                                                        In the
                                 Missouri Court of Appeals
                                             Western District


                                                              
 SUSAN GALL, ET AL.,                                          
                                                                  WD79820
                    Respondents,                                  OPINION FILED:
 v.                                                           
                                                                  December 6, 2016
 RUSSELL E. STEELE;                                           
                                                              
                    Appellant,                                
                                                              
 KRISTIE H. SWAIM,                                            
                                                              
                    Respondent.                               
                                                              


                      Appeal from the Circuit Court of Boone County, Missouri
                           The Honorable Gary M. Oxenhandler, Judge

                                      Before Division Three:
                Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.


         Russell E. Steele, Presiding Judge of the Second Judicial Circuit, appeals1 the circuit

court’s grant of summary judgment in favor of Susan Gall and Linda Decker in their declaratory

judgment action seeking the circuit court’s declaration that the purported designation of any

judge to exercise the statutory appointing authority of the Adair County Circuit Clerk was

unlawful and in violation of the Missouri Constitution. The circuit court found that, pursuant to


         1
          Judge Steele’s appeal was originally filed in the Missouri Supreme Court. The Supreme Court, however,
transferred the case to this court, stating that it is “where jurisdiction is vested” pursuant to Mo. Const. art. V, § 11.
section 483.245, RSMo 2000, the duly elected circuit clerk of Adair County is the appointing

authority for deputy circuit clerks. Judge Steele disagrees and asserts seven points on appeal.

       In particular, Judge Steele contends: (1) the circuit court erroneously declared and

applied the law in finding that section 438.245 controls who is the proper appointing authority of

deputy circuit clerks because the Missouri Supreme Court possesses inherent constitutional

authority over the administration of its courts and personnel and properly exercised that inherent

authority when, in 2009, it ordered the consolidation of deputy circuit clerks and division clerks

under the supervision of one appointing authority and provided that the circuit courts could name

the circuit clerk or court administrator, an associate circuit judge of the county, or the presiding

judge of the circuit as the appointing authority (2009 order); (2) the circuit court erroneously

declared and applied the law in finding that the elected circuit clerk had exclusive appointing

authority and that the 2009 order did not apply to Adair County and the Second Judicial Circuit

because the application and scope of the Missouri Supreme Court’s 2009 order is constitutionally

in the exclusive purview of the Missouri Supreme Court in that the circuit court budget

committee was the appropriate entity to determine the application and scope of the 2009 order;

(3) the circuit court erroneously applied the law in declaring that the consolidation order naming

Judge Steele as the appointing authority for Adair County was procedurally defective because the

circuit court lacked jurisdiction over the claim, given that Gall and Decker had voluntarily

dismissed their claims as to the procedural inadequacies of the consolidation order; (4) the circuit

court’s judgment that Judge Steele unilaterally and ineffectively modified a previous

consolidation agreement is not supported by “substantial evidence;” (5) the circuit court

erroneously applied the law by entering judgment for the circuit clerk because the circuit clerk’s

sole remedy was to appeal to the circuit court budget committee and because one circuit judge

                                                  2
does not have the subject matter jurisdiction or authority to invalidate either the administrative

orders of another circuit or the administrative orders of the Missouri Supreme Court; (6) the

circuit court erroneously applied the law in ruling that two administrative orders of another

circuit court are invalid because only the appellate courts of this state have subject matter

jurisdiction over circuit court judges’ actions; and (7) the circuit court erroneously applied the

law in entering judgment for Gall because she had no standing to bring this action. We affirm

the circuit court’s judgment.

       When considering an appeal from a summary judgment, we view the record in the light

most favorable to the party against whom judgment was entered, and we afford that party the

benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply

Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Linda Decker is the

elected Circuit Clerk of Adair County and that she has served in that capacity since 1991. Judge

Steele is the presiding judge of the Second Judicial Circuit and has been the presiding judge at all

times relevant to this case. Judge Kristie H. Swaim is an associate circuit judge of Adair County

for the Second Judicial Circuit

       On or about March 20, 2008, Judge Steele, Judge Swaim, and Decker signed and adopted

an “Agreement for the Consolidation of the Clerical Functions of the Circuit Court of Adair

County, Missouri.” The agreement provided that “[a]ll clerical functions performed by the

Associate Division and the Probate Division Clerks for who the Associate Circuit Judge has been

the appointing authority shall be consolidated into the office of the Adair County Circuit Clerk.”

