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Gall v. Steele

Court of Appeals of Missouri, Western District, Third Division

December 6, 2016

SUSAN GALL, ET AL., Respondents,
v.
RUSSELL E. STEELE; Appellant, KRISTIE H. SWAIM, Respondent.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Gary M. Oxenhandler, Judge

          Before: Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

          JAMES EDWARD WELSH, JUDGE

         Russell E. Steele, Presiding Judge of the Second Judicial Circuit, appeals[1] the circuit court's grant of summary judgment in favor of Susan Gall and Linda Decker in their declaratory judgment action seeking the circuit court's declaration that the purported designation of any judge to exercise the statutory appointing authority of the Adair County Circuit Clerk was unlawful and in violation of the Missouri Constitution. The circuit court found that, pursuant to section 483.245, RSMo 2000, the duly elected circuit clerk of Adair County is the appointing authority for deputy circuit clerks. Judge Steele disagrees and asserts seven points on appeal.

         In particular, Judge Steele contends: (1) the circuit court erroneously declared and applied the law in finding that section 438.245 controls who is the proper appointing authority of deputy circuit clerks because the Missouri Supreme Court possesses inherent constitutional authority over the administration of its courts and personnel and properly exercised that inherent authority when, in 2009, it ordered the consolidation of deputy circuit clerks and division clerks under the supervision of one appointing authority and provided that the circuit courts could name the circuit clerk or court administrator, an associate circuit judge of the county, or the presiding judge of the circuit as the appointing authority (2009 order); (2) the circuit court erroneously declared and applied the law in finding that the elected circuit clerk had exclusive appointing authority and that the 2009 order did not apply to Adair County and the Second Judicial Circuit because the application and scope of the Missouri Supreme Court's 2009 order is constitutionally in the exclusive purview of the Missouri Supreme Court in that the circuit court budget committee was the appropriate entity to determine the application and scope of the 2009 order; (3) the circuit court erroneously applied the law in declaring that the consolidation order naming Judge Steele as the appointing authority for Adair County was procedurally defective because the circuit court lacked jurisdiction over the claim, given that Gall and Decker had voluntarily dismissed their claims as to the procedural inadequacies of the consolidation order; (4) the circuit court's judgment that Judge Steele unilaterally and ineffectively modified a previous consolidation agreement is not supported by "substantial evidence;" (5) the circuit court erroneously applied the law by entering judgment for the circuit clerk because the circuit clerk's sole remedy was to appeal to the circuit court budget committee and because one circuit judge does not have the subject matter jurisdiction or authority to invalidate either the administrative orders of another circuit or the administrative orders of the Missouri Supreme Court; (6) the circuit court erroneously applied the law in ruling that two administrative orders of another circuit court are invalid because only the appellate courts of this state have subject matter jurisdiction over circuit court judges' actions; and (7) the circuit court erroneously applied the law in entering judgment for Gall because she had no standing to bring this action. We affirm the circuit court's judgment.

         When considering an appeal from a summary judgment, we view the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Linda Decker is the elected Circuit Clerk of Adair County and that she has served in that capacity since 1991. Judge Steele is the presiding judge of the Second Judicial Circuit and has been the presiding judge at all times relevant to this case. Judge Kristie H. Swaim is an associate circuit judge of Adair County for the Second Judicial Circuit

         On or about March 20, 2008, Judge Steele, Judge Swaim, and Decker signed and adopted an "Agreement for the Consolidation of the Clerical Functions of the Circuit Court of Adair County, Missouri." The agreement provided that "[a]ll clerical functions performed by the Associate Division and the Probate Division Clerks for who the Associate Circuit Judge has been the appointing authority shall be consolidated into the office of the Adair County Circuit Clerk." Further, the agreement designated the Circuit Clerk "as the appointing authority for all Deputy Circuit Clerks of Adair County."

