"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi

Usurpation of Legislative Power by Missouri Circuit Court Judges

August 6th, 2007 by mopns · No Comments

Email from a reader:

At the end of May I heard a news broadcast that a Missouri circuit court judge ruled that a Missouri Statute was unconstitutional and enjoined the Missouri Department of Corrections from enforcing it.

It just didn’t sound right. How could the voice of the people be muted by a judge that only has jurisdiction in the circuit in which she serves.

I started to question the authority. I contacted the OSCA, The Missouri Supreme Court, the Attorney General’s Office, and my elected representatives. The responses that I received were lame and ambiguous at best. I gathered my thoughts and sent a letter to Senator Gibbons, my representative.

His response was absurd. His claim allowed a circuit court judge to completely invalidate a statute statewide. I found this claim to be so incredible that I felt a need to do a more in-depth analysis. I found that I was correct, and that the teachings of the Missouri Bar support my contention.

Now I have a real problem…Getting them to acknowledge the truth. It seems the government, including the judiciary, and the media lose their ability to speak when presented with the truth, especially about the judiciary.

Please take a look at the attachments. The chronological order is a follows:

1. Ruling Letter –sent to Gibbons – June 15th

2. Response from Gibbons – July 13th

3. Reply to Gibbons – July 26th

I think you will find my reply informative, and based upon supporting authority. Let me know what you think.

Thanks,

Jim Byrne

Comments

comments

Tags: Sen. Michael Gibbons

0 responses so far ↓

  • 1 Jim Byrne // Aug 6, 2007 at 9:35 am

    The information provided in this post has been sent to KSDK (channel 5, Leisa Zigman), KTVI (channel 2, Charles Jaco), and KPLR (channel 11). They have refused to publicly acknowledge the illegal actions of the Missouri courts. I guess the story about Little Billy’s cat having an extra toe is more important than incompetence and corruption in our government.

    The mainstream media only reports the news that they want you to see and hear. This way they keep you in the dark and turn their viewers into docile chumps. You want the truth…find it on the web! Thanks to sources like Missouri Political News Service the Citizens of Missouri can find the truth about our government.

  • 2 S.E. Farris // Aug 6, 2007 at 11:14 am

    A little knowledge is a dangerous thing. The laws of the state of Missouri are only allowed to stand if they conform to our Constitution. Yes, a circuit judge can decide that a law is unconstitutional. The Missouri Supreme Court is the final voice on the matter, however. This means that the circuit judge does not act without oversight on state wide matters.

    There is no great controversy here, no corruption. In fact, this is not even news. It is typically covered in High school civics.

  • 3 Jim Byrne // Aug 6, 2007 at 12:06 pm

    S.E. nice attempt to put out the fire, unfortunately B.S. doesn’t work well. I notice that you stated that a circuit court judge can decide that a law is unconstitutional, but you did not state that a circuit court judge can rule a Missouri Statute to be unconstitutional. You cannot provide any documentation that would permit a circuit court judge to rule on the validity of a Missouri Statute. A circuit court judge may rule on the constitutionality of a decision made by an Administrative Agency (Mo. Const. Art.V, Sect. 18) as it is directly permitted by the Missouri Constitution. The Legislative and Executive Branches of the Missouri Government are not “administrative agencies.”

    Article II, Section 1 of the Missouri Constitution states that the powers of one branch may not be exercised by another branch except were expressly directed or permitted. Note the words “expressly directed or permitted” Article V, Section 3 gives this power to the Missouri Supreme Court and permits them to review the validity of a statute.

    If you wish to debunk the conclusions set forth in the “Reply to Senator Gibbons”, please do so, with relevant authority. All I see here is what I believe to be an attorney who will make statements that cannot be supported by documented authority. Support you statements! Show the readers where this authority is expressly stated.

    Are Spencer E. Farris, attorney at law, Bar Number: 39970?

    I am inviting you to a video debate on this subject. I will bring the camera. We can debate it at your office. We can invite Scooter to moderate it. Let me know when and where.

  • 4 S.E. Farris // Aug 6, 2007 at 12:49 pm

    Mr. Byrne,

    I didn’t state that a court could undo an uncostitutional statute because it is elementary that statutes and laws are the same thing! As for authority, you might want to look at State ex rel. Williams v. Marsh, 626 SW2d 223, 227 (Mo. en banc. 1982), where Judge Higgins on behalf of the Supreme Court noted: “Circuit Courts have the authority to declare an Act of the Legislature unconstitutional so long as the question has not been determined by this [i.e. the Supreme] Court.” This act of the legislature is interchangeably called statute or law.

    The courts do not legislate, i.e. write laws, from the bench. Their job has been, since the founding of our Democracy, to make certain that the laws comport with the Constitution, just as Senator Gibbons told you in his letter. Neither he nor the other legislators are necessarily “incompetent” as you alleged. Their goal is to enact valid legislation. They have political motives, and while they are mindful of the constitution, they craft laws by compromise. This necessitates that some language will be put in place, often by non-lawyers in the legislature as well as lawyers, that doesn’t pass constitutional muster. If they were infallible in that quest, there would not have neen the need for the third branch of government our Founding Fathers created.

