In re Fullwood , 1975 Mo. LEXIS 376 ( 1975 )

PER CURIAM.

This is a disciplinary proceeding against respondent in which the Commission on Retirement, Removal and Discipline¹ recommends that he be suspended from the office of Judge of the City Court, St. Louis, for 90 days without compensation. Respondent objects to the findings and recommendation of the Commission as authorized by Rule 12.09, V.A.M.R.

A formal hearing was conducted under Rule 12.08 into respondent’s direction of his court, and the Commission made detailed findings of fact which indicate that respondent’s courtroom behavior violated the Canons of Judicial Ethics in numerous respects.² Nothing could be gained by-developing the specific instances of improper conduct reflected in the record, but each indicates an unusual course of conduct best described as rude, arbitrary and dictatorial.

First, respondent contends that the Commission and this court, by derivation, do not have jurisdiction to inquire into allegations of his misconduct nor to declare any punishment therefor. His basic contention is that Art. V, § 27, does not grant to the Commission jurisdiction over a “city court judge,” which is the appellation given to the occupant of his office. Respondent cites the code and charter of the City of St. Louis where the terms “city court” and “city court judge” are used; and then points out that Art. V, § 1, declares that the “judicial power of the state” is vested in various courts, including “municipal corporation courts.” It is then observed that a “city court” is not specifically designated in Art. V, § 1, as a court “of the state” and, therefore, the Commission has no supervisory power over him. From this assumed premise, it is argued that since respondent’s court is not a court “of the state,” he is not a “judge” within Art. V, § 27, because Rule 12(12.27), adopted to implement the latter section, defines “judge” as “a judge of any court of this state.” As another argument to sustain his position, respondent points to Art. V, § 25, where the minimum qualifications for supreme court, court of appeals, circuit, probate and magistrate judges are set out, and then suggests that the conspicuous absence of coverage of municipal or city court judges is evidence that such judges do not come under Article V (even though Art. V, § 1, does list “municipal corporation courts”).

In response thereto, the Commission submits that there are several obvious fallacies in respondent’s arguments, which, if ignored, would permit a city to set up any kind of court system it desired and escape state constitutional regulation of that system simply by the choice of the right label for its courts. First, that Art. V, § 1, which declares that the “judicial power of the state” shall be vested in the courts therein named does specifically include “municipal corporation courts.” Thus, all municipal (or city) courts not only derive their constitutional power from Article V, but are regulated thereby, and that the terminology used to identify a particular municipal court is of no significance. Second, that the absence of municipal courts from those listed in Art. V, § 25 (wherein it is mandated, among other qualifications, that the judges therein covered “shall be licensed to practice law in this state”), is only recognition of the fact that some municipalities by necessity may have to use non-lawyers as judges.

We are convinced that the position of respondent is untenable under the relevant provisions of the constitution of this state, and we quote portions thereof which dictate such a conclusion.

Art. V, § 1, in part, declares that: “ . . . the judicial power of the state shall be vested in . municipal corporation courts.” (Emphasis added.)

Art. V, § 27, which creates the Commission, dictates that: “The commission shall receive and investigate . . .all complaints concerning misconduct of judges .” and, in sub-paragraph 3 thereof, provides that: “Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, or discipline any judge ... of any court . ” (Emphasis added.)

Although this case, in the context presented, creates a question of first impression, the basic issue has heretofore been resolved by this court consistent with the conclusion herein reached. For example: Art. V, § 5, in part, provides that: “The supreme court may establish rules of practice and procedure for all courts.” (Emphasis added.) Pursuant to such constitutional authorization, this court ' has adopted Rule 37 which provides (37.01): “These Rules govern the practice and procedure of all cases in all municipal courts.” (Emphasis added.) Thereafter, in (37.05), the following definitions appear: “ ‘Municipal Court’ shall include any city court, police court or other court which hears and determines cases charging violation of municipal ordinances.” (Emphasis added.) Such provisions are applicable to the City of St. Louis in view of the definition of “Municipality” which includes “all charter, first, second, third and fourth class cities, and towns and villages.” As another example: This court, again, reached the same conclusion while adopting Rule 12 to implement the activities of the Commission, as authorized by the constitution (Art. V, § 27), when it defined “judge” as “a judge or commissioner of any court of this state.” (Emphasis added.)

It is accepted, generally, that California’s constitutional provision for a judicial disciplinary commission is the progenitor of the Missouri scheme, and those interested may find a comparable result in In Re Antonio E. Chavez, Judge of the Municipal Court on Censure, 109 Cal.Rptr. 79, 512 P.2d 303, or Geiler, a Judge of the Municipal Court v. Commission on Judicial Qualifications, 110 Cal.Rptr. 201, 515 P.2d 1.

Second, respondent submits that the findings of the Commission are not supported by the evidence. This contention necessarily is bottomed on respondent’s explanation for or denial of the specific acts complained of, and it was for the Commission to resolve the conflicting testimony. We defer to its findings and find sufficient evidence to sustain the same.

Third, and lastly, respondent challenges the authority of the Commission to act because it “ . . . is unlawfully constructed in that it excludes black people.” No effort is thereafter made to establish when, why or how any person has been excluded from consideration as a member of the Commission, and in view of the fact, the complaining witnesses were both white and black, we have the view the point is something of an afterthought. In any event, the point is ruled against respondent.

Next, we consider the recommendation of the Commission that respondent be suspended without compensation for 90 days. In this connection, we do note that the conduct complained of took place in a court which, unfortunately, is the only one most persons encounter or have a chance to observe. As said by respondent in his brief: “The average citizen on the street, rarely is involved in litigation or other legal matters except for an occasional traffic ticket, and for this reason the Municipal Courts are probably the most important Courts in the land.” Appreciation of this fact has been reflected in the continuing efforts of all persons interested in the judicial process to improve the municipal court system. Attaining such an objective depends in large measure upon the legislative department of the governmental unit concerned appropriating sufficient funds to provide the required number of judges, as well as proper facilities, for the disposition of the multitude of cases involved in a judicious manner. Respondent is called on to dispose of hundreds of cases each day, and it is not difficult to understand the strain placed on him in attempting to do so. Hopefully, sufficient appropriations will be forthcoming to lighten the task. Nevertheless, continued violations of the Canons of Judicial Ethics (Rule 2) can not be condoned as an acceptable solution to the problem.

Respondent is herewith suspended from the office of Judge of the City Court of the City of St. Louis for a period of 90 days without compensation, and the clerk of this court is directed to furnish and deliver certified copies of this opinion and order as provided in Rule 12.26.

DONNELLY, C. J., and MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . The Commission exists by virtue of Art. 5, § 27, of the Missouri Constitution of 1945, V.A.M.S., and proceeds in compliance with Missouri Supreme Court Rule 12.

2 . Such canons included those promulgated in Rules 2.04 (judge’s official conduct should be beyond reproach), 2.05 (judge should be temperate, patient and impartial), 2.09 (judge should be considerate of witnesses and others in attendance), 2.10 (judge should be courteous), 2.15 (judge should avoid interference with course of trial), 2.21 (judge should avoid conduct which appears to be sensational or tends to humiliate others in the courtroom), 2.34 (summary of judicial obligation) and 2.36 (conduct of proceedings should reflect the gravity of the inquiry.)