Oct. 14, 2003
To: Granby City Council
Re: Query as to why no special election for vacant office of municipal judge.
Municipal Courts and Traffic Courts, Section 479.230, Absence of judge, procedure. 479.230.
1. If a municipal judge be absent, sick or disqualified from acting, the mayor or chairman of the board of trustees may request the presiding judge of the circuit court to designate a special municipal judge as provided in subsection 2 of this section or the mayor or chairman may designate some competent, eligible person to act as municipal judge until such absence or disqualification shall cease; provided, however, that should a vacancy occur in the office of an elected municipal judge more than six months before a general municipal election, then a special election shall be held to fill such vacancy; and in case of vacancy in the office of an elected municipal judge within less than six months of a general municipal election, the office may be filled by a competent, eligible person designated by the mayor or chairman of the board of trustees or as provided in subsection 2 of this section.
2. The presiding judge of the circuit court may appoint any other municipal judge within the circuit to act as a special municipal judge for a municipal judge of the circuit who is absent, sick or disqualified from acting. The presiding judge shall act only upon request of the mayor or chairman of the board of trustees for a special municipal judge.
Chapter 41 Military Forces Section 41.942
Leave of absence without loss of status or benefits for government employees, when, evidence required, procedure.
41.942.1. Notwithstanding the provisions of subsection 1 of section 105.270, RSMo, any officer or employee of this state, or of any department or agency of this state, or of any county, municipality, school district or other political subdivision, and any other public employee of this state, who is or may become a member of the national guard or of any reserve component of the armed forces of the United States and who is engaged in the performance of duty in the service of the United States under competent orders for an extended and indefinite period of time, shall be entitled to leave of absence from his respective duties as a public officer or employee until such military service is completed without loss of position, seniority, accumulated leave, impairment of performance appraisal, pay status, work schedule including shift, working days and days off assigned to the officer or employee at the time leave commences, and any other right or benefit to which the officer or employee is entitled, and no retirement benefit shall be diminished or eliminated because of such service.
2. The officer or employee shall file with the appointing authority or supervising agency an official order from the appropriate military authority as evidence of such duty for which the leave of absence is granted.
Question 1: Mayor Rick McCully has informed me verbally before the last city council meeting and earlier this morning that it is the position of the officers of this municipal corporation that RSMo 41.92 dealing with Military Forces supercedes the express statute in RSMo 479.230, Municipal and Traffic Courts. RSMo 479.230 makes no exception for absence of an elected judge for reason of military service, nor does RSMo 41.942, dealing with employees, not elected officials, create any such exception. Is it the legal opinion of this city council that RSMo 41.92, not specifically germane to municipal courts, trumps RSMo 479.230, which specifically states what to do given absence of elected municipal judges?
Question 2: The position of municipal judge has not been held open to the absent reservist, Steve White, per RSMo 41.942, but rather this position has been filled by an attorney appointed by the city council, in violation of RSMo 479.230’s requirement for a special election. Since this elected position has not been held vacant, but rather filled, how can it be said that this municipal corporation is doing anything other than using RSMo 41.942 as a pretext to violate the express language of RSMo 41.942 concerning holding open and free elections for the vacant position?
Question 3: Has the absent municpal judge Steve White discussed with this city council or filed with this city council an ‘official order’ re RSMo 41.942 asking that his elected office be returned to him upon his return, if he survives, from Iraq? In short, is the municipal judge collaborating with this city council in order to use the RSMo 41.942 figleaf?
Question 4: Your appointed lawyer, Ann Wells, said that I had to discuss this matter with the city council. Then she illegally threatened to have me arrested for merely observing matters before ‘her court’ on Sept. 10, 2003. Is this behavior sanctioned by this city council?
Question 5: Is there any bond or surety held in escrow for any litigation involving the nature of this municipal court’s jurisdiction?
Question 6: When, if ever, shall there be held an election for municipal judge -- or are you going to play RSMo 41.92 for all it is worth?
Martin 'Mad Dog' Lindstedt
Republican Candidate for Governor -- 2004
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