Where the Judiciary Prosecutes in Front of Itself: Missouri's Unconstitutional Juvenile Court Structure

I. INTRODUCTION Missouri law structures juvenile courts in an "unusual" manner. (1) State law grants an individual known as the juvenile officer the exclusive authority to determine which child welfare or delinquency cases to file. (2) State law also grants juvenile court judges the authority to hire and supervise juvenile officers. (3) Those same juvenile court judges then adjudicate the cases filed and prosecuted by the juvenile officer. (4) That is, in Missouri juvenile courts the judicial branch prosecutes cases in front of itself. This structure is unusual in multiple ways. Most obviously, it differs from the American norm of executive branch agencies and lawyers filing and prosecuting civil and criminal cases on behalf of the government. (5) It also differs from typical procedures followed in juvenile delinquency and child welfare proceedings in juvenile courts around the United States, in which executive branch officials determine which cases to prosecute and how. (6) This structure is particularly unusual in child welfare cases, in which an executive branch agency, the Children's Division of the Department of Social Services (Children's Division), operates a comprehensive child welfare system. (7) Unlike child welfare agencies in most other states, the Missouri Children's Division lacks the authority to determine which cases should be filed and how to prosecute them. (8) In addition, juvenile officers perform many of the same tasks as Children's Division case workers, such as making recommendations to the judge about where a foster child should live and whether the child should reunify with a parent. (9) This Article will address several issues raised by Missouri's unusual juvenile court structure, arguing that the structure violates the Missouri Constitution's separation of powers clauses by placing prosecutorial discretion within the judicial branch. (10) By granting juvenile officers, who are subject to judges' supervision, exclusive power to file child abuse and neglect and juvenile delinquency cases, Missouri law concentrates power into the hands of one branch of government. Missouri law thus empowers individual judges to set child welfare and juvenile justice policy by managerial decree. Subordinate judicial branch officials face pressure to file and litigate cases to please their boss, the judge, who hired them, supervises them, and has power to fire them. And the judge faces subtle pressure to rule in favor of his or her own employees, who are treated as first among equals in the courtroom. At the very least, the fact that the prosecuting staff and attorney work for the judge adjudicating the petition leads to an appearance of partiality to litigants. This Article will also discuss the anachronism that the juvenile officer's role represents. (11) In child welfare cases, the juvenile officer's role has not evolved with the modern administrative state. Missouri was one of the first states to adopt a juvenile court, and the state simultaneously established the juvenile officer's role in the early 1900s, before the modern administrative state existed. (12) When the modern administrative state developed in the 1930s, and especially when modern child welfare agencies developed in the 1960s and 1970s, the General Assembly charged the agency now known as the Children's Division with investigating allegations of child abuse and neglect and managing a complicated foster care system for children removed from their parents. (13) Unlike legislatures in forty-seven other states plus the District of Columbia, the Missouri General Assembly has never given the Children's Division the authority to decide, in collaboration with executive branch attorneys, in which cases to file petitions alleging abuse or neglect or requesting a court order placing a child in foster care. (14) Instead, the General Assembly developed the Children's Division without reforming the now more than a century old role of juvenile officers. …