In re: The Honorable Joe Don McGaugh

• Court: Supreme Court of Missouri
• Decided: February 28, 2025
• Docket: SC100875
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc

IN RE: THE HONORABLE JOE DON ) Opinion issued February 28, 2025 MCGAUGH, ) ) No. SC100875 Respondent. )

ORIGINAL DISCIPLINARY PROCEEDING

The Commission on Retirement, Removal and Discipline recommends this Court

suspend for six months without pay the Honorable Joe Don McGaugh based on judicial

misconduct. After considering the Commission’s findings of fact, conclusions of law,

and recommendation, this Court suspends Judge McGaugh without pay for one year

beginning March 1, 2025, with the monitoring the Commission recommends.

Factual Background and Procedural History

Judge McGaugh is an associate circuit judge in Carroll County who has served

since 2017. In August 2024, the Commission issued its notice to Judge McGaugh. The

notice set out 12 counts alleging he violated multiple provisions of the Code of Judicial

Conduct and his actions constitute misconduct and incompetency warranting discipline

under article V, section 24.3 of the Missouri Constitution. Judge McGaugh admitted all

allegations in his response and in a stipulation and waiver he submitted to the

Commission. Those allegations are summarized below. Count 1 alleged Judge McGaugh failed to rule timely in a dissolution of marriage

case by taking the case under advisement in September 2021 but not entering judgment

until 2024. 1 Between 2021 and 2024, counsel for both parties contacted Judge McGaugh

multiple times to ask about the case status. In a February 2022 email, the wife’s attorney

stated Judge McGaugh told the attorney “a couple weeks ago in court that [Judge

McGaugh] had given the Final Judgment to a clerk, however, the clerks cannot find it.”

In another email in 2022, the wife’s attorney reminded Judge McGaugh the parties had

submitted proposed judgments in September 2021 and informed Judge McGaugh the

wife’s mortgage was in default and she could lose her home in foreclosure without a

judgment. From February 2023 through January 2024, the husband’s attorney filed a

motion for inquiry on the status of the judgment and a motion and notice for status

conference, and the wife’s attorney filed a motion for entry of judgment.

The Commission also contacted Judge McGaugh multiple times after receiving a

complaint about the ongoing delays. In October 2022, the Commission asked about the

delay and noted Judge McGaugh had not reported the case in a required report of all

cases he had under advisement for more than 90 days. 2 Judge McGaugh admitted to the

delay and “oversight” in failing to include the case in the 90-day list but stated “[t]he

1 The Commission’s notice stated Judge McGaugh “ruled April 4, 2024.” The electronic case record, however, reflects Judge McGaugh entered judgment February 16, 2024, and entered judgment nunc pro tunc February 21, 2024. 2 “Twice a year, all circuit court judges, associate circuit court judges, commissioners, and senior judges shall complete and submit a survey of cases under advisement 90 days or more.” Supreme Court Operating Rule 17.46. All rule references are to Missouri Court Rules (2024). 2 Judgment has been submitted to the Ray County Circuit Clerk,” and he had “made efforts

with [his] Circuit Clerk to run the available reports regarding these type[s] of cases so

this will not happen in the future.” In August 2023, the Commission again contacted

Judge McGaugh because the case remained pending and no judgment had been entered.

Judge McGaugh responded the next day, “I submitted the judgment in person at my

October law day in Ray County. I am at the State Fair until next week. I will follow up

with the Clerks.”

In February and March 2024, the Commission once again contacted Judge

McGaugh asking about the lack of a judgment in the case. In response, Judge McGaugh

again stated he had hand-delivered the judgment to the court clerk in October 2022 and

was unaware a judgment had not been filed until the Commission contacted him. Judge

McGaugh also specifically named the clerk to whom he had allegedly delivered the

judgment in October 2022 but said he possessed no documents showing he had delivered

the judgment to the clerk. The named clerk denied ever receiving or losing the judgment.

The record also indicates Judge McGaugh knew or should have known the case

remained under advisement. Docket entries show the parties asked about the status of the

case on numerous occasions. Judge McGaugh’s email exchanges with the clerk’s office

and the parties’ attorneys indicate he knew or should have known the case was still under

advisement, and no judgment had been entered in the case. While many emails asking

about the status of the judgment went unanswered, Judge McGaugh replied to a few

emails with responses such as “working on it” and “[i]t’s getting out this week.” In a

later March 2024 response to the Commission, Judge McGaugh stated he learned the

3 judgment had not been filed when counsel filed a notice of status hearing in September

2023.

Based on these facts, the Commission found Judge McGaugh knew or should have

known the case remained under advisement. The Commission also found Judge

McGaugh was untruthful with the Commission on multiple occasions by making false

claims related to the entry of the judgment.

Count 2 alleged Judge McGaugh failed to rule timely in a case involving a motion

to modify child custody and child support obligations by taking the case under

advisement in April 2018 but not entering judgment until April 2024. In April 2019, the

parties’ attorneys emailed Judge McGaugh asking why the judgment had not been

entered, telling him new disputes had arisen between the custodial parents while the case

remained pending and emphasizing it was critical Judge McGaugh enter a judgment to

avoid the custodial parents returning to court. Judge McGaugh responded, “I intend to

get the pending judgment out this week.” In December 2019 and June 2020, the docket

sheet shows Judge McGaugh held a settlement conference and status hearing. In

December 2020, the mother’s attorney moved for a mistrial. The motion remained

pending until April 2024, at which time Judge McGaugh dismissed “all pending motions”

and entered judgment. Based on these facts, the Commission found Judge McGaugh

knew or should have known the case remained under advisement.

In Counts 3 through 10, the Commission alleged Judge McGaugh failed to rule

timely in multiple other cases and concluded Judge McGaugh knew or should have

known the cases remained under advisement:

4 • Count 3—two consolidated cases involving minor guardianship and child custody, which Judge McGaugh took under advisement in May 2019. Judge McGaugh did not enter judgment in the minor guardianship case until April 2024. The Commission alleges Judge McGaugh still has not entered judgment in the child custody case, and it remains under advisement. From October 2019 to July 2022, the clerk’s office emailed Judge McGaugh multiple times to ask about the cases. Judge McGaugh replied to only one of these emails.

• Count 4—a dissolution case involving custody of a minor child, which Judge McGaugh took under advisement in October 2019. Judge McGaugh did not enter judgment until April 2024. In March 2020, the mother’s attorney emailed Judge McGaugh asking whether Judge McGaugh needed anything more from the parties. Two days later, Judge McGaugh responded, “I am good. Thanks for the note.”

