The City of Neosho has joined with several cities across Missouri in choosing not to collect a $3 surcharge at the municipal court.

The City of Neosho has joined with several cities across Missouri in choosing not to collect a $3 surcharge at the municipal court.

Missouri Attorney General Chris Koster issued an opinion on April 17, stating that the $3 surcharge should be collected in municipal courts.

The surcharge is created under RSMo 57.955 and finances the state’s sheriffs’ retirement fund, however, municipal courts were previously excluded from having to collect the fee.

On July 8, the Neosho Municipal Court received a directive from the Office of State Courts Administrator (OSCA) stating that the fee should be collected in each case with a guilty plea or guilty ruling beginning Aug. 28.

On Aug. 26, Neosho Municipal Judge Andy Wood signed an order stating that the city would not collect the $3 fee.

That order was brought before the Neosho City Council in their next regularly scheduled meeting, held on Sept. 3, at which time council members gave their consent allowing the city’s court not to collect the fee.

“The point that we believe makes this unconstitutional is court costs are supposed to be an expense that goes toward the administration of justice,” City Attorney Steve Hays told council members. “And there cannot be any logical explanation why a retirement fund for the county sheriffs has any sort of reasonable relationship or bearing with municipal court costs or the administration of justice within the municipality.”

Missouri lawmakers created the retirement fund in 1983, and RSMo 57.955.1 has been in its present wording since 1996.

In Opinion 20-2013, Koster noted that while the statute had previously excluded municipal divisions, that exception was removed in 1996.  

That statute says a $3 surcharge should be assessed and collected in all civil actions filed in Missouri courts, as well as in all criminal cases including violation of any county ordinance or any violation of criminal or traffic laws of the state, with that fee to be directed to the sheriffs’ retirement fund.

However, Wood said as long as that surcharge has been around, it has not applied to municipal courts.

He said because the municipal court handles criminal cases coming from the local police department, not from the sheriff’s department, it was assumed that municipal courts were excluded from collecting the $3.

“We don’t have anything that runs through the sheriff’s office,” Wood said, noting that the city pays a $30 fee for every day they jail someone at the Newton County Jail. “They have expenses down there and I understand that, but we don’t have anything dealing specifically with the sheriff. I disagree with the attorney general’s opinion.”

Wood said shortly after Koster’s opinion including municipal courts in the collection of the fee was issued, the Missouri Municipal League, municipal attorneys and municipal judges joined together to contest Koster’s opinion.

“They suggested that each municipal judge, if their city didn’t think this was right, do one of these sua sponte orders,” Wood said.

Wood signed the order at the end of August, though he requested that council also give direction as to their opinion in the matter.

Hays presented Wood’s order, similar to that signed by several other municipal judges, to the council for consent. The order states that the city will not collect the fee until “a ruling to the contrary by a higher court.”

Hays said a Missouri Supreme Court ruling from 1986, noted in the order, shows why Koster’s opinion is incorrect.

The order cites the 1986 ruling from Harrison v. Monroe County, in which it said a senate bill that provided for
additional compensation for county officials through a surcharge added to court costs would be a “sale of justice.”

According to online court records, a petition including six plaintiffs, made up of municipal government officials, the Missouri Municipal League and the City of Slater, and listing Koster, the State of Missouri, OSCA and the Missouri Sheriff’s Retirement System as defendants, was filed in August.

The petition asked for a declaratory judgment, a temporary restraining order, a preliminary injunction and a permanent injunction.

The case was taken under advisement by Cole County Circuit Judge Jon Beetem on Aug. 29 and on Aug. 30 Beetem declined the request for a temporary restraining order.

Another hearing on the case is scheduled for 9 a.m. Friday, Sept. 13.  

Hays warned city council members that there could be ramifications to not collecting the fee.

He said if it is decided by the courts in the future that the surcharge should have been collected, it is a possibility that that the city could be expected to pay the amount that should have been collected. However, Hays said he believes it would be more likely that the fee would only need to be collected from that point forward.

Though, Hays noted there could be also be consequences for the city if they opted to collect the fee and it was later ruled unconstitutional.  

“If we were to collect it and at some point a court says that is unconstitutional, which we believe it is, we’re going to have to start hunting down a bunch of defendants to refund them,” Hays said.  

He said the opposition of municipal judges and attorneys to the attorney general’s opinion is not indicative of negative feelings toward county sheriffs.

“It’s not to say by any means that we don’t respect or that we don’t honor the sheriffs both retired and current,” Hays said. “The question is, should the city’s municipal court fund a sheriff’s retirement? And more precisely, does the funding of the sheriff’s retirement have a relationship to the administration of justice within our city? For that reason we feel it’s unconstitutional.”

Neosho Mayor Richard Davidson said he believes the city made the correct decision in choosing not to collect the fee, and said he too questions the municipal court’s role in funding the sheriffs’ retirement fund.

“It would make no sense to me why a municipal court would collect fees to pay for the retirement of a sheriff,” Davidson said. “I agree with the decision we made to not collect that until we’re either forced to or the decision is settled in court.”