Order dated September 20, 2016, re: Rule 37.04 Supervision of Courts Hearing Ordinance Violations and Minimum Operating Standards for Missouri Courts: Municipal Divisions

Supreme Court of Missouri
en banc

September 20, 2016

In re:

(1) Repeal of subdivision 37.04, entitled "Supervision of Courts Hearing Ordinance Violations," of Rule 37, entitled "Statutory and Ordinance Violations and Violation Bureaus," and in lieu thereof adoption of a new subdivision 37.04, entitled "Supervision of Courts Hearing Ordinance Violations."

(2) Adoption of "Minimum Operating Standards for Missouri Courts: Municipal Divisions" as Appendix A to subdivision 37.04, entitled "Supervision of Courts Hearing Ordinance Violations," of Rule 37, entitled "Statutory and Ordinance Violations and Violation Bureaus."

ORDER

1. It is ordered that effective July 1, 2017, subdivision 37.04 of Rule 37 be and the same is hereby repealed and a new subdivision 37.04 adopted in lieu thereof to read as follows:

2. It is ordered that Appendix A to subdivision 37.04 is hereby adopted to read as follows:

Appendix A

Minimum Operating Standards for Missouri Courts:
Municipal Divisions

Minimum Operating Standard # 1: Municipal divisions shall ensure that when individuals must be held in jail in the interests of justice, this is done strictly in accordance with the principles of due process of law.

◻ The municipal division is in compliance with the following requirements of section 479.360.1, RSMo:

◻ The municipal division has a duty judge available at all times to rule promptly upon warrants, bail and conditions of pretrial release, and other matters, without undue delay.

◻ Bond schedules are utilized only for persons arrested without a warrant and held no longer than 24 hours pursuant to sections 479.360.1(2) and 544.170.1, RSMo; Rule 37.17.

◻ Warrants are issued only upon a finding that reasonable grounds exist to believe that the defendant will not appear upon a summons or that the accused poses a danger to a crime victim, the community, or any other person. Rule 37.43(b).

◻ Warrants are signed only by judges unless the exception of a specific warrant ordered by a judge to be signed by a clerk is applicable. Rule 37.45(b)(6).

◻ The municipal division has procedures in place to ensure that when a case is dismissed by the prosecuting attorney or otherwise finally resolved, or when the circumstances that justified issuance of a warrant no longer exist, the judge recalls and cancels any outstanding warrants in that case as soon as practicable.

◻ The municipal division has procedures in place to ensure that the recall and cancellation of outstanding warrants is communicated to law enforcement by the clerk without delay.

◻ No person is sentenced to confinement on “minor traffic violations” or “municipal ordinance violations” with the exception of violations: involving alcohol or controlled substances; endangering the health or welfare of others; or involving eluding or giving false information to a law enforcement officer. Section 479.353(2).

◻ Due process procedures of Rule 37.65 are strictly followed before confining defendants for failure to pay fines and costs. Section 479.353(3).

Minimum Operating Standard # 2: Municipal divisions shall inquire of defendants and allow them to present information about their financial condition when assessing their ability to pay and establishing payment requirements for monies due.

◻ The Municipal division is in compliance with the following requirements of section 479.360.1, RSMo:

o Alternative payment plans are utilized. See also Rule 37.65(a)(1)(2).

o Community service is utilized with no fee assessed to the defendant.

◻ Stay of execution procedures exist for defendants to pay fines and costs within a specified period of time or to make installment payments. Rule 37.65(a)(1)(2).

◻ If probation fees are assessed, the municipal division does so in compliance with sections 549.525.2, 559.604, and 559.607, RSMo, including consideration of factors exempting a probationer from part or all of the standard monthly probation fee of $30 to $50 per month. The municipal division advises offenders of the right to request individualized consideration of exemption from paying probation fees and surcharges under these statutes.

Minimum Operating Standard # 3: Municipal divisions shall not condition an indigent defendant's access to a judicial hearing or the granting of probation upon the payment of fines or fees.