Further, the agreement designated the Circuit Clerk “as the appointing authority for all Deputy

Circuit Clerks of Adair County.”



                                                  3
         On October 8, 2009, the Missouri Supreme Court Chief Justice Price issued an

administrative order on behalf of the Supreme Court en banc stating that, pursuant to article V,

section 4 of the Missouri Constitution, all circuit courts that had not previously consolidated all

deputy circuit clerks and division clerks under the supervision of one appointing authority shall

be consolidated under the supervision of one appointing authority. The order provided: “The

appointing authority shall be either the circuit clerk or court administrator if the county does not

have a circuit clerk, an associate circuit judge of the county, or the presiding judge of the circuit.”

The order also instructed: “The presiding judge, after consultation with the court en banc, the

circuit clerk, and any other appointing authority, shall submit a plan to the circuit court budget

committee designating the appointing authority for all deputy circuit clerks and division clerks

by November 13, 2009[.]” Further, the order stated, “If a court has submitted a plan to the

circuit court budget committee prior to October 1, 2009, and it has been approved, it shall be

deemed in compliance with the consolidation requirements under this order.”2

         On May 2, 2013, Judge Steele emailed Knox County Associate Circuit Judge for the

Second Judicial Circuit William Alberty and Lewis County Associate Circuit Judge for the

Second Judicial Circuit Fred Westhoff asking them if they would consent to the transfer of the

appointing authority for the Circuit Clerk’s office from Circuit Clerk Decker to Judge Steele as

presiding judge of the Second Circuit. On that same date, Judge Steele entered an administrative

order amending the 2008 Consolidation Agreement. The order, signed only by Judge Steele,

stated, “The Presiding Judge is hereby designated as the appointing authority for all Deputy


         2
          The Supreme Court of Missouri en banc on June 28, 2013, added to its October 2009 Order by expressly
providing a procedure for modifying consolidation plans. The 2013 order provided, “[I]t is ordered that the circuit
court en banc, after consultation with the circuit clerk and other appointing authority, may submit any proposed
revisions to its consolidation plan to the circuit court budget committee for its approval.”

                                                         4
Clerks.” The Second Judicial Circuit did not convene a meeting en banc to confer or deliberate

regarding Judge Steele’s proposed transfer of appointing authority from the circuit clerk to the

presiding judge. The circuit court budget committee approved this amendment.

        On April 1, 2014, the Second Judicial Circuit en banc met and adopted an “Amendment

to Administrative Order Amending the Agreement for the Consolidation of the Clerical Functions

of the Circuit Court of Adair County, Missouri.” The amendment stated, “The Associate Circuit

Judge is hereby designated as the appointing authority for all Deputy Clerks of Adair County.”

The Associate Circuit Judge of Adair County is Judge Swaim. Judge Steele, Judge Swaim, Judge

Westhoff, and Judge Thomas P. Redington, Knox County Associate Circuit Judge, all signed the

2014 amendment order. The circuit court budget committee approved this amendment.

        In December 2013, Gall filed a section 1983 action in the United States District Court

against Judge Steele in his individual capacity and official capacity as presiding judge of the

Second Judicial Circuit. Gall alleged that Judge Steele acted without authority to terminate Gall

from her employment as Deputy Circuit Clerk of Adair County for the Second Judicial Circuit.

In January 2015, the federal court stayed the action pending resolution of an issue of Missouri

law.3

        On March 9, 2015, Gall and Decker filed an action in the Second Judicial Circuit for

declaratory judgment action seeking the circuit court’s declaration that the purported designation

of any judge to exercise the statutory appointing authority of the Adair County Circuit Clerk was




        3
        We note that the federal court did not choose to certify the question of Missouri law to the Missouri
Supreme Court, which is a procedure authorized by section 477.004, RSMo 2000.


