STATE еx rel. Wanda ESTILL, Relator, v. Honorable Robert A. IANNONE, Judge, Sixteenth Judicial Circuit, Associate Division, Respondent.
No. 66198.
Supreme Court of Missouri, En Banc.
April 2, 1985.
687 S.W.2d 172
Dennis E. Egan, Joseph W. Medved, Kansas City, for intervenor-appellant.
Jerry W. Venters, Roger K. Toppins, Richard S. Brownlee, III, Jefferson City, for respondents.
Truman K. Eldridge, Jr., Charles F. Myers, Kansas City, for amicus curiae North Kansas City Memоrial Hosp.
John C. Hannegan, Tracy Mathis, St. Charles, for St. Anthony‘s Medical Center.
ORDER
PER CURIAM.
The Court, being of the opinion that the issue herein is now moot, orders the judgment of the circuit court and the ruling of the Administrative Hearing Commission vacated.
RENDLEN, C.J., WELLIVER, HIGGINS, GUNN, BILLINGS and BLACKMAR, JJ., and HOUSER, Sr. J., concur.
DONNELLY, J., not sitting.
Michael E. Dailey, Richard Ward, George Sharp, Kansas City, for resрondent.
ORIGINAL PROCEEDING IN PROHIBITION
GUNN, Judge.
This is an original proceeding for extraordinary writ. The question presented is whether the relator, convicted in municipal court of violating a city ordinance, is entitled to a trial by jury uрon her appeal to the circuit court.1 We hold that relator is entitled to a jury trial and grant relief by means of peremptory writ of prohibition.
The facts are not in dispute. Relator was arrested on three separate occasions and charged with violating
Following her conviction, relator sought a trial de novo in the circuit court, pursuant to Rule 37.78 and
At the outset, it is necessary to distinguish State ex rel. Cole v. Nigro, 471 S.W.2d 933 (Mo.banc 1971), appeal dismissed, 404 U.S. 804, 92 S.Ct. 122, 30 L.Ed.2d 36 (1971), reh‘g denied, 404 U.S. 960, 92 S.Ct. 309, 30 L.Ed.2d 278 (1971), which holds that there is no constitutional right tо a jury trial in a municipal ordinance violation proceeding. The present case concerns the relator‘s right to a jury trial upon appeal, rather than in an initial procеeding. And here no constitutional provisions are addressed. Instead, this Court is satisfied that under the pertinent statute, the rules of procedure and prior decisions, the relator is entitled to a jury trial, and her request for that procedure must be granted.
Our analysis begins with reference to the hoard of appellate decisions which state that upon the docketing of an appеal in the circuit court, the case is governed by the rules of criminal procedure. See e.g., St. Louis County v. Roth, 647 S.W.2d 922, 923 (Mo.App.1983); City of Richmond Heights v. Buehler, 644 S.W.2d 390, 391 (Mo.App.1982); City of Cameron v. Stinson, 633 S.W.2d 437, 439 (Mo.App.1982); City of Mexico v. Merline, 596 S.W.2d 475, 476 (Mo. Apр.1980); Kansas City v. Rowell, 548 S.W.2d 236, 236-37 (Mo.App.1977). Similarly, Rule 37.84 states that cases appealed
(a) All issues of fact in any criminal casе shall be tried by a jury to be selected, summoned and returned in the manner prescribed by law, unless trial by jury be waived as provided in this rule.
We note, however, that municipal ordinance violations arе more akin to misdemeanors or infractions as designated by
Our ruling in this case is consistent with prior decisions holding that it is error to deny a jury request in a trial de novo on appeal from a municipal court conviction. City of St. Louis v. Walker, 309 S.W.2d 671 (Mo.App.1958), and City of St. Louis v. Moore, 288 S.W.2d 383 (Mo.App.1956). The respondent agrees that the holdings of Walker and Moore are based on an interpretation of statutes and rules extant at that time. But, so argues the respondent, those cases should no longer serve as precedent, since the relevant statutes discussed in those cases have been repealed in favor of more recent legislative enactments.
Respondent contends that the relator‘s right to a jury trial has been abrogated due to the legislature‘s аdoption of
[E]xcept where thеre has been a plea of guilty or the case has been tried with a jury, the defendant shall have a right to trial de novo before a circuit judge or upon assignment before an associate circuit judge.
Respondent urges that the above provision sets forth not only the level to which an appeal may be taken from initial trial but also mandates that the trier of fact on that appeal can only be a circuit judge or associate circuit judge and not a jury. That is not so.
Proper statutory construction requires that the legislative intent and meaning of the words usеd in a statute are to be derived from the general purposes of the legislation, the condition which was sought to be remedied, as well as the circumstances which existed at the time of the enactment. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo.banc 1983). In this case, the purpose of the legislation and the condition sought to be remedied readily can be determined by reference to our state constitution and to the lаws as they existed prior to 1978.
Previously, there were numerous statutes pertaining to appeals from police
Until otherwise provided by law, or suрreme court rule, the practice, procedure, right to and method of appeal before and from municipal judges shall be as heretofore provided with respect to muniсipal courts.
In adopting
On behalf of respondent, the argument is forwarded that the innovation of jury procedures in trial de novo appeals for minor offenses asks too much of the judicial department and its participants. However, this is not a new procedure but one adopted and consistently utilized since thе Moore decision in 1956. Additionally, it is manifestly more worthy for this Court to perpetuate a procedure, charged as being laborious, than to delete a legislative grant on nothing more than innuendo.
It appears that by denying the relator‘s request for a jury trial, the trial court would be acting outside its jurisdiction. Hence, prohibition is the appropriate remedy to be applied. State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382 (Mo.banc 1980);
The alternative writ in mandamus heretofore issued is quashed. A rule of prohibition is grаnted and made peremptory.
RENDLEN, C.J., and WELLIVER, HIGGINS, BILLINGS and BLACKMAR, JJ., concur.
DONNELLY, J., dissents in separate opinion filed.
DONNELLY, Judge, dissenting.
In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo.banc 1983), this Court held that prohibition will lie to prevent an excess of jurisdiction but “that we should not continue the unfеttered use of the writ of prohibition to allow interlocutory review of trial court error.”
In State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo.banc 1984), this Court held that prohibition will lie where “[r]elators do not have adequate remedy by way of appeal.”
In this case, the trial court has jurisdiction and there is an adequate remedy by way of appeal. In my view, prohibition does not lie.
I respectfully dissent.