Missouri’s governor, not St. Louis County’s executive, holds the power to fill Wesley Bell’s vacancy as prosecuting attorney.
The Missouri Court of Appeals issued the ruling Thursday just hours before Bell is slated to resign to represent Missouri’s 1st Congressional District in Washington.
Attorneys for St. Louis County Executive Sam Page and Gov. Mike Parson have been in court to determine who gets to appoint the person to serve as Bell’s replacement through 2026. St. Louis County Circuit Judge Brian May sided with Parson, but lawyers for Page appealed.
Several hours after attorneys for both sides held a hearing in St. Louis, the three-judge panel wrote that “because the prosecuting attorney performs essential state functions as a state officer, the Governor has the constitutional and statutory authority to make the appointment to fill the vacancy.”
The judges went on to say that the case came down to whether prosecuting attorneys are “county officers,” since the Missouri Constitution empowers charter counties to decide “the manner of selection … for county officers.”
The judges wrote: “If the prosecuting attorney is a county officer, then the County Charter controls the selection process because charter counties are constitutionally entitled to choose the manner of selection of county officers. If the prosecuting attorney is not a county officer, then [state law] controls and the Governor is entitled to make the appointment.
“Decades of case law, as well as state statutes, demonstrate that the county prosecuting attorney performs the quintessential state governmental function of maintaining order and enforcing the state’s laws within the county,” the judges continued. “The language of the Missouri Constitution and statutes lead this court to the inescapable conclusion that the prosecuting attorney performs essential state governmental functions. As a result, the county’s charter provisions are ‘subject to the statutes of the state enacted by the legislature.’”
Page spokesman Doug Moore said the county plans to appeal the ruling. Attorney for St. Louis County asked the Missouri Supreme Court late on Thursday for swift consideration of the case.
"St. Louis County should be able to select its own elected officials," Moore said. "Public safety is the No. 1 priority in St. Louis County. While the legal process continues, it’s important to support the prosecuting attorney’s office."
Parson said he would appoint Melissa Price Smith, a longtime employee of the St. Louis County prosecutor’s office. Page announced he would choose Cort VanOstran, who recently worked as an assistant U.S. Attorney and ran for Congress in 2018.
Chris King, a spokesman for Bell, said Smith is slated to be sworn in Friday morning. Smith will be the first woman to hold countywide office in St. Louis County.
Parson spokesman Johnathan Shiflett said in an e-mail that "we were certain in Governor Parson’s authority to name the St. Louis County Prosecutor from the beginning, and our position has now been affirmed twice by the Courts."
"Governor Parson looks forward to Ms. Price Smith taking the oath of office tomorrow and her continued work to improve law and order in the region," he said.
During Thursday’s hearing, assistant attorney general Andrew Crane said it made sense that Parson, not Page, would decide on Bell’s successor.
“Prosecuting attorneys are carved out of the power of the attorney general, the sovereign's power to prosecute crimes in its own name, to bring lawsuits in its own name,” Crane said. “They're carved out of a state official. And the legislature made that decision, and it could have made another decision.
“It could have decided, for example, to have circuit attorneys appointed by the Supreme Court, which was an early solution to this problem,” he added. “But the legislature decided to make county prosecuting attorneys elected by the counties, but that remains the state's power in the state's choice.”
Neal Perryman, an attorney with Lewis Rice who is representing St. Louis County in the case, said both court precedent and the Missouri Constitution give Page the right to fill county prosecutor vacancies. He pointed out that a governor never attempted to appoint a prosecutor in charter counties such as St. Louis County.
For example, Parson didn’t intervene when St. Charles County Executive Steve Ehlmann appointed Joe McCulloch to succeed Tim Lohmar as county prosecutor.
“We identified seven different examples in pretty recent history where the county executive, or equivalent, appointed a vacancy,” Perryman said.
This story has been updated.