                                                         5
unlawful and in violation of the Missouri Constitution.4 The Missouri Supreme Court ordered

that the Honorable Gary Oxenhandler of the Thirteenth Judicial Circuit be transferred to the

Second Circuit to hear the case, and, the parties agreed to transfer venue to Boone County.

Thereafter, the parties filed cross motions for summary judgment. On January 13, 2016, Judge

Oxenhandler granted summary judgment in favor of Gall and Decker and found that, pursuant to

section 483.245, a duly elected circuit clerk is the appointing authority for all deputy clerks. In

so concluding, Judge Oxenhandler determined that the 2009 Supreme Court Order did not apply

to Adair County because Adair County had an elected circuit clerk and had a previously entered

consolidation agreement. Moreover, Judge Oxenhandler found that the 2013 and 2014

amendments to the 2008 consolidation agreement were ineffective and conflicted with section

483.245 because the judges had no right to unilaterally take away the circuit clerk’s statutorily

granted appointing authority without her consent. Judge Steele appeals from the circuit court’s

judgment, but Judge Swaim did not join in the appeal.

        Before addressing the merits of Judge Steele’s appeal, we acknowledge that Gall and

Decker filed a “Motion to Dismiss for Nonjusticiability of the Appeal” with this court. In that

motion, they allege that Judge Steele has no legally protectable interest in the appeal because the

rights at stake in the appeal belong exclusively to Judge Swaim. They argue that, given the fact

that the Second Circuit en banc purported to vest appointing authority in Judge Swaim, Judge

Steele no longer has any purported appointing authority of the deputy clerks in the circuit clerk’s

office. Gall and Decker assert that Judge Steele lacks standing, that any judicial determination



        4
          Gall and Decker also sought in a second count of the petition the circuit court’s declaration that Judge
Steele’s purported appointment of himself as the appointing authority was void under the Missouri Sunshine Law.
Gall and Decker voluntarily dismissed this count without prejudice.

                                                         6
concerning Judge Steele’s power of appointment over deputy circuit clerks would be an advisory

opinion, and that the appeal is moot. We disagree.

       Gall and Decker sued Judge Steele in his official capacity as presiding judge of the

Second Judicial Circuit. As presiding judge, Judge Steele has “general administrative authority

over the court and its divisions.” Mo. Const. art. V, § 15.3. Thus, as presiding judge he has

standing to appeal a judgment that directly attacks administrative orders of the Second Judicial

Circuit. We, therefore, deny Gall and Decker’s motion to dismiss.

       In considering Judge Steele’s appeal from a summary judgment, we review the circuit

court’s grant of summary judgment de novo. ITT Commercial Fin. Corp., 854 S.W.2d at 376.

"The propriety of summary judgment is purely an issue of law." Id. We will affirm the circuit

court's grant of summary judgment if no genuine issues of material fact exist and the moving

party is entitled to judgment as a matter of law. Id. at 380; Rule 74.04.

       In his first point on appeal, Judge Steele contends that the circuit court erroneously

declared and applied the law in finding that section 483.245 controls who is the proper

appointing authority of deputy circuit clerks. Judge Steele asserts that, because the Missouri

Supreme Court possesses inherent constitutional authority over the administration of its courts

and personnel, it properly exercised that inherent authority when, in 2009, it ordered circuit

courts to consolidate deputy circuit clerks and division clerks under the supervision of one

appointing authority and provided that the circuit courts could name the circuit clerk or court

administrator, an associate circuit judge of the county, or the presiding judge of the circuit as the

appointing authority. We disagree.

       Judge Steele is absolutely correct that the Missouri Constitution provides the Supreme

Court with “general superintending control over all courts and tribunals” and that “[s]upervisory

                                                  7
authority over all courts is vested in the supreme court which may make appropriate delegations

of this power.” Mo. Const. art. V, § 4. Article V, section 15.4 of the Missouri Constitution,

however, provides: “Personnel to aid in the business of the circuit court shall be selected as

provided by law or in accordance with a governmental charter of a political subdivision of this

state.” The phrase “provided by law” means “as prescribed or provided by statute” or by “other

provisions of the constitution.” Wann v. Reorganized Sch. Dist. No. 6 of St. Francois Cty., 293