• Count 5—a paternity case filed by a father seeking custody and child support, which Judge McGaugh took under advisement in February 2020. The Commission alleges Judge McGaugh still has not entered judgment, and the case remains under advisement. In December 2020, the father’s attorney emailed Judge McGaugh asking for a status update; in March 2021, the father’s attorney again inquired and attached a proposed judgment. In July 2021, the father filed a motion to reopen evidence. In November 2021, Judge McGaugh heard arguments on the father’s motion and again took the case under advisement. In March 2023, the father filed a second motion to reopen evidence. In April 2024, Judge McGaugh entered a note on the docket sheet stating, “Conference call held. Parties are not wanting to move forward to reopen evidence after [guardian ad litem speaks] with children. Matter will be rescheduled with judgment to be entered.”

• Count 6—two cases requesting orders of protection, which Judge McGaugh took under advisement in May 2023. Judge McGaugh did not enter judgment until February 2024. 3

3 In February 2024, docket entries for both cases noted, “Court, on its on [sic] discretion, kept this cause under advisement to keep ex parte issued for safety of parties and community considering ongoing criminal matters and past criminal and civil proceedings.” An ex parte order of protection is statutorily defined as “an order of protection issued by the court before the [person who allegedly committed a wrongful

5 • Count 7—a case to modify child custody, which Judge McGaugh took under advisement in September 2023. Judge McGaugh did not enter judgment until April 2024. In September 2023, the parties’ attorneys emailed Judge McGaugh proposed judgments.

• Count 8—a case seeking to modify a dissolution decree by terminating one parent’s parental rights and child support obligations, with the parties consenting or agreeing to judgment and filing a proposed judgment in October 2023. The Commission alleges Judge McGaugh still has not entered judgment, and the case remains under advisement.

• Count 9—a dissolution case, which Judge McGaugh took under advisement in June 2018. Judge McGaugh did not enter judgment until October 2021; then, after appeal, Judge McGaugh again took the case under advisement in April 2022 and did not enter judgment until November 2022. From January 2019 to January 2021, the parties continually contacted the clerk’s office and Judge McGaugh to ask about the case’s status. Judge McGaugh replied to one of these emails – in December 2019 – stating, “Finishing up right now. This week.” In January 2021, the husband sent Judge McGaugh a letter stating, “Judge … I just want my divorce so I can move on with my life. Thank you for your time.” After Judge McGaugh took the case under advisement for the second time, both parties’ attorneys emailed Judge McGaugh proposed judgments, and the clerk’s office followed up about the case on multiple occasions. Judge McGaugh replied to only one of these emails.

• Count 10—a small claims case, which Judge McGaugh took under advisement in October 2021. Judge McGaugh did not enter judgment until May 2022.

act] has received notice of the petition or an opportunity to be heard on it.” Sec. 455.010(6). In other words, an ex parte order of protection provides temporary relief until the circuit court notifies the alleged offending party and holds a hearing on the allegations. If the allegations are proven by a preponderance of the evidence at the hearing, then “the court shall issue a full order of protection ….” Sec. 455.040.1(1). The statute contemplates the court ruling on the pending petition and does not grant the court discretion to extend the ex parte order indefinitely. All statutory references are to RSMo Supp. 2021. 6 Count 11 alleged Judge McGaugh failed to provide a written response to the

Commission’s June 20, 2024, certified letter and email asking him to respond within 10

days to allegations he had not entered judgment in a timely manner in five cases and

failed to file an accurate report of his cases under advisement for 90 days or more.

Count 12 alleged Judge McGaugh failed to timely and accurately submit reports

listing his cases under advisement for 90 days or more. The Commission cited more than

40 instances of Judge McGaugh failing to properly include a case in the report.

In its notice, the Commission found Judge McGaugh’s conduct as alleged in the

12 counts violated Rules 2-1.2, 2-2.1, 2-2.5, and 2-2.7 of the Code of Judicial Conduct

and constituted “misconduct” and “incompetency” under article V, section 24 of the

Missouri Constitution. The Commission additionally found Judge McGaugh’s conduct

as detailed in counts 1, 9, 11, and 12 violated Rule 2-2.16. As relevant here, the Missouri

Code of Judicial Conduct provides:

A judge shall comply with the law, including the Code of Judicial Conduct.

Rule 2-1.1.

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 2-1.2.

The duties of judicial office, as prescribed by law, shall take precedence over a judge’s personal and extrajudicial activities.

Rule 2-2.1.

(A) A judge shall perform judicial and administrative duties competently and diligently.

7 (B) A judge shall cooperate with other judges and court officials in the administration of court business.

Rule 2-2.5(A)-(B).

A judge shall hear and decide matters assigned to the judge, except when recusal is appropriate under this code or other law.

Rule 2-2.7.

A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies.

Rule 2-2.16(A).

Judge McGaugh submitted an undated response to the notice in which he admitted

all allegations of misconduct in the notice, offered to begin mental health counseling

immediately and attend new judge training in 2025, and requested a three-month

suspension.

In October 2024, Judge McGaugh submitted to the Commission a “Stipulation and

Waiver” in which he said he “stipulates and admits to the truth and accuracy of the

allegations contained in the [notice and] … waives a hearing in this matter pursuant to

Supreme Court Rule 12.05 and 12.07, appeal pursuant to Supreme Court Rule 12.08 and

service … pursuant to Supreme Court Rule 12.08.”

In November 2024, Judge McGaugh’s mental health professional submitted to the

Commission a medical statement with medical records attached. The statement asked for

consideration of Judge McGaugh’s mental disability disorder as a mitigating factor and

indicated the disorder could affect his ability to perform the duties of his office with

efficiency.

8 In December 2024, the Commission filed with this Court its findings of fact,

conclusions of law, and recommendation. The Commission found the facts and legal

conclusions in the notice were true and accurate, and Judge McGaugh had committed

misconduct as specified in the notice. The Commission also found Judge McGaugh has a

mental disability disorder, but the disorder should improve with time and treatment. The

Commission noted Rule 5.285(b) provides in attorney disciplinary proceedings a mental

disability disorder is not a defense to allegations of misconduct but may be considered a

mitigating factor in determining appropriate discipline. 4 The Commission considered in

mitigation Judge McGaugh’s mental disability disorder and his stipulation and waiver.

