Pubdate: Thu, 16 Dec 2004
Source: Southeast Missourian (MO)
Copyright: 2004 Southeast Missourian
Contact:  http://www.semissourian.com/
Details: http://www.mapinc.org/media/1322
Author: Marc Powers
Bookmark: http://www.mapinc.org/find?159 (Drug Courts)

DRUG COMMISSIONER IMPROPERLY USED IN DIVORCE CASE

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.
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