Judging Mariano

The circuit clerk and the city's judges square off on the public's right to know. The clerk and the public are losing.

Apr 3, 2002 at 4:00 am
Mariano Favazza isn't the kind of guy who takes no for an answer.

Take the time St. Louis University rejected his law school application: The McDonald's manager-turned-butcher talked his way into a meeting with the head of the admissions committee and gave him a million reasons SLU had goofed. Tenacious as a bulldog, Mariano Favazza won the argument. Three years later, at the age of 38, Favazza graduated with honors.

Then there was the race in 1998 for circuit clerk. The city's Democratic establishment lined up behind incumbent Mavis Thompson, but Favazza didn't care. On a shoestring budget and with most of his eight kids pressed into door-to-door campaigning, Favazza again defied the odds -- and won.

So when Circuit Court Clerk Mariano Favazza decided it was time to bring his notoriously inefficient, patronage-packed office into the 21st century and put criminal cases on the Internet, he didn't weigh the potential opposition -- he just charged forward, full speed ahead.

After all, Favazza is the caretaker of public court records, so why not make it easier for the public to see them?

"I thought, 'Gee! This is something my office ought to do,'" Favazza says.

Right now, those with an itch to read case files in Circuit Court must trek to the hulking gray courthouse at the northeast corner of Market Street and Tucker Boulevard, scout for parking, pass through metal detectors, crowd onto a creaky elevator, get off at the third-floor file room and then wait.

And wait.

And wait -- for the single computer terminal available to the public (five minutes per person, please) or for assistance from a low-paid, overworked records clerk.

Putting case information on the Internet -- something that more and more courts are doing -- seemed like the ideal way to serve the public.

Favazza didn't just want to list the records by case numbers and defendants' names -- most people don't know that information, he reasoned.

He wanted to make the information searchable by neighborhood. That way, residents of, say, Hyde Park, Carondelet or Forest Park Southeast could find out what happened to cases originating near their homes. Were the crackheads up the street convicted -- and are they behind bars? Did the slumlord around the corner get a slap on the wrist? Was the mugger carted off to jail?

So in January, Favazza called the Regional Justice Information Service, the central records clearinghouse that serves the metropolitan area's dozens of law-enforcement agencies, and asked for help developing neighborhood codes for the city.

It was a simple enough request.

And less than two months later, with REJIS's assistance and an expenditure of about $10,000, Favazza was ready to announce that his office -- which serves one of the largest state court circuits in Missouri -- was ready to go live on the World Wide Web.

But a funny thing happened on the way to the press conference:

Just days before he was set to make the announcement, Presiding Circuit Court Judge Margaret Neill asked Favazza for a few days to review his plans.

Then, without telling Favazza, Neill fired off a letter on behalf of the St. Louis Circuit's 31 judges to REJIS, ordering the agency not to comply with the clerk's request. "The Web site," she wrote in a letter dated March 4, "is not to be activated for public access without the presiding judge's express written approval of all information contained in the Web site."

Neill cited a state Supreme Court operating rule that lists the information available on the Internet. Neighborhood codes aren't listed in the rule -- but they aren't banned, either.

Judging from what some lawyers and even a few judges say, the real issue had more to do with politics than with the law. They say the judges didn't want public scrutiny.

Mariano Favazza, a guy some liken to a bull in a china shop, was going to make it easier for the public to figure out who's working hard and who's not; who's handing out tough sentences and who isn't. Although Circuit Court judges are appointed by the governor, they stand for re-election, and bad publicity could hurt their chances of keeping their $108,000-a-year jobs.

Neill wasn't available for comment, but Assistant Presiding Judge Michael David defends the judges' position:

"If someone were to come in to look at a court file, which they are free to do, there is a question as to how much they understand. I think the concern of the bench is that incomplete or inaccurate information can do a greater disservice than no information."

There has been strain between the judges and Favazza since he took office, but in the weeks since the aborted press conference, things have gone from bad to worse.

Some judges have accused Favazza of playing fast and loose with his budget; some are pushing for legislation that would effectively strip him of his office.

The tension was palpable last week at a meeting between the judges and the clerk, where Favazza -- an elected official -- was dressed down.

Judge Robert Dierker Jr. didn't mince words about who he thought should be in charge: "The court serves the public and the clerk, while elected, is subordinate to the court and serves the policies of the court."