The Commission recommended this Court suspend Judge McGaugh for six months

without pay and order continued monitoring by the Commission as follows: (1) the

Commission will monitor Judge McGaugh’s mental health treatment during the

suspension and direct him to provide monthly mental health reports from his treating

mental health professional with such reports providing a current diagnosis, course of

4 Rule 5.285(b) provides:

A mental disorder, including, but not limited to, substance abuse or dependency, is not a defense to allegations of professional misconduct but may be considered as a mitigating factor in determining appropriate discipline. Demonstration of management of the mental disorder will be considered in determining whether to impose discipline less than that which would have been imposed upon a lawyer in similar circumstances where a mental disorder was not present, but does not in itself entitle the person to imposition of a lesser discipline. Protection of the public and the integrity of the legal profession shall be the primary issues in determining whether the person will be permitted to practice on probation pursuant to Rule 5.175 or otherwise.

9 treatment, and prognosis; (2) two months prior to his completion of his suspension, the

Commission will require Judge McGaugh to submit to an independent mental health

examination at his expense by a mental health professional of the Commission’s

choosing; and (3) the Commission will review the examination before his suspension

ends and determine whether to recommend the Court order Judge McGaugh to enter

disability retirement based on mental infirmity or have the Commission continue to

monitor his treatment after his suspension ends.

In January 2025, Judge McGaugh filed in this Court a one-page brief with

exhibits. 5 In the brief, Judge McGaugh said he “objects to the recommendation of the

Commission and hereby requests oral argument pursuant to Missouri Supreme Court

Rule 12.08.” In one of the exhibits, Judge McGaugh stated: “Some new information has

become present that I would request be considered before the Court decides the

punishment for the misconduct that I have fully admitted.” He also asked for the Court

not to suspend him or, should the Court suspend him, that any suspension be served

under a disability retirement. Judge McGaugh stated he had “no objections to the

ongoing mental health treatments and the mental health evaluation as recommended.”

This Court ordered Judge McGaugh to show cause why the stipulation and waiver

he executed did not foreclose his right to exercise the provisions of Rule 12.08. In his

response, Judge McGaugh stated he “did not object to the findings of the Commission”

and “seeks to orally submit to the Court information regarding his mental health that has

5 This Court sustained Judge McGaugh’s motion to file the documents out of time. 10 taken place” since his filing of the stipulation and waiver. Judge McGaugh stated he

“only seeks to address the Court regarding the Courts [sic] potential order regarding

punishment of [Judge McGaugh].”

On January 28, 2025, this Court entered its order overruling Judge McGaugh’s

request for oral argument. On February 10, 2025, Judge McGaugh requested, and this

Court granted, leave to supplement the record. On February 11, 2025, Judge McGaugh

provided additional medical information from his mental health professional.

Standard of Review

“This Court has the ultimate responsibility to ‘remove, suspend, discipline or

reprimand any judge of any court.’” In re Hill, 8 S.W.3d 578, 581 (Mo. banc 2000)

(quoting Mo. Const. art. V, sec. 24.3). “This Court is not required to adopt the

recommendation of the commission in a judicial disciplinary proceeding. The ultimate

responsibility to ‘remove, suspend, discipline or reprimand any judge of any court’ is

entrusted to this Court.” In re Baber, 847 S.W.2d 800, 802 (Mo. banc 1993) (quoting

Mo. Const. art. V, sec. 24.3). “The Commission may not impose discipline. Only this

Court may do that. As we have said, the Commission’s recommendations are subject to

our independent review. This is the ultimate guarantee of due process.” In re Elliston,

789 S.W.2d 469, 473 (Mo. banc 1990) (internal citation omitted).

“This Court independently reviews the evidence and the Commission’s fact

findings.” Hill, 8 S.W.3d at 581. When “credibility is at issue, this Court gives

substantial consideration and due deference to the Commission’s ability to judge the

credibility of witnesses appearing before it.” Id. “Because a disciplinary proceeding is

11 civil rather than criminal, the charges must be proved by a preponderance of the

evidence.” Id. The purpose of judicial discipline is not to punish a judge for criminal or

other wrongful conduct “but rather to maintain standards of judicial fitness.” Id. at 582

(internal quotation omitted).

Analysis

The Court suspends Judge McGaugh without pay for one year

Because Judge McGaugh admitted the allegations of misconduct brought against

him by the Commission, the sole issue before the Court is what discipline it should

impose, bearing in mind this Court has said the purpose of judicial discipline is to

maintain the standards of judicial fitness. Id. By any measure, Judge McGaugh’s

conduct did not demonstrate judicial fitness. Instead, his conduct, as charged and found

by the Commission and as admitted by Judge McGaugh, violated Rules 2-1.2, 2-2.1, 2-

2.5, 2-2.7, and 2-2.16 and amounted to misconduct and incompetency warranting

discipline under article V, section 24.3 of the Missouri Constitution. The Commission

recommended a suspension of six months without pay. While the Court respects and

appreciates the Commission and its ongoing investigation over a period of years and

gives careful consideration to its recommendations, the Court believes the facts and

circumstances of this case warrant harsher discipline to maintain the standards of judicial

fitness.

Judge McGaugh contested none of the 12 counts the Commission alleged. The

uncontested allegations establish Judge McGaugh began serving as a judge in 2017 and

has had a pattern and practice of performance issues beginning as early as 2018 and

12 continuing for many years. His performance issues extend well beyond his own grossly

untimely performance of his duties. The uncontested allegations also establish he was

untruthful with attorneys, parties, and the Commission on multiple occasions. He

repeatedly failed to respond to court staff and, even worse, blamed court staff when he

knew he failed to perform his judicial duties. He went so far as to falsely claim a clerk,

whom he identified by name, lost a judgment for filing he never actually gave her.

Although the record does not reflect any court employee was disciplined due to Judge

McGaugh’s misconduct, his misconduct easily could have led to such consequences.

Perhaps most significantly, Judge McGaugh’s misconduct directly harmed

multiple parties, among them some of Missouri’s most vulnerable citizens, including

families and children; those facing financial difficulties; and those seeking orders of

protection. One litigant faced foreclosure of her home due to Judge McGaugh’s

continued failure to enter a judgment. This litigant and others had their divorces delayed

for years due to Judge McGaugh’s misconduct. Because of Judge McGaugh’s

misconduct, parties could not obtain finality in critically important, time-sensitive cases

involving divorce, child custody, child support, minor guardianship, paternity, and orders

of protection.

There is no question Judge McGaugh had notice of the harm his misconduct was

causing. Parties, attorneys, and court staff repeatedly contacted him to no avail,

including an attorney who notified Judge McGaugh that his inaction was exposing the

attorney’s client to the threat of foreclosure. In a case to modify child custody and child

support, Judge McGaugh was notified of new disputes arising between the custodial

13 parents. Despite repeated requests he enter a judgment to avoid the parties returning to

court, Judge McGaugh did not enter judgment for five years.