S.W.2d 408, 411 (Mo. 1956); see also Eberle v. Plato Consol. Sch. Dist. No. C-5 of Texas Cty.,

313 S.W.2d 1, 3-4 (Mo. 1958) (following Wann, the Court found that Mo. Const. Art. VI,

§ 26(g), providing that “[a]ll elections under this article may be contested as provided by law,”

means that “the method and manner for contesting particular elections was as provided or as was

to be provided by the legislature”). To that end, the Missouri legislature enacted section

483.245.2, which provides:

               The circuit clerk, or person exercising the authority of the circuit clerk
       pursuant to county charter, shall appoint all deputy circuit clerks, including deputy
       circuit clerks serving in courtrooms, and shall prescribe and assign the duties of
       such deputy circuit clerks. The circuit clerk may remove from office any deputy
       circuit clerk whom he appoints.

The law, i.e. section 483.245.2, therefore, provides that the circuit clerk has the authority to

appoint deputy circuit clerks and to discharge deputy circuit clerks.

       To the extent that Judge Steele argues that the general superintending control given to the

Supreme Court somehow prevails over article V, section 15.4’s specific and express provision

that personnel of the court shall be selected as provided by law, we are not persuaded. The

Missouri Supreme Court has declared that, generally speaking, “constitutional provisions are

subject to the same rules of construction as other laws[.]” StopAquila.org v. City of Peculiar, 208

S.W.3d 895, 899 (Mo. banc 2006). A primary rule of statutory construction is that “[w]here one

                                                  8
provision of a statute contains general language and another provision in the same statute

contains more specific language, the general language should give way to the specific.” Younger

v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332, 336 (Mo. App. 1997), superseded by

statute on other grounds by Gilley v. Mo. Pub. Entity Risk Mgmt. Fund, 437 S.W.3d 315 (Mo.

App. 2014). Thus, article V, section 4’s general superintending control provision would not

supersede article V, § 15.4’s specific and express provision that personnel of the court shall be

selected as provided by law. Moreover, Judge Steele’s reliance on the proposition that Supreme

Court’s procedural rules can supersede previously enacted statutes is misplaced. See Clark v.

Kinsey, 488 S.W.3d 750, 758-59 (Mo. App. 2016) (if a rule adopted by the Supreme Court under

the authority of the constitution is inconsistent with a statute and has not been annulled or

amended by the legislature, the rule supersedes the statute). Judge Steele fails to appreciate that

the Supreme Court’s rulemaking authority is granted by Article V, section 5 of the Missouri

Constitution, which specifically provides that the Supreme Court “may establish rules relating to

practice, procedure and pleading for all court and administrative tribunals, which shall have the

force and effect of law.”5 Article V, section four of the Missouri Constitution contains no similar

provision giving the Supreme Court’s actions in its supervisory capacity “the force and effect of

law.”

        Further, Judge Steele’s argument that the circuit court has inherent power over deputy

circuit clerks sufficient to limit elected circuit clerks of their statutory duties has already been

addressed by the Missouri Supreme Court. In State ex rel. Geers v. Lasky, 449 S.W.2d 598 (Mo.

banc 1970), the Court held:



        5
            We added the emphasis.

                                                   9
                The duties of the circuit clerk are specified probably in more detail than
        any other county officer. . . . As we have said, the circuit court is given certain
        supervisory powers. However, as an elected county official, required by law to
        give a bond conditioned upon the faithful performance of his duties and upon
        which he is responsible for his deputies, certainly [the circuit clerk] has the
        authority to control the details of the operation of his office, including the
        assignment of duties to his deputies. The duties of a courtroom deputy are very
        important. They are not, however, any more important than many other functions
        performed by [the circuit clerk’s] deputies. If the circuit court has the lawful
        authority, by rule, to require its approval before [the circuit clerk] can assign a
        deputy clerk to each division, in principle the court can also extend the rule to
        require its approval for the assignment of duties to [the circuit clerk’s] other
        deputies. We find no authority, inherent or otherwise, for a circuit court to assume
        that type of control over the conduct of the office of the circuit clerk.

