It’s a far cry from a protest chant that “the whole damn system is rotten as hell” to an official working group appointed by a state supreme court, but we think that the new Supreme Court Municipal Division Work Group should listen to the protestors while they work.
The whole damn system, as the Department of Justice reported about Ferguson municipal court, is rotten as hell. On March 4, the DOJ documented a municipal court system whose basic structural operation depended on constitutional violations of the rights of the accused and a nearly criminal degree of collusion between municipal police, prosecutors, courts and administration.
This report was confirmed on May 11, with somewhat different details, by Judge Roy L. Richter after toiling for two months presiding over Ferguson municipal court. Richter’s commission to take over in Ferguson in the wake of the DOJ’s damning report was the Missouri Supreme Court’s first act of judicial activism in the municipal court mess, post-Michael Brown Jr. An appellate judge, Richter needed 17 densely worded pages to update the state’s highest court on his incremental progress in sorting out a rat’s nest of constitutional abuses and conflicts of interest in Ferguson.
We urge the Supreme Court Municipal Division Work Group to read these reports by the DOJ and Judge Richter, and then to pose an initial question that should direct all of their subsequent work: Is a system this “rotten as hell” worth saving?
What the DOJ and Judge Richter describe in Ferguson is typical of small municipal governments trying to run a police agency and a court system with severe limits on staff, space and resources. It’s all but inevitable for criminal justice functions that should and must be kept separate, to protect the rights of the accused, to become merged to the point that justice becomes a mockery for the citizens dragged before the court with an endless string of nuisance violations.
For example, the DOJ objected that municipal court clerk staff were supervised by the police chief, a clear conflict of interest. The city responded by shifting supervision of court staff to the city finance manager, but Judge Richter notes, “this poses another potential conflict of interest, as the city finance manager – part of the executive branch of government – could place undue pressure on the clerk staff – part of the judicial branch of government – to focus on revenue rather than fairness and due process of law.”
This stop-gap approach to reform is doomed structurally, and Judge Richter knows it. He noted that “clerk staff are hired and paid by the City of Ferguson, not a circuit court, which poses some practical problems in terms of ensuring appropriate supervision.” We would say, rather, that it poses an unacceptable conflict of interest that is best corrected by eliminating the municipal court system as presently constituted. This has been a consistent cry from the Arch City Defenders and the Saint Louis University School of Law legal clinics. The cry was taken up by Tony Messenger and the rest of the Post-Dispatch editorial board to great effect, thus far, in forcing the state’s highest court into action – a reminder of the great public value inherent in an engaged press.
None of the legal reformists from Arch City or SLU Law Clinics was appointed by the high court to its new working group, but we urge this group – co-chaired by two former chief justices of the Missouri Supreme Court and Booker T. Shaw, former chief judge of the Missouri Court of Appeals, Eastern District – to heed the reformists’ demand that we settle for nothing less than strict constitutional practice in our municipal courts. If it’s impossible to practice justice on strictly constitutional terms in our municipal courts, and demonstrably it is, then we must reorganize them along the lines of the circuit court system – and let municipal governments scramble to raise the lost revenue, or dissolve.
The alternative is clear. If we continue to allow otherwise unsupportable municipalities to pay their bills through an unconstitutional collusion between police, prosecutors, courts and administration, then we have all the ingredients for another Ferguson to erupt somewhere else in St. Louis County at any time.
