Saturday, May 05, 2007

Lawsuit For New Ward 9 Election Goes to Franklin County Judge - Stivison’s Attorney May Have a Conflict Of Interest

By Phyllis Schaltenbrand

A lawsuit calling for a new election or a recount of the election results in the Ward 9 City Council race has been assigned to Franklin County Associate Circuit Judge Stanley Williams.

Incumbent Councilman Joe Koester was defeated by challenger Ron Stivison in the April 3rd election by six votes. It was then discovered that voters from Ward 10 had been given Ward 9 ballots.

Upon discovering the error, St. Charles County Director of Elections Rich Chrismer filed a petition in St. Charles County Court asking for a new election to be held. Later that evening he changed his mind and amended his petition to call only for a recount, not a recall. Sources at the County Government Center told us Chrismer had received a great amount of pressure to drop his request for a new election from local politicians and developers. Later that evening Chrismer withdrew his new election request and asked only for a recount.

The assignment of Judge Williams was made by the Missouri Supreme Court after four St. Charles County Judges recused themselves from hearing the case. A request was then made to the Supreme Court for an assignment of the case. They assigned it to Associate Circuit Judge T. Bennett Burkemper of Lincoln County. A lawyer representing Stivison, Dan Barklage (who is also the elected municipal judge for St. Charles) filed a motion disqualifying the Lincoln County Judge. Each party is entitled to one disqualification of a judge.

A date for the hearing has not yet been set by Judge Williams.

Area lawyers have told the First Capitol News they believe a conflict of interest exists with Barklage representing Stivison. They pointed out that it is in violation of the separation of powers. The Judiciary should not be involved in representing the legislative branch of government. Barklage as St. Charles Municipal Judge is part of the judiciary and he is representing Stivison a member of the legislative branch of government against Joe Koester who was a member of the legislative branch and may well be once again depending upon the outcome of the lawsuit.

The Code of Judicial Conduct Canon 2 states. ‘A Judge should avoid impropriety and the appearance of impropriety in his official activities. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must void all impropriety and appearance of impropriety in his official activities.’ Our sources tell us that even though Barklage is acting in his capacity as a lawyer they believe it is a conflict of interest for him to represent a member of the legislative branch of government in which he serves as an elected judge.
Joe Koester was a member of the St. Charles City Council the council cut the budget for the Municipal Court headed by Judge Dan Barklage because of what they believed was an excessive amount of overtime and what they considered a failure by Judge Dan Barklage to properly administer his staff.

Barklage then filed suit against the city council to have his court budget reinstated.

Our sources also pointed out Canon 1 of the Missouri Bar and Judiciary rules that says, “A judge should uphold the integrity and independence of the Judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.The provisions of this Code should be construed and applied to further that objective.”

Our sources believe that if a complaint was brought before the bar association Barklage may be found to have a conflict of interest by involving himself in this lawsuit.

An earlier charge of conflict of interest was leveled against Barklage several years ago by then Councilman Bob Hoepfner, Ward 10 who believed there was a conflict when Barklage was serving as the elected Municipal Judge for the City of St. Charles while also serving as an elected member of the Board of Trustees of the St. Charles Community College. Hoepfner thought Barklage should resign one of the positions.

See our June 11, 2005 edition at ...