than just Benchmark Editor: names listed on our web site. Todd Thornhill Our association exists for the 625 N. Benton members; please utilize our services Springfield, MO 65806 for your needs. I am looking for-417-864-1376 M 417-864-1883 (fax) ward to seeing each of you in ay! Todd_Thornhill@ci.Springfield.mo.us The opinions expressed in this publi-cation do not necessarily reflect the views of the MMACJA, its board of directors, or the editor.
REGIONAL SEMINARS March 25, 2005 By: Judge Dennis Laster
The Regional Seminar Commit-tee has prepared an interesting program for this year’s attendees. In addition to the case law update presentation and ma-terials, several exciting and useful ses-sions have been planned. Shawn McCarver has prepared an excellent session focusing on signifi-cant changes to Rule 37. The recent changes to Rule 37 impact all municipal division judges, and this session will pro-vide helpful guidance and suggestions for bringing courts into compliance. Program materials for a session on commercial driver licenses have been submitted by Bob Hershey. Attendees will be presented with the current status of the law as well as changes that will become effective in September, 2005. Hugh Ryan prepared and submit-ted materials for the legislative update and an interesting session on judicial eth-ics. The ethics session, entitled “Avow the ‘Honor’ in Honorable, explores various ethical problems and possible solutions. As in the past, the Seminar will be offered at five (5) locations statewide with a faculty selected from the Associa-tion’s membership. Attendees will re-ceive four (4) hours of CLE credit in-cluding one (1) hour of ethics. Informa-tion regarding Seminar enrollment and locations are contained in this edition of the Benchmark.
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INTERVIEW WITH NJC PRESIDENT WILLIAM F. DRESSEL By: Judge Kevin R. Kelly
Recently I had the opportunity to interview the Honorable William F. Dressel, President of the National Judicial College in Reno, Nevada. Many of you will remember President Dressel for his excellent presentation at the 2004 MMACJA Annual Confer-ence. In honor of his appearance at our conference, the Board of Directors approved a scholarship for one of our members to attend the NJC, which was awarded at the January board meeting. The National Judicial College is located on the University of Nevada, Reno Campus located in Reno, Nevada. The NJC was established in 1964 to “provide leadership in achieving justice through qual-ity judicial education and collegial dialogue. Judge Dressel first became associated with the College in 1979 when he attended his first class. In 1990 he be-came a member of the Board of Trustees of the NJC and was named President in 2000 Many members of our association have had the occasion to attend courses sponsored by the Na-tional Judicial College. If you ever have the opportu-nity to take a class at the Reno campus or elsewhere sponsored by the College, be sure to do so. It is a rewarding professional experience. Below is an abridged version of the inter-view. Kelly: When did your association with NJC begin, and what roles have you served during your time with the College? President Dressel: “I first became associated with the NJC in 1979 when as a judge who had been on the bench about a year I attended the course for new judges. It was really an unbelievable eye opener for me and got me really to think about what the heck the profession of judging was about and created a lot of lasting friendships with other judges around the country that were colleagues for the remainder of my career. The next thing I did was I came back as a dis-cussion leader in a course and that I found to be a real valuable experience. What happened as a discussion leader, you got to sit back and watch the course un-fold, and you led discussions with the judges, and I think I probably learned more out of that course than anything else
it was a fantastic experience “I later became a member of the faculty
teaching at the college. I taught case management, taught trial management and taught in evidence courses and really enjoyed that. It's probably no better place in the world to teach because you have judges around the country who are really motivated to learn and they challenge you. You've got to be on top of what you're talking about. “The next involvement occurred with an opening on the board of trustees and someone had to leave due to an illness, and I was asked if I wanted to fill out an unexpired term, which I did, so in 1990 I went on the board of trustees of the Judicial college and served two terms as a trustee. It gave me a differ-ent perspective about life at the college. It took me from the educational side to the business/operational side and I enjoyed that a lot. “I think it really helped me when the position of the President came open in 2000. It kind of puts in my mind that this is a special kind of a place. It be-longs to all the judges of this country, it's kind of like a trust, and to think that I could work out there and contribute to it being a resource to judges was, to me, too good an opportunity to turn down, and I was very fortunate to be offered the job, and started out here in 2000 as President of the college. Kelly: What brings you the greatest sat-isfaction serving as President of NJC? President Dressel: “I think it's going in and meeting with the judges and talking to them about how their profession is evolving and changing, what the college is doing to help them in the profession and then being able to take those ideas and go out and raise funds or to be part of an initiative as it puts that course together. You know you really can see the impact that education can make in a judge’s life to really allow for him and her to be better. I enjoy that part a lot. Part of it, I guess, would also then be going around to entities like yours in Missouri and making presentations and staying connected to judges. There is something about it that is really energizing.