The admonition fell on deaf ears.

Mariano Favazza isn't the kind of guy who takes no for an answer.

Political infighting has been part and parcel of how the Circuit Court operates, but under Favazza, it's reached a new crescendo.

Historically, the circuit clerk's office was a job for influential city politicians. The clerk controls about 200 patronage jobs, and the office's primary mission long has seemed to be paying off political debt or racking up favors -- not necessarily helping the judges.

Political heavyweights have ruled the roost. Joseph P. Roddy, the longtime boss of the 17th Ward and father of the ward's current alderman, Joe Roddy, held the clerk's job from 1968 until 1982, when he was ousted by Freeman Bosley Jr., son of another alderman. When Bosley was elected the city's first African-American mayor, Mavis Thompson, Bosley's handpicked successor with the backing of many women's groups, was chosen by Gov. Mel Carnahan to finish the term. She was elected in 1994.

Despite changes in administrations, the courthouse gained a reputation for surly service, lost documents and inexcusable delays. Child-support checks got lost or were slow to reach single parents; kicking out deadbeat or drug-dealing tenants after a landlord got a signed order could take six weeks or more; two or more cases were often mixed up in the same file.

And during the 1990s, the clerk's office was rocked by financial scandals. Money was missing from the Traffic Violations Bureau, from the Criminal Bond Section, from bookkeeping.

Struggling to work in a broken system, the judges tried to distance themselves from corruption and inefficiency. An invisible line between the clerk and the bench was drawn.

But many of the judges saw a light at the end of the long, dark, miserable tunnel when Favazza ran for office. He told voters that the circuit clerk should be appointed by the judges, not elected. That's the way it is in St. Louis and Jackson counties.

Robert St. Vrain, a former federal and state court clerk who reviewed Favazza's office, says, "Some of the judges maybe jumped the gun and assumed he would -- I wouldn't say 'do their bidding' -- but would just come in and follow orders."

But Favazza wasn't about to follow orders.

"I guess he did not react too well to the way that some of the judges were treating him," St. Vrain says.

When it became clear that Favazza was going to be his own boss, the judges' optimism turned to bitterness, and the feuding between the two factions not only resumed but intensified and became personal.

"He looks like he's the merry wanderer, this kind of clownish figure, but he's not. He's mean," says one judge, who spoke for background. "He uses every fucking trick in the book. He goes from threats to 'woe is me' to confusion; he uses everything."

Favazza's heard the criticism and insists he's unaffected.

"Every day I apply a simple test -- the 'man in the mirror' test," he says. "At the end of the day, I look in the mirror and ask myself if I'm doing things for the right reasons. I haven't failed the test yet."

Favazza had been in the office only for a year when he invited St. Vrain to fill out a report card on his progress.

St. Vrain is well known and respected in the legal community. A lawyer, he has served as appointed clerk for the federal court system, both in the 8th U.S. Circuit Court of Appeals and the U.S. District Court for the Eastern District of Missouri. Before that, he was the clerk for the Missouri Court of Appeals' Eastern District. St. Vrain took early retirement in 1999 and now spends much of his time in Bosnia and Croatia -- advising judges on how to set up their courthouses.

But St. Vrain found that he couldn't evaluate the circuit clerk in isolation. "I see the court as one entity, not the judges and the clerk's office as separate competing entities," he wrote in his report.

And as he interviewed clerk staff, judges and lawyers, one theme came up over and over again: The competition between the clerk and the judges had resulted in what he described as "fragmentation and divergence" in the courthouse.

"To the extent that mutual wariness and sparring have evolved over the years between two different camps, the effective administration of justice is impeded and case management suffers," he wrote.

He laid the blame at the feet of both the judges and the clerk.

Favazza "is like a bull in a china shop," St. Vrain says. "I think he is well intentioned, but if there is not some effort to work with the judges, you're never going to have a smooth-running court."

On the other hand, he says, "I think there are a number of judges who want all the benefits but don't want to stick around late in the afternoon or come in early for meetings on a regular basis and do the follow-up work that is required to get problems addressed and resolved.

"You've got some very intelligent judges, some very dedicated judges; you've got some judges who" -- St. Vrain pauses -- "they have a very, very, I would say, limited perspective, and they tend to be almost paranoid when it comes to oversight or scrutiny."