◻ If a defendant files an application for trial de novo, the payment of the statutory trial de novo fee shall be waived if the defendant qualifies as indigent.

◻ If the defendant requests a jury trial, the cause shall be transferred to the circuit court without prepayment of fees.

◻ The municipal division does not make the granting of probation conditional upon the payment of anything other than authorized fees or deny probation because of the inability of the defendant to pay authorized probation fees and surcharges.

Minimum Operating Standard # 4: Municipal divisions shall neither assess nor collect unauthorized fines, costs, or surcharges.

◻ Fines and costs assessed on minor traffic violations do not exceed $225.00. Section 479.353(1)(a).

◻ Fines and costs assessed on “municipal ordinance violations” as defined at section 479.350(4) meet the mandatory maximum schedule of section 479.353(1)(b).

◻ Fines assessed on other ordinance violations do not exceed the maximum amount authorized by state law and the city code.

◻ Only court costs (fees, miscellaneous charges, and surcharges as defined at section 488.010) authorized by state statute are assessed. The OSCA bench card on municipal court costs shall be used as a reference. Sections 479.260.1, 479.360(5), and 488.012, RSMo; COR 21.01.

◻ DPC (Dismissal on Payment of Costs) is not permitted. Section 479.353(5), RSMo; COR 21.01(c).

◻ Court costs are not assessed against indigent defendants. Section 479.353 (4)(5).

◻ The municipal division is in compliance with the following requirements of section 479.360.1, RSMo:

o Community service is utilized with no fee assessed to the defendant.

Minimum Operating Standard # 5: All municipal judges shall be lawfully selected, lawfully authorized to act in specific cases, and adequately prepared for their duties through appropriate training and continuing education.

◻ All judge(s) serving in a municipality—full-time, part-time, substitute, and provisional—are selected pursuant to municipality’s ordinance or charter before serving. Section 479.020.1.

◻ The municipal division has a mechanism in place to check for judicial conflicts prohibited by Rule 37.53(b)(2), and the judge recuses in all instances when required to do so pursuant to this rule.

◻ Upon successful change of judge requests and recusals, the procedural requirements of Rule 37.53(d) and section 479.230, RSMo are followed.

◻ Following applicable law, the judge follows rules cutting off or limiting their authority to act in a case once a motion to disqualify, motion for jury trial, or motion for trial de novo is filed.

◻ When a trial de novo request has been filed, the municipal division certifies the file to circuit court within 15 days.

◻ Lawyer judges shall obtain the following required training and continuing education, and provide documentation thereof to the presiding circuit judge:

o Five hours of judicial CLE completed annually. Rule 18.05(a).

o Two hours of judicial ethics CLE completed annually. Rule 18.05(b).

o CLE compliance form is submitted to the circuit court presiding judge.

o If substitute/provisional judges preside, names and CLE compliance forms have been provided to the circuit court presiding judge.

◻ Non-lawyer judges shall obtain the following required training and continuing education, and provide documentation thereof to the presiding circuit judge:

o 15 hours of judicial CLE completed annually with the exception of the first reporting year as described at Rule 18.05(d). Rule 18.05 (a).

o Two hours of judicial ethics CLE completed annually. Rule 18.05(b).

o CLE compliance form is submitted to the circuit court presiding judge.

o If substitute/provisional judges preside, names and CLE compliance forms have been provided to the circuit court presiding judge.

Minimum Operating Standard # 6: Municipal divisions shall be operated in a manner reasonably convenient to the public and in facilities sufficient to the purpose.

◻ Courtrooms are suitable and meet due process requirements for all court attendees. Section 479.060.1.

◻ The municipal division is in compliance with the following requirements of section 479.360.1, RSMo:

o For minor traffic violations, procedures exist for electronic payment or payment by mail.

◻ The municipal division allows payments online and makes available free, online access to information about pending cases, outstanding warrants, and scheduled municipal division dockets.

