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DIVISION FOUR
CLEVE L. MOLBT’I‘E, ) No. ED102517
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Honorable Maura B. McShane
DARREN WILSON, )
)
Respondent. ) FILED: September 1, 2015
Introduction

Appellant Cleve Molette (“Molette”) appeals from a trial court order dismissing his
afﬁdavit without further action. Moiette ﬁled this afﬁdavit with the trial court under Section
545.250.1 This Section allows private citizens to submit afﬁdavits detailing crimes for use by the
prosecuting attorney. On appeal, Murray argues that the trial court violated his due-process
rights in dismissing his afﬁdavit without notice or an opportunity to be heard. Because Molette

lacked capacity to prosecute this action in the name of the State of Missouri, his case is hereby

dismissed.

1 All statutory references are to RSMo (2000).

 

Factual and Procedural History

After the Michael Brown (“Brown”) shooting incident that occurred on August 9, 2014,
in Ferguson, Missouri, Appellant Cleve Molette ﬁled an “Afﬁdavit for Criminai Complaint”
under Section 545.250. Section 545.250 reads:

When any person has knowledge of the commission of a crime, he may make his

afﬁdavit before any person authorized to administer oaths, setting forth the

offense and the person or persons charged therewith, and ﬁle the same with the

clerk of the court having jurisdiction of the offense, for the use of the prosecuting

attorney, or deposit it with the prosecuting attorney, furnishing also the names of

the witnesses for the prosecution; and it shall be the duty of the prosecuting

attorney to ﬁle an information, as soon as practicable, upon said afﬁdavit, as
directed in section 545.240.

Moiette ﬁled his afﬁdavit pro se in the St. Louis County Circuit Court on December 2,
2014. The afﬁdavit alleged Darren Wilson (“Wilson”) shifted his vehicle into reverse and
forcefully accelerated towards Brown and Dorian Johnson (“Johnson”). Molette’s afﬁdavit
further alleged Wilson initiated a verbal encounter with Brown and Johnson, thrusted the car
door open which hit Johnson, and grabbed ahold of Brown’s shirt. According to the afﬁdavit,
Wilson’s conduct constituted third-degree assault under Section 565.070.

On December 4, 2014, the trial court entered an order dismissing the afﬁdavit without
further action. The trial court took judicial notice that the Brown—Wilson incident had been
investigated by the prosecuting attorney of St. Louis County and a grand jury. The trial court
noted that the prosecuting attorney has discretion under Missouri law to ﬁle charges. The trial
court further noted that upon concluding a four—month investigation of the shooting incident, the
grand jury issued a no true bill declining to indict Wilson on any charges. The trial court then
reasoned that the prosecuting attorney had exercised his judgment not to issue any criminal
charges against Wilson as a result of the incident. In dismissing Molette’s afﬁdavit, the trial

court stated, “Mr. Molette ﬁles his afﬁdavit in an apparent attempt to impose his judgment that a

crime occurred over thejudgmcnt of the elected prosecuting attorney and the grand jury. This is
not the purpose of 545.250 RSMo.” The trial court did not denominate the order a “judgment”
or a “decree.”

On December 15, 2014, Molette ﬁled a “Motion to Set Aside Order.” Molette argued
that the trial court’s dismissal of his afﬁdavit violated his constitutional rights, because “[d]ue
process requires notice and the opportunity to be heard.” Molette noted that because the trial
court immediately dismissed the afﬁdavit, he was denied notice or the opportunity to be heard
and make objections. On December E6, 2014, the trial court issued a “J UDGMENT/ORDER”
denying the motion.

Molette ﬁled his Notice of Appeal with the circuit court on January 16, 2015. Although
Molette listed Wiison as Respondent, the record reflects that Wilson has never been served.
Moreover, Molette asserted that he brought this affidavit 011 behalf of the State of Missouri.
Accordingly, this Court directed both the St. Louis County Prosecutor’s Ofﬁce and the Missouri
Attorney General to ﬁle memoranda addressing whether the State of Missouri would have been
an appropriate party to participate in this appeal. Both offices timely responded; Molette pro se
also ﬁled a memorandum in reply.2 This Court declined to make the State of Missouri a party.

