State of Missouri, Respondent, v. Bilah Ralls, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Bilah Ralls, Appellant. Case Number: 55477 Handdown Date: 05/25/1999 Appeal From: Circuit Court of Jackson County, Hon. Marco A. Roldan Counsel for Appellant: Rebecca Kurtz Counsel for Respondent: Philip Koppe Opinion Summary: Defendant Bilah Ralls appeals from a conviction for drug trafficking in the second degree, section 195.223, RSMo 1994, rendered by a jury after a trail before drug court Commissioner Marco Roldan. TRANSFERRED TO MISSOURI SUPREME COURT. Division holds: (1) For the purposes of this appeal, the judgment of the drug court commissioner is the appealable entry, it having been confirmed by the circuit court judge, which was entered and filed with this court. (2) The appellant's constitutional question was not made in a timely manner, but subject matter jurisdiction may, as a general rule, be raised at any point. (3) The constitutional question of whether section 478.466, RSMo Supp. 1996, is in conflict with Art. II, Section 1 and Art. V, Sections 1 and 25(a) of the Missouri Constitution is a "real and substantial" issue that is not within this court's jurisdiction. Citation: Opinion Author: Forest W. Hanna, Judge Opinion Vote: TRANSFERRED TO MISSOURI SUPREME COURT. Smart, P.J., and Stith, JJ., concur. Opinion:

The appellant, Bilah Ralls, was convicted by a jury after a trial before drug court Commissioner Marco Roldan. Mr. Ralls was found guilty of drug trafficking in the second degree, section 195.223, RSMo 1994. Commissioner Roldan sentenced the defendant to ten years imprisonment as a prior offender, section 558.016, RSMo 1994, and as a prior drug offender, section 195.275, RSMo 1994. The defendant appeals from this determination. The underlying issue, upon which this appeal is based, is whether section 478.466, RSMo Supp. 1996, which purports to confer judicial authority in a drug court commissioner, is in conflict with Art. II, Section 1 and Art. V, Sections 1 and 25(a) of the Missouri Constitution. However, the threshold question raised by the state, is whether the procedural posture of this case will allow us to reach the constitutional issue. The defendant was arrested at the intersection of 73rd Street and Virginia in Kansas City, Missouri, while in possession of 4.57 grams of crack cocaine. The jury found the defendant guilty. Defense counsel filed a motion for new trial alleging, for the first time, that the drug court lacked jurisdiction because a drug court commissioner, appointed by the circuit court pursuant to section 478.466, was not appointed in accordance with Art. V, Section 25(a) of the Missouri Constitution. Section 25(a) requires the governor appoint all judges under the nonpartisan selection plan. The post-trial motion was overruled and the defendant timely filed a notice of appeal with this court. The appeal was from Commissioner Roldan's judgment and sentence of January 13, 1998. The Honorable William F. Mauer, a circuit court judge in Jackson County, entered an order on January 26, 1998, which stated: It is hereby ordered that all acts, orders, judgments and decrees of Marco A. Roldan, commissioner of this court, made and entered by him on January 12, 1998, through January 16, 1998, be hereby confirmed. It is so ordered. On appeal, the defendant raises one point. He complains that in his capacity as a drug court commissioner, Commissioner Roldan lacked jurisdiction to preside over his trial and to sentence him because section 478.466 is unconstitutional. The defendant argues that the selection process of the drug court commissioner violates Article V, Section 25(a), which requires a judicial vacancy in Jackson County to be filled by the governor appointing one of three persons nominated by a nonpartisan judicial commission. Furthermore, he argues that Article V, Section 1 of the Missouri Constitution does not confer judicial power in a drug court commissioner, thus, the statute is an unconstitutional delegation of judicial authority infringing on the principle of separation of powers under Article II, Section 1 of the Missouri Constitution. Finally, the defendant argues that the constitutional defects and the lack of jurisdiction cannot be cured by a "rubber stamp" order of a circuit court judge confirming the actions of the drug court