The municipal division is actively pursuing court automation to achieve compliance with allowing payments online and making available free, online access to information about pending cases, outstanding warrants, and scheduled municipal division dockets.

Minimum Operating Standard # 7: Municipal divisions shall be operated in a manner that upholds the constitutional principles of separation of powers and the integrity of the judiciary as a separate and independent branch of government.

◻ Clerks of court and other nonjudicial personnel do not perform any functions that constitute an actual or apparent conflict of interest with the impartial performance of their judicial duties. Work performed on behalf of law enforcement or the prosecuting attorney is one example of an actual or apparent conflict of interest.

◻ Clerks of court and other nonjudicial personnel, when performing court-related functions, work solely under the direction and supervision of the municipal judge, the circuit clerk, or another officer of the judicial branch as to the work to be performed and the manner in which it is to be done.

◻ Judges, clerks of court, and other nonjudicial personnel are not subject to informal pressure, formal discipline, firing, or threats of non-retention or non-reappointment at the conclusion of a term of office by officers and administrators of the municipal government that are designed to encourage or require the municipal division to operate in such a way as to maximize the municipal revenues derived from municipal division operations or to meet specified revenue targets without regard to whether such goals or targets are communicated formally or informally to court personnel.

◻ Municipal division facility’s exterior and interior signage, design, functionality, and other factors convey an appearance to the public that it is a separate and independent branch of government.

Minimum Operating Standard # 8: Municipal divisions shall be operated in accordance with the constitutional principles and legal requirements of open courts and open records.

◻ The municipal division is in compliance with the following requirements of section 479.360.1, RSMo:

o The courtroom is open to the public of all ages and large enough to reasonably accommodate the public, parties, and attorneys.

◻ The municipal division maintains a clerk’s office that is open and accessible to the public at least thirty hours per week during regular business hours for the purpose of paying fines and providing information.

◻ Proceedings in the municipal division are open to the public of all ages unless the municipal division orders otherwise in a particular circumstance for good cause shown.

◻ Courtroom facility is sufficient for the purpose of a courtroom. Courtroom is open to the public of all ages and large enough to reasonably accommodate the public, parties, and attorneys. The facility chosen for court takes into consideration the safety and comfort of the public, parties, and lawyers. The facilities chosen uphold the integrity and independence of the judiciary as a separate branch of government.

◻ The municipal division allows members of the public and the news media access to open municipal division records in accordance with Court Operating Rules (COR) 2 and 4 and other relevant law.

Minimum Operating Standard # 9: Municipal divisions shall advise litigants of their rights in court.

◻ Standardized procedures exist to assure that defendants are given advice of rights pursuant to Rules 37.47, 37.48, 37.50, and 37.58.

◻ The municipal division provides a “Notice of Rights in Municipal Division,” in a form approved by or substantially similar to that approved by the Supreme Court, to all defendants. This notice of rights is displayed prominently wherever the municipal clerk transacts business with the public and in the facility where proceedings in the municipal division are held. This notice of rights in municipal division is made available as a handout for those appearing before the municipal division and is displayed on each public information website operated by the municipal division or on behalf of the municipal division.

◻ Announcements by the judge that are intended for the benefit of all present can be heard throughout the courtroom or are communicated adequately in other ways. Such announcements are also communicated to those waiting outside the courtroom or otherwise made available to them when they come into the courtroom.

Minimum Operating Standard # 10: Municipal divisions shall be well-managed and accountable to the law, with appropriate oversight of municipal division operations provided by the circuit court presiding judge of the judicial circuit.

◻ By January 1st and July 1st of each year every municipal judge, substitute or provisional judge certifies to the presiding circuit judge compliance with the minimum operating standards by completing the "Minimum Operating Standards Form" and submitting it to the presiding circuit judge.

◻ The municipal division has a functional clerk’s office that organizes and preserves the judicial records of the municipal division in a prudent and organized manner and in compliance with applicable laws and supreme court rules.