Jurisdictional issues raised by the parties were taken with the case. This decision follows.

Point on Appeal

In his soie point on appeal, Molette alleges that the trial court erred in dismissing his

afﬁdavit without providing him notice and an opportunity for a hearing. Molette argues that the

2 In this memorandum in reply (pages six through nine), Molette asserts an Abuse of Process
claim against the State of Missouri. Because this court does not have original jurisdiction over
this claim, the Abuse of Process claim is dismissed. Mo. Const. Art. V, §§ 3—4.

lack of notice and a hearing deprived him of his due-process rights under both the US.
Constitution and the Missouri Constitution.

M

We note at the outset that Molette lacked capacity to bring this case in the circuit court.
Although Molette ﬁled with the trial court an “Afﬁdavit for Criminal Complaint,” oniy a
prosecutor or a grand jury can initiate criminal charges. E Missouri Rules of Criminal
Procedure 21 and 22. Although Molette purports to bring this case on behalf of the State of
Missouri, we ﬁnd no authority granting him capacity to do so. In order for a private individual to
bring suit on behaif of the State of Missouri, there must be statutory authorization. Moiette ﬁled
this action as “The State of Missouri on the Information of Cleve L. Moiette.” The Missouri
legislature has enacted various statutes authorizing private individuals to ﬁle suit on behalf of the
State of Missouri or authorizing individuals to ﬁie private causes of action under statutory
schemes (sometimes referred to as private attorney general iawsuits).3 Section 545.250 is not
one of these statutes.

Although Molette has filed his action in this matter pursuant to the provisions of Section
545.250, this statute does nothing more than provide a vehicle through which Molette may
provide information relating to a crime for the use of the prosecuting attorney.4 Nowhere in

Section 545.250 is the person ﬁling the afﬁdavit empowered or authorized to ﬁle an action,

3 See, e.g., Sections 141.090 (ﬁrst class counties for tax collection), 243.510 (involves
performance bonds on contracts with drainage districts), 407.025 (awarding a private cause of
action against violators of Section 407.020), 426.130 (providing that any person injured by a
breach of the statutory assignee’s bond may sue thereon in the name of the state to his use).

4 Even assuming arguendo Moiette had the capacity to sue on behalf of the state, this matter
presents other issues that preclude us from considering the merits. For example, the record
before us reveals that the prosecutor’s ofﬁce actually received the afﬁdavit Molette submitted
and declined to issue charges. Thus, the purpose of Section 545.250 was fuiﬁlied, Molette
obtained the relief provided under the statute notwithstanding the trial court’s action, and
Molette’s purported action is moot.

 

criminal or otherwise, on behalf of or in the name of the State of Missouri. We are not aware of
any other Missouri statute authorizing Molette to prosecute the action before us.5 Because
Molette lacked capacity to prosecute this action in the name of the state, this matter was not
properly before the circuit court and is not properly before this Court. Accordingly, this matter is

dismissed.

Conclusion

Because Molette lacks the capacity to prosecute this action on behalf of the State of

Missouri, this matter is dismissed.

    

K RT S. ODBNWALD, Judge

Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J ., concurs.

5 Moreover, with regard to civil actions, Missouri Rule of Civil Procedure 52.01 states that
“[e]very civil action shall be prosecuted in the name of the real party in interest, but . . . a party
authorized by statute may sue in their own names in such representative capacity withoutjoining
the party for whose benefit the action is brought. When a statute so provides, a civil action for
the use or beneﬁt of another shall be brought in the name of the State of Missouri.” As noted

above, Section 545.250 does not authorize Molette or any private individual to bring a civil
action under the statute.

