Judges uphold ruling: Parson to appoint St. Louis County prosecutor

by By Dana Rieck

ST. LOUIS — Three appellate judges on Thursday upheld a lower court’s ruling, giving Missouri Gov. Mike Parson the power to appoint the next St. Louis County prosecutor.

The ruling came hours after lawyers for state and county leaders again argued the case, this time in front of the Eastern District Missouri Court of Appeals.

At the crux of the case is whether a “charter” county’s prosecuting attorney is an officer of the county or the state.

“Because the prosecuting attorney performs essential state functions as a state officer, the governor has the constitutional and statutory authority to make the appointment to fill the vacancy,” appellate Judge John Torbitzky wrote in the ruling.

St. Louis County Executive Sam Page, who has already appointed a new prosecutor, said he would appeal the decision, this time to the Missouri Supreme Court.

St. Louis County should be able to select its own elected officials,” Page’s spokesman, Doug Moore, said. “Public safety is the number one priority in St. Louis County. While the legal process continues, it’s important to support the prosecuting attorney’s office.”

But shortly after the hearing, the St. Louis County prosecuting attorney’s office announced Price Smith would be sworn in Friday morning.

“We were certain in Gov. Parson’s authority to name the St. Louis County Prosecutor from the beginning, and our position has now been affirmed twice by the courts,” said Johnathan Shiflett, the governor’s spokesperson. “Gov. Parson looks forward to Ms. Price Smith taking the oath of office tomorrow and her continued work to improve law and order in the region.”

This appeals process was expedited because of the imminent departure of current county Prosecuting Attorney Wesley Bell, newly elected to the U.S. House of Representatives. Bell will also be sworn in Friday in Washington.

The ruling came less than two weeks after the circuit court judge issued his opinion.

“I want to thank the court for Herculean efforts, and the circuit court as well, to get this case heard quickly,” Neal Perryman, a private attorney who represents Page and the county, said during Thursday’s hearing. “It is very much appreciated. I think it’s the quickest briefing schedule I’ve been involved in in three decades.”

Appellate Judge Lisa Page responded: “I’ve only been here nine years, counselor, and it’s the fastest one I’ve ever seen, too.”

During the hearing, Torbitzky said the matter should be determined through analyzing the function of a prosecutor.

Perryman said prosecuting attorneys prosecute state laws, much like sheriffs enforce state laws. And like the sheriff, he argued, prosecuting attorneys are a county officer.

But Parson’s attorney, Andrew Crane, reiterated his argument that prosecuting attorneys are carved out of the power of the Attorney General and those prosecutors don’t answer to the county or represent it. This makes them officers of the state.

Ultimately, the judges ruled that state law “unambiguously grants the Governor the authority to appoint a competent person to fill the prosecuting attorney vacancy, and supersedes the County’s charter provision.”

Perryman pointed out that the ruling will have significant ramifications: It will determine the appointment process for Missouri charter counties, which are home to about 42% of the state’s population.

The legal battle between state and county leaders began late last month when Parson and Missouri Attorney General Andrew Bailey, both Republicans, sued Page, a Democrat, to stop him from naming Bell’s successor.

St. Louis County lawyers argued the county charter allows Page to fill the vacancy. Page announced his choice Dec. 3: Cort VanOstran, a former assistant U.S. attorney and a Democrat. About a week later, on Dec. 12, Parson nominated Melissa Price Smith, an assistant prosecuting attorney in the county and also a Democrat.

Lawyers for the state and county last month argued in court over who should have the power to appoint a replacement. A few days later, May ruled in favor of Parson.

Page appealed that ruling, arguing that other chartered county governments in Missouri have chosen replacements for their mid-term prosecutor vacancies.