◻ The municipal division has a functional clerk’s office that handles bookkeeping and money handling obligations of the municipal division in a prudent and organized manner and in compliance with the current recommendations of the Office of State Courts Administrator and the Missouri state auditor.

◻ Judge has certified substantial compliance with section 479.360.1(1 to 10), RSMo, and provided signed certification to the governing body in compliance with the state auditor’s rules and procedures. Section 479.360.1 and .2. Additionally, the judge complies with the following provisions of section 479.360.1, RSMo:

o The municipal division has made reasonable efforts to communicate to local law enforcement the 24-hour rule: “Defendants in municipal custody shall not be held more than twenty-four hours without a warrant after arrest.” See also section 544.170.1, RSMo.

o Confinement to coerce payment of fines and costs is utilized only if found in contempt of court after compliance with Rule 37.65.

o The municipal division inquires of defendants and allows them to present information about their financial condition when assessing the defendants' ability to pay and establishing payment requirements for monies due.

o The courtroom is open to the public of all ages and large enough to reasonably accommodate the public, parties, and attorneys.

o Alternative payment plans are utilized. See also Rule 37.65(a)(1)(2).

o Community service is utilized with no fee assessed to the defendant.

o For minor traffic violations, procedures exist for electronic payment or payment by mail.

o No additional charge is issued for failure to appear for a minor traffic violation.

Municipal Divisions should also be familiar with and comply with the provisions set forth below:

Chapter 479, RSMo

◻ If holding administrative hearings, the municipal division is authorized to do so. Section 479.011.1.

◻ Judge serves as a judge in no more than five municipalities. Section 479.020.9.

◻ Judge is under the age of 75 years. Section 479.020.7.

◻ Municipality has notified circuit clerk of the municipal division’s existence. Section 479.030.1.

◻ Nonjudicial personnel have been provided to ensure proper functioning of the municipal division. Section 479.060.1.

◻ Fines and costs collected are paid into the municipality’s treasury at least monthly. Section 479.080.1

◻ A monthly list of cases with required detail is provided within 10 days of the end of each month to the municipality. Section 479.080.1

◻ Judge has received instruction on laws related to intoxicated-related traffic offenses. Section 479.172.1.

◻ A written policy for reporting intoxication-related traffic offenses to the central repository has been adopted and provided to OSCA and the highway patrol. Section 479.172.1 and 2.

◻ Semiannual disposition report of intoxication-related traffic offenses provided to the circuit court en banc. Section 479.172.3.

◻ Informations are signed by the prosecutor. Rule 37.35(a).

◻ The violation bureau schedule of fines and costs is prominently posted at the place where fines are to be paid. Rule 37.49(d).

◻ The municipal division has taken reasonable steps to ensure that, where applicable, the schedule of fines and costs is provided to an accused at the same time as a violation notice. Rule 37.33(b).

◻ If a violation bureau has been adopted, it processes only those violations authorized by Rule 37.49(c).

◻ The municipal division utilizes a written “Waiver of Counsel” substantially in the form of Form 37.C. Rule 37.58(d).

◻ The municipal division maintains complete and accurate records of municipal division proceedings, including warrants outstanding, bonds posted, case files and dispositions.

◻ The municipal division ensures that the proper disposition of all cases is documented on the municipal division dockets or backer sheets and that all municipal division dockets or backer sheets are signed by the municipal judge, if required by law.

◻ The municipal division ensures that an information signed by the prosecuting attorney is filed for each ordinance violation to be prosecuted. In addition, the municipal division ensures that the prosecuting attorney signs all tickets and reviews and approves all amended and dismissed tickets.

◻ The municipal division ensures that the proper disposition of cases is documented in manual and electronic records and sufficient documentation is maintained to support all case actions.

◻ The municipal division ensures that warrants are signed by a municipal judge or by the court clerk/administrator only when directed by the municipal judge for a specific warrant and ensures that warrants are issued timely.

◻ The municipal division has established procedures to generate monthly reports of municipal division activity, and the municipal division submits these reports timely to OSCA and to the city in accordance with state law, COR 4.28 and 4.29, and section 479.080.3, RSMo.