In sum, this is an egregious case of multiple instances in which a judge completely

failed to timely perform his duties, compounded by a pattern of dishonesty toward

lawyers, parties, court staff, and the Commission. At the time of this opinion issuing,

multiple court cases remain unresolved due to Judge McGaugh’s delays, which have

continued despite this extended disciplinary proceeding. For example, in a case to

terminate parental rights and child support, the parties reached agreement and submitted a

proposed consent judgment in October 2023, but Judge McGaugh has not entered a

judgment. His misconduct exhibits a lack of judicial fitness and reflects poorly on the

entire Missouri judiciary. In these circumstances, the Court concludes discipline in

excess of the Commission’s recommendation is warranted to maintain the standards of

judicial fitness. 6 The Court orders Judge McGaugh suspended without pay for one year

beginning March 1, 2025, with the continued monitoring recommended by the

Commission.

The Court denies Judge McGaugh’s request to serve his suspension under disability

Judge McGaugh requested that, should this Court suspend him, he be allowed to

serve his suspension under a disability retirement. Were this Court to honor Judge

6 The Court notes the Commission viewed as mitigating factors Judge McGaugh’s mental disability disorder and his filing of the stipulation and waiver admitting to the alleged misconduct and waiving appeal, and the Court has considered these factors in imposing discipline against Judge McGaugh. 14 McGaugh’s request, however, it would have to convert this proceeding from one of

discipline for misconduct to one of disability retirement.

While article V, section 24.3 and Rule 12.07 govern discipline for misconduct,

article V, section 24.2 and Rule 12.05 govern retirement due to permanent sickness or

physical or mental infirmity. The Commission made no findings under article V, section

24.2 and did not seek Judge McGaugh’s retirement due to physical or mental disability.

The Commission is not precluded from conducting future proceedings under article V,

section 24.2 and may have anticipated such future proceedings when it recommended an

independent mental health examination before any suspension ends and monitoring and

treatment while Judge McGaugh is serving his suspension. Regardless, no disability

retirement proceedings are pending before this Court; rather, the Commission charged,

proved, and found multiple instances of misconduct and incompetency under article V,

section 24.3 of the Missouri Constitution. Accordingly, this Court lacks authority under

article V, section 24 to convert this proceeding to a disability retirement. Judge

McGaugh’s request is denied.

Judge McGaugh waived oral argument in his stipulation and waiver

On January 28, 2025, the Court overruled Judge McGaugh’s request for oral

argument. As authorized by article V, section 24.6 of the Missouri Constitution, Rule

12.08 provides the procedure for requesting oral argument in a judicial discipline case:

“This Court shall set the matter of the recommendations of the Commission for oral

argument if requested by respondent [Judge McGaugh].” In October 2024, Judge

McGaugh signed and filed with the Commission a stipulation and waiver. In that

15 document, he admitted “the truth and accuracy of the allegations” in the Commission’s

notice and waived “appeal pursuant to Supreme Court Rule 12.08.” By his stipulation

and waiver, Judge McGaugh waived appeal under Rule 12.08, including any right to oral

argument.

Judge McGaugh asserts oral argument is warranted because he has new

information about his mental health to submit to the Court. Even had this Court set the

matter for oral argument, the Court could not have considered Judge McGaugh’s new

information because the Court is limited to reviewing the proceedings before the

Commission. In re Voorhees, 739 S.W.2d 178, 185 (Mo. banc 1987) (“We can order

judicial discipline only in accordance with the findings of the Commission.”); Rule

12.07(c) (“[T]his Court shall review the record, consider the recommendation of the

Commission and make such order as to respondent as it deems just.”). Because Judge

McGaugh waived oral argument and because this Court has no authority to consider his

new information, this Court properly overruled his request to set this case for oral

This Court has authority to deviate from the Commission’s recommendations

The separate opinions assert this Court lacks authority under the plain language of

article V, section 24.3 of the Missouri Constitution to impose any discipline other than

what the Commission recommended. This position is problematic in multiple respects:

The separate opinions would so hold even though the plain language of article V, section

24.3 has remained unchanged since its adoption at a special election in August 1976 and

this Court never has interpreted the plain language of article V, section 24.3 as the

16 separate opinions do now; the separate opinions raise this issue sua sponte when, in fact,

Judge McGaugh acknowledged this Court’s authority to deviate from the Commission’s

recommendation when he asked the Court not to suspend him or, alternatively, that he

receive a disability retirement as opposed to the recommended suspension; this position

would require the Court to overrule In re Buford, 577 S.W.2d 809 (Mo. banc 1979), In re

Conard, 944 S.W.2d 191 (Mo. banc 1997), and numerous other cases; and such an

interpretation is contrary to this Court’s own Rule 12.07 interpreting article V, section

24.3 as requiring the Court to make ultimate decisions concerning judicial discipline in

Missouri.

In both Buford and Conard, this Court viewed itself as free to impose the

discipline it saw fit in considering the same language in article V, section 24.3 when this

Court imposed discipline less than the Commission recommended. 7 In Buford, the

Commission recommended removal of the judge from office, and this Court suspended

the judge for 30 days without pay. 577 S.W.2d at 839-40. The Court issued its opinion

7 More recently, in In re Honorable Barbara T. Peebles, SC92811, this Court again deviated from the Commission’s recommendation when it entered an order in March 2013 suspending Judge Peebles without pay for six months even though five commission members (more than the four required by article V, section 24.3) recommended removal as the appropriate sanction and one member recommended a six-month suspension. Although a written order of this Court lacks precedential value, this is another example of the Court deviating from the Commission’s recommendation and also is another example of the Court declining an opportunity to address sua sponte its authority under article V, section 24.3. See In re Neill, 681 S.W.3d 194, 200 (Mo. banc 2024) (“[T]his Court’s dispositions by written order without opinion have no precedential value.” (citing Rule 84.16(b))).

17 in February 1979 and noted article V, section 24.3 took effect January 2, 1979. Id. at 812

n.1. The Court extensively analyzed the virtually identical language in article V, section

27.3 of the 1970 Missouri Constitution and noted: “This [C]ourt derives its power and

authority from the constitution of the State of Missouri as does the Commission. Each

has a separate function to perform under that constitution with respect to the discipline of

the judiciary in this state.” Id. at 840. 8 The Court also explicitly stated: “It is also clear

that the Commission cannot effect discipline. The constitution requires that discipline,

when adjudicated, be adjudicated and imposed by the Supreme Court en banc, and,

although deference should be shown to the recommendations of the Commission, the

[C]ourt is not bound by them.” Id. at 815. Buford is entitled to great weight as it was

issued immediately after article V, section 24.3 of the Missouri Constitution took effect,

and it explicitly references that provision in interpreting virtually identical language in

the 1970 Missouri Constitution. In the nearly 50 years since Buford, article V, section

24.3 has remained unchanged, and the Court has continued to follow Buford.

