Supreme Court of Missouri
en banc
April 21, 2004
Effective July 1, 2004
Effective July 1, 2004
In re:
Repeal of Court Operating Rule 12, entitled "Rules of Practice and Procedure Before the Missouri Judicial Finance Commission," consisting of subdivisions 1.01 to 23.09, inclusive, and in lieu thereof adoption of a new Court Operating Rule 12, entitled "Rules of Practice and Procedure Before the Missouri Judicial Finance Commission," consisting of subdivisions 12-1.01 to 12-23.09, inclusive.
ORDER
1. It is ordered that effective July 1, 2004, Court Operating Rule 12 be and the same is hereby repealed and a new Court Operating Rule 12 adopted in lieu thereof to read as follows:
COURT OPERATING RULE 12
RULES OF PRACTICE AND PROCEDURE
BEFORE THE MISSOURI JUDICIAL
FINANCE COMMISSION
COURT OPERATING RULE 12-1 IN GENERAL
- Rule 12-1.01 DEFINITIONS
As used in this Court Operating Rule 12, except as required by the context, the following terms mean:
(a) “Chair,” the chairman of the Judicial Finance Commission;
(b) “Commission,” the Judicial Finance Commission;
(c) “Commission Counsel,” the general counsel of the commission;
(d) “Petitioner,” any local governing body responsible for funding a circuit court that brings a petition seeking review of the proposed budget of that circuit court before the commission;
(e) “Pleading,” any complaint, answer, reply, application, protest, petition for review, or motion;
(f) “Presiding Officer,” the chair, vice chair or other member of the commission presiding at a meeting, hearing, or proceeding before the commission;
(g) "Vice chair," the vice chairman of the commission.
Rule 12-1.03 CONSTRUCTION AND AMENDMENT
This Court Operating Rule 12 shall be liberally construed to secure just, speedy, and inexpensive determination of the issues presented. The rules may be amended at any time by the commission and shall become effective on approval by the Supreme Court.
Rule 12-1.05 THE COMMISSION
(a) Office. The office of the commission is in Jefferson City, Missouri. All general inquiries to the commission should be addressed to the Judicial Finance Commission, P.O. Box 150, Jefferson City, Missouri 65102.
(b) Quorum. Four members of the commission constitute a quorum.
Rule 12-1.07 COMMISSION RECORDS
(a) Commission Certification. All orders and other official actions of the commission shall be certified or authenticated by the signature of the presiding officer.
(b) Official Records.
(1) The commission counsel shall maintain a complete record of all proceedings of the commission, all orders issued by the commission, and all decisions rendered by the commission.
(2) The commission shall maintain accurate records of the cost and expenses of the judicial and law enforcement agencies for each county. Such records shall be kept on file at the Office of the commission.
(c) Filings. Pleadings and other papers and documents shall be filed with the commission at the commission's office.
(d) Requests for Copies and Inspection of Records. Requests for official information, copies of the commission's orders or decisions, or transcripts of proceedings may be obtained at a standard cost per page plus postage on written request to the commission counsel. Requests to inspect public records shall be made at the commission's office.
Rule 12-1.09 CODE OF ETHICS
Any person who signs a pleading or brief or enters an appearance at a hearing represents that he or she is authorized to do so and that he or she agrees to comply with the rules of the commission.
Rule 12-1.11 TIME, COMPUTATION
(a) In computing any period of time prescribed or allowed by this Court Operating Rule12, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday in Missouri, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday.
(b) When by this Court Operating Rule 12 or by statutes an act is required or allowed to be done at or within a specified time, the commission for cause shown may at any time at its discretion:
(1) With or without motion or notice order the period enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order, or
(2) On notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. In no event, however, may the commission extend the time period prescribed in Court Operating Rule 12-23.01.
COURT OPERATING RULE 12-3 DISQUALIFICATION OR ABSENCE
Rule 12-3.01 DISQUALIFICATION
(a) No member or alternate shall participate in any proceeding involving the county or circuit where that member resides.
(b) A member or members designated pursuant to Court Operating Rule 12-11.03 and participating in a settlement conference may be disqualified from participating in a hearing held in the same proceeding if the county governing body or circuit court so move in writing at least ten days before the scheduled hearing.
Rule 12-3.03 APPOINTMENT
If a member is disqualified or unable to hear a case, the Supreme Court, on request of the chair, may appoint a temporary replacement for the member who possesses the same qualifications as the member.
