The question of who has the power to appoint the St. Louis County prosecuting attorney is in the hands of a judge.
Judge Brian May of the 21st Circuit heard more than an hour of arguments on Wednesday from attorneys with the state and St. Louis County. He said he will issue a decision promptly. The ruling is almost certain to be appealed.
County Executive Sam Page and Gov. Mike Parson have each claimed the authority to replace Wesley Bell, who will be sworn into Congress on Jan. 3. Parson and Attorney General Andrew Bailey sued on Nov. 27, a few weeks after Page announced he was accepting applications for the position. While both men have named their pick for the post, the sides have agreed not to take any further action until there is a final decision. Parson selected Melissa Price Smith, and Page chose Cort VanOstran.
The conflict is rooted in state law, the Missouri Constitution and the St. Louis County charter. The constitution requires that charter counties like St. Louis County set the “manner of selection, terms of office and salaries” of county offices. The county’s governing document does so, saying that there shall be a prosecuting attorney who is elected to four-year terms. It also says that any vacancies in the office shall be filled by an appointee of the county executive, so long as that person is confirmed by the St. Louis County Council.
Another provision of the constitution says the governor shall fill all vacancies, unless there is a law that says otherwise. One section of state law says that while the governor must appoint vacancies in elected office, that power does not apply to county offices in charter counties like St. Louis County.
The question in front of May essentially is this: Is the office of prosecuting attorney a county office or a state office?
Prosecutors are officers of the state, argued Assistant Attorney General Andrew Crane.
In the early days of Missouri, Crane explained, prosecutors were called circuit attorneys who went to different counties to hear criminal cases on the authority of the state. Even though the offices are now limited to one county, the source of their power has not changed.
“Prosecuting attorneys represent the state,” he said. “They don’t represent the county. They don't do the county's business. They aren't subject to the county's rule. The county can't pass laws, for example, that say we can overrule prosecutorial discretion.”
Neil Perryman, a lawyer hired by the county to represent Page, argued that earlier court rulings have established that the power of a prosecuting attorney does not extend beyond the boundary of the county where he or she is elected.
“Case law has said throughout history that when we talk about who's a state officer versus a county officer, we look to whether or not their power is coextensive with the boundaries of the county or the state itself,” he said. “When it's the state, they're a state officer. When it's the county, they're generally a county officer.”
In his public comments about the dispute, Page has consistently pointed out that Parson had no problem with Steve Ehlmann, the Republican county executive in St. Charles, naming a replacement for Tim Lohmar in 2023. The county’s court filings also make note that governors of all parties have “never asserted the authority to appoint the prosecuting attorney of a charter county,” Perryman said.
The constitution and state law make the filling of a vacancy mandatory by saying the governor shall act where he has the authority, he added.
“Why weren’t they appointed in these other charter counties? I submit it’s because everybody understood the charter counties had this power.”
May seemed skeptical of the argument.
“Or everybody agreed on the selection,” he said. “We don’t know why they were appointed by the governor.”
The role of the county council
May on Wednesday delayed ruling on a request from members of the St. Louis County Council to make sure that they have a say in confirming the pick if the courts eventually rule that the nominating authority belongs to Page.
Council Chairwoman Shalonda Webb, D-Florissant, and Mark Harder, R-Ballwin, argued in a motion to intervene that Page has made it clear he will appoint VanOstran as prosecuting attorney regardless of whether the council approves.
“If County Executive Sam Page violates the Charter as he has stated he will do, the Intervening Councilmembers could be left with no remedy at law to oust a usurper from the office of the Prosecuting Attorney, or could face a lengthy and unnecessary legal battle challenging Executive Page’s naming of an ‘acting’ prosecutor to circumvent the authority of the Intervening Councilmembers,” attorney Kimberley Mathis wrote in the motion.
Mathis made it clear on Wednesday that she has no desire to delay a decision on the underlying question about the authority to appoint.
Five of the council’s seven members went on the record saying they did not recommend VanOstran be confirmed during a committee of the whole meeting Tuesday night in which they heard from both VanOstran and Smith. The council, however, can give no official input on Smith.
The council itself will likely vote after Bell officially resigns and must act by Jan. 6.