In Conard, the Commission recommended the judge be suspended for 90 days

without pay, and this Court suspended the judge for 30 days without pay. 944 S.W.2d at

8 Mo. Const. art. V, sec. 27.3 (1970) provided:

Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, or discipline any judge or magistrate of any court … for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office. No action taken under this section shall be a bar to or prevent any other action authorized by law. 18 200, 205. The Court concluded: “While we concur with the recommendation of the

Commission that Judge Conard is guilty of misconduct as charged in Counts 4, 5, and 8,

we believe the punishment assessed by the Commission was too harsh.” Id. at 205.

“Our common law system has developed on the assumption legal precedents must

be followed.” Lucas v. Ashcroft, 688 S.W.3d 204, 213 (Mo. banc 2024), as modified on

denial of reh’g (June 4, 2024). “This principle, the doctrine of stare decisis, ensures

similar cases are treated similarly in accordance with basic principles of justice.” Id.

“[M]ere disagreement by the current Court ... is not a satisfactory basis for violating the

doctrine of stare decisis[.]” Id. (second alteration in original) (internal quotation

omitted). At most, the separate opinions establish some judges of the current Court

disagree with how Buford and Conard interpreted the plain language of article V, section

24.3. This is not a basis for disregarding this Court’s precedent. 9

Additionally, the plain language of article V, section 24.3 does not limit this

Court’s authority to impose such discipline as it sees fit after the Commission

recommends discipline be imposed. Article V, section 24 assigns to the Commission the

critically important role of factfinder when section 24.1 specifies “[t]he Commission shall

receive and investigate all requests and suggestions for retirement for disability, and all

9 As this Court noted in Lucas, “judicial precedent is not absolute.” 688 S.W.3d at 213. Departure from precedent may be warranted if prior decisions are “evidently contrary to reason,” “flatly absurd or unjust,” or “clearly erroneous or manifestly wrong.” Id. at 214 (internal quotations omitted). None of the justifications for departure from precedent exist here, and the separate opinions do not argue otherwise. 19 complaints concerning misconduct of all judges[.]” Then, as relevant here, article V,

section 24.3 provides:

Upon recommendation by an affirmative vote of at least four members of the [C]ommission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, discipline or reprimand any judge of any court or any member of any judicial commission or of this commission, for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office. No action taken under this section shall be a bar to or prevent any other action authorized by law.

The separate opinions focus on the word “concurring” and suggest this word gives

the Court authority to “concur” or “agree” with the Commission’s recommended

discipline or do nothing. A more logical interpretation of article V, section 24.3 is, if this

Court “concurs” or “agrees” with the Commission’s recommendation discipline should

be imposed, then the Court may impose discipline as it deems fit. If this Court disagrees

with the Commission’s recommendation to impose discipline, the Court will do nothing,

i.e., impose no discipline.

Further, the separate opinions’ interpretation assumes the Commission makes a

single “recommendation.” But article V, section 24.3 contains no requirement of a single

“recommendation.” Instead, it provides, “[u]pon recommendation by an affirmative vote

of at least four members of the [C]ommission, the supreme court en banc, upon

concurring with such recommendation[,]” meaning at least four Commission members

must recommend discipline in some form, with this Court then responsible for

determining discipline. Nothing in article V, section 24.3 prohibits each of the four

Commission members from voting for a different form of discipline (i.e. one vote for

20 reprimand, one vote for a six-month suspension, one vote for a nine-month suspension,

and one vote for removal). In that case, there would be no single “recommendation” for

the Court to follow or not.

This is not merely a hypothetical. In Peebles, one Commission member

recommended a six-month suspension and five Commission members recommended

removal. The Commission did not make a single “recommendation” to the Court but,

instead, advised of the differing votes. 10 The plain language of article V, section 24.3

places the ultimate responsibility for judicial discipline with this Court after at least four

Commission members have voted for some discipline.

This interpretation recognizes and honors the use of “recommendation” in article

V, section 24.3. A “recommendation” is not binding. See Recommendation, Black’s Law

Dictionary (12th ed. 2024) (defining “recommendation” as “[a] specific piece of advice

about what to do, esp. when given officially”). This interpretation also is consistent with

the meaning of “recommendation” as used elsewhere in the Missouri Constitution. See

Mo. Const. art. IV, sec. 24 (titled “Governor’s budget and recommendations as to

revenue[,]” and providing the governor shall recommend a budget to the legislature); Mo.

Const. art. IV, sec. 9 (titled “Governor’s messages and recommendations to assembly[,]”

10 Here, the Commission recommended a six-month suspension without pay but appropriately noted the individual votes or recusals of the Commission members. The Commission indicated one member voted for more severe discipline, but the Commission did not specify what discipline that member recommended. In the future, to comply with article V, section 24.3, the Commission should provide the Court with each member’s recommendation of discipline to be imposed (while maintaining the confidentiality of individual member votes or recusals) to help inform the Court’s decision about any recommendation(s). 21 which provides the governor “shall recommend to [the general assembly’s] consideration

such measures as he shall deem necessary and expedient”).

This interpretation also is in accord with Buford and Conard and numerous

decisions of this Court holding this Court has ultimate responsibility for determining

judicial discipline. See, e.g., Hill, 8 S.W.3d at 581, 584 (recognizing “[t]his Court has the

ultimate responsibility to ‘remove, suspend, discipline or reprimand any judge of any

court’” when it ordered a judge suspended without pay for rest of his term despite the

Commission recommending his removal from office (quoting Mo. Const. art. V, sec

24.3)); Baber, 847 S.W.2d at 802; Elliston, 789 S.W.2d at 473; Voorhees, 739 S.W.2d at

180, 181 (stating the “ultimate decision on discipline, furthermore, is for this Court and

not for the Commission” when ordering no discipline and a full discharge despite the

Commission recommending a reprimand); In re Kohn, 568 S.W.2d 255, 256, 261 (Mo.

banc 1978) (ordering a judge censured when the Commission had recommended a 90-day

suspension without pay under article V, section 27 of the Missouri Constitution (1970)).

