St. Louis County appeals ruling on Wesley Bell’s successor

ST. LOUIS COUNTY — County Executive Sam Page on Friday appealed a judge’s ruling that Missouri Gov. Mike Parson gets to appoint the next St. Louis County prosecutor, an anticipated legal move in the standoff between state and county leaders.

The 43-page filing seeks to refute St. Louis County Circuit Judge Brian May’s finding that the county prosecutor is a state officer, not a county officer. The county’s appeal cites 100 years of case law and recent examples in other charter counties.

“Since (1925), the Missouri Supreme Court has continued to describe prosecuting attorneys as county officers when addressing questions of county governance and administration,” the appeal states.

Because May designated the prosecuting attorney as a state officer, he held that Parson has the sole power to appoint a replacement when St. Louis County Prosecuting Attorney Wesley Bell resigns next week to take a seat in the U.S. House.

But Parson’s spokesman, Johnathan Shiflett, said it’s clear the governor has legal authority to name the St. Louis County prosecutor.

“We expect our position will be affirmed once again by the courts even upon appeal,” he said Friday.

The legal battle began late last month when Parson and Missouri Attorney General Andrew Bailey, both Republicans, sued Page, a Democrat, to stop him from naming Bell’s successor.

St. Louis County lawyers argued the county charter allows Page to fill the vacancy. And on Dec. 3, Page announced his choice: Cort VanOstran, a former assistant U.S. attorney and a Democrat.

About a week later, on Dec. 12, Parson nominated Melissa Price Smith, an assistant prosecuting attorney in the county and also a Democrat.

Lawyers for the state and county argued the case in St. Louis County court earlier this month and a few days later May ruled in favor of Parson.

Assistant Attorney General Andrew Crane said prosecuting attorneys represent the state, not counties. So, they are not county officers, and Page doesn’t have the power to appoint them, Crane said.

But Neal Perryman, a private attorney hired to represent Page and the county, argued that the prosecuting attorney’s power is limited to the county, giving Page the power to appoint.

In his appeal Friday, Perryman said of the five charter counties in Missouri, three — St. Charles, Clay and Jackson — currently have prosecuting attorneys who were initially appointed to office by county authorities after a vacancy.

“If it is actually the case that the governor alone possesses the authority to fill a vacancy in the office of a charter county prosecutor, then the various prosecutors of Clay, Jackson, and St. Charles County were not lawfully appointed, it would appear,” the appeal argued.

The appeal said the most applicable example is St. Charles County, which just went through this replacement process in April 2023. Page’s lawyers wrote that it has a charter provision identical to St. Louis County’s.

The appeal also argued that because prosecuting attorney’s prosecutorial powers are limited to incidents and issues that happen within their county’s jurisdiction, they do not act as state officers even though they enforce state laws.

“The fact that charter county prosecuting attorneys are paid by, and their rates of pay are set by, their charter counties further evidences that prosecuting attorneys perform the charter county’s ‘functions of government,’” the appeal said.

May’s ruling lacks support in law, the appeal went on to argue, and if true would mean most, if not all, other county officers should be recognized as state officers.

“Thus, the Circuit Court’s expressed determination — that charter counties only have the power to decide the initial manner of selection of their county officers, and have no power to determine the manner by which county officers are elected or appointed in the event of a mid-term vacancy — would appear to destroy charter counties’ ability to replace the office of any county officer that becomes vacant at any time, for any reason,” Page’s attorneys wrote.

They added: “The Circuit Court erred at each step in its analysis.”

The appeal was filed in the Eastern District of Appeals after the Missouri Supreme Court denied a request to expedite the case to the state’s highest court.

Parson’s response to the appeal is due Sunday; Page’s reply to the governor is due the next day.

The case will be argued Jan. 2, the day Bell is expected to resign.

“This decision should be made by St. Louis County,” said Doug Moore, spokesman for Page. “We look forward to its resolution.”