State v. Ralls5/25/1999
s of the defendant's constitutional claim, or if the appeal must be transferred to the Missouri Supreme Court.
"If 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.
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
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