He was concerned about the blind eye the bench turned toward the financial situation in the courthouse.

The judges had asked for a private audit, but after they received the findings, St. Vrain wrote, "no action was taken by the judges in response to the critical findings.... The lack of judicial response is curious given the negative findings."

Although St. Vrain acknowledged that financial supervision fell under the clerk's management, he wrote, "the judges bear some responsibility in this important area of fiscal oversight for the Circuit Court."

He concluded that the judges suffered from a "Pontius Pilate syndrome."

No longer.

They're not washing their hands of courthouse problems, and they're not turning the other cheek.

To them, Favazza is a problem -- and they're taking steps to get rid of him.

Favazza sits at his desk, smiling anxiously; behind him hangs a portrait of Abe Lincoln. Across the room is his original rejection letter from SLU, now framed and placed strategically next to his law license. Favazza's face is set off by dark curly hair, highlighted by flecks of gray. Now 49, he has a raspy voice and barely takes a breath between sentences.

It's tough to get in a word edgewise. And he's here to tell you he's doing a great job.

Unlike other clerks, he claims, he doesn't spend public money on himself. He even uses Thompson's office furniture -- well, everything except her chair. He's a big man -- about 300 pounds when he took office, although he's shed a lot of weight since -- and the first chair broke. The office paid for the replacement.

When he won the office, some were worried that he was going to be just another politician. His wife is a cousin to Tony Ribaudo, the man reviled by many as the stalking-horse candidate in the 1993 mayoral race. Ribaudo's candidacy split the city's white voters and paved the way for Bosley's election. As a lawyer, Favazza defended Ribaudo in a defamation case filed by Ald. Tom Bauer (D-24th Ward). The case stemmed from a hotly contested state-representative race in 1994.

But Favazza, who is paid $100,000 a year, made good on some of his promises.

His first official act was to get rid of the Buick Park Avenue driven by Thompson. It was a campaign promise he made. He drives his own car, he says, but adds that he does claim mileage when he drives to Jefferson City on official business.

During the campaign, Favazza criticized Thompson's city-paid cell-phone bills. Favazza uses his own cell phone and personally picks up the tab.

Favazza will also tell you about renegotiating leases and the interest rates the clerk's office receives from the bank. As the caretaker of several million dollars, the office earns interest, which Favazza turns over to the city. He says that in the past two years alone, he has turned $900,000 over to City Hall.

After discovering court documents from the Dred Scott case in a vault, he enlisted the help of the state archivist in restoring them, went to area businesses begging for financial donations to help advance the project and put the papers on public display. He did the same for the lawsuits filed by local merchants against explorers Lewis and Clark after the federal government failed to pay for the goods used on the historic expedition west.

Working with St. Louis County and REJIS, he helped automate arrest warrants. Now, instead of waiting several days or weeks before learning of arrest warrants, patrol officers find out within hours.

Evictions take days instead of weeks, and adult-abuse applications can be made 24 hours a day, 7 days a week.

Recently Favazza used his Web site in an attempt to get rid of $400,000 of collected child-support checks in the office's accounts that hadn't been disbursed because the recipient parent couldn't be located. He listed the names of people who were owed money, and two months later about $300,000 had been paid out.

And to combat the inherently weak financial controls, Favazza hired the auditor who investigated the clerk's office in 1998 as the finance director and also brought in an auditor from the comptroller's office as deputy finance director.

But there have also been battles. Many battles.

According to St. Vrain, when Favazza took over as circuit clerk, he suspected that there was some funny business going on involving money and the Criminal Division. To head off any possible scandal, Favazza transferred all of the courtroom deputies. The deputies are employed by the clerk, not the judges.

But, as St. Vrain explains, "the judges basically live or die by the competency or incompetence of those who serve them as courtroom deputies.

"If they have a fairly competent courtroom deputy, they can better manage their docket and stay on top of their caseload. If they have somebody who is not committed to working with them, it can just cripple you for the time you are in a given division."

Favazza didn't consult the judges; he just acted. The result was courtroom chaos.

His unilateral decisions, especially big ones that directly affect the bench, have fueled resentment.

"I think it is fair to say that there has been a strained relationship between the clerk's office and the court for a long time because the clerk is independently elected," says David, the assistant presiding judge.

But the judges pushed back.