COURT OPERATING RULE 12-5 PRESIDING OFFICER
Rule 12-5.01 DESIGNATIONThe chair shall preside at all meetings and hearings of the commission. In the chair’s absence or disqualification at a meeting or hearing, the vice chair shall preside at the meeting or hearing. If both the chair and vice chair are absent or disqualified at a meeting or hearing, any member designated by the commission may preside.
Rule 12-5.03 AUTHORITY
The presiding officer shall control the course of hearings, administer oaths, order subpoenas issued, receive evidence, hold appropriate conferences before or during hearings, rule on all objections or motions that do not involve final determination of proceedings, receive offers of proof, hear argument, and fix the time for filing of briefs. The presiding officer may take such other action as may be necessary and appropriate to the discharge of his or her duties, consistent with the statutory or other authorities under which the commission functions and with the rules and policies of the commission.
COURT OPERATING RULE 12-7 FORMAL REQUIREMENTS FOR ALL
PLEADINGS AND BRIEFS
Rule 12-7.01 FORM AND SIZE(a) Pleadings shall be typewritten on paper 8 ½ x 11 inches, and exhibits or appendices annexed thereto, where practical, folded to that size. The impression shall be on one side of the paper only and shall be double-spaced, except that quotations in excess of a few lines and footnotes may be single-spaced.
(b) Briefs may be typewritten on paper 8 ½ x 11 inches or may be printed on paper 6 x 9 inches in size.
(c) Reproduction may be by any process, provided all copies are clear and permanently legible.
Rule 12-7.03 TITLE AND NUMBER
Pleadings, briefs, and other documents shall show the title of the proceeding before the commission, the case number assigned by the commission, and the name and address of the attorney, if any, or other person on the flyleaf, at the end of the document, or other place on forms supplied by the commission to whom all notices, pleadings, or other papers should be served.
Rule 12-7.05 SIGNATURES
Any petition, complaint, answer, reply, protest, or other document or pleading shall be signed by one of the following methods:
(a) If the party is a county government, by the budget officer, the county executive, the presiding commissioner, or by the attorney for the county government.
(b) If the party is a circuit court, by the presiding judge of, or the attorney for, the circuit court.
Rule 12-7.07 COPIES
Unless otherwise required by the commission, an original and nine conformed copies of each pleading, brief, or other document, including exhibits attached thereto, shall be filed with the commission.
Rule 12-7.09 AMENDED PLEADINGS
Amendments to pleadings shall be filed with the commission and may be offered at any time before submission to the commission for decision. The commission shall decide in its discretion whether to allow the offered amendment.
Rule 12-7.11 REJECTION OF FILINGS
(a) Pleadings, briefs or documents are to be liberally construed and accepted for filing unless their form or content significantly impedes proper review.
(b) Pleadings, briefs, or documents that are not in substantial compliance with this Court Operating Rule 12, commission orders, or applicable statutes, shall not be filed. The commission counsel may return such papers with an indication of the deficiencies therein and the reasons for not filing the same. The mere fact of filing shall not waive any failure to comply with these rules, commission orders, or applicable statutes, and the commission may require the filing of an amendment to a pleading, brief, or other document, or entertain appropriate motions in connection therewith.
COURT OPERATING RULE 12-9 PETITION FOR REVIEW
(a) All petitions shall comply with Rules 12-7.01 to 12-7.07, shall conform to Form 2510, and shall state clearly and concisely the budget requested, amount disputed, the grounds for the dispute, and all supporting facts and figures. The form provided by the commission shall include an opportunity for the county governing body and the circuit court to state their positions in a summary fashion. The county governing body is to file one copy of the complete county budget with the commission. In its petition or attached thereto, the county governing body may file summaries of the budget that relate to the factors set out in section 50.640.2, RSMo, and Court Operating Rule 12-13.17 on the issue of the reasonableness of the circuit court’s budget request. The petition shall also include evidence of attempts made to resolve the dispute before filing, including times and places of meetings held, persons attending, and matters discussed. The circuit court may file a response to the petition. In its response or attached thereto, the circuit court may supplement the record with references to the county budget that relate to the aforementioned issue of reasonableness. Any response shall be filed within ten days of receipt of the petition.
(b) Both the county governing body and the circuit court shall provide the information required by Court Operating Rule 12-9.01(a) in the petition for review, except the complete county budget.
Rule 12-9.03 FILING
The county governing body shall file the petition with the commission. Both the petition and any response by the circuit court may be filed and prosecuted without representation of counsel.
Rule 12-9.05 TIME
Except for good cause shown, a petition shall be filed according to the following schedule:
(a) Counties of the first classification and charter counties, January 1;
(b) Counties of the second classification, February 1; and
(c) All other counties, February 15.
