The Missouri sheriff’s badge comes in different shapes and sizes.
Some have five points, some six, even seven. They are gold and silver.
All of them reflect the polished power of the office.
As long as they’ve been elected, county sheriffs, particularly in rural America, have wielded the sort of influence that has other elected officials often currying their favor. More than anything else, this explains how a $3 fee to pad sheriffs’ pensions in Missouri was applied to courts that have nothing to do with county law enforcement.
The scheme got its start six years ago:
In 2011, the sheriffs realized their pension fund needed an influx of cash.
They tried and failed to get the Legislature to change the law so that instead of just charging the fee in circuit courts, where they perform bailiff and service functions, it also would apply in municipal courts, where sheriffs perform no role at all related to the dispensation of justice.
So the sheriffs and their allies in the Legislature turned to another friend, Attorney General Chris Koster, and between 2011 and 2013, Koster issued three opinions saying that the fee should apply to municipal courts.
At first, the Missouri Supreme Court was resistant to the push. But in the summer of 2013, the judges of the Supreme Court turned their backs on a fundamental tenet of American justice, the concept that barriers cannot exist that keep access to the courts out of reach from those who lack resources.
In doing so, the court failed to do that which one of its former members wrote in a dissenting opinion on another matter in 2011 is its primary duty, to be guided by the law.
That judge, St. Louis University law professor emeritus Mike Wolff, served for 13 years on Missouri’s high court. Known for often being the conscience of the court, sometimes in fiery dissenting opinions, Wolff was at his best in one of the last opinions he wrote, a dissent in an adoption case that, in then end, took a child from his immigrant mother.
“At least Solomon had the option to decree that the child be cut in half,” Wolff wrote in that case. “All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed. Not in 90 more days or 900 more days, but now.”
In the case of the $3 pension fee for sheriffs, justice delayed is justice denied, suggests Wolff. The former dean of the SLU Law School agreed to examine the three advisory opinions issued by Attorney General Chris Koster on the issue and offer his perspective.
What Koster got right, Wolff says, is determining that municipal courts are “courts of the state,” or divisions of the circuit courts. Indeed, for months after the Ferguson unrest, that was exactly the argument various legal reform advocates were making to the Missouri Supreme Court, that the court, and the circuits under it, had a direct responsibility to rein in the abuses taking place in municipal courts, particularly those in St. Louis County.
Wolff, however, finds it curious that while not weighing in on the constitutionality of the law that creates the $3 surcharge, Koster referenced in a footnote the very Missouri Supreme Court case that clearly makes the application of the fee to municipal courts an unconstitutional overreach.
In that 1986 case, Harrison vs. Monroe County, a unanimous court ruled that a bill that would have created court fees to supplement county officials’ salaries — including those of sheriffs — was a burdensome “sale of justice,” a toll that might keep poor people from having access to the courts.
Wolff says the Harrison case is directly applicable to the current controversy over the $3 fee for sheriffs pensions. “It couldn’t be closer to being on point,” Wolff says. “This is a fee that should not be collected.”
Wolff is just one former judge offering his opinion.
But it is one shared by dozens of municipal judges who, starting in 2013, took the unusual action of issuing “sua sponte” orders to stop the collection of the fee. The Latin term translates to “of their own accord,” which in this issue creates quite the image. Of their own accord, the least of the “lesser judges” in the state, led by Overland municipal Judge Frank Vatterott, stood up to the most powerful judges in Missouri, so convinced they were that the state’s high court had taken an action based on political pressure and not the law.
The dilemma for the Supreme Court, though, is bigger than the dispute over whether one fee applies to municipal courts. Wolff suggests the court’s 1986 opinion casts doubt on whether the $3 charge can even exist.
“The Harrison decision says the fee is unconstitutional in its entirety,” Wolff says. “It says you can’t charge it at all.”
Indeed, in a concurring opinion in that decision, former Missouri Supreme Court Judge Warren Welliver cast doubt on the increasing reliance by the Legislature on court fees to fund various pet projects, be they worthy or not.
“The now approaching $100 court cost deposit in a circuit court civil case effectively bars many lower income Missourians from asserting meritorious claims in the court system,” Welliver said.
This is not just a Missouri problem but a national one. A white paper published in 2012 by a committee of court administrators titled “Courts Are Not Revenue Centers” lays out a series of principles that would address rising court costs around the country, where legislatures and cities, hesitant to raise taxes, instead turn to the courts for cash.
This is why one $3 fee matters so much. Its very existence adds to the perception that the courts in Missouri exist only for those with money. In choosing to apply the fee to municipal courts, the Missouri Supreme Court ignored its fundamental duty to uphold our constitutional rights by joining in a conspiracy to fleece the poor.
Today, that court may well still be worried about the political consequences of a proper ruling on the $3 court fee. That, Wolff told his colleagues in 2011, should not be their concern.
The law is. If the politically powerful sheriffs lose their pension revenue source, they will need to get in line at the Legislature.
Just like everybody else.