STATE EX REL. AREA 25 TRIAL OFFICE, and, MISSOURI STATE PUBLIC DEFENDER, Relators-Appellants v. HONORABLE KENNETH G. CLAYTON, ASSOCIATE CIRCUIT JUDGE, Respondent-Respondent

STATE EX REL. AREA 25 TRIAL )
OFFICE, and, MISSOURI STATE )
PUBLIC DEFENDER, )
)
Relators-Appellants, )
)
v. ) No. SD37064
)
HONORABLE KENNETH G. ) Filed: August 3, 2021
CLAYTON, ASSOCIATE CIRCUIT )
JUDGE, )
)
Respondent-Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT
The Missouri State Public Defender and its Area 25 Trial Office (“Relators”) seek
a permanent writ of prohibition against the Honorable Kenneth G. Clayton, Associate
Circuit Judge of the 25th Judicial Circuit (“Respondent”) to prevent Respondent from
enforcing an order (“the sanctions order”) that directed the Area 25 Trial Office to pay
$762.68 as sanctions after an attorney assigned to that office traveled internationally to
Mexico the week before he was scheduled to try a jury case before Respondent.
Respondent, sua sponte, continued the trial on the ground that he would not expose court
personnel and a jury panel to a potential COVID-19 risk. The sanction amount was equal
to the prosecutor’s mileage reimbursement paid to the complaining witness in the case.
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Because Respondent did not find that Relators had acted in bad faith in,
respectively, approving and then engaging in that international travel, and no evidence in
the record indicates that Relators acted in bad faith, we now make permanent our
preliminary writ of prohibition.
Background
Andrew Russek (“Mr. Russek”), an Assistant Public Defender in the Area 25
Trial Office, was assigned to represent Charles Allee in his criminal case. Mr. Russek
filed a motion asserting his client’s right to a speedy trial, and the trial was scheduled for
January 21, 2021.
In December 2020, with the approval of his supervisor, District Defender
Matthew Crowell (“Mr. Crowell”), Mr. Russek planned to vacation in Mexico from
January 10, 2021, to January 18, 2021. The prosecutor for the State, Kevin Hillman
(“Mr. Hillman”), was aware that Mr. Russek was going to Mexico and would be
returning shortly before trial. The parties had scheduled depositions for Tuesday, January
19, 2021, two days before the trial was scheduled to begin.
When a legal dispute arose with respect to those depositions, Mr. Hillman
contacted Respondent on Friday, January 15th, and asked him if he would have time to
conduct a Webex hearing on the parties’ dispute. Mr. Hillman noted that Mr. Russek was
in Mexico on vacation but would return soon. Respondent replied by email to Mr.
Hillman and Mr. Russek on Monday, January 18th, writing:
As Mr. Russek was recently in Mexico, a hotspot for Covid19
according to the [Center for Disease Control (“CDC”)], it is my opinion
that, according to the CDC travel guidelines, he must quarantine for 7 days
with a negative test or 10 days without a test upon returning to the United
States.
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I do not expect to have a jury trial or any appearance in court in
person by Mr. Russek until compliance with the CDC guidelines is
demonstrated to me.
If you [Mr. Hillman] or Mr. Russek has a different opinion, I am
available at 8:30 or 1:30 tomorrow to discuss by Webex.
Mr. Hillman responded that day by informing Respondent and Mr. Russek that his
complaining witness, the victim in the case, had already traveled to Missouri from
Maryland for the trial.
The court held a Webex hearing on the Covid issue on Tuesday, January 19th.
During the hearing, Mr. Russek informed Respondent that he had returned from Mexico
the previous day. Mr. Russek said that he had not been tested for COVID, and he had not
quarantined. He said his understanding was that the CDC guidelines requiring those who
had traveled to Mexico to quarantine for at least 7 days upon return did not go into effect
until January 25th, a date after the trial would be over.
Even though Mr. Hillman and Mr. Russek announced that they were ready to try
the case as scheduled, Respondent cancelled the trial setting, stating that he was “not
gonna have a trial under these circumstances.” He suggested to Mr. Hillman that he
could request other relief, and the parties could have a separate hearing on that request.
On January 20th, Respondent entered a written order continuing the trial on his
own motion, and it stated that
[t]he Court, being advised that [Mr. Russek] has recently traveled to
Cancun, Mexico, and has not complied with the CDC guidelines for travel
to Mexico since his return, and being advised that a positive test for
Covid-19 has been suffered by an employee of the Pulaski County
Prosecuting Attorney and other employees who work in the Pulaski
County Courthouse, hereby orders the jury trial of this matter canceled for
January 21, 2021.