The Missouri General Assembly last year cut the judiciary budget, and the Office of State Court Administrator was forced to reduce the total number of state court employees by 92. It was decided that 27 of those jobs had to come out of the city. Favazza should lose 15 employees, OSCA recommended, and the Probate Division, which is under the control of the judges, should lose 12. But the ultimate decision about who would suffer the losses would come from the presiding judge.

Neill decided that Favazza should lose 25 employees; Probate would only lose two.

David defends the cuts, saying that "virtually identical percentage of probate staff was cut as the clerk's office staff."

Favazza says he couldn't do the job the voters elected him to do with 25 fewer workers. So he went around the judges.

In September, after learning how many positions were being slashed from his office, Favazza called the city's top three budget officials -- Mayor Francis Slay, Comptroller Darlene Green and Aldermanic President James Shrewsbury. Favazza asked them to transfer money from his postage account into another account so that he could hire five additional workers. Even though the employees would be paid by the city, they'd be working in a state office.

The city approved. Favazza hired five people.

And the judges went ballistic.

In a budget-committee report prepared by Dierker, Favazza's acts were called "illegal." The committee also told Neill to inform Slay, Green and Shrewsbury that any further money transfers at the clerk's request, without their approval, would be illegal.

When Favazza recently submitted next year's proposed city budget, the court axed the money to pay for the five employees. Then the judges reduced Favazza's general budget fund by $400,000.

On March 25, he pleaded with the court to reconsider their stance on his budget.

He told the judges that his file-room clerks were working from 6 a.m.-8 p.m. in an effort to keep up. And he told the judges that they were wrong in their interpretation of the state law that governs his budget.

He apologized for not having worked more closely with them in the past.

The judges weren't moved -- and slashed his funding anyway.

But Favazza isn't giving up. He says he plans to lobby City Hall to restore his budget, and, if that doesn't work, maybe he'll sue the judges.

After all, Mariano Favazza can't take no for an answer.

There are people who will say that Favazza can't give a straight answer, either -- especially on why he didn't get the clerk's position changed to an appointed one.

Favazza says his promise was misunderstood and misquoted.

"The people of St. Louis ought to decide for themselves if this office is appointed or elected," Favazza says. "How you fill this position should be left for the people to decide."

He says that he still thinks the circuit clerk should be appointed but also says that's a decision for the people -- not one he can unilaterally make.

He even has an old campaign flier on his desk as proof. It promises he'll "work to give voters a chance to voice their opinion in a nonbinding referendum on whether the clerk should become a nonpartisan appointed office by the circuit judges like in St. Louis County."

But that's not the way many of the judges remember it.

Until the people have a say so, he'll remain. His term ends Dec. 31, 2002, and he's running for a second term. The primary is in August, the general election in November; the new officeholder will take over in January.

Favazza has two challengers, but so far neither looks to be a big threat. He says that because he's now a "proven commodity," he's already "had a number of officeholders endorse my re-election effort."

But the judges haven't given up trying to gain control of the office.

They've gone to the Legislature in the hopes of making some changes and, with any luck, getting Favazza out of their hair.

A measure introduced this session by state Rep. Richard Byrd (R-Kirkwood) would not only yank the clerk's elected status and transform it into an appointed one but would go into effect Jan. 1.

Byrd says the proposed legislation is something "that the judges in the city of St. Louis thought would be useful." But the bill hasn't been scheduled for a hearing or placed on the legislative calendar. He gives it a minimal chance of succeeding.

Rep. Ralph Monaco (D-Raytown), chairman of the House Judiciary Committee, agrees. The committee, which includes several St. Louis lawyers, "isn't lockstep on the issue," Monaco says. And given that the fight is viewed as a St. Louis issue, nothing will happen until there's a clear consensus.

There isn't.

So the odds look pretty good that Favazza and the 31 judges are stuck with each other for another four years, in what Favazza referred to as an "institutionally schizophrenic" situation. It's a formula for stalemate, in which innovations -- such as putting case information on the Web -- get delayed or sabotaged.

And ultimately it's the public that loses.

Even though Favazza knows the judges don't want him there, he plans to stay, insisting that he needs to continue doing the people's work.

The people of St. Louis "didn't elect me to have fun; they elected me to do a job," Favazza says. "Whenever my last day in office arrives, I'll know I left this place better than how I found it."