commissioner. The state does not address the constitutionality of the statute appointing the drug court commissioner. Instead, it raises two issues that must be resolved before the constitutional issue is taken up. First, it argues that Commissioner Roldan's "judgment" was not a judgment because it was not signed by a judge and, therefore, did not constitute a final appealable judgment. As such, it contends that the appeal was filed prematurely. Second, the state argues that the defendant's challenge to the constitutionality of section 478.466 was not timely in that the constitutional challenge was not raised at the earliest opportunity. On the issue of the premature appeal, the state maintains that the defendant cannot appeal from the commissioner's January 13th "judgment," notwithstanding the circuit court judge's order confirming the judgment dated January 26th. Since the defendant's notice of appeal was filed on January 21, 1998, five days before Judge Mauer signed the confirmation order on January 26, 1998, the state claims that the defendant's appeal should be dismissed as premature. The state first contends that because the drug court commissioner is not a judge and cannot enter a judgment, his entries are not final appealable orders. (FN1) The state refers us to the case of Slay v. Slay, which ruled that entries signed by commissioners, as opposed to Art. V judges, are not final judgments from which appeals can be taken. 965 S.W.2d 845, 845 (Mo. banc 1998). Understanding that Slay addresses the method of appeal of a civil case, we note there are several criminal cases in which a defendant filed a notice of appeal before a final judgment was entered. See State v. Chase, 415 S.W.2d 731, 732 (Mo. 1967); State v. Miner, 606 S.W.2d 448, 449 (Mo. App. 1980); State v. Friend, 605 S.W.2d 209, 209 (Mo. App. 1980); State v. Lance, 561 S.W.2d 445, 446 (Mo. App. 1978); City of Riverside v. Johnson, 507 S.W.2d 48, 49 (Mo. App. 1974); State v. Hendel, 468 S.W.2d 664, 665 (Mo. App. 1971). These cases stand for the proposition that there must be a final judgment in the trial court before an appeal will lie because the entry of a judgment and sentence is the triggering event. State v. Minor, 606 S.W.2d at 449. This case has a "judgment". It was entered by the commissioner and confirmed within the allowable time by a circuit court judge. Whether the appeal should have been taken from Commissioner Roldan's judgment or Judge Mauer's confirmation is not an issue that must be decided. For our purposes, the facts here are similar to the principle stated in State v. Hendel, 468 S.W.2d at 665. Following a bench trial, the court found the defendant guilty of driving under the influence and assessed punishment at a fine of $300. Id. The defendant's motion for new trial was overruled by operation of law on October 23. Defendant filed a notice of appeal before judgment and sentence was pronounced on October 30. On January 7, the

trial court granted allocution and sentenced the defendant to pay a fine of $300. Id. The court held that this was a final judgment. The defendant filed a second notice of appeal from the January 7th judgment and the court ruled that the appeal was properly before the court. Likewise, in this case, the question of whether the triggering event was the judgment issued by the commissioner or the order issued by the judge is before the court. The record on appeal not only has the commissioner's "judgment," but also the order signed by the circuit court judge, who authenticates the conviction "as if made by the judge on the date of its confirmation." Section 478.466.1. Whether the notice of appeal is taken from the commissioner's entry or the judge's entry is a technical issue that we need not decide in order to reach the substantive issue in the appeal. (FN2). Furthermore, there is no prejudice to the state because the appeal is from the substantive entry in the matter. (FN3) The only action that results from the commissioner's "final" judgment, which is reviewed in a timely manner, is the confirmation. As such, for the purposes of this appeal the judgment of the drug court commissioner, having been timely confirmed by the circuit court judge, is the appealable entry.(FN4) The second procedural matter to be addressed before considering the substantive issue is whether the constitutional question has been properly preserved. The defendant's substantive point on appeal is that the drug court commissioner lacked subject matter jurisdiction in that Section 478.466 is unconstitutional because it violates the principle of separation of powers. The defendant did not challenge the jurisdiction of the drug court commissioner until after the jury had returned its guilty verdict. It was when the defendant filed his motion for new trial that he raised the subject of the court's jurisdiction for the first time. Generally, a constitutional question is waived if it is not raised at the earliest opportunity. A long line of cases, commencing with State v. Mackey, 259 S.W. 430 (Mo. 1924), have held that the challenge to the constitutionality of the law under which the defendant was charged comes too late if not raised "at the first opportunity in the course of an orderly procedure." State v. Cox, 259 S.W. 1041 (Mo. 1924). See also State v. Dansforth, 654 S.W.2d 912, 917 (Mo. App. 1983). The defendant's challenge to the constitutionality of Section 478.466 was not made in a timely manner. Thus, the question is whether his failure to object timely results in a waiver of the issue. The defendant responds that subject matter jurisdiction can be challenged for the first time on appeal. See State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992)(ruling that "a defendant may for the first time on appeal raise . . . the issue of the trial court's jurisdiction to try the class of case of which defendant was convicted"); Merriweather v. Grandison, 904 S.W.2d 485, 489 (Mo. App. 1995)(finding that "jurisdictional defects are not, and