◻ The municipal division regularly backs up computer data and ensures it is stored in a secure off-site location and its recovery is tested on a regular, predefined basis.

◻ The municipal division requires unique user identifications and passwords for each employee and passwords that are confidential and periodically changed. The municipal division ensures that user access is periodically reviewed and unnecessary access, including that of terminated users, is removed timely as well as reviews user access to data and other information resources to ensure access rights are commensurate with current user job responsibilities.

◻ The municipal division segregates accounting duties to the extent possible. If it is not possible to segregate duties, the municipal division ensures that documented periodic independent or supervisory reviews of municipal division records are performed.

◻ The municipal division ensures that accurate records are maintained to account for all payments received and deposited, receipts are posted accurately and timely, and the method for payment is indicated on all receipts. Checks and money orders are endorsed immediately upon receipt. Additionally, if manual receipts are in use, the municipal division ensures that manual receipt slips are timely entered in the computerized system and the numerical sequence of manual receipt slips is accounted for properly. In addition, the municipal division ensures that voided transactions are properly documented and approved.

◻ The municipal division reconciles the composition of receipts to the composition of deposits, and deposits all monies intact and timely.

◻ The municipal division performs monthly bank reconciliations, resolves reconciling items, and makes appropriate, documented adjustments to accounting records timely.

◻ The municipal division prepares monthly lists of liabilities and reconciles the lists to the bank account and/or city fund balance, promptly investigates and resolves differences, and has established procedures to review the status of liabilities to determine the appropriate disposition of funds held.

◻ The municipal division has developed procedures to ensure the monthly distributions are properly calculated and disbursed timely.

◻ The municipal division has established procedures to routinely generate and review the accrued costs list for accuracy and properly follows up on all amounts due.

◻ The municipal division obtains signed payment plans from all defendants and ensures payment plans are established in the case management system in accordance with court operating rules where applicable.

◻ The municipal division ensures that adequate documentation is maintained to support all adjustment transactions and ensures that an independent review and approval of these transactions is performed and documented.

◻ The municipal division maintains the change fund at an established amount and periodically counts and reconciles the monies on hand to the authorized balance.

◻ The municipal division maintains bond coverage for all personnel with access to municipal division monies.

◻ The municipal division ensures that all bond receipts are recorded and deposited timely and intact.

◻ The municipal division has developed procedures and records to identify applicable violations and the associated fines and court costs revenues for the purposes of the revenue calculations required by section 479.359, RSMo et seq, and the municipal division provides this information to the city.

◻ When a case record is certified to the circuit court upon filing of a request for trial de novo, all funds received in connection with the case, any bonds, and the record are transferred within 15 days.

◻ Once a case has been certified to circuit court, the municipal division does not act on that case unless and until the case is remanded back to that municipal division.

Minimum Operating Standards Form
(Submitted Semiannually to Presiding Circuit Judge)

Municipal Division

______________________________________________________________

Municipal Judge ______________________________________________________________

Any Substitute or Provisional Judges _____________________________________________

Address where municipal division is held __________________________________________________________________

__________________________________________________________________

Dates and times where municipal division is held _______________________________________________

Municipal division Phone Number __________________________________________________________

Judge Contact Number _________________________________________________________

Judge Email _________________________________________________________________

Clerk Email _________________________________________________________________

I, _________________, certify that this municipality complies with the following minimum operating standards together with all other minimum operating standards as approved by the Supreme Court of Missouri:

◻ Judge has received instruction on laws related to intoxicated-related traffic offenses. Section 479.172.1.

◻ A written policy for reporting intoxication-related traffic offenses to the central repository has been adopted and provided to OSCA and the highway patrol. Section 479.172.1 and 2.

◻ A copy of this written policy for reporting intoxication-related offenses to the central repository has been provided to the presiding circuit judge.