Id. at 601. The Missouri Supreme Court recognized that courts have the inherent power to make

rules governing the operation of courts, but it rejected any suggestion that those rules can strip

the statutory duties delegated by the legislature to the elected circuit clerk. Id. at 600-01. The

same is true in this case.

        Judge Steele argues that Geer is inapplicable because the circuit court in Geer

implemented local rules without a delegation of authority from the Supreme Court. Regardless

of whether or not the Supreme Court delegated authority to the circuit courts, the issue in Geer

was whether courts had the inherent authority over the statutory duties of circuit clerks. The

Supreme Court clearly decided that the answer was no. As aptly decided by Judge Oxenhandler

in this case, although there was no reference in Geers to any provision of the Missouri

Constitution, we can presume that “the Supreme Court was aware of the ‘superintending’

provision of article V, section 4 of the Missouri Constitution and that if it had application to the

Geers case the Supreme Court would have made such reference.”

        Judge Steele, however, contends that the Missouri Supreme Court properly exercised its

inherent authority when, in 2009, it ordered circuit courts to consolidate deputy circuit clerks and


                                                 10
division clerks under the supervision of one appointing authority and provided that the circuit

courts could name the circuit clerk or court administrator, an associate circuit judge of the

county, or the presiding judge of the circuit as the appointing authority. Judge Steele asserts that

the Supreme Court’s 2009 order had the force of the law and fell within article V, section 15.4’s

pronouncement that “personnel of the court shall be selected as provided by law.” We do not,

however, read the 2009 order as a mandate to all circuit courts that they have the ability to

designate appointing authority over the circuit clerk’s office to an associate circuit judge of the

county or the presiding judge of the circuit in violation of section 438.245.2. The 2009

consolidation order merely provides general alternatives to the appointing authority and would

require the circuits to make a determination on a case-by-case basis and consider the alternatives

in accordance with the law. Indeed, the designation of the presiding circuit court judge as

appointing authority over deputy circuit clerks would be appropriate in constitutional charter

counties. In the Second Judicial Circuit, however, the only possible choice for the appointing

authority as provided by law was the circuit clerk, as was originally ordered when the Second

Circuit consolidated in 2008. We find nothing in the 2009 consolidation order that sanctions

circuits making designations of appointing authorities in violation of section 438.245.2.

       Moreover, we question the applicability of the 2009 order to the Second Judicial Circuit

because the 2009 order applied to “all circuits that [had] not previously consolidated all deputy

circuit clerks and division clerks under the supervision of one appointing authority[.]” The

Second Judicial Circuit designated the Circuit Clerk as the appointing authority on March 20,

2008, with an effective date of June 1, 2008. The 2009 order, therefore, seemingly would not

even apply to the Second Judicial Circuit.



                                                 11
         We, therefore, conclude that the circuit court properly granted summary judgment in

favor of Gall and Decker in their declaratory judgment action. The designation of any judge to

exercise the statutory appointing authority of the Adair County Circuit Clerk was unlawful and in

violation section 483.425.2.6

         In his second point relied on, to the extent that Judge Steele contends that the circuit court

budget committee was the appropriate entity to determine the application and scope of the 2009

consolidation order, his contention is without merit. The 2009 order merely required:

                   The presiding judge, after consultation with the court en banc, the circuit
         clerk, and any other appointing authority, shall submit a plan to the circuit court
         budget committee designating the appointing authority for all deputy circuit clerks
         and division clerks by November 13, 2009, to assure that the plan complies with
         the . . . consolidation requirements.

Nothing within the 2009 order gave the circuit court budget committee the authority to make a

binding determination that a consolidation agreement is lawful and/or constitutional. The 2009

order merely gave the circuit court budget committee the authority to assure that a circuit’s

consolidation plan complied with the technical requirements for consolidation.

         In his fifth point relied on, Judge Steele asserts that the circuit clerk’s sole remedy was by

appeal to the circuit court budget committee and that one circuit judge does not have the subject

matter jurisdiction or authority to invalidate either the administrative orders of another circuit or

the administrative orders of the Missouri Supreme Court. We disagree.