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Kelly: What makes the courses pre-sented by NJC unique? President Dressel: “It's the collegiality of the judges from across the country. What I like to talk about, and you having been there can appreciate it, it's a real learning environment. You're out of your court, you're away from the daily pressures of your job, you're away from a lot of your colleagues, and here you're sitting down in this unique setting that is an institution created for you with these judges from around the country. “I happen to think that the faculty we bring together are outstanding individuals, our staff here will do anything to make sure your educational ex-perience is the best. So I think it's that collegial, learning environment, it's the faculty and the staff here. Kelly: What courses and programs does National Judicial College offer for the benefit of municipal judges? President Dressel: “They have the new course for judges in specialized courts, so if they are a new judge, that's very helpful to them. They have both evidence courses for non-lawyer judges as well as lawyer judges. The evidence course, I think, would really give municipal judges a chance, because I don't think, the pressure of their job so much, they don't often times think of evidence a lot, and I think that's an important course for them. The case management course is one that adapts very well to the municipal judge, because it's general enough in nature that they can really, truly think about the organization of their court, especially if they are in a large municipal court where they have a court executive. We have one course that they can do in conjunction with their court executive. They can come here and they can take the course, and really plan and talk about 'hey, how do we want to operate our court, are we really using our peo-ple correctly, what are our management problems we run into, looking at our resources.’ “We have a whole series of courses on traffic and DWI which I think is really important. We have one we are trying to work on which deals with Com-mercial Drivers Licenses. What we try to do there, is train people to go back and in their own state put on presentations about Commercial Drivers Licenses so that the judge can understand the impact. “I saw a little bit of a presentation that was interesting. You know most of the time it's like 'gee, this is my livelihood; this is my living, if I lose my
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CDL.’ And often times that may be true, but the real disservice that you are doing to that person by not get-ting him to be accountable and the impact as far as the property damage and loss of life is amazing,. “Another one is ‘Decision-Making.’ ‘Decision-Making’ is a great course for a municipal judge. It really gets you to look at the process of making a deci-sion, goes into what you do for an oral decision, or the times that you are doing a written decision, maybe an ordinance type of case where you have to do something that you don't often times have the luxury to do, that's to think about an issue and come up with the appropriate decision. Kelly: You can see we have a number of judges in our state that are from small towns and don't have money to attend the college. Are there ways these judges can afford to attend, such as schol-arships available from NJC or other agencies? President Dressel: “There are some scholar-ships that are available. One of the things we are trying to do is to do some fundraising in various states, to try to set up funding mechanisms so that judges can afford to come out, but you are right. Fortunately in the medium or larger municipalities they come up with funding for training, but it is in the smaller rural areas where budgets are really tight that are difficult. So we do have some scholarship money available. Anyone interested should contact Nancy Copfer, Scholarship Officer in the Com-munications Office at (800) 25-JUDGE to determine if there are funds available for a particular course. “We are looking at trying to raise money in individual states whether it is through foundations or other places where we can set up funding for judges to come. Kelly: Are there other associations, high-way safety, and others that might provide funding? President Dressel: “The traffic, what we do, is we get money from NHTSA, National Highway Traffic Safety Administration, but the real source of money that they can get to come to the college is through their gov-ernor's reps on the traffic. They get
MMACJA Newsletter
funding from NHTSA, a large percentage of which goes out to the states. They have traditionally spent that money for police traffic safety training, and district attorneys. And they are authorized to spend it for judges. The country is divided into regions; each region then deals with the gover-nor's traffic safety reps and you can probably find out what the name is in your state. (Missouri Division of Highway Safety and OSCA) i That is what they are usually called. What we do is we can work with that entity to get funding to either create and take one of our courses and bring it to Mis-souri, or to get them to give scholarship money for judges to come to the college. Kelly: Do you have classes outside of Reno? President Dressel: “We do have some around every so often. We do a lot of contracts with the states, but the majority is in Reno. We do put some courses on around the country. Kelly: In March 2004 you held a DWI sentenc-ing summit. Was it successful? President Dressel: “It was very successful. The publication should be out some time within the next 60 days. It will be distributed by NHTSA, and you need to see that you get a copy of it. It was directed towards the repeat driver, the hardcore substance abuser, and it came up with a variety of best practices that could be adapted in part or in whole as you work with the repeat drunken driver. I thought it was an extremely outstanding conference and now they will be publishing the results of it and we will see that it is distributed around the country. Kelly: Do you intend to repeat this summit or have other summits to cover other issues? President Dressel: “We like [summits] as a vehicle to bring people together, to really stay in touch with what is going on. The biggest problem with any entity that deals with education is staying relevant to what is going on in the field. I call it bringing the outside in to make sure that you are really staying in touch with the profession you serve. These are dependent upon obtaining funding. We continue to seek funding to hold summits like that so we can then come up with new educational products or material that we can distribute to the judges. Kelly: Does the NJC intend to implement more web based courses, such as the Selected Criminal Evi-dence Issues course held in January, 2005? President Dressel: “We are starting to develop more