cannot, be waived"). The state claims that a constitutional question is waived if it is not raised at the earliest opportunity, citing State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998).(FN5) In York, the issue was the "rarely applied theory of prospective application of a constitutional ruling" with regard to whether a judgment was effective in 1996, when the family court commissioner unconstitutionally entered a judgment, or in 1998, when the circuit court entered an order confirming the prior judgment. 969 S.W.2d at 224. The Missouri Supreme Court reiterated that constitutional violations are waived if not raised at the earliest opportunity. The Court also noted that "[o]ne exception to the waiver doctrine usually noted is where there was a lack of subject matter jurisdiction in the forum where the waiver occurred." Id. at 225. The York court went on to determine that the jurisdictional argument was waived in that matter, because the parties assumed the burdens and benefits of the commissioner's 1996 order and, as a result, the absence of jurisdiction did not have "a conclusive effect on the rights of the parties." Id. It remains that subject matter jurisdiction can, as a general rule, be raised at any point, including on appeal. In this case we believe that this rule is applicable, and the defendant may now assert his constitutional claim on appeal. State v. Parkhurst, 845 S.W.2d at 35; Brown v. State, 452 S.W.2d 176, 179 (Mo. 1970); Kansas City v. Stricklin, 428 S.W.2d 721, 724-25 (Mo. banc 1968); Stidham v. State, 963 S.W.2d 351, 353 (Mo. App. 1998). This brings us to the defendant's sole issue on appeal—whether this court has jurisdiction to determine the merits of the defendant's constitutional claim, or if the appeal must be transferred to the Missouri Supreme Court. "If [the] constitutional challenge has been preserved for review, this Court does not have jurisdiction and the appeal must be transferred to the Missouri Supreme Court." State v. Sullivan, 935 S.W.2d 747, 754 (Mo. App. 1996)(citing State v. Roberds, 820 S.W.2d 621, 622 (Mo. App. 1991) and State v. Perkins, 680 S.W.2d 331, 334 (Mo. App. 1984)). See also State v. Charity, 637 S.W.2d 319, 321 (Mo. App. 1982)(citing Art. V, Section 3, Mo. Const., as amended 1976). The mere assertion that a statute is unconstitutional does not necessarily deprive the court of appeals of jurisdiction. State v. Armstrong, 930 S.W.2d 449, 452 (Mo. App. 1996)(citing State v. Roedel, 884 S.W.2d 106, 108 (Mo. App. 1994)). The constitutional issue must be real and substantial, and not merely colorable. Id. A constitutional claim is deemed substantial "when, upon preliminary inquiry, the contention discloses a contested matter of right, involving some fair doubt and reasonable room for controversy." State v. Charity, 637 S.W.2d at 321. On the other hand, "if such preliminary inquiry discloses that the contention is so obviously unsubstantial and insufficient, either in fact or in law, as to be plainly without merit and a mere pretense, the claim may be deemed to be merely colorable." Id. (citing State v. Egan, 272 S.W.2d 719, 725 (Mo. App. 1954)).

Missouri Courts have not addressed the constitutional issue raised by defendant Ralls. He claims that Section 478.466.1, which provides for the appointment of a drug court commissioner for Jackson County: (1) violates Art. V, Section 25(a) of the Missouri Constitution because the drug court commissioner is not appointed pursuant to the nonpartisan judicial plan; and (2) violates Article V, Section 1 of the Missouri Constitution because the statute improperly confers judicial powers in a drug court commissioner. Section 478.466.1 states that: In ... the county of Jackson, a majority of the court en banc may appoint one person, who shall possess the same qualifications as an associate circuit judge, to act as drug court commissioner.... Subject to approval or rejection by a circuit judge, the commissioner shall have all the powers and duties of a circuit judge. A circuit judge shall by order of record reject or confirm any order, judgment and decree of the commissioner within the time the judge could set aside such order, judgment or decree had the same been made by him. If so confirmed, the order, judgment or decree shall have the same effect as if made by the judge on the date of its confirmation. pard Id. (emphasis added). The appellant contends that although the statute purports to grant to the drug court commissioner all the powers and duties of a judge, the commissioner is selected by the court en banc, as opposed to the constitutional procedure mandated by Art. V, Section 25(a). Moreover, he contends that the legislature cannot "create a tribunal and invest it with judicial power ... by the grant of a p6ower the constitution reserves to the judiciary." Lederer v. Dept. of Social Servs., Div. of Agriculture, 825 S.W.2d 858, 863 (Mo. App. 1992)(citing State Tax Comm'n v. Admin. Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1989)). The Missouri Supreme Court has indicated that the "authority that the constitution places exclusively in the judicial department has at least two components--judicial review and the power of courts to decide issues and pronounce and enforce judgments." Chastain v. Chastain, 932 S.W.2d 396, 399 (Mo. banc 1996)(finding that Section 454.496, RSMo 1994, does not vest the Division of Child Support Enforcement with powers reserved exclusively by the constitution to the judicial department). In the case of Bridges v. Hurd, this court looked at Section 478.266, RSMo 1978, which permitted the circuit court judges of Jackson County to appoint a commissioner of the circuit court's probate division. 645 S.W.2d 377, 379 (Mo. App. 1983). The court concluded that "the commissioner possesses the powers and duties of a judge only when his actions have been either approved or rejected by the probate division judge." Id. Since a judge neither rejected nor approved the judgment entered by the probate commissioner in Bridge v. Hurd, it was deemed to not be a final appealable judgment. Id. See also Clemans v. Mecantile Bank of St. Louis, N.A., 936 S.W.2d 889, 890 (Mo. App. 1997); Estate of Norman v. Norman, 792 S.W.2d 920, 921 (Mo. App. 1990). Recently, the Missouri Supreme Court addressed the issue of judicial determinations by family court

commissioners. In the case of Slay v. Slay, the Court found that judgments signed by family court commissioners were not final appealable judgments, because such judgments were not "signed by a person selected for office in accordance with and authorized to exercise judicial power by article V of the state constitution." 965 S.W.2d 845, 845 (Mo. banc 1998). Thus, the Court dismissed the appeals for lack of jurisdiction. Id. In the subsequent case of State ex rel. York v. Daugherty, the Court indicated that the Slay case did not declare that portion of the statute authorizing review by a circuit court unconstitutional. 969 S.W.2d 223, 225 (Mo. banc 1998). We believe that the question of whether Section 478.466 is in conflict with Art. II, Section 1 and Art. V, Sections 1 and 25(a) of the Missouri Constitution is a "real and substantial" issue and, thus, we transfer the case to the Missouri Supreme Court. Footnotes: FN1.The state notes that the defendant's notice of appeal only mentions Commissioner Roldan's judgment. FN2.Civil cases have discussed the cases in terms of prejudice to the respondent. See e.g. State ex rel. State Highway Comm'n v. Tate, 576 S.W.2d 529, 530-31 (Mo. banc 1979); Kilmer v. Browning, 806 S.W.2d 75, 85 (Mo. App. 1991). In L.J.B. v. L.W.B., the appellant filed a notice of appeal based on a judgment which, after the appeal was filed, was subsequently amended by the trial court. 908 S.W.2d 349, 350 (Mo. banc 1995). In that case, the judgment was not vacated, nor was the amendment to the judgment an "entirely new judgment." Id. Rather, the changes only related to matters not appealed. Id. at 351. As such, the court found that "[t]echnical adherence to the formal averments of a notice of appeal is not jurisdictional, and the averments are to be liberally construed to permit appellate review. . .The attachment of the earlier unamended decree is a technical defect in the notice of appeal and in no way misled respondent to her irreparable harm. The defect does not defeat appellate jurisdiction." Id. FN3.Although not decisive, we are mindful of the defendant's right to a speedy disposition and the importance of the underlying legal issue that continues to haunt the finality of cases. FN4.The state further argues that even if the defendant had tried to appeal from Judge Mauer's order, his appeal still would not be timely because that entry is also not a "final appealable judgment" in that it does not include, in either the caption ("Order to Confirm Orders, Judgments and Decrees of Commissioner") or the body of the order, that the order is meant to be a judgment. See City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). The City of St. Louis v. Hughes case construes a civil statute and rule. Id. (interpreting Section 512.020, RSMo 1994 and Rule 74.01(a)). In contrast, the criminal rule states that "[w]hen an appeal is permitted by law from a trial court, a party or his agent may appeal from a judgment or order by filing ... a notice of appeal." Rule 30.01(d)(emphasis added). Moreover, case law indicates that a final criminal judgment, from which appeal can be taken, occurs when sentence is entered. State v. Stout, 960 S.W.2d 535, 536 (Mo. App. 1998)(ruling that a denial of a petition requesting a reduction in sentence is not a "final judgment" for purposes of appeal pursuant to Section 547.070). FN5.The state also refers us to State v. Bowens, 964 S.W.2d 232, 236 (Mo. App. 1998); City of Columbia v. Hardin, 963 S.W.2d 6, 10 (Mo. App. 1998); State v. Sullivan, 935 S.W.2d 747, 754 (Mo. App. 1996). In these cases, the constitutional challenge is based on whether a statute or ordinance is void for vagueness. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.