Missouri bills would remove the last references to a century of appellate court commissioners in the state

Missouri may be among the last states to finally, formally repeal the last references to what at one point was a fairly common office: appellate court commissioner. Under SB 614 and SJR 37 as prefiled for the 2014 session the office of Supreme Court Commissioner and Court of Appeals Commissioner would be withdrawn from the statute books and the state constitution. According to the author of the bill no such officer has been appointed since 1972; a 2001 historical review of the state’s appellate system indicated the last commissioners retired in 1982.

The state’s Courts of Appeal (there were three separate courts until 1972) had previously used commissioners since their formation in the 1800s and there are references of the office existing in the Supreme Court from 1883-1895 and then from 1919 to the 1970/1972 constitutional and statutory revisions to the state’s appellate system.

Before the advent of intermediate appellate courts and modern caseflow management, appellate courts would often become hopelessly backlogged. A common coping mechanism in Missouri and other states was the use of “commissioners”; effectively judges without a vote who would handle motions and similar work under the supervision of the court either singly or in some states in panels. As I noted when Ohio tried to repeal its references to appellate commissioners in 2011

Ohio and other large states like Texas tried to grapple with this [backlog] problem through the use of appellate commissions. The appointment of special judicial officers to hear certain motions or matters was, and is, not uncommon. To this day subordinate judicial officers in California trial courts are called “commissioners“.

Eventually these commissions fell out of favor for two reasons. First, states large and small simply needed dedicated, permanent intermediate appellate courts to handle the caseload. Second, there was a very real possibility that decisions of the commissions would be in conflict with the courts.

What appellate commissioners remain today (such as in Oregon) are hearing officers who handle motion practice, not panels. Perhaps the only remaining vestiges of the old system are in Ohio’s constitution and North Dakota’s “Court of Appeals” which, despite the name, functions much the same as the commissions did, with panels coming into existence or only being used when the state’s top court is overwhelmed.

 

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