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and more because of two things, cost and accessibil-ity. We are looking especially at rural courts and the issues they are facing and we can hopefully develop a series of educational offerings or distance learning opportunities so rural judges can share in solving the problems that are common to them. So you will be seeing more of those in the future. A web based course may have some posting that you read and you take an interactive quiz. Or it may involve a lecture coming over the internet because we can hook every-body up together and they can all hear. So we try to do a variety of learning exercises. “We have had really very positive results. I think judges are a little leery getting into it at first, but once they get into it, they really enjoy it. Kelly: Can you explain the “Courage to Live program and discuss the availability of this program. President Dressel: “There is going to be a “Courage to Live faculty training workshop coming up in late February or early March. ii It is to equip a judge to go back into the community to conduct these educational programs for middle and high school kids. When you take the course, when you leave, you have all the resources and everything you need to be able to go out into the community and do one of these “Courage to Live programs for schools. It is a great way for the court, the judges, especially the municipal judges to interact with your community. It is a fantas-tic outreach program. Kelly: What are the benefits of the Pro-fessional Certificate in Judicial Development? President Dressel: “The benefits are that you commit yourself to taking a wide range of different courses and you know, for some judges, it really opens them to a lot of different subjects.
MMACJA Newsletter
Some judges use it when they run for election, some judges use it when they are negotiating with the municipal-ity on their job and contract and they can use it to demon-strate, say ‘look I am doing more than just coming in here doing my job and taking my salary and leaving, I am im-proving my skills and abilities and you are the beneficiary of it by me devoting my time’ and they can demonstrate to the court who has given them money as a result of it, and they can cover whatever subjects that were covered, and really demonstrate to the city council that you've got some-body who is dedicated to see that the very best justice is being provided to the citizens of the city and also that you are getting a court that is being run by someone you can be proud of. Kelly: How do you achieve the Professional Certificate in Judicial Development? President Dressel: By attending a series of courses, and you choose which within the series, you have a certain number that you have to take, and in our catalog it is laid out and it talks about what is covered under the various certificates. Also anybody interested can call our registrar and Muriel Bartlett can go over that with them and she is listed in the catalog, or they can get hold of her at (775) 327-8204, or simply call (800) 25-JUDGE and ask for Muriel and she will explain the certificate program, what courses are needed in that particular specialty. Kelly: In a municipal judges setting, how long does it take to obtain the Certificate? President Dressel: “Probably, I am going to guess it would take 3 - 5 years, somewhere in there, de-pending on how many courses they can take. That is one of the reasons we are trying to come up with more web based courses to make it easier for a judge to obtain that certificate. Kelly: Does NJC offer publications that may be beneficial to municipal judges? President Dressel: “That is a good one to think about, because we are rewriting some of them now. I think that one we are publishing with NHTSA on the traf-fic will really be beneficial. The results of the summit. That should be real helpful. “The Logic and Legal Reasoning I think would be an excellent publication for a municipal judge. That would really be of a lot of assistance to go through that and really help when you do your job. “The Criminal Law Outline is summarizing the
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Supreme Court decisions, I think that would really kind of help you understand the profession, stay in tune with the profession, and the Search & Seizure Sourcebook for State Judges likewise would be of help, but especially the Logic and Legal Reasoning I think that would be of great help. Kelly: What is the biggest challenge facing NJC in the next five to ten years? President Dressel: “It is really staying relevant to the profession as the professions evolves and with the diminishing resources, obtaining the resources to see that it is able to still develop new offerings, keep offer-ings at a level that judges can afford. But it is really staying in tune as the profession changes and new issues come up, being able to be relevant, to offer courses that the judges really need. Kelly: What is your favorite luncheon dish served in NJC cafeteria? President Dressel: “That is a good one. My favorite one is when they have the Italian Wedding Soup and a turkey sandwich. You might put in that I would have said the spaghetti, but at my age, you have to watch the calories. Kelly: Is there anything else you like to tell the municipal judges who receive our publication? President Dressel: “Other than that we are here to serve them and open to them. We really need to hear from them about things that they need, that we can do to serve them better, and if they are aware of any financial resources that I could approach. That is how I learn about entities that can give the money that we can then see that funds are available.