    You may wish to look at Constitution article 5, section 14: The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. I think this the authority you seek.

    This is elementary civics, not a conspiracy, not a hidden threat to our state. While I acknowledge your offer of a debate, I do not know that I am the right person for the job. I am only an attorney, not a recognized expert in the field. I hope this is helpful.

  • 5 Jim Byrne // Aug 6, 2007 at 1:59 pm

    Mr. Farris,

    I believe that you are confused. Statutes are laws, but city ordinances and common law are also law. Common law is recognized in Missouri by RSMo 1.1. A circuit court judge may rule on the constitutionality of common law application to the instant case while not usurping the power of the Legislature. A Missouri Statute, on the other hand, is law that has been created by our elected representatives, the voice of the people.

    You cite State ex rel. Williams v. Marsh, 626 SW2d 223, 227 (Mo. en banc. 1982), and the opinion of Judge Higgins. I don’t care if Judge Higgins swings from a flag pole and blows a whistle, he cannot give authority to a court where it has not been provided by the constitution. Not even the Supreme Court can provide authority not expressly directed or permitted by the Missouri Constitution.

    If you would have actually read, and retained, the information provided in the “Reply to Senator Gibbons,” you would have noted that I addressed Article V, Section 14. Nothing in Art.V, Sec 14 expressly permits a Missouri circuit court judge to rule on the validity of a Missouri Statute. Article V, 14 is ambiguous at best, and does not explicitly permit that which is expressly permitted in Article V, Section 3. Further, it is not a matter of contention that the US Constitution did not authorize judicial review. The US Constitution did, however, use the same statement of “original jurisdiction” in Article III, Section 2 of the US Constitution.

    If the framers of the Missouri Constitution wanted to permit the circuit court, or the court of appeals to determine the validity of a statute, they would have stated such. Assumed authority works as long as someone listens, but it is not constitutionally provided authority.

    If you would like to address the questions posed to Senator Gibbons, please feel free to do so. You can email to my first name at kahuna dot com.

    If you are not an expert, please contact one. I have tried to get Law Professors to comment, but they have refused.

    I do applaud you for being the only attorney willing to address this issue, but trying to attack something that has already been addressed and rebutted does nothing to support your position. Please read the documents that were attached to the posting. I think they will help. They are supported by documented authority, and not just my interpretation.

  • 6 Ms. Taylor // Aug 6, 2007 at 5:32 pm

    I am not a recognized authority on law, however, I have read the post that Mr. Byrne has submitted. I am a citizen of Missouri and believe our court systems defintely need to be scrutinized. The courts, judges and attorneys are way out of control and it appears that the Missouri Constitution is supposed to be folowed in accordance with the words contained therein. Strict adherence to the Constitution makes much more sense than implimenting assumed authority.

    With that said, I believe Mr. Bryne has referenced his submission beyond a shadow of a doubt and in doing so has opened a clear view as to the fact that the courts and judges are commonly doing as they please. They routinely make decisions that effect many lives, often with an assumption that is it legal to do so. The pretense is that because things have been performed consistantly, although without authority to do so, that this should be an acceptable practice.

    Mr. Brrne has not outlined a conspiracy theory or a rant about some mistreatment in a court room. He has presented facts that the courts are in error and no one is doing anything about it. What does it take to make people realize there is something wrong here?

    The attorney, Mr. Farris, that responded clearly did not analyze the full submission from Mr. Byrne. He did not support his opinions with relevant authority. He did however, state that he was not an expert after Mr. Bryne requested a meeting.

    We are all entitled to our opinions and in this country we have the right to express those opinions. This is not to say that all opinions are correct. I do find that those presented with authority will likely gain my support before those that try to dismiss the proposition without supporting authority. Mr. Farris does try to pass this off as curriculum that is taught in our high school civics classes. Maybe he and the judges of Missouri should attend the class. The guideline presented by the Missouri Bar clearly supports Mr. Byrne’s position.
    I found this guideline at: http://www.mobar.org/teach/judicial_review.pdf

    Mr. Byrne, thank you for looking out for the citizens of Missouri. I wish our elected representatives would do the same. I am amazed that our local media refuses to address this issue. Who is looking out for us?

  • 7 papsmear // Aug 14, 2007 at 11:00 am

    Educate me:

    A statute is not a statute until it’s “effective date”; which for the topic of Mr. Byrne’s comments is August 28, 2007.

    While the bill in question was passed by both legislative bodies in the Missouri General Assembly and signed by the relevent legislators and Governor—is it not a Statute until August 28, 2007??? Given the Circuit Court’s decision this statute’s clause dealing with “Ministerial and Tocolgical Certificates has been ruled to be in violation of the Missouri Constitution and not enforceable by the State of Missouri. I do understand that an appeal to the MO Supreme Court is an option to those who wish to advance the controversial language into the Missouri Statutes.

    I readily admit that I am no expert in these matters.

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