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Mr. Hillman then filed a motion seeking sanctions (“Motion for Sanctions”) that
alleged the State was fully prepared to go to trial, and that Mr. Russek had “[a] week
before trial, . . . announced that he was travel[]ing to Cancun, Mexico for a vacation from
January 15-19, 2021.” The Motion for Sanctions claimed that Administrative Order
2020-01 of the 25th Judicial Circuit had been in place since March 2020, and it prohibited
anyone who had traveled to a foreign country within the last 14 days from entering into a
courthouse in that circuit. It also claimed that CDC guidelines recommended that anyone
traveling internationally by air get tested for COVID-19 and quarantine for at least 7 days
upon their return. The Motion for Sanctions stated that the complaining witness had
traveled by car, 982 miles one way, in order to be present for trial. The Motion requested
that “[t]he Office of the Public Defender” be ordered to pay the victim’s mileage at the
rate of $0.37 per mile, which totaled $726.68.
Respondent granted the Motion for Sanctions and ordered that the amount
requested be “deposited with the Pulaski County Circuit Clerk by the Missouri State
Public Defender, Area 25 Trial Office within 30 days of this Order.”
Standard of Review
We review a trial court’s decision to invoke its inherent powers to
sanction for an abuse of discretion. Rea v. Moore, 74 S.W.3d 795, 799
(Mo.App.S.D.2002). The trial court abuses its discretion when its ruling
“is clearly against the logic of the circumstances and is so arbitrary and
unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” Id. “[I]f reasonable persons can differ about the propriety
of the action taken by the trial court, then it cannot be said that [it] abused
its discretion.” Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 303 (Mo.
banc 1992) (internal quotation marks omitted). We view the evidence in
the light most favorable to the trial court’s ruling. See id.Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D. 2014).
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Analysis
While we are skeptical that a particular branch office of the Missouri Public
Defender is an appropriate entity to sanction, we need not decide that question. Relators’
first point claims that Respondent abused his discretion in imposing sanctions as “there
was no finding or evidence in the record of ‘bad faith’ by [Mr. Russek], [Mr. Crowell,] or
the Area 25 Trial Office.” That assertion has merit, and it is dispositive of Relators’
request for a permanent writ prohibiting Respondent’s imposition of sanctions.
A trial court may use its inherent powers to impose sanctions only when parties
act in bad faith. Davis v. Wieland, 557 S.W.3d 340, 349 (Mo. App. W.D. 2018).1
While trial courts have inherent powers to sanction parties who act
in bad faith, courts are encouraged to do so “sparingly, wisely,
temperately, and with judicial self-restraint.” A.J.H. ex rel. M.J.H. v.
M.A.H.S., 364 S.W.3d 680, 682 (Mo. App. E.D. 2012). A court should
rarely invoke this inherent power because “[i]t is only one short step from
the assertion of inherent power to the assumption of absolute power.”
Id. (quoting McPherson v. U.S. Physicians Mutual Risk Retention Group,
99 S.W.3d 462, 477 (Mo. App. W.D. 2003)).
Woodson v. Bank of Am., N.A., 602 S.W.3d 316, 326 (Mo. App. E.D. 2020).
“Bad faith” does not have a concrete definition, but it requires something more
than bad judgment or negligence; bad faith “imports a dishonest purpose, moral obliquity,
conscious wrongdoing, breach of a known duty through some ulterior motive or ill will
partaking of the nature of fraud. It also embraces actual intent to mislead or deceive
another.” Davis, 557 S.W.3d at 350 (quoting A.J.H., 364 S.W.3d at 683).
Relators argue that, while the sanctions order calls Mr. Russek’s conduct
“irresponsible[,]” it makes no finding of bad faith, and there is no evidence in the record
1
“The purpose of allowing courts to impose sanctions based on their inherent authority is two fold: one, to
allow the court to vindicate judicial authority without resort to the more drastic sanctions like contempt of
court; second, to make a prevailing party whole for expenses caused by his opponent’s obstinacy.” A.J.H.
ex rel. M.J.H. v. M.A.H.S., 364 S.W.3d 680, 682 (Mo. App. E.D. 2012).
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to support a finding of a dishonest purpose, conscious wrongdoing, fraud, or actual intent
to mislead or deceive. Respondent now argues that Relators’ conduct evidenced bad faith
in that it exhibited “disregard for the safety of the jurors, court staff, and opposing
counsel during a global pandemic [which] is the breach of a known duty through some
ulterior motive or ill will[.]” Respondent does not identify the alleged ulterior motive or
ill will harbored by Relators.
The sanctions order, in its entirety, reads as follows:
[T]he Court finds that this matter was set for jury trial on January 21,
2021. That date was set on November 19, 2020. On or about January 15,
2021, the Court was notified that [Mr. Russek] was in Cancun, Mexico for
a brief vacation. The Court was provided with the [CDC] guidelines for
travel by U.S. residents to Mexico. Upon review of those guidelines, the
Court sent an e-mail to the parties requesting a hearing regarding the issue
and whether the jury trial scheduled for January 21, 2021 would proceed.
