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Supreme Court says judge can’t suspend clerk

The Missouri Supreme Court ruled Sept. 14 that Lincoln County’s presiding judge didn’t have the authority to effectively remove the local circuit clerk from office.

In an unscheduled hand down, the court held that Judge Patrick S. Flynn’s suspension of Lincoln County Circuit Clerk Karla Allsberry was a “de facto removal” that left the clerk “stripped entirely of her ability to do anything in service of her office.”

The court’s unanimous but unsigned opinion said that “however broad the presiding judge’s general administrative authority is and whatever other administrative actions he might be empowered to take with respect to an elected circuit clerk, the presiding judge is not authorized to take any action that has the practical effect of removing an elected circuit clerk from office.”

Flynn, the presiding judge of the 45th Judicial Circuit, suspended Allsberry with pay in May 2019, alleging that her “failure to operate in fact, truth, protocol and respect” had created a dysfunctional work environment. The indefinite suspension barred Allsberry from accessing court records or entering certain areas of the courthouse.

Allsberry challenged the order. Judge Richard Callahan, a senior Cole County Circuit judge and former U.S. Attorney specially appointed to the case, ruled that Flynn had exceeded his authority by effectively removing an elected official from office. However, Callahan said he also lacked the power to counter Flynn’s order.

In August, the Court of Appeals Eastern District said Callahan’s ruling was correct and that he had the power to grant Allsberry’s request for injunctive relief. However, the appeals court transferred the case to the Supreme Court for a final decision.

According to court records, the high court accepted the case on briefs on Sept. 9 and, less than a week later, issued a ruling that mirrored the earlier Eastern District opinion.

The Supreme Court was careful to note that “it may very well be that a presiding judge could take some kind of administrative action short of removal against an elected circuit clerk,” given that such judges have general administrative authority over judicial and courthouse personnel.

“Because Allsberry’s suspension was in effect a removal, this Court need not actually decide whether, or under what other circumstances, a suspension might be a permissible exercise of a presiding judge’s general administrative authority,” the court wrote. “Here, the suspension was a de facto removal and, therefore, was not authorized.”

The court also said Callahan’s worries about overriding a fellow circuit judge were unfounded, as Flynn had been acting in his administrative capacity, not as a judge.

According to the court filings in a related federal lawsuit, Allsberry and her husband, Judge Gregory Allsberry — who successfully ran against Flynn for an associate judgeship in 2014 — are lifelong Republicans, while Flynn, she alleged, is a “staunch Democrat” who ran for circuit judge in 2018 as a Republican for “political expediency.” 

Flynn has denied that he “interfered with Allsberry’s performance of her duties because of her political affiliation, her political activities, or her political expressions.” According to the opinion, the judge had alleged that Allsberry committed misconduct in office, but no charges ever were filed.

David Duree of David M. Duree and Associates in O’Fallon, Illinois, an attorney for Allsberry, said his client has a related federal lawsuit alleging that Flynn violated her civil rights. That suit had been stayed while Missouri state courts weighed whether Flynn’s actions were authorized.

“Now we move to another arena,” he said.

The Missouri Attorney General’s Office, which represented the judge, didn’t respond to a request for comment. 

The Supreme Court remanded the case to the circuit court to issue an injunction that would allow Allsberry to return to work. Duree said it’s not clear which judge would handle that matter, as Callahan withdrew from the case when he was named as a special prosecutor in the criminal cases against Mark and Patricia McCloskey, the St. Louis lawyer couple who pleaded guilty to misdemeanor charges — and were later pardoned by Gov. Mike Parson — after their armed confrontation with a group of protesters outside their home.

The case is Allsberry v. Flynn, SC99257.