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Messenger: Court dispute over $3 surcharge features intrigue involving some of Missouri's biggest political players
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Messenger: Court dispute over $3 surcharge features intrigue involving some of Missouri's biggest political players

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KANSAS CITY — Jerry Keller and Daven Fowler want their $3 back.

There they sat quietly Monday in the eighth-floor courtroom of Jackson County Circuit Court Judge Kevin Harrell, mostly listening to their attorneys, Eric Barton and Gerald McGonagle, read depositions from various witnesses into the court record.

Keller, 60, wore a black, hooded sweatshirt, polo shirt and work pants to court. He owns a roofing company. Fowler, a 22-year-old recent graduate of Howard University, wore a blazer, tie and dark shirt. Both received speeding tickets in Kansas City two years ago.

That’s where the $3 comes in. When they pleaded guilty and paid their court fines and fees, among the costs was a $3 surcharge to go to the Sheriff’s Retirement Fund.

Since 2013, that surcharge has been applied to municipal courts — including traffic tickets — throughout the state, even though from the existence of the original statute in 1983 the surcharge had only been applied in circuit court. The law didn’t change in 2013, and how that fee came to be charged in municipal courts — and whether it is constitutional to do so — is the subject of the planned weeklong trial in Harrell’s court.

But come Friday, this matter likely won’t be settled.

Whether Keller and Fowler win, or the Sheriff’s Retirement Fund does, this case is likely to go all the way to the Missouri Supreme Court. That’s because at the crux of its existence is a bit of political intrigue that involves some of the biggest players in Missouri politics.

Gov. Mike Parson. Former Attorney General Chris Koster. Former state Rep. Caleb Jones. Most of the sitting members of the current Missouri Supreme Court. All played a role in creating a reality in which dozens of municipal judges — on their own orders — have ruled that the surcharge is unconstitutional and refuse to collect it. One of the early municipal judges to adopt such a position — Judge Bryan Breckenridge of rural Nevada in southwest Missouri — is married to one of the members of the Missouri Supreme Court, Judge Patricia Breckenridge. His order defying the one issued by the court where his wife sits was entered into evidence on Monday.

The issue is a small piece of a larger national pie, in which criminal justice reform advocates are pushing back at the persistent national crisis, the criminalization of poverty by stacking court costs and fines atop each other until they add up to real money. For too many people, such costs present a barrier to their fair participation in the justice system, McGonagle and Barton argued.

The controversy as it relates to the Sheriff’s Retirement Fund fee bubbled to the surface in 2008, according to testimony in the trial on Monday. That’s when the stock market collapse devastated many pension funds across the country. The Sheriff’s Retirement Fund lost $5 million. In board meetings that year and the next year the board started looking for new sources of revenue. The one it identified was to force municipal courts to charge the $3 fee.

That’s where the real volume in Missouri courts is, when it comes to collecting court fines and fees. On average, a $3 fee charged in municipal cases would produce about $3 million a year, which is precisely what the Sheriff’s Retirement Fund actuarial studies determined was needed to make the fund solvent.

Attempts by the Sheriff’s Retirement Fund to obtain that additional source of revenue, though, kept running into dead ends. Jones, at the time a Republican state representative from Columbia, filed a House bill specifically to apply the law to municipal courts; it failed to pass. His father, former Sheriff Kenny Jones, who had been on the fund’s board, asked Koster to issue an opinion saying that the law should be applied to municipal courts, and Koster did that not once, but twice.

But the Office of State Courts Administrator wouldn’t change the schedule that defines the court costs required to be collected by state courts without an order from the Missouri Supreme Court.

That order came in 2013, after Parson, then a state senator, and a former sheriff himself, threatened the state’s high court with its budget.

“I’ve supported the courts when they’ve wanted raises, but yet you guys will not collect from the municipalities that fee,” Parson said in a Valentine’s Day hearing. “The attorney general has given two opinions on that already saying that it should be being collected. And yet we don’t collect that and the courts have done nothing to help with that. It becomes a little frustrating to me as I keep supporting your agenda to a certain degree that we don’t do that. That is going to be an issue to me and a burden to me if we don’t change what we’re doing on that. All I’m asking is to collect what should be collected, what I believe the statute says.”

The third time was a charm. After that hearing, Koster issued a third opinion on the same topic. Despite the fact that all three of his opinions specifically noted that they weren’t ruling on the constitutionality of the statute, the court cost schedule that went into effect in August 2013 included the $3 surcharge for the Sheriff’s Retirement Fund.

The question for Harrell — and likely appeals judges after that — is whether the charge will stay there in the future, and whether Keller, Fowler and possibly thousands of others like them, get a refund. Attorneys for Keller and Fowler argue the statute is unconstitutional, pointing to a 1986 Missouri Supreme Court ruling.

“This law, three years after it was passed was declared ‘suspect’ by at least one Missouri Supreme Court Justice,” said Barton, the attorney, referencing a ruling that similarly involved a court cost that raised money for sheriffs’ and other county employees’ salaries. “We believe the statute is clearly unconstitutional.”

The fund, represented by attorneys Tim Sear and Rodney Gray, argues the surcharge is completely appropriate, both statutorily and constitutionally.

That ultimate determination may come down to the very court that imposed the fee on municipal courts six years ago.


A Toll on Justice: a Post-Dispatch special report

A five-part series examines how all three branches of Missouri government helped prop up the Sheriffs' Retirement Fund by charging a court fee that many judges and legal scholars find unconstitutional. 

Tony Messenger • 314-340-8518 @tonymess on Twitter

Get Tony's e-newsletter: From City Hall to the Capitol, Pulitzer Prize-winning metro columnist Tony Messenger shines light on what public officials are doing, tells stories of the disaffected, and brings voice to the issues that matter.

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