         On October 8, 2009, the Missouri Supreme Court Chief Justice Price issued an administrative order on behalf of the Supreme Court en banc stating that, pursuant to article V, section 4 of the Missouri Constitution, all circuit courts that had not previously consolidated all deputy circuit clerks and division clerks under the supervision of one appointing authority shall be consolidated under the supervision of one appointing authority. The order provided: "The appointing authority shall be either the circuit clerk or court administrator if the county does not have a circuit clerk, an associate circuit judge of the county, or the presiding judge of the circuit." The order also instructed: "The presiding judge, after consultation with the court en banc, the circuit clerk, and any other appointing authority, shall submit a plan to the circuit court budget committee designating the appointing authority for all deputy circuit clerks and division clerks by November 13, 2009[.]" Further, the order stated, "If a court has submitted a plan to the circuit court budget committee prior to October 1, 2009, and it has been approved, it shall be deemed in compliance with the consolidation requirements under this order."[2]

         On May 2, 2013, Judge Steele emailed Knox County Associate Circuit Judge for the Second Judicial Circuit William Alberty and Lewis County Associate Circuit Judge for the Second Judicial Circuit Fred Westhoff asking them if they would consent to the transfer of the appointing authority for the Circuit Clerk's office from Circuit Clerk Decker to Judge Steele as presiding judge of the Second Circuit. On that same date, Judge Steele entered an administrative order amending the 2008 Consolidation Agreement. The order, signed only by Judge Steele, stated, "The Presiding Judge is hereby designated as the appointing authority for all Deputy Clerks." The Second Judicial Circuit did not convene a meeting en banc to confer or deliberate regarding Judge Steele's proposed transfer of appointing authority from the circuit clerk to the presiding judge. The circuit court budget committee approved this amendment.

         On April 1, 2014, the Second Judicial Circuit en banc met and adopted an "Amendment to Administrative Order Amending the Agreement for the Consolidation of the Clerical Functions of the Circuit Court of Adair County, Missouri." The amendment stated, "The Associate Circuit Judge is hereby designated as the appointing authority for all Deputy Clerks of Adair County." The Associate Circuit Judge of Adair County is Judge Swaim. Judge Steele, Judge Swaim, Judge Westhoff, and Judge Thomas P. Redington, Knox County Associate Circuit Judge, all signed the 2014 amendment order. The circuit court budget committee approved this amendment.

         In December 2013, Gall filed a section 1983 action in the United States District Court against Judge Steele in his individual capacity and official capacity as presiding judge of the Second Judicial Circuit. Gall alleged that Judge Steele acted without authority to terminate Gall from her employment as Deputy Circuit Clerk of Adair County for the Second Judicial Circuit. In January 2015, the federal court stayed the action pending resolution of an issue of Missouri law.[3]

         On March 9, 2015, Gall and Decker filed an action in the Second Judicial Circuit for declaratory judgment action seeking the circuit court's declaration that the purported designation of any judge to exercise the statutory appointing authority of the Adair County Circuit Clerk was unlawful and in violation of the Missouri Constitution.[4] The Missouri Supreme Court ordered that the Honorable Gary Oxenhandler of the Thirteenth Judicial Circuit be transferred to the Second Circuit to hear the case, and, the parties agreed to transfer venue to Boone County. Thereafter, the parties filed cross motions for summary judgment. On January 13, 2016, Judge Oxenhandler granted summary judgment in favor of Gall and Decker and found that, pursuant to section 483.245, a duly elected circuit clerk is the appointing authority for all deputy clerks. In so concluding, Judge Oxenhandler determined that the 2009 Supreme Court Order did not apply to Adair County because Adair County had an elected circuit clerk and had a previously entered consolidation agreement. Moreover, Judge Oxenhandler found that the 2013 and 2014 amendments to the 2008 consolidation agreement were ineffective and conflicted with section 483.245 because the judges had no right to unilaterally take away the circuit clerk's statutorily granted appointing authority without her consent. Judge Steele appeals from the circuit court's judgment, but Judge Swaim did not join in the appeal.

         Before addressing the merits of Judge Steele's appeal, we acknowledge that Gall and Decker filed a "Motion to Dismiss for Nonjusticiability of the Appeal" with this court. In that motion, they allege that Judge Steele has no legally protectable interest in the appeal because the rights at stake in the appeal belong exclusively to Judge Swaim. They argue that, given the fact that the Second Circuit en banc purported to vest appointing authority in Judge Swaim, Judge Steele no longer has any purported appointing authority of the deputy clerks in the circuit clerk's office. Gall and Decker assert that Judge Steele lacks standing, that any judicial determination concerning Judge Steele's power of appointment over deputy circuit clerks would be an advisory opinion, and that the appeal is moot. We disagree.

         Gall and Decker sued Judge Steele in his official capacity as presiding judge of the Second Judicial Circuit. As presiding judge, Judge Steele has "general administrative authority over the court and its divisions." Mo. Const. art. V, § 15.3. Thus, as presiding judge he has standing to appeal a judgment that directly attacks administrative ...


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