         6
           Because we conclude that the designation of any judge to exercise the statutory appointing authority of the
Adair County Circuit Clerk was unlawful and in violation section 483.425.2, we need not address Judge Steele’s
third and fourth points relied on, wherein he contends that the circuit court erroneously applied the law in declaring
that the consolidation order naming Judge Steele as the appointing authority for Adair County was procedurally
defective and that the circuit court erred in entering judgment for Gall and Decker because the circuit court’s finding
that Judge Steele unilaterally and ineffectively modified a previous consolidation agreement is not supported by
“substantial evidence.”

                                                          12
       Judge Steele claims that jurisdiction over compliance with Supreme Court orders resides

with the Missouri Supreme Court and that the Supreme Court possesses original appellate

jurisdiction over the constitutionality of the 2009 order. As we noted previously, Judge Steele’s

appeal was originally filed in the Missouri Supreme Court. The Supreme Court, however,

transferred the case to this court, stating that it is “where jurisdiction is vested” pursuant to Mo.

Const. art. V, § 11. The Supreme Court, therefore, disagreed that it had original appellate

jurisdiction over these issues.

       In so far as Judge Steele complains that the circuit court lacked jurisdiction, the Missouri

Supreme Court has declared that, according to article V, section 14 of the Missouri Constitution,

“‘[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and

criminal.’” J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009) (emphasis

omitted). This is a civil case. Therefore, the circuit court had subject matter jurisdiction over the

declaratory judgment action and had the authority to hear this dispute.

       To the extent that Judge Steele asserts that the circuit clerk’s sole remedy was by appeal

to the circuit court budget committee, we again state that we find nothing within the 2009 order

or within the Supreme Court Operating Rules that gives the circuit court budget committee the

authority to make a binding determination that a consolidation agreement is lawful and/or

constitutional. The circuit court budget committee’s only obligation was to assure that a circuit’s

consolidation plan complied with the technical requirements for consolidation required by the

2009 order.

       In his sixth point on appeal, Judge Steele argues that the circuit court erroneously applied

the law in ruling that two administrative orders of another circuit court are invalid because only



                                                  13
the appellate courts of this state have subject matter jurisdiction over circuit court judges’

actions. We disagree.

       First, we note that the Missouri Supreme Court ordered that Judge Oxenhandler of the

Thirteenth Judicial Circuit be transferred to preside over this matter, and the parties, thereafter,

agreed to transfer venue of this matter to Boone County. Thus, to the extent that Judge Steele

characterizes this case as one circuit court exercising authority over another circuit court, his

characterization is mistaken. Judge Oxenhandler was transferred to the Second Judicial Circuit

to hear this case by the Missouri Supreme Court, as such he essentially became a judge for the

Second Judicial Circuit. Judge Oxenhandler, therefore was not exercising authority over another

circuit court. Second, to the extent that Judge Steele argues that circuit courts cannot exercise

authority over other circuit courts without an express delegation of the Supreme Court’s

supervisory power and that the Supreme Court has not delegated such authority in this case, we

again point out that the Missouri Supreme Court disagreed that it had jurisdiction over this case.

Third, this case involves a declaratory judgment action as provided by § 527.010, RSMo 2000,

and Rule 87. As such the Thirteenth Judicial Circuit did not assert superintending control over

the Second Judicial Circuit, but, instead, this case was tried as a contested declaratory judgment

action as provided by law.

       In his final point on appeal, Judge Steele asserts that the circuit court erroneously applied

the law in entering judgment for Gall because she lacked standing to bring the action in that she

failed to allege in her petition that she had any legally protectable interest in the subject matter of

the suit or any other basis for standing. Regardless of whether Gall had standing to bring the

declaratory judgment before the circuit court, no dispute exists that Decker had standing. As the

elected circuit clerk, Decker brought the action in part to determine the scope of her

                                                  14
responsibilities as an elected official. Thus, even if Gall lacked standing, Decker had standing to

seek relief in this declaratory judgment action.

       The circuit court, therefore, properly granted summary judgment in this declaratory

judgment action. The designation of any judge to exercise the statutory appointing authority of

the Adair County Circuit Clerk was unlawful and in violation section 483.425.2. We affirm the

circuit court’s judgment.


                                                        /s/ JAMES EDWARD WELSH
                                                        James Edward Welsh, Judge


All concur.




                                                   15