◻ Warrants are signed by the judge or by a clerk of the court when directed by the judge for a specific warrant. Rule 37.45

◻ Judge complies with Rule 37.47: Initial Proceedings before the Judge, including:

o Judge shall inform the defendant of the:

§ Right to retain counsel,

§ Right to request the appointment of counsel if defendant is indigent and there is a possibility of a jail sentence,

§ Right to remain silent,

§ Fact that anything that the defendant says may be used against him or her.

◻ Judge complies with Rule 37.48: Arraignment

o Judge reads the information to the defendant or states the substance of the charge.

o Municipal division calls upon the Defendant to plead there to.

o Defendant shall be afforded a reasonable time to examine the charge before defendant is called upon to plead.

◻ Judge complies with Rule 37.50: Right to Counsel

o Upon a showing of indigency, judge appoints counsel to represent the defendant.

o Judge allows the defendant to proceed without counsel if the judge finds that the defendant has knowingly, voluntarily, and intelligently waived the right to counsel.

o If it appears during the proceedings that because of the gravity of the ordinance violation charged and other circumstances that failure to appoint counsel may result in injustice, the judge then appoints counsel. Judge gives said counsel reasonable time to prepare.

◻ Choose one of the following:

◻ Courtroom facility is sufficient for the purpose of a courtroom.

o The facility chosen for the municipal division takes into consideration the safety and comfort of the public, parties, and lawyers.

o The facilities chosen shall uphold the integrity and independence of the judiciary as a separate branch of government.

◻ Following applicable law, the judge relinquishes jurisdiction over a case when a motion to disqualify, motion for jury trial, or motion for trial de novo is filed.

◻ When a case is transferred to circuit court, the transfer occurs within 15 days.

◻ Judge has certified substantial compliance with section 479.360.1(1 to 10), RSMo, and provided signed certification to the governing body in compliance with the state auditor’s rules and procedures. Section 479.360.1 and 2. Additionally, the judge complies with the following provisions of section 479.360.1:

o Confinement to coerce payment of fines and costs is utilized only if found in contempt of court after compliance with Rule 37.65.

o The municipal division inquires of defendants and allows them to present information about their financial condition when assessing their ability to pay and establishing payment requirements for monies due.

o The courtroom is open to the public of all ages and large enough to reasonably accommodate the public, parties, and attorneys.

o Alternative payment plans are utilized. See also Rule 37.65(a)(1)(2).

o Community service is utilized with no fee assessed to the defendant.

o For minor traffic violations, procedures exist for electronic payment or payment by mail.

◻ Municipal division provides to the municipality adequate information for the municipality to determine excessive revenue calculations to the state auditor.

◻ If judge is a lawyer, complete Section A. If judge is non-lawyer, complete Section B.

◻ If judge is a lawyer, the lawyer has completed each of the following:

o Five hours of judicial CLE annually. Rule 18.05(a).

o Two hours of judicial ethics CLE annually. Rule 18.05(b).

o CLE compliance form is submitted to the circuit court presiding judge.

o If substitute/provisional judges preside, names and CLE compliance forms have been provided to the circuit court presiding judge.

◻ If judge is a non-lawyer judge, he or she has completed each of the following:

o 15 hours of judicial CLE annually. Rule 18.05(a).

o Two hours of judicial ethics CLE annually. Rule 18.05(b).

o CLE compliance form is submitted to the circuit court presiding judge.

o If substitute/provisional judges preside, names and CLE compliance forms have been provided to the circuit court presiding judge.

◻ Judge has read the Supreme Court’s "Minimum Operating Standards for Missouri Courts: Municipal Divisions" and substantially complies with the remaining minimum operating standards.

◻ Judge has attached to this certification the following:

o Substantial compliance certification with section 479.360.1(1 to 10),

_______________________ _____________________________
Date Signature

2. It is ordered that notice of this order be published in the Journal of the Missouri Bar.

3. It is ordered that this order be published in the South Western Reporter.

4, The state courts administrator shall furnish a copy of this order to each circuit court presiding judge, each municipal judge, each municipal clerk, and such other persons as she may direct.