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President Dressel indicated much of his time as President is spent fundraising and establishing relations with other entities with whom the College will end up doing business. This includes “securing resources, whether it’s a federal grant, a joint project with the National Association of Drug Court Professionals, whatever entity it might be. When asked about his impressions of the MMACJA he stated “I thought it was a great group of individuals. I was really impressed with the variety of backgrounds that your members come from. He also mentioned the attendees’ real dedication to the profession and their camaraderie. President Dressel said it was great having the retired judges on senior status coming back to participate. President Dressel explained the NJC Endowment fund which seeks gifts to the College which then keeps the corpus intact and takes the income to create a scholarship fund and then disburse money to qualified applicants. NJC does target the new judge, both the special and general jurisdiction courts, giving priority for these scholarships and, depending on the amount, make so much available for our other courses so there will always be some seed money to help a judge come to a course. Municipal judges are certainly welcome to contribute to the NJC through the Endowment fund, Schol-arship fund or several other funds. To contribute, contact the Office of Development at (775) 327-8257 or (775) 327-8254. Upcoming courses applicable to municipal courts presented at the NJC in Reno: June 6-9, 2005 Traffic Issues in the 21 st Century. September 26-29, 2005 Sentencing Motor Vehicle Offenders October 26-27, 2005 DUI Primer for Judges: Impaired Driving Case Fundamentals. If you have not received a 2005 course catalog, you may obtain one, as well as more information about the Na-tional Judicial College, by calling (800) 25-JUDGE or at NJC website at www.judges.org.
i In Missouri, the best contact for municipal judges is the Office of the State Court Administrator (OSCA). The contact person is Jeff Barlow who may be reached at (573) 751-4377. OSCA has obtained funding for a training session for new judges to be held in Jefferson City, most likely in June 2005. The course is titled “DUI Primer for New Judges-Handling Impaired Driver Cases and the faculty will be associated with the National Judicial Col-lege. For this particular program you may contact Garnett Matthews at (573) 751-4377. ii For more information about the Courage to Live Program contact William Brunson, Academic Director, or Ann Ward, program attorney at the National Judicial College.
MMACJA Newsletter
Board Meeting Update The Association’s Board of Directors met at the Lodge of Four Seasons on January 8, 2005. A broad range of agenda items covered topics de-signed to enhance the Association’s ability to serve as an educational resource for our member-ship. Board members have been working hard to provide quality educational programs for the forthcoming Regional Seminars and the 2005 An-nual Courts Conference. A few adjustments in Board membership were noted. The Board welcomed James Wahl, District 1 Director, to the meeting. Hugh Ryan was appointed District 5 Director due to a Board member resignation, and Charles Curry was ap-pointed At Large Director. Polly Shelton announced that she had re-tired as Municipal Division Judge for the cities of Stover and Versailles. A proclamation outlining Polly’s outstanding service as a municipal judge was read, and Board members gave her a standing ovation. She thanked everyone for the expression of appreciation. Much to the Board’s delight, Polly stated that she would continue her member-ship in the Association and her service on the Board of Directors. The program for the 2005 Annual Courts Conference, May 25 27, 2005, is filled with in-teresting programs, breakout sessions, and speak-ers. Larry Butcher, this year’s Conference Chair, has worked hard to prepare a quality curriculum that addresses a variety of pertinent topics. This year’s Conference will be held May 25 27, 2005 at the Lodge of Four Seasons. The Regional Seminars are scheduled for Friday, March 25, 2005. An informative and in-teresting program has been developed by the members of the Regional Seminar Committee. The Board reminds all MMACJA mem- bers that this is your Association. Officers and Board members always welcome your comments and suggestions. Your officers and Board mem-bers are listed in each edition of Benchmark and on the Association’s website at www.mmacja.org . We look forward to hearing from you, and to see-ing all of you at the Regional Seminars and the Annual Court’s Conference. Your Board of Directors.