At that hearing, the Court inquired of [Mr. Russek] as to his compliance
with the CDC guidelines for travel to Mexico and was informed that only
face masking and hand washing had been complied with, and that no other
CDC guideline[s] were being observed. [Mr. Russek] appeared for that
hearing from his office by Webex. Pursuant to those guidelines, [Mr.
Russek] should have been tested for COVID-19 one to three days prior to
returning from Mexico, should have stayed home for at least seven days
upon return, should have been tested 3-5 days after his return, and if he
was not tested after return, should have stayed home for 10 days. The
Court notes that those guidelines had an effective date of January 26,
2021. Even assuming such guidelines should not have been followed after
their publication but before January 26, 2021, the Presiding Judge of the
25th Circuit Court had issued, in Administrative Order 2020-01,
requirements that no person traveling out of the United States within 14
days of requested access should be allowed access to the courthouses in
this Circuit. As an attorney practicing in the 25th Circuit, [Mr. Russek]
should have known this requirement, which was issued on March 16,
2020. This Court does not find that Administrative Order 2020-01 has
been modified in any way which would allow a person traveling
internationally to be allowed access to the courthouse sooner than 14 days
after such travel. It[] is not this Court’s job, nor [Mr. Hillman]’s job, to
proactively monitor any person’s compliance with the administrative
orders of the Circuit Court. However, once it is brought to the attention of
the Court[,] that a possible violation of such administrative orders has
occurred, it is the job of the Court to enforce those orders. The CDC
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guidelines formed the basis of the inquiry, however, considering the
Administrative Order, this Court is confident that continuing the trial of
this matter was required due to the irresponsible actions of [Mr. Russek].
[Mr. Russek] chose to travel internationally, and while he may not have
been specifically aware of the Administrative Order, his superiors
should have been and should have taken action to prevent such travel.
This Court assumes that [Mr. Russek] requested and was granted vacation
time and that he informed his supervisors of the nature of his proposed
travels. The result of the failure of [Mr. Russek]’s supervisors to take
action is the continuance of this case from its trial date of January 21,
2021. It is noted that [Mr. Russek] has vigorously complained that
Defendant’s right to a speedy trial has been violated. Had [Mr. Russek]’s
supervisors taken action to prevent counsel’s travel, or had [Mr. Russek]
considered that international travel is not recommended, Defendant’s trial
would have occurred on January 21, 2021. The continuance of the jury
trial from January 21, 2021 is specifically due to the actions of [Mr.
Russek] and the failure of his supervisors to be aware or take action
regarding international travel of their employee.
Coincidentally, during the hearing prompted by [Mr. Russek]’s
international travel, [Mr. Hilman] informed the Court that a member of his
office staff had tested positive for COVID-19 and that at least two other
individuals in the Pulaski County Courthouse had tested positive. Those
individuals were not involved in this matter, nor would they have been in
attendance at the trial of this case, and therefore, while the Court
considered those facts as additional facts in the determination to continue
[this] trial, this Court determined to continue the trial of this case due to
[Mr. Russek]’s travel as discussed above. This Court determined that it
could not expose a jury panel to [Mr. Russek] under the conditions
discussed above. Doing so would have been a violation of the Circuit
Court’s Administrative Order by this Court.
....
[T]he Court finds that, but for [Mr. Russek]’s irresponsible behavior, this
case would have proceeded to trial on January 21, 2021. Therefore, the
request for sanctions is granted in the amount of $762.68, which is ordered
to be deposited with the Pulaski County Circuit Clerk by the Missouri
State Public Defender, Area 25 Trial Office within 30 days of this Order.
Upon deposit, the Pulaski County Circuit Clerk shall hold such funds for
10 days, and then, unless otherwise ordered by this Court, shall disburse
such funds to the alleged victim in this matter.
(Emphasis added.)
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The sanctions order contains no finding of bad faith on the part of Mr. Russek or
his supervisor, Mr. Hillman. Instead, it characterized Mr. Russek’s behavior as
“irresponsible[,]” said that he and his supervisors “should have known” of the
administrative order, and claimed that his supervisors “fail[ed] to be aware or take
action” regarding Mr. Russek’s travel. Although these findings suggest that Respondent
found Relators’ actions to be negligent and ill-advised, no evidence adduced at the
hearing on sanctions supports a finding that Relators were acting in bad faith.
“[I]f the trial court does not make an explicit finding as to bad faith, there must at
least be evidence in the record which would support such a finding.” A.J.H., 364 S.W.3d
at 682. Respondent has not cited, and we have been unable to find, any evidence in the
record that would support a finding that Relators acted in bad faith, in other words, that
they acted with a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
known duty through some ulterior motive or ill will partaking of the nature of fraud, or
had an actual intent to mislead or deceive another. See Davis, 557 S.W.3d at 350.
In the absence of such evidence, Respondent misapplied the law and thereby
abused his discretion in imposing sanctions against Relators. This court’s preliminary
order in prohibition is hereby made permanent.
DON E. BURRELL, J. – OPINION AUTHOR
MARY W. SHEFFIELD, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
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