COURT OPERATING RULE 12-11 PROCEDURE ON FILING OF PETITION
Rule 12-11.01 SERVICE
If the petition is in substantial compliance with this Court Operating Rule 12, the commission shall mail a copy to the circuit court.
Rule 12-11.03 SETTLEMENT CONFERENCE
The commission, on receipt of a petition, shall immediately order a settlement conference to determine if the disputed matter can be resolved before setting the case for hearing. The presiding officer, or a member or members designated by the presiding officer, shall set a time and location for a settlement conference to resolve the dispute, if possible, or to define the issues in dispute. The presiding officer shall designate a member or members to meet with the disputing parties.
Rule 12-11.05 PREHEARING CONFERENCE
The presiding officer may order prehearing conferences for the purpose of formulating or simplifying the issues, arranging for the exchange of proposed exhibits or prepared expert testimony, limiting the number of witnesses, and such other matters as may expedite orderly conduct and disposition of the proceeding.
Rule 12-11.07 BRIEFS
The presiding officer may order the filing of briefs before oral argument and hearing, setting forth the legal and factual grounds in support of a party’s position in summary fashion.
Rule 12-11.09 DISMISSAL
The commission, without argument and without hearing, may refuse to accept any petition where the percentage increase of the judicial budget is equal to or less than the percentage increase of the county government budget or where four members vote to reject consideration of the case. Such a refusal or dismissal shall operate as a final decision and an order to the county governing body to adopt the circuit court budget as submitted.
COURT OPERATING RULE 12-13 HEARINGS
Rule 12-13.01 SETTINGA date for hearing may be set by the commission after a settlement conference has been held and the dispute is unresolved, and after the commission determines that the issues are defined by the petition, or any responses, pleadings, or briefs.
Rule 12-13.03 NOTICE
(a) Time and Place. Notice of the day, hour, and place of hearing shall be served at least ten days before the time set therefor, unless the commission finds that public necessity requires the hearing be held on shorter notice.
(b) How Served. Notice of hearing shall be served on each designated party and intervenor by the commission counsel by certified mail, requesting a return receipt signed by addressee only.
Rule 12-13.05 CONTINUANCES
On application of a party or when the commission deems it necessary, a continuance of a hearing date may be granted. When a continuance has been granted, the commission shall set the date for hearing as soon as practicable. The granting of a continuance requested by a party may be conditioned on the filing of a waiver of the party’s right to enforce any statutory time limit imposed on the commission.
Rule 12-13.07 APPEARANCES
Failure of a party to appear at a hearing or settlement conference without previously having secured a continuance in accordance with this Court Operating Rule 12, except for good cause shown, may be grounds for refusal and dismissal of a petition or grounds for an adverse determination by the commission.
Rule 12-13.09 INTERVENTION
(a) Applications for Intervention. Applications to intervene in and become a party to a proceeding shall comply with Court Operating Rules 12-7.01 to 12-7.07, shall be in conformance with Form 2530, and shall be filed at least ten days before the date of the hearing. Such applications shall set forth the grounds of the proposed intervention, the position and interest of the intervenor in the proceeding, and whether the intervenor’s position is in support of or in opposition to the relief sought.
(b) Commission Policy on Intervention. Applications for intervention may be granted or denied at the discretion of the commission. It shall be the general policy of the commission to grant such application where the intervenor shows that:
(1) The intervenor has an interest in the proceeding different from that of the county governing body, the circuit court or the general public; or
(2) The proposed intervention would serve the public interest; or
(3) The intervenor is a municipality or other body politic.
(c) Opposing Intervention. Any party may oppose intervention by submitting in writing to the commission before the hearing its reasons for opposing intervention.
Rule 12-13.11 PARTICIPATION WITHOUT INTERVENTION
The commission may permit participation without intervention.
Rule 12-13.13 CONSOLIDATION
Proceedings involving related questions of law or fact may be consolidated by order of the commission.
Rule 12-13.15 ORDER OF PROCEDURE
Unless otherwise directed by the presiding officer, the order of procedure in hearings before the commission will be as follows:
(a) Generally. In all proceedings, except investigation proceedings, petitioners shall open and close. Intervenors, if any, shall follow the parties on whose behalf the intervention is made.
(b) Investigation Proceedings. In investigation proceedings, the commission’s counsel shall open and close.
Rule 12-13.17 REASONABLENESS OF BUDGET
(a) The circuit court shall have the burden of proving that the disputed expenditures in its proposed budget are reasonable.