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2005 Annual Conference Plans for the Annual Courts Conference May 25-27 at The Lodge of Four Seasons are now being finalized. It promises to be one of the best conferences ever. We will again be treated to an oral argument of an appellate issue before the Mis-souri Court of Appeals, Southern District. And in addition to our informative case law and legislative updates, we will present several outstanding speak-ers on specific points of interest. We will touch upon drug recognition and dealing with drug im-paired drivers, domestic violence issues and a model ordinance to address them, and the new Commercial Driver’s License rules and regulations. A defense attorney will share his perspective on the criminal practice in the municipal courts, and we will hear from two prominent Federal Judges on dealing with disruptive litigants in the courtroom, ethics issues, and diversity in the American justice system. Also, our old friend Judge Frank Vatterott will moderate over a multi-faceted panel of experts to address several specific thorny issues, including driver’s license problems involving out of state and international drivers, purging of old warrants, search warrant issues for housing inspections, and problems involving defendants called into the mili-tary. We will also hear from the Office of State Courts Administrator with a demonstration of some exciting new computer technology, and we will close the conference with an appearance by Judge Fred Rodgers from Golden, Colorado. Judge Rod-gers has been a favorite of our membership, and we have not had the opportunity to enjoy his presenta-tion for several years. We welcome him back. Be sure to pre-register and make your room reservations* early by calling 1-800-The LAKE. *If you use a credit card to make your room reservations, please note that your card will be immedi-ately charged for 1 day and the balance will be due at the end of your stay. If you provide a letter or a purchase order from your court, The Lodge of Four Seasons will send an invoice. Conference registration materials will be mailed soon. Conference materials may be downloaded from the Association’s website at www.mmacja.org . We hope to see you in May.
MMACJA Newsletter
NEW RULES CREATE CHALLENGES FOR MUNICIPAL COURTS By: SHAWN R. McCARVER MUNICIPAL JUDGE CITIES OF PARK HILLS, DESLOGE, BISMARCK, LEADWOOD AND BONNE TERRE
INTRODUCTION Although the new Rule 37 was published six months ago, it was drafted by a committee comprised of no mu-nicipal judges. The draft was submitted to MMACJA last fall, and although several comments were sent to the committee, little change was made to the draft rule be-fore adoption by the court. Various members of our association have undertaken to learn the full impact of the rule upon the operation of our courts. Judge Robert Hershey telephoned me sev-eral weeks ago and we discussed the impact of the new rule. He advised that, in his opinion, a warrant could not be issued upon the failure to appear by a defendant on the date stated on the uniform citation. I sat in shock and disbelief how could it be that our own rules would make it more difficult to bring violators to justice. Turns out Judge Hershey was right. RULE 37 JUDICIAL ACT(ING)? In the past, a municipal prosecution was traditionally begun in two distinctly different ways. The first, and most common, was the issuance of a uniform complaint and summons, which was served on the violator by the officer. Upon signature by the prosecutor, the “ticket became an information, which is the official charge. The second way was the filling out of a complaint by a complainant. The prosecutor would then file an infor-mation and the clerk would serve a summons on the violator. In either case, the defendant was to appear in court on the court date shown on the summons. In the even of a failure to appear, a warrant for arrest could be issued. Over the years, the name of the “ticket has changed from uniform traffic ticket to uniform complaint and summons and now uniform citation. When the name of the ticket is changed every few years, but practice is not changed, it completely slipped my attention to compare the requirements of the new rule for a summons with the contents of the new uniform citation. Rule 37.42 sets forth the requirements of the summons.
