STATE COMMISSION'S INVESTIGATION, ISSUES SUBPOENAS - ASSOCIATE CIRCUIT JUDGE RESPONDS

by BENJAMIN C. NELSON

On Wednesday October 17th, 2018, subpoenas from the Commission on Retirement, Removal, and Discipline (of Judges), were issued (to individuals) in Macon and surrounding counties. The Commission is a Missouri State Commission that formed after voters approved of Article 5; Section 24 of the Constitution of Missouri in 1972. Five sources confirmed to the Home Press, the existence of the subpoena(s).

The subpoena(s) state in full, “YOU ARE HEREBY COMMANDED, that setting aside all manner of excuse and delay, you be and appear in proper person before the Commission above named, at a hearing to be held at the jury room at the Macon County Courthouse, 101 E Washington Street, Macon, Missouri 63552 on Wednesday, December 12th, 2018 at 10:30 o’clock a.m., then and there to testify and the truth to speak, in a certain matter or hearing now pending before the Commission above named relating to the investigation of the Honorable Philp E. Prewitt and herein fail not at your peril. And the person or officer serving this subpoena is commanded to have the same at the time and place aforesaid, certifying how he executed same.”

-- The subpoena(s) were signed by the Clerk of the Missouri Supreme Court, Deputy Clerk Court en Banc, and stamped with the official seal of the Missouri State Supreme Court on October 9th, 2018 –

The commission currently investigating Associate Judge Philip E. Prewitt previously recommended four counts of judicial misconduct to the Missouri Supreme Court in 2015, ultimately leading to an official reprimand from Missouri’s highest court. The current investigation is new and is pertaining to new allegations and evidence. The Macon County Home Press released an article last week regarding the previous reprimand from the Missouri Supreme Court.

After contacting the Administrator and Counsel of the Commission stated above, Mr. James Smith stated that the Commission cannot speak or answer any questions regarding any matter of the investigation (details) or that the investigation even exists – due to the rule of confidentiality. However, it was clarified that the rule of confidentiality does not apply to anyone, if subpoenaed at any given time or even the subpoena(s) themselves. After visiting the website of the Commission on Retirement, Removal, and Discipline, the commission’s authority was stated: “The commission has authority to investigate complaints involving the following: Willful misconduct in office. Willful and persistent failure to perform duties. Habitual intemperance (e.g. alcohol or drug abuse). Permanent disabilities that interfere with judicial duties. A violation of the Code of Judicial Conduct. Conduct that brings the judiciary into disrepute. The commission's primary concern is judicial behavior, not judicial decision-making. Only a higher court can overturn a judge's decision or ruling. The commission is not a court and cannot change a judge's decision (including child custody orders), intervene in a pending case, remove a judge from a case, or award damages or other monetary relief to litigants. Complaints that allege misconduct solely on the basis of a judge's decisions will be dismissed without investigation. Neither the commission nor its staff can provide legal assistance or advice.”

The process starts with a complaint about the conduct of the judge. The website of the commission, stated, “Anyone can file a complaint against a judge using the official complaint form, which also can be obtained from the commission’s office. A letter will be treated as a complaint if it contains the information required on the official form. There is no charge for filing a complaint. A complaint consists of a statement of facts describing the judge’s conduct and listing the names of witnesses who can verify the facts. The complainant is not required to provide court rules, but may attach copies of documents that might help the commission understand the complaint. Complaints must be mailed or delivered to the commission’s office. All complaints are numbered and screened in the order in which they are received. The commission’s investigation may take several months, depending on the complexity of the matter and the commission’s caseload. The complainant and the judge will be notified by mail of the commission’s decision at the conclusion of the investigation. If either disagrees with the commission’s decision, he or she may request that the commission reconsider its decision. The request for reconsideration must present evidence or argument that was not previously provided to the commission.”

The Judicial Discipline process is also stated on the website, “The commission may reprimand a judge informally for violating the Code of Judicial Conduct or for failing to live up the ethical standards described in the state constitution. Informal reprimands are imposed when the judge’s conduct is improper, but not so serious as to require discipline by the Supreme Court. In some cases, the commission may file formal charges and hold a hearing to consider evidence about the judge’s conduct. If it finds the judge committed misconduct, the commission can recommend to the Supreme Court that the judge be reprimanded, suspended without pay or removed from office. The court also may retire a judge from office for a permanent physical or mental condition that prevents the judge from performing judicial duties.” Finally, the website also reinforces confidentiality by stated, “papers and proceedings of the commission are kept confidential unless a formal recommendation for discipline or disability retirement is filed by the commission before the Supreme Court.”

After the Home Press was made aware of the subpoenas and investigation, we reached out to Macon County Associate Circuit Judge Philip Prewitt and asked for a statement. Judge Prewitt stated, “Ben, following is the comment you requested: The Commission scheduled a hearing in December regarding allegations that have been made. The purpose of the hearing is to determine if the allegations are true. The subpoenas are to compel witnesses to attend that hearing. Missouri Supreme Court Rule makes this proceeding confidential at this point. I hope that all involved would comply with the rules so the hearing is fair.”

The hearing is set to take place in December at the Macon County Courthouse (not public). Judge Prewitt is up for re-election in November against Attorney Kristen Burks.