(b) In determining if the circuit court estimate is reasonable, the commission shall consider:
(1) The expenditures necessary to support the circuit court in relation to the expenditures necessary for the administration of all other county functions;
(2) The actual or estimated operating deficit or surplus from prior years;
(3) All interest and debt redemption charges;
(4) All capital projects expenditures; and
(5) The total estimated available revenues from all sources available for financing the proposed expenditures.
In determining the reasonableness of any budget estimate involving compensation, the commission also shall consider compensation for county employees and similar duties, length of service, and educational qualifications.
Rule 12-13.19 LIMITING NUMBER OF WITNESSES
To avoid unnecessary cumulative evidence, the presiding officer may limit the number of witnesses or the time for testimony on a particular issue.
Rule 12-13.21 TRANSCRIPT CORRECTION
Suggested correction to the transcript may be offered not later than five days after the transcript is filed in the proceeding. The suggested correction shall be mailed to each party and the commission by the offeree.
If no objection is made to the suggested correction within ten days after it is filed, the commission may direct the correction to be made and the manner of making it.
The commission may hear from the parties before determining the manner in which the record shall be changed, if at all.
COURT OPERATING RULE 12-15 EVIDENCE.
Rule 12-15.01 FORM AND ADMISSIBILITYIn general, the commission follows the practice in the circuit courts of this State and the common law rules on admissibility of evidence as interpreted by the courts of this State, except that the commission may permit the introduction of hearsay evidence when, in its opinion, the circumstances require.
Rule 12-15.03 RULINGS
The presiding officer shall rule on the admissibility of all evidence. Such rulings may be reviewed by the commission in determining the matter on its merits. In extraordinary circumstances, where prompt decision by the commission is necessary to promote substantial justice, the presiding officer may refer the matter to the commission for determination during the hearing.
Rule 12-15.05 OBJECTIONS AND EXCEPTIONS
When objections are made to the admission or exclusion of evidence, the grounds relied on shall be stated briefly. Formal exceptions to rulings are unnecessary and need not be taken.
Rule 12-15.07 OFFER OF PROOF
If a party wishes to make an offer of proof for the record, the offer shall consist of a statement of the substance of the evidence not admitted because an objection was sustained.
Rule 12-15.09 PREPARED TESTIMONY
With the approval of the presiding officer, a witness may read into the record his or her testimony on direct examination. Before any prepared testimony is read, unless excused by the presiding officer, the witness shall deliver copies thereof to the commission, the official reporter, and all parties. Admissibility shall be subject to the rules governing oral testimony. If the presiding officer deems that substantial savings in time will result without prejudice to any party, prepared testimony may be copied into the record without having the witness read it aloud.
Rule 12-15.11 EXPERT TESTIMONY
Expert testimony may be presented only with prior approval of the commission. Permission should be requested at a prehearing conference or in writing from the commission at least five days before hearing. The request should include the name of the expert, the expert’s address, and a brief summary of the expected testimony.
Rule 12-15.13 DOCUMENTARY EVIDENCE
If relevant and material matter offered in evidence is embraced in a document containing other matter, the offering party shall designate specifically the matter so offered. If other matter in the document would unnecessarily encumber the record, the document will not be received in evidence; but, at the discretion of the presiding officer, the relevant and material matter may be read into the record or copies thereof received as an exhibit. Other parties shall be afforded opportunity to examine the document and to offer in evidence other portions thereof believed material and relevant.
Rule 12-15.15 STIPULATION
The parties may file a stipulation as to the facts. The stipulation shall be numbered and may be used at the hearing or for settlement purposes. This procedure is desirable whenever practicable. The stipulation shall not preclude the offering of additional evidence by any party or by the commission’s staff.
Rule 12-15.17 COPIES OF EXHIBITS
When exhibits are offered in evidence, the original and two copies shall be furnished to the reporter. The party offering exhibits should also be prepared to furnish a copy for each commission member sitting, each party, and the commission staff, unless such copies have previously been furnished or the presiding officer directs otherwise.
Rule 12-15.19 COMMISSION RECORDS
If any matter contained in a document on file as a public record with the commission is offered in evidence, the document need not be produced as an exhibit, unless directed otherwise by the presiding officer, but may be received in evidence by reference, provided that the particular portions of such document are specifically identified and are otherwise competent, relevant, and material. If testimony in proceedings other than the one being heard is offered in evidence, a copy thereof shall be presented as an exhibit, unless otherwise directed by the presiding officer.
Rule 12-15.21 OFFICIAL NOTICE OF FACTS
Official notice may be taken of such matters as may be judicially noticed by the courts of this state. The commission may also take official notice of the prior decisions of the commission as they may relate to issues before the commission.
