Gregory v. Corrigan

¶1concurring in part and dissenting in part.

¶2I concur in all of the principal opinion except that part thereof that holds Local Court Rule 100.1.1(4) to be invalid by reason of being contrary to Mo. Const, art. V, § 15.3. Rule 100.1.1(4) is neither invalid nor unconstitutional on its face, regardless of its potential for being unconstitutional in its application.

¶3I cannot agree with the underlying premise of the majority opinion that the power of the circuit judges to promulgate and adopt administrative rules will in itself solve the problems plaguing the Twenty-First Judicial Circuit. Rulemaking power without the right to select the officer to administer the rules may be no power at all. Striking down Local Court Rule 100.1.-1(4) leaves a situation which has the same potential for political maneuvering, factionalism, obstruction, and administrative breakdown that has plagued the Twenty-First Judicial Circuit during the past two or more years.

¶4The principal opinion brings into sharp focus the fact that § 15.3 1, appears contrary to and out of step with the unified court system contemplated and established by the other provisions of Art. V. The revised judicial article adopted in 1976 contemplates a judiciary integrated from top to bottom for the purpose of efficient and economical use of judicial personnel and resources. The method for accomplishing this purpose is as clear as any business or military organizational chart. General supervision and control over the entire judiciary is placed in the Supreme Court. Mo. Const, art. V, § 4. Each court of appeals exercises general supervisory control over the circuit courts within their statutory district. Id. The circuit courts exercise certain supervisory controls over the divisions within their statutory districts. Art. V, § 15. All exercise their administrative functions through their chief administrative officer, who in all other instances is elected by the majority vote of the judges serving on the court in question.

¶5Section 15.3, read as the majority reads it, permits the associate circuit judges together with any dissident circuit judges, to pass over any judge or judges they deem unacceptable and to elect the presiding judge of their choice. This is control from the bottom up and not from the top down. It is in direct contradiction to the manifest intent of Art. V as a whole. This destroys the ability of the majority of the circuit judges acting through their chief administrative officer to exercise supervisory control over the component divisions of the circuit court.

¶6Clearly, this contradiction in Art. Y merits future reconsideration by the voters, a process which may well take several years. In the meantime, having identified the contradiction, our courts have the duty to harmonize the existing sections of the Constitution, if such can be done. Staley v. Missouri Director of Revenue, 623 S.W.2d 246 (Mo. banc 1981).

¶7Read, in harmony with the other sections of Art. V, § 15.3 does no more than grant to the associate circuit judges the right and power to participate and have input in the selection of the presiding judge of the circuit court. This is certainly true so long as two or more circuit judges are nominated by the circuit judges in accordance with the rule.2 I am aware that if the circuit judges *845should nominate only a single candidate, it could be argued that they had, in effect, deprived the associate circuit judges of participation in the election process. This question is not now before us.

¶8Nothing on the face of Rule 100.1.1(4) appears to contradict the general intent and purpose of Art. V or the specific wording of § 15.3. Nothing in § 15.3 requires that associate judges have equal rights with circuit judges to nominate who from among the circuit judges shall be considered for election as presiding judge. Rule 100.1.1(4) could not have been more artfully drafted to harmonize § 15.3 with the remainder of Art. V.

¶9This is no time for half solutions. Rule 100.1.1(4) as adopted by the circuit judges merits our approval.