Which of these conflicting mandates should the St. Louis Circuit Court obey: a federal court order requiring prompt bond-review hearings for hundreds of jailed defendants, or a rule allowing those defendants to change judges?

Both, ruled a panel of the Court of Appeals Eastern District on Aug. 20. But the panel immediately sent the case up to the Missouri Supreme Court on the grounds that it “presents an issue of general interest and importance.” Presiding Judge Gary Gaertner Jr. authored the opinion, with Judges Robin Ransom and Sherri B. Sullivan concurring.

The panel recognized the “immense time pressures” on the circuit court in the wake of U.S. District Court Judge Audrey Fleissig’s June 11 order, which arose from civil-rights litigation. Fleissig instructed the circuit court to swiftly review the bonds of some 700 inmates who she found were not properly asked about their ability to pay.  The resultant hearings landed in the Division 16 courtroom of St. Louis Circuit Judge Elizabeth Hogan.

But one of the inmates given a bond-review hearing was Daevon Evers — and he did not want to appear before Hogan.

Evers was charged on May 7 with first-degree assault, unlawful use of a weapon and two counts of armed criminal action. Police arrested him two days later. On June 21, Hogan scheduled a bond-review hearing with Evers for June 25. Before that hearing and prior to going on the record, the panel found, Evers applied for a change of judge; he declined to give a reason, as is his right. Hogan denied the application. She held the hearing, found Evers to be a danger to the community and ordered his detention pending trial.

Evers then filed a petition for a writ of prohibition in the Eastern District. He sought to set aside the “dangerousness” finding and to have the case reassigned. The appeals court issued a preliminary order in Evers’ favor, and on Aug. 20 made it permanent, pending the Supreme Court’s review.

At the crux of this case is the language of Supreme Court Rule 32.07, which governs a defendant’s right to change judges. Under the rule, “the application shall be filed within ten days of the designation of the trial judge or prior to commencement of any proceeding on the record, whichever is earlier.”

Whether Hogan counts as a “trial judge” is in dispute. The St. Louis Circuit Attorney’s Office, which opposed Evers’ writ petition, argued that she’s not a trial judge. Rather, the city averred, Hogan is a “criminal assignment judge” who holds bond hearings and decides pretrial matters before a case gets assigned out to a general trial division for a trial on the merits. At the moment Evers asked for a change of judge, the city argued, no trial judge had been designated, only an assignment judge. Therefore, his application was too early.

Evers argued, however, that on June 21, when Hogan assigned the case to herself for the June 25 bond review hearing, that act constituted the designation of a trial judge.

The panel noted in a footnote that “there is an issue” about the meaning of “trial judge” in the rule, but it ultimately found that Evers’ petition was timely.

The panel recognized the time constraints imposed by Fleissig’s order, and it noted that “federal litigants do not have a similar unfettered right to a change of judge as the State of Missouri affords its litigants. But the Circuit Court must still grant a timely filed application for change of judge even when the Circuit Court is under immense time pressures created externally.”

Evers’ attorney, Terrence Niehoff of Niehoff & Hufty, wrote in a text message: “I’m surprised and still uncertain why the Court thought my case presented ‘an issue of general interest and importance’ and transferred it to the Supreme Court.”

The St. Louis Circuit Attorney’s Office, which opposed the writ petition, did not respond to a request for comment.

The appeals case is State ex rel. Evers v. Hogan, ED108020.

By: Nicholas Phillips | Missouri Lawyers Weekly molawyersmedia.com