Rule 12-15.23 ADDITIONAL EVIDENCE
At the hearing, the presiding officer may require the production of further evidence on any issue. On agreement of the parties, the presiding officer may authorize the filing of specific documentary evidence as a part of the record within a fixed time, reserving exhibit numbers therefor.
Rule 12-15.24 CONTROL OF PROCEDURE.
The commission may limit the number of filings by the parties. After the imposition of any such limitation by the commission, a party may make any additional filing only by leave of the Chair or presiding officer upon a showing of good cause.
COURT OPERATING RULE 12-17 SUBPOENAS.
Rule 12-17.01 REQUESTS FOR SUBPOENASRequests for the issuance of subpoenas, requiring the attendance of a witness for the purpose of taking oral testimony before the commission, shall be in writing.
Rule 12-17.03 SUBPOENAS DUCES TECUM
Requests for the issuance of subpoenas for the production of documents or records shall:
(a) Be in writing;
(b) Specify the particular document or record, or part thereof, desired to be produced; and
(c) State the reasons why the production thereof is believed to be material and relevant to the issues involved.
Rule 12-17.05 WHO MAY ISSUE
Subpoenas may be signed and issued by the presiding officer or, at the commission’s direction, by the commission counsel. No subpoena shall issue unless the applicant establishes that he or she has a proper relation to the matter. The name and address of the person or persons to whom the subpoena is issued shall be inserted in the original subpoena, a copy and the return of which shall be filed in the proceeding. A subpoena shall show at whose instance the subpoena is issued.
COURT OPERATING RULE 12-19 REOPENING PROCEEDINGS.
Rule 12-19.01 SETTING ASIDE SUBMISSION(a) After conclusion of a hearing, but before issuance of an opinion or order, a party to the proceeding may mail to all other parties, and file with the commission, a petition to set aside submission and reopen the proceeding for the taking of additional evidence in conformance with Form 2540. The petition shall specify the facts claimed to constitute grounds for justification thereof, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing. It shall contain a brief statement of the proposed additional evidence and explain why such evidence was not previously adduced. On approval by the commission, the additional evidence may be received.
(b) After conclusion of a hearing, but before issuance of an opinion or order, the county governing body and circuit court may agree to a settlement and seek to set aside the submission of the case. On approval by the commission, an order incorporating the settlement may issue or the case may be dismissed and the petition refused and rejected.
COURT OPERATING RULE 12-21 DECISIONS
Rule 12-21.01 TIMEThe commission, to the maximum extent practicable, shall resolve the dispute within a reasonable time after submission of the cause. If the dispute is submitted within 90 days of the end of the fiscal year, the commission shall resolve the dispute within 90 days of the beginning of the subsequent fiscal year.
Rule 12-21.03 SUBMISSION OF CAUSE
A proceeding shall stand submitted for decision by the commission after the filing of the petition and holding of the settlement conference, the filing of such briefs or the presentation of such oral argument as may have been prescribed by the commission or the presiding officer, and the submission of all exhibits. The commission’s formal opinions and orders shall be issued and filed as soon as practicable after proceedings have been submitted.
Rule 12-21.05 OPINIONS
The commission shall issue a written opinion setting forth the conclusions of the commission as to the reasonableness of the circuit court's budget request and stating the reasons for its decision. Any member who disagrees with the commission’s findings may file a minority report.
Rule 12-21.07 SERVICE OF OPINION AND ORDERS
Opinions and orders shall be delivered to the parties of record by the commission counsel. When a party to a proceeding has appeared by a representative, delivery on such representative is delivery on the party.
COURT OPERATING RULE 12-23 PETITION FOR REVIEW
IN SUPREME COURT
Rule 12-23.01 PETITION FOR REVIEWIN SUPREME COURT
On receipt of the written opinion of the commission, dismissal of the case by the commission, or on refusal of the commission to accept a petition for review, the circuit court or the county governing body may seek review by the Supreme Court by filing a petition for review in the Supreme Court, with certificate of service upon the commission, not later than 30 days after the receipt of the commission’s opinion, dismissal, or refusal.
Rule 12-23.03 SERVICE OF PETITION FOR REVIEW
The commission counsel shall serve a copy of the petition for review on all parties, other than those seeking review, by first class mail.
Rule 12-23.09 EFFECT OF NON-FILING
If a petition for review is not filed in the Supreme Court, then the recommendation of the commission shall take effect notwithstanding the provisions of section 50.600, RSMo. If the commission refused to review a petition or dismissed a petition, and no petition for review is filed in the Supreme Court, the circuit court budget is approved as submitted to the county governing body.
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.
Day - to - Day
________________________
RONNIE L. WHITE
Chief Justice