REVISED: State Commission Investigating Local Judge - Issues Subpoenas

by BENJAMIN C. NELSON

A few weeks ago, the Macon Home Press reported on a current investigation that the Commission on Retirement, Removal, and Discipline is currently conducting of Macon County Associate Circuit Judge, Philip Prewitt. We became aware of the investigation by sources confirming to the Home Press regarding recently issued subpoenas. Since then, we became aware of Missouri Supreme Court Rule 12 which outlines the process that the commission takes after a complaint is made, and if applicable, during and after an investigation opens up. We also came across an article published by St. Louis Public Radio which touches base on the Commission itself, and some statistics that the St. Louis Public Radio has found - quotes from Law Professors, etc. Both findings have prompted us to make an update/revision to the original article. The St. Louis Public Radio is owned by the University of Missouri - St. Louis. To read the article by the St. Louis Public Radio, please visit the following link: http://news.stlpublicradio.org/post/missouris-code-conduct-judges-rarely-leads-disciplinary-action#stream/0

In this article, it is marked where we have made the update/revision at each applicable paragraph since the last release. We hope voters find this revision more clear and understandable considering we are less than 24 hours before polls open. The revised edition is in The Journal that came out throughout the weekend and today in Macon and Shelby County.

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.”

UPDATE/REVISION: Mr. Smith, administrator of the commission named above, directed me to Supreme Court Rule 12 (Missouri) that outlines the process that the commission goes through after a complaint is made, all the way up to referral to the Supreme Court of the State of Missouri (if applicable).

UPDATE/REVISION: In short, after a complaint is made, the commission can either decide to look into it (investigate) or simply, toss it. Supreme Court Rule 12 states, “Upon receipt of a complaint that a judge or a member of any judicial commission or a member of the Commission has committed a crime or is guilty of misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude, or oppression in office, the Commission shall make an investigation thereof. The Commission may require any such complaint be in writing and verified and that it allege facts. The Commission shall not be required to investigate such complaint if it is obviously unfounded or frivolous.” The Judge who is being investigated, will be notified as such. After the investigation concludes, all matters will be presented to the commission. If four or more members on the commission find probable cause that the person being investigated is guilty, the commission will move forward into a formal proceeding (hearing). If the commission members don’t find probable cause, the investigation will be terminated. Also stated in Supreme Court Rule 12 after the formal proceeding, “Upon completion of the formal proceedings, if at least four members of the Commission who shall have been present and heard all the evidence find that the person proceeded against is guilty and further find that such person should be removed from office, suspended from the performance of his duties for a period of time, or otherwise disciplined, the Commission shall make written findings of fact and conclusions of law with respect to the issues and shall make its recommendations to this Court. The Commission shall prepare a transcript of the record of all evidence and of all proceedings therein, which shall also include its findings of fact and conclusions of law and recommendations, and shall file two copies thereof with the clerk of this Court.”

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.”

--Note: The hearing regarding Judge Prewitt, is set to take place in December at the Macon County Courthouse (not public).--

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.”

UPDATE/REVISION: In an article published by St. Louis Public Radio in March of 2015, the State Commission (named above) that deals with complaints and investigations into Missouri Judges is comprised of six members, two of which are judges, two attorneys, and two citizens - cited within the article was that they handle close to 240 complaints per year and that since July of 1998, eighty-five percent of all cases have been dismissed without investigation. There is only one investigator for the commission in the State of Missouri. Also in the article, only four judges between 1998 and 2014 have been formally reprimanded or suspended without pay. Previously, Macon County Associate Circuit Judge Philip Prewitt was formally reprimanded on four counts of misconduct by the Missouri Supreme Court in October of 2015.

Judge Prewitt is up for re-election against Attorney Kristen Burks on November 6th.