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It states that a summons shall be “signed by a judge or by a clerk of the court when directed by a judge. . . . Now, unless you are riding with the officer at the time of issuance (which in itself causes other problems related to ethics if you were to hear such a case) there is no way the uniform citation qualifies as a summons. Indeed, as if reading it were not enough, a quick telephone call to the rules guru, Bill Thompson, counsel for the Su-preme Court, confirmed that the thinking of the committee was that an officer, not being court personnel, has no author-ity to order a person to come to court. Thus, he said, the new uniform citation is merely “an invitation to come to court and not a judicial act. Thus, a judicial act is required to order a person to court the issuance of a “summons. The uniform citation, unlike the previous uniform traffic ticket or uniform complaint and summons (duh), is not a summons, as it is not signed by a judge or clerk at the direction of the judge as required by Rule 37.42. Thus, this little known, and apparently oft overlooked, change to the Rule makes it a little harder for judges and municipal courts to do their jobs. As most of us know, if a person will not appear when handed a ticket by an officer, little else gets the defendant there apart from a driver’s li-cense suspension or a warrant. Now, courts have a difficult choice to make. TO ISSUE OR NOT TO ISSUE Provided there is enough lead time between the ticket cut-off date and the court date, the court clerk could issue a sum-mons on every case with the same court date as shown on the uniform citation. A summons is to be served in the manner provided for in Rule 54.13 or 54.14 (personal service) or by mailing the summons to “defendant’s last known address by first class mail. Rule 37.44. This will substantially increase the workload of the clerk and the postage, paper, envelope and copying cost to the city. On the other hand, once a defendant declines his officer-issued “invitation to appearbefore you, the clerk could be directed to prepare and mail a summons requiring the defen-dant to appear at your next court date. For some courts, this could be next week and for some it could be next month. One court of which I am aware (I am not the judge in said court) has court only once every three months. So much for speedy trials.
MMACJA Newsletter
INITIALLY COOPERATIVE, BUT NOT LATER (DEFENDANT NO LONGER WISHES TO PLAY) The problems inherent in this system become appar-ent once you logically follow a case through from start to finish. What happens if the defendant ap-pears as invited on the court dated stated on the ticket, but then fails to show for a later trial date after a plea of not guilty? May the court now issue a war-rant, or does the judge have to go back and re-verify that a summons was issued at some point prior in the history of the case, and if not, issue one now? One possible answer is that when the judge told the defendant to appear at the trial date, the telling of the defendant was a “judicial act and the issuance of a warrant would be permissible even though a sum-mons never issued. Another answer is that you must issue the summons setting a new court date and then issue a warrant only after the failure to appear on the new date set on the summons. The rule seems to require issuance of a summons. Rule 37.44 states that if a defendant fails to appear “in response to a summons. . . a warrant may be issued. This has the effect of further delay and the further effect of upsetting those witnesses who did appear for the trial. The witnesses did not have a summons, and maybe not even a subpoena. A third possible interpretation is that the rule is not exclu-sive. Thus, an oral order is still enforceable once the defendant appears and is ordered by the judge to re-appear. The court of appeals will someday let us know which view is correct. One hopes it is not a federal judge in a 1983 action that lets us know. A PRIMER ON WARRANTS Municipal judges are generally concerned with issu-ing warrants in two broad circumstances (not includ-ing after judgment related to probation violations) prior to arraignment. The first is the issuance of a warrant immediately upon the filing of a charge, where the defendant has not been served and had the opportunity to appear voluntarily on a summons. This first circumstance will hereafter be referred to as a “pre-arraignment warrant, as it is meant to sig-nify those instances where a warrant is issued prior to the arraignment date where the defendant has not been served a summons and has not had an opportu-nity to appear voluntarily. This method of issuing warrants immediately upon the filing of a charge is used frequently for felonies. Rule 37.43 addresses
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this first circumstance. The second instance where the municipal judge is concerned with the issuance of a warrant is where the defendant fails to appear voluntarily after service of a summons. Rule 37.44 addresses this second circumstance. “NO WARRANT SHALL ISSUE. . . . To quote a famous, but oft ignored document, we municipal courts are now more concerned about probable cause state-ments than we used to be. A main thrust of the revisions to Rule 37 and the uniform citation was to make it possible to have a probable cause statement, which is a prerequisite for issuance of a warrant. Thus, the last of the “practical concerns brought about by the new Rule 37 is the logistics of getting a proper probable cause statement. The front of the new uniform citation is essentially a big probable cause statement. The back of the court abstract (the first or original page) has a space