Drug commissioner improperly used in divorce case

Thursday, December 16, 2004

A divided state appeals court has ruled a drug court commissioner lacks the authority to preside over other types of cases.

In a 2-1 decision dated Monday, a panel of the Missouri Court of Appeals Southern District in Springfield said Circuit Judge Stephen Sharp incorrectly assigned drug court commissioner Phil Britt to preside over an evidentiary hearing in a Stoddard County divorce case.

A 1998 state law allows judicial circuits to establish special drug courts, which have the goal of rehabilitating defendants in drug cases through intense judicial supervision and substance abuse treatment as an alternative to sending them to prison.

The law authorizes the judges of a circuit to appoint a commissioner to handle such cases. Although technically not a judge, a commissioner "shall have all of the powers and duties of a circuit judge" except that an actual judge is required to approve actions taken by a commissioner.

Britt is the drug court commissioner for the 35th Circuit, which covers Dunklin and Stoddard counties.

Pertaining to drug cases

While acknowledging that the law broadly gives a commissioner the powers of a judge, the majority also noted it states the sole purpose of drug courts are "to dispose of cases which stem from drug use."

In writing the opinion, Judge Kenneth Shrum said the law only gives a commissioner judicial powers "that are required to accomplish the drug court's purpose ... but nothing more."

In dissent, Judge John Parrish noted the parties to the divorce proceeding consented to Britt's participation. Parrish also said a circuit judge has the discretion to "delegate functions to others" so long as the judge retains the final say.

Britt was charged with collecting evidence for the purpose of making recommendations to Sharp in a divorce action brought by Tisha Joy Moore against her husband Scott Lynn Moore.

Tisha Moore later sought to voluntarily dismiss the case, but Sharp refused to do so as it had been consolidated with a separate, but related, case. The appeals court ruled Sharp had no discretion to prevent Tisha Moore from dropping the case.

Neither Sharp nor Britt could be reached for comment Wednesday, so it is unclear if Britt has participated in other cases outside of the drug court's scope.

The case is State ex rel Tisha Joy Moore v. The Honorable Stephen R. Sharp.

mpowers@semissourian.com

(573) 635-4608

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