Opinion 185
(The rules this Opinion discusses are still in effect.)
Issue:
May a Municipal Judge have the court clerk investigate the prior records of DWI defendants prior to hearing in order to determine whether pursuant to VAMS 479.170 the case should be referred to the Associate Circuit Court?
Discussion:
It is the Commission’s opinion that this is an issue of error and not jurisdiction [State ex rel. Webb, 275 SW3d 249].
The controlling rule is Supreme Court Rule 2-2.9(C): “A judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that properly may be judicially noticed.” In addition, a judge per Supreme Court Rule 2-2.12 must require court staff to “act in a manner consistent with the judge’s obligations under this Code.”
Accordingly, it is the Commission’s view that the judge should not instruct the clerk to investigate defendants’ prior records on the judge’s behalf and should recuse in any pending cases in which the clerks have previously done so.
The judge may inquire of the defendant as part of any plea or sentencing as to whether the case violates section 479.170 and then make a ruling taking into consideration any relevant disclosure.
Finally, the judge may wish to contact the local Circuit Court presiding judge, the Supreme Court Rules Committee or the Missouri Legislature to promulgate a rule or law that would provide for the clerk to perform the relevant background investigations and to report such findings to the court.
(Dated this 30th day of April 2014.)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 185
Issue:
May a Municipal Judge have the court clerk investigate the prior records of DWI defendants prior to hearing in order to determine whether pursuant to VAMS 479.170 the case should be referred to the Associate Circuit Court?
Discussion:
It is the Commission’s opinion that this is an issue of error and not jurisdiction [State ex rel. Webb, 275 SW3d 249].
The controlling rule is Supreme Court Rule 2-2.9(C): “A judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that properly may be judicially noticed.” In addition, a judge per Supreme Court Rule 2-2.12 must require court staff to “act in a manner consistent with the judge’s obligations under this Code.”
Accordingly, it is the Commission’s view that the judge should not instruct the clerk to investigate defendants’ prior records on the judge’s behalf and should recuse in any pending cases in which the clerks have previously done so.
The judge may inquire of the defendant as part of any plea or sentencing as to whether the case violates section 479.170 and then make a ruling taking into consideration any relevant disclosure.
Finally, the judge may wish to contact the local Circuit Court presiding judge, the Supreme Court Rules Committee or the Missouri Legislature to promulgate a rule or law that would provide for the clerk to perform the relevant background investigations and to report such findings to the court.
(Dated this 30th day of April 2014.)