for wording addressing the issue of defendant not appearing or being a danger to the victim or the community. This part on the back of the first page is only important in pre-arraignment warrants, and it is assumed that most mu-nicipal courts do not issue warrants immediately upon the filing of a charge where the defendant has not yet missed a scheduled court date. PRESUMPTION OF NO PRE-ARRAIGNMENT WAR-RANT Rule 37.43 presumes that a municipal case will start with the issuance of a summons after the information is filed, rather than the issuance of a warrant. A pre-arraignment warrant may be issued, but only in the limited circumstances set forth in Rule 37.43. To issue a pre-arraignment warrant the court must find two things: (1) sufficient facts to show probable cause that an ordinance violation has been committed, AND (2) reasonable grounds for the court to believe that defendant will not ap-pear upon a summons OR a showing has been made to the court that defendant poses a danger to a crime victim, the community or any other person. Rule 37.43(a) and (b). Those limited circumstances are where the back side of page one of the uniform citation comes in handy. It is recom-mended that pre-arraignment warrants be issued only in ex-ceptional cases where the court carefully finds sufficient facts as required by Rule 37.43. First, by waiting until the defendant has failed to appear on a mailed summons, the requirement of a finding under Rule 37.43(b) is completely avoided. Secondly, the wording of the rule itself makes it clear that it is preferred that warrants not be issued until after
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a failure to appear on a summons. Thus, the use of a pre-arraignment warrant is to be the exception rather than the rule. Assuming you issued a summons, and the defendant fails to appear, a warrant may issue pursuant to Rule 37.44 (last paragraph) “upon a finding of probable cause that an ordinance violation has been commit-ted. (Presumably it means committed by the defendant for whom the warrant is being issued.) Rule 37.44, last paragraph. Rule 37.43 does not enter into a determina-tion for this type of warrant. The front side of the uniform citation is a probable cause statement form based upon the wording of the pre-printed language, but courts must take care that suffi-cient information is stated to really give probable cause that the defendant in question committed an ordinance violation. There is no requirement prior to the issuance of a Rule 37.44 warrant that the court address the failure to appear or danger to victim or community elements as set forth in Rule 37.43 for the issuance of warrants upon commencement of a case. In addition to the probable cause statement on the front side of the uniform citation, the back side of the court abstract (back of page one of the uniform citation) has a space to address the Rule 37.43(b) issues for issuance of an immediate warrant upon filing of the charge (a pre-arraignment warrant). Those issues need be addressed only for a Rule 37.43 warrant, the so-called “pre-arraignment warrant. It is suggested that prosecutors carefully review the lan-guage chosen on the uniform citation by the officer at the time it is signed by the prosecutor converting it to an information. The prosecutor should make sure that the language states sufficient probable cause that an ordi-nance violation has been committed. This will permit quicker issuance of warrants after a defendant fails to appear in response to a summons. COSTS UPON DISMISSAL The second issue that has arisen recently is the fre-quently discussed issue of dismissal of charges. At the clerk’s conference, the clerks were told that costs may not be assessed on any dismissal. The so called “DPC or dismissal on payment of costs has been discussed, debated and otherwise the subject of much hand wring-ing over the last few years. At this time, and for reasons set forth herein, it is STRONGLY recommended that all judges cease assessment of costs on dismissal. The fol-lowing discussion is, therefore, academic. There have generally been two schools of thought re-lated to DPC. The first is that costs can be assessed upon a dismissal, as it is part of an agreement between
Page 10 the city and the defendant. The second is that you cannot ever collect costs in such cases. There is a third view, that the distinction between a nolle pros and a dismissal forbids the assessment of costs upon a nolle prosequi. This view, however, holds that costs may only be collected upon a dismissal by the city attorney (as opposed to a dismissal by the court for failure to prosecute or as a result of a not guilty finding, in which case costs may not be collected from the defendant). There is certainly some merit to the latter, or third, view. The merit arises from the unfortunate wording of court oper-ating rule 21.01(b) which states that none of the fees shall be collected in any proceeding where a defendant has been “dismissed by the court . (Emphasis added) Unfortunately, this wording seems to run afoul of the intent of the drafters. The Office of State Courts Administrator revealed that the “committee does not recognize a distinc-tion between a nolle pros and a dismissal, and further that the committee views all dismissals as dismissals by the court whether they are or are not. Thus, the clerks have been instructed in a seminar put on by OSCA that no costs are to be collected in any dismissed case, regardless of who does the dismissing. Just why it is thought that the city should be deprived of collecting its ad-ministrative costs when the clerk had to open a file, process it and so forth is unclear, especially when most of these dis-missals by the prosecutor