By Jim Byrne

As the NFL prepares to kick off the 2007 season, I thought it would be a good time to review the role played by the referee.

In football, referees are assigned to control the game and to ensure that both teams play by the rules. Many variables can occur during the game, but the rules remain constant, or at least they are supposed to remain constant. The referee plays a vital role in the game. The referee interprets the rules. At times, a situation could arise that would give a team an unfair advantage when the rule is applied to a certain situation; i.e. a player that intercepts a pass, and his momentum carried him into the end zone, where he was tackled, causing a safety. The referee had no choice but to call it a safety, as the referee only interprets the rules. The referee has no authority to invalidate the rule. The above scenario did exist at one point in time. This rule has been changed by the Commissioner, but the referee had no authority to change the rule.

Why is it that the referee does not have the authority to change the rules? It would surely make more sense to ensure that no team receives an unfair advantage that was caused by the application of a rule. The answer is continuity. Continuity provides for a fair game. The game in Kansas City and the game in St. Louis are both played by the same set of rules. If the referee, in one game, changed the rules because he felt that it gave an unfair advantage to one side, this could create another problem, because the referee of another game may have decided not to change the rules. If everyone plays by the same rules there is continuity in the outcome. The game is not a crap-shoot because everyone involved plays by the same rules.

Much like the players in a football game, ordinary citizens can find themselves involved in the court game. The rules are written, and the referee of the court game is required to follow the rules. If a judge, the courts referee, has the authority to change the rules, we no longer have continuity.

In Missouri, we currently have a problem in which the referees, the circuit court judges, have decided that they have the authority to change the rules if they find them to be unfair. Further, they don’t just change the rules for the game currently being refereed; they change the rules for all of the future games, in all of the stadiums, unless the commissioner (the Missouri Supreme Court) disagrees, and is lucky enough to be presented with the opportunity to change it . They think that their interpretation of how the game should be played is the standard by which all others must play.

Judge Patricia Joyce and Judge Richard Callahan are inferior court judges of Cole County, Missouri. They are best known for invalidating Acts of the Missouri General Assembly as they consider them to be unconstitutional. They don’t just interpret the rules; they decide what the rules are.

Cole County is the home of Missouri’s 19th Judicial Circuit Court. The 19th Judicial Circuit Court has been granted no more or no less authority than any other Circuit Court in Missouri.

Jefferson City, Missouri’s Capitol, is located in Cole County, this is also the location for the main offices of many of our state agencies. These state agencies have statewide authority, as most of them operate under the Executive Department. Barring any legislative directive to the contrary, they take their orders from the Governor. Our government follows a chain-of-command. Any order directed to a state agency is, in effect, an order telling the Governor to control one of the agencies under his supervision. Do you think that a circuit court judge has the authority to give orders to the Governor?

The Governor of Missouri was elected by a majority of the voters in this state. His authority is coextensive throughout the state. The Governor has a constitutional duty to distribute and faithfully execute the laws of this state. The Missouri General Assembly consists of the representatives elected by the majority of registered voters. Together, they have been elected to create and enforce laws that govern the 5.8 million citizens of this state. They have this authority because we, the voters of the entire state of Missouri, have given them this power.

In 2002, both Judge Patricia Joyce and Judge Richard Callahan ran as unopposed Democrats for the position of Circuit Court Judge in Cole County. Judge Joyce received less than 20,000 votes. Judge Callahan received just over 21,000 votes. In 2002, Cole County had 49,463 registered voters. Missouri had over 3.68 million registered voters in the same year. Therefore, these two judges were elected by just over one-half of one percent of Missouri voters. They weren’t even elected by a majority of registered voters in Cole County.

These judges of Cole County have determined that if a Department of the Missouri Government has its headquarters located in Cole County, a judge of the Cole County Circuit Court would then, by default, have the authority to control that department. These judges are treating Departments of the Missouri Government as if they were the headquarters of a corporation. They are not! Circuit Court Judges have the authority to review the final decisions of administrative agencies that are judicial or quasi-judicial, and affect private rights, however, the Missouri Constitution does not grant a circuit court judge the authority to tell the administrative agency what laws to follow. See Article V, Section 18 of the Missouri Constitution. Circuit Court Judges do not have the authority to interfere with the normal operations of the administrative agency.

To provide a specific example; At the end of May 2007, Judge Patricia Joyce of the Cole County Circuit Court issued an order that required the Missouri Department of Corrections to stop enforcing a Missouri Statute that prevented convicted sex offenders from residing within 1000 feet of schools. This has the same effect as ordering the Governor to stop enforcing the law, as the Missouri Department of Corrections was created to ensure public safety, a duty of the Executive Branch.

Also, Judge Patricia Joyce recently ruled that an Act of the Missouri General Assembly, that would permit midwives to deliver babies, was unconstitutional. If midwives were permitted to deliver babies, the hospitals would probably make less money. Judge Pat Joyce is on the Board of Directors for St. Mary’s Health Center in Jefferson City. Do you think the hospital would want a member of their board of directors to make a decision that would reduce their income? Judge Joyce did not recuse herself from the case. Should Judge Joyce have recused herself? Does the law require her to?

Does it make sense, in a democratic society, that we could give an official that was only elected in one county, and by in insignificant number of registered voters, any authority over those that were elected by the majority of voters in this state?

If the General Assembly approves a Bill, and the Governor vetoes that Bill, the General Assembly will reconsider the Bill, and may, by a two-thirds majority pass the bill to make it law. If a judge of the circuit court, in effect, vetoes the Bill, by ruling it to be unconstitutional, the General Assembly is silenced. The circuit court judge has unconstitutionally assumed authority over the General Assembly.

What to do with an unfair rule? The litigants, much like the players, can appeal to the commissioner, or in the courts, they can appeal to the Supreme Court. They have the constitutional authority to invalidate a rule. They ensure continuity. When the Missouri Supreme Court invalidates a statute, it is removed from the books. The Governor no longer has a duty to enforce a law that doesn’t exist. A little logic and common sense goes a long way. The referee isn’t given control over the entire league. The Circuit Court Judge has not been given control over the entire state.

Football fans pay much closer attention to the game’s officiating, and the rules, than voters do to the government. It’s time for the voters to start paying attention. Someday they will have an interest in the outcome of the court game. They may have big money riding on the game. Place your bets, and then find out that the rules are arbitrarily applied, and as such, your team never had a chance. Do you blame it on the referee, or is it your fault for placing the bet without knowing how the game is played? It’s OK, your buddy, the attorney, will tell you that he knows how the game is played. He will place your bet for you. He enjoys playing with other people’s money. He still gets paid for placing the bet.

We currently have a Republican House, a Republican Senate, and a Republican Governor, yet we let a Democrat Judge tell them that they are incompetent, as they cannot legislate in accordance with the constitution, and they don’t complain. Even though Judge’s Joyce and Callahan lack the authority to invalidate a statute, they may be correct, as the statute may be unconstitutional. If this is so, maybe our elected representatives should spend a little more time learning the Constitution, and a little less time naming state reptiles, and memorial highways.

Find out more about this dilemma at http://www.kahunah.com/unconstitutional

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