Although these cases reflect the Court often has chosen to impose the Commission-

recommended discipline or less, the Court has ultimate responsibility for judicial

discipline in Missouri with authority to impose the Commission-recommended discipline

or more or less discipline than recommended. 11

11 This Court’s cases holding the Court under article V, section 24.3 has ultimate responsibility for judicial discipline in Missouri, including authority to deviate from the Commission’s recommendations, are consistent with cases in other jurisdictions with similar constitutional provisions. The Mississippi Constitution provides: “On recommendation of the commission on judicial performance, the Supreme Court may

22 It is worth noting the separate opinions’ argument is not new. In 1987, one of the

concurring opinions in Voorhees asserted: “This Court’s function in individual matters of

discipline is limited to concurring with the Commission’s recommendation and imposing

appropriate discipline as permitted under the constitution, or in rejecting the

Commission’s recommendation and dismissing the charges.” 739 S.W.2d at 191

(Robertson, J., concurring). The Court rejected the argument in 1987 and rejects it again

today.

Further, this interpretation gives meaning to every word used in article V, section

24.3 by recognizing section 24.3 specifies “the supreme court en banc … shall remove,

suspend, discipline or reprimand[.]” It would be nonsensical for section 24.3 to list each

remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state[.]” Miss. Const. art. 6, sec. 177A. Based on such language, the Mississippi Supreme Court has held it “is not bound by the Commission’s findings, and [it] may impose additional sanctions. This is true even when the Commission and the judge enter into a joint recommendation-this Court’s acceptance of the joint recommendation is not a certainty.” Miss. Comm’n on Jud. Performance v. Skinner, 119 So. 3d 294, 297, 299 (Miss. banc 2013) (ordering a judge suspended without pay for 30 days, publicly reprimanded, and required to pay a $1,000 fine and $100 costs after the Commission and the judge had jointly recommended a public reprimand with the same fine and costs). The Arizona Constitution provides: “On recommendation of the commission on judicial conduct, the supreme court may retire a judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and may censure, suspend without pay or remove a judge[.]” Ariz. Const. art. 6.1, sec. 4(A). The Arizona Supreme Court has interpreted such language to mean “the ultimate authority to determine proper sanctions rests with th[e] court.” In re Jett, 882 P.2d 414, 419 (Ariz. banc 1994) (ordering a judge suspended from holding judicial office for the remainder of her term despite the commission recommending a public censure and suspension without pay for only 60 days).

23 potential form of discipline if this Court lacks authority to do anything other than impose

the discipline the Commission recommended.

This interpretation also is consistent with article V, section 27, which also was

adopted at the special election in August 1976 and provided transition provisions for

those constitutional provisions amended at the August 1976 election, including in section

27.24, which provides:

Judges, other than municipal judges, not selected under the provisions of sections 25(a)-(g) of this article who on the effective date of this article or within six months thereafter, are seventy years of age or older, may petition the [Commission] to continue to serve until age seventy-six if he has not completed a total of twelve years of service as a judge. Judges, other than municipal judges, not selected under the provisions of sections 25(a)-(g) of this article who are in office on the effective date of this article, may, within six months before attaining the age of seventy years, petition the [Commission] to be allowed to serve after he has attained that age until age seventy-six or has completed a total of twelve years of service as a judge, whichever shall first occur. If the [C]ommission finds the petitioner to be able to perform his duties and approves such service, the petitioner may continue to serve as such a judge until age seventy-six if he has not completed a total of twelve years of service as a judge at such age.

Article V, section 27.24 assigned the Commission sole responsibility and authority for

determining whether an active judge at the time of the amendments to article V should

continue to serve for a certain period. Article V, section 24.3 stands in sharp contrast

when it provides: “the supreme court en banc, upon concurring with such

recommendation, shall remove, suspend, discipline or reprimand any judge[.]”

This interpretation also is consistent with article V, sections 24.2 and 24.5, even

though those sections are not at issue. Section 24.2 again uses the word

“recommendation” and specifies “[u]pon recommendation … the supreme court … shall

24 retire from office any judge … who is found to be unable to discharge the duties of his

office with efficiency because of permanent sickness or physical or mental infirmity.”

Similarly, section 24.5 uses the word “recommendation” and specifies “[o]n

recommendation … the supreme court shall suspend a judge from office without salary”

when the judge “pleads guilty or no contest to, or is found guilty of, an offense

punishable as a felony under the laws of Missouri or the United States, or of any other

offense that involves moral turpitude.” Both sections, consistent with section 24.3, do

not dictate the Commission’s recommendation, and both sections make clear the

discipline suggested by the Commission is a “recommendation” only. It is still this

Court’s responsibility to determine whether to follow the Commission’s

“recommendation.” For example, if the Commission recommends retirement under

section 24.2 due to “permanent sickness or physical or mental infirmity,” this Court

would not follow the Commission’s recommendation if the Court disagrees with the

Commission’s findings of fact and conclusions of law as to whether the judge has a

“permanent sickness or physical or mental infirmity.” Further, while sections 24.2 and

24.5 seemingly limit this Court to retirement (section 24.2) or suspension (section 24.5) if

this Court agrees with the Commission’s recommendation, these limits stand in sharp

contrast to section 24.3, which gives the Court much discretion in stating the Court “shall

remove, suspend, discipline or reprimand any judge[.]”

This interpretation of the plain language of article V, section 24.3 also is

consistent with Rule 12.07, which governs discipline for judicial misconduct and sets out

the procedures to be followed for proceedings under article V, section 24.3. Rule

25 12.07(c) provides, “if at least four members of the Commission … find that the person

proceeded against is guilty and further find that such person should be removed from

office, suspended from the performance of his or her duties for a period of time, or

otherwise disciplined,” then the Commission “shall make written findings of fact and

conclusions of law with respect to the issues and shall make its recommendations to this

Court.” The use of “recommendations” is significant. In Rule 12.07(c), the Court

recognized there is no requirement in article V, section 24.3 the Commission make a

single recommendation binding on this Court. Rule 12.07(c) then provides “this Court

shall review the record, consider the recommendation of the Commission and make such

order as to respondent as it deems just.” Based on the separate opinions’ analysis, this

Court’s own Rule 12.07 is wrong and must be set aside because Rule 12.07(c) interprets

article V, section 24.3 as granting the Court constitutional authority to “make such order

as to respondent as it deems just,” an interpretation the separate opinions now reject. The

separate opinions’ analysis is flawed and inconsistent with Rule 12.07.

This interpretation also honors the separation of powers and this Court’s “general

superintending control over all courts and tribunals,” as set out in article V, section 4.1.

The separate opinions cite article V, section 4.1 and assert “only this Court, and not the

Commission, can actually impose discipline for judicial misconduct or retire a judge for

physical or mental disability pursuant to article V, section 24,” but then the separate

opinions inconsistently assert the Court has authority only to impose discipline

recommended by the Commission or do nothing. This patently contradicts article V,

section 4.1 and leads to the absurd result of the separate opinions declaring only the Court

26 has disciplinary authority while in the next breath asserting the Court has no authority to

impose discipline other than that recommended by the Commission, meaning the

Commission, not this Court, has ultimate disciplinary authority. The separate opinions’

interpretation of article V, section 24.3 impermissibly delegates to the Commission

authority explicitly placed in the Court under both article V, section 24.3 and article V,

section 4.1. See also State ex inf. Ashcroft v. Alexander, 673 S.W.2d 36, 38 (Mo. banc

1984) (explaining in the context of quo warranto proceedings, this Court has jurisdiction

under article V, section 4.1 of the Missouri Constitution and the appointed master’s

“findings of fact and conclusions of law constitute recommendations and are not binding

on this Court”).

Conclusion

The record before this Court, which Judge McGaugh does not contest,

demonstrates the Commission proved by a preponderance of the evidence Judge

McGaugh’s conduct violated Rules 2-1.2, 2-2.1, 2-2.5, 2-2.7, and 2-2.16 and amounted to

misconduct and incompetency under article V, section 24 of the Missouri Constitution.

The Court orders the Honorable Joe Don McGaugh suspended without pay for one year

beginning March 1, 2025, and subject to continued monitoring by the Commission on the

terms recommended by the Commission. No Rule 84.17 motions are permitted.

_____________________________ Ginger K. Gooch, Judge

Russell, C.J., Ransom and Broniec, JJ., concur; Powell, J., dissents in separate opinion filed; Wilson, J., concurs in opinion of Powell, J.; Fischer, J., filed separate opinion. 27 SUPREME COURT OF MISSOURI en banc

IN RE: THE HONORABLE JOE DON ) MCGAUGH, ) ) No. SC100875 Respondent. )

DISSENTING OPINION

I respectfully dissent. I concur with the principal opinion that Judge McGaugh

should be disciplined for misconduct as the Commission on Retirement, Removal and

Discipline found. I dissent, however, from the principal opinion’s holding that this Court

has the authority to deviate from the Commission’s recommended discipline. Because this

Court lacks the authority to impose discipline that exceeds the Commission’s

recommendation, this Court should accept the Commission’s recommendation and suspend

Judge McGaugh without pay for six months.

Article V, section 24.1 of the Missouri Constitution authorizes the establishment of

the Commission to “receive and investigate all requests and suggestions for retirement for

disability, and all complaints concerning misconduct of all judges . . . .” The Commission

consists of six members: two citizens appointed by the governor; two lawyers appointed by The Missouri Bar; one court of appeals judge selected by a majority of judges from the

court of appeals; and one circuit court judge selected by a majority of circuit court judges

of this state. Mo. Const. art. V, sec. 24.1. Pursuant to its constitutional authority, this body

is empowered and entrusted to govern the retirement of judges due to disability and the

disciplining of judges due to misconduct. Compare Mo. Const. art. V, sec. 24.2, with Mo.

Const. art. V, sec. 24.3.

It is no coincidence the state constitution juxtaposes the provisions for selecting and

retaining judges with those establishing the Commission and subjecting judges to

retirement and discipline. The Commission is intended to play a vital role in regulating the

judiciary and assuring the people of this state that Missouri judges are – and remain –

qualified to serve.

Commonly referred to as the Missouri Plan, article V, section 25 governs the process

for selecting and retaining the judges of this state. 1 The Missouri Plan provides the citizens

of this state with a voice in the appointment and retention of judges. The public, however,

must be assured that the judges who are appointed under the Missouri Plan or elected in

partisan elections remain physically and mentally able to serve and have not engaged in

misconduct when they seek retention or reelection. In this manner, the Commission

1 The plan provides that judges appointed pursuant to section 25(a) must periodically stand for retention by the vote of the people. Mo. Const. art. V, sec. 25(c)(1). The judges subject to the Missouri Plan include the judges of the Supreme Court of Missouri, the Missouri Court of Appeals, and six circuit courts – Clay County, Jackson County, Platte County, St. Louis County, the City of St. Louis, and Greene County. See Mo. Const. art. V, sec. 25(a). These judges run in retention elections after one year on the bench and at the end of each of their terms. All other judges in the state are selected or retained in office by running for their seats in partisan elections. 2 performs an important function in ensuring the judges of this state are qualified to serve,

and, due to this oversight, it is no surprise that the vast majority of judges who seek

retention under the plan or reelection in partisan elections are retained or reelected.

Because the constitution created the Commission to regulate the judiciary and

protect the people of this state, the independence of the Commission is crucial. For this

reason, the Missouri Constitution bestows substantive decision-making authority related to

the removal and discipline of judges upon the Commission. This Court, however, retains

“general superintending control over all courts and tribunals” under article V, section 4.1,

so only this Court, and not the Commission, can actually impose discipline for judicial

misconduct or retire a judge for physical or mental disability pursuant to article V, section

24.

These separate, independent roles are reflected in the language of the constitution.

Regarding judicial discipline, the constitution provides:

Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, discipline or reprimand any judge of any court . . . for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office.

Mo. Const. art. V, sec. 24.3 (emphasis added).

Unlike the attorney discipline process, over which this Court has absolute authority,

the Missouri Constitution commits the disciplining of judges to the Commission. See Mo.

Const. art. V, sec. 24. Only the Commission may bring charges of misconduct, and, when

it does, unlike in attorney discipline cases, the Commission – and not this Court – is the

3 factfinder. Mo. Const. art. V, sec. 24.3. If misconduct is found, the Commission makes a

recommendation of discipline to this Court, but only this Court may impose the

recommended discipline. Id.

Article V, section 24.3 states this Court, “upon concurring with” the Commission’s

recommendation, “shall remove, suspend, discipline or reprimand any judge of any court”

for the judge’s misconduct. The plain language of section 24.3 gives this Court two

choices: it may concur with the Commission’s recommendation or it may not concur. If

the Court does not concur with the Commission’s recommendation, the Court lacks the

constitutional authority to impose any form of discipline. If the Court concurs with the

Commission, the plain language of section 24.3 provides this Court “shall” impose

discipline, but it does not grant this Court authority to determine the form of discipline.

The Court, therefore, must either impose or reject the discipline the Commission

recommended. 2

2 The Court’s authority relating to judicial retirement due to disability is even more limited. The constitution provides:

Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc shall retire from office any judge . . . who is found to be unable to discharge the duties of this office with efficiency because of permanent sickness or physical or mental infirmity.

Mo. Const. art. V, sec. 24.2 (emphasis added). Notably, section 24.2 does not condition this Court’s actions “upon concurring with” the Commission’s recommendation, in contrast to section 24.3, which governs judicial discipline. By omitting this language and merely stating this Court “shall retire from office any judge,” this Court is not authorized to accept or reject the Commission’s recommendation. Mo. Const. art. V, sec. 24.2 (emphasis added). Instead, the Court is required to act upon the recommendation. 4 The principal opinion disagrees with this interpretation of article V, section 24. In

making this argument, however, the principal opinion misunderstands the Commission’s

function in the judicial disciplinary process. The Commission’s powers are granted by the

constitution and serve as an important check on the judiciary. As the principal opinion

notes, the constitution “assigns to the Commission the critically important role of

factfinder.” When the Commission submits its findings of fact, conclusions of law, and

recommendation to this Court, as it did here, the Commission is not making a

“recommendation” that this Court find misconduct and impose the appropriate discipline.

Rather, the Commission makes a “finding” that a judge engaged in misconduct and then

makes a “recommendation” that the judge be disciplined in a certain manner by way of

removal, suspension, reprimand, or other discipline. Consequently, this Court is left to

either accept or reject the Commission’s recommended discipline depending on whether

the Court finds the misconduct warrants the discipline recommended. Mo. Const. art. V,

sec. 24.3; Rule 12.07(c).

The principal opinion attempts to bolster its interpretation of article V, section 24.3

by citing language from Rule 12.07. The principal opinion’s broad interpretation of Rule

12.07 would permit this Court to impose discipline alternative to what the Commission has

recommended, but this Court must, whenever possible, interpret its rules in a manner that

is constitutional. See No Bans on Choice v. Ashcroft, 638 S.W.3d 484, 488 (Mo. banc

2022); see also State ex. rel. Vee-Jay Contracting Co. v. Neill, 89 S.W.3d 470, 471-72 (Mo.

banc 2002) (“Courts interpret Supreme Court Rules by applying principles similar to those

5 used for state statutes.”). Accordingly, this Court cannot interpret Rule 12.07 as permitting

this Court to impose alternative discipline because doing so conflicts with the constitution. 3

The principal opinion is correct, however, that this Court has imposed discipline the

Commission did not recommend on two occasions in written opinions. In In re Buford,

577 S.W.2d 809, 839-40 (Mo. banc 1979), and In re Conard, 944 S.W.2d 191, 205 (Mo.

banc 1997), this Court rejected the Commission’s recommended discipline and imposed

alternative discipline. Although the Court was within its dominion to reject the

recommended discipline, it overstepped its constitutional authority by imposing discipline

the Commission did not specifically recommend. This Court cannot expand its authority

beyond what is granted by the plain language of article V, section 24.3 of the Missouri

Constitution. To the extent Buford and Conard hold otherwise, I would overrule these

cases. 4

3 Further troubling, this Court under the principal opinion’s reading of the Missouri Constitution would appear to be able to reject the Commission’s recommendation of retirement due to disability under article V, section 24.2 despite the constitutional provision’s mandatory language that this Court “shall” retire the judge upon the Commission’s recommendation. This interpretation of section 24.2 not only conflicts with the plain language of the constitution but renders meaningless the additional language and requirement in section 24.3 that the Court concur with the recommendation before imposing discipline. 4 “This Court has held that, under the doctrine of stare decisis, a decision of this Court should not be lightly overruled.” Eighty Hundred Clayton Corp. v. Dir. of Revenue, 111 S.W.3d 409, 411 n.3 (Mo. banc 2003). Judicial precedent, however, is not absolute, and a departure from precedent is warranted when precedent is “clearly erroneous and manifestly wrong.” Lucas v. Ashcroft, 688 S.W.3d 204, 214 (Mo. banc 2024) (internal quotations omitted). Moreover, stare decisis is more strictly observed in cases involving statutory interpretation compared with constitutional interpretation given that the legislature is presumed to rely on judicial decisions interpreting statutes. See Ramos v. Louisiana, 590 U.S. 83, 105 (2020) (“And the doctrine [of stare decisis] is at its weakest when we interpret

6 Because this Court lacks the authority to deviate from the Commission’s

recommended discipline, this Court should accept the Commission’s recommendation and

suspend Judge McGaugh without pay for six months. 5

__________________________ W. Brent Powell, Judge

the Constitution . . . .”(internal quotation omitted)); 20 Am. Jur. 2d Courts sec. 136; see also D.E.G. v. Juv. Officer of Jackson Cnty., 601 S.W.3d 212, 221 (Mo. banc 2020) (Powell, J., dissenting); Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 387 (Mo. banc 2014) (Fischer, J., dissenting). 5 Without the limitation on the Court’s authority to deviate from the Commission’s recommended discipline, I may very well support a discipline far in excess of a six-month suspension for the reasons artfully articulated by the principal opinion and Judge Fischer’s separate opinion. 7 SUPREME COURT OF MISSOURI en banc IN RE: THE HONORABLE JOE DON ) MCGAUGH, ) ) No. SC100875 Respondent. )

SEPARATE OPINION

I concur in the dissenting opinion's analysis of article V, § 24.3 and the conclusion

it requires this Court to either: (1) impose the Commission on Retirement, Removal and

Discipline's recommended discipline; or (2) reject it and impose no discipline. I also agree

the prior cases holding this Court may reject the Commission's recommended discipline

and impose alternative discipline were wrongly decided, and I would no longer follow

them. See In re Buford, 577 S.W.2d 809, 839-40 (Mo. banc 1979); In re Conard, 944

S.W.2d 191, 205 (Mo. banc 1997). In my view, because article V, § 24.3 constrains the

disciplinary options in this case, it leaves this Court with an unfortunate choice: either

accept a patently insufficient six-month suspension for serious and repeated judicial

misconduct or reject the Commission's recommendation. I write separately to

reemphasize the high standard the privilege of judicial service demands. Consequently, if

constitutionally permissible, I would accept the Commission's factual findings, disregard its recommended six-month suspension, and vote to remove Judge Joe Don McGaugh from

office.

Courts, and the judges who serve therein, are constitutionally vested with the

"judicial power" to enter and enforce judgments finally resolving legal disputes.

Mo. Const. art. V, § 1. This Court's Code of Judicial Conduct recognizes the impact

judicial power has on the lives of real people by requiring judges to ensure "[p]rompt

disposition of the court's business" and to be "expeditious in determining matters under

submission[.]" Rule 2-2.5, Cmt. [3].

Respondent's serial misconduct represents a near total abdication of these core

responsibilities. In addition to the reputational harm to the court as an institution,

Respondent placed multiple families in unnecessary and gut-wrenching legal limbo for

years as critically important child custody and financial matters languished unresolved on

his desk