have nothing whatsoever to do with a finding of not guilty, but in fact are merely part of a plea bargain. Perhaps it is because the defendant is thought to be less responsible for those administrative costs than the prosecutor who filed the charge in the first place. However, it is a fact of life that municipal charge bargaining often has little to do with guilt or innocence, and is more about the prosecutor’s docket control (i.e. moving the cases). OSCA has advised that in associate circuit court criminal cases more than one charge is filed in multiple count infor-mations, all in the same case number, and the rule was to prevent collecting costs on each count of such a multiple count information. OSCA was apparently unaware that mu-nicipal courts assign a case number and open a new file for each “ticket. An OSCA spokesperson allowed that in the state court system there is no city government that has a sense of “ownership and thus the financial interest in ag-gressive collection of costs. Perhaps there should be. Thus, courts are taking different approaches to this problem as cities will lose revenue while still having to pay clerks to process files. Some cities are biting the bullet and not as-sessing the costs. Some prosecutors are no longer dismissing cases as part of plea bargains, instead recommending an SIS, with the term of probation being long enough to collect the costs. Other prosecutors are, instead of dismissing charges,
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amending each charge that would have been dismissed to a non-point, non-moving violation, recommending a $1.00 fine and costs. Where there is a will, there is a way, and many cities are already adapting. READ THE STATUTE Section 479.260 states that the municipality may provide for fees pursuant to Sections 488.010 to 488.020 and that the judge may assess those fees in the event a defendant pleads guilty or is found guilty. The statute does not ad-dress a dismissal. The statute neither forbids assessment nor does it allow assessment in the event of a dismissal. Is the absence of a provision equivalent to a prohibition? If so, then the Supreme Court, which may enact operating rules and procedural rules, may not speak on this as a question of substantive law. The court, however, did so speak, in its operating rules. As set forth previously, Oper-ating Rule 21.01(b) says costs may not be assessed where a case is “dismissed by the court . Statutory construction tells us that each word means something. If all dismissals are “by the court as OSCA insists, then why are the last three words necessary? Perhaps the same rules used for statutory construction are not applicable to trying to figure out how we municipal judges are to do business. Again, the foregoing notwithstanding, it is this author’s opinion that the practice of DPC must be discontinued. BETTER SAFE THAN SORRY It must be given as strong advice that the heretofore prac-tice of dismissal upon payment of costs NOT be continued. The Commission on Retirement, Removal and Discipline of Judges (CRRD) has opined that it is unethical for a judge to assess costs on dismissal. That said, not a single prosecutor in the five cities I serve has announced any intention of following the “spirit of the operating rule. Thus, each prosecutor has announced that he (yes, I know it is not politically correct to use “he, but in my case they are all, at this time, males) will use either the SIS method or the amendment method to allow the city to continue to recoup costs and to still allow plea bargaining to occur. As judges, it makes little difference to us, but it is nice to know that some municipal prosecu-tors are concerned about the fiscal health of the governing body. CONCLUSION In conclusion, we will all have to change the way we do business to accommodate the provisions of this new Rule 37. It is suggested that the clerks be trained in the issuance of summonses by mail, and the proper filing of a proof of service (on the copy of the summons retained in the court
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file), that each judge come up with standard docket entry orders related to the failure to appear and the issuance of summonses, and the finding of probable cause related to issuance of a warrant. It is further suggested that each prosecutor decide how to handle plea bargaining in a way best suited to the needs of the municipality keeping in mind the loss of revenue if a case is dismissed. The author wishes to express his thanks to both the Hon-orable Robert Hershey and the Honorable Todd Thorn-hill for their input and suggestions related to the practi-cal issues discussed in this article. SUGGESTED DOCKET ENTRY WORDING RE-LATED TO ABOVE ISSUES: DATE _______ Defendant fails to appear. Clerk to mail summons to defendant at last known address by first class mail, and to file proof of service thereof. Clerk to send copies of summons and charges to city prosecutor who shall prepare probable cause statement by next court date. Summons mailed by first class mail this date to defendant at last known address. Defendant fails to appear on summons previously issued. The court reviews the probable cause statement and finds sufficient facts stated therein to show that there is probable cause that de-fendant committed an ordinance violation, and based upon the failure to appear on the uniform citation and the summons, the court finds reasonable grounds to believe that defendant will not appear, and therefore, the court orders a warrant issued for the arrest of defendant, condition of release: Bond in the amount of _____________________ $ (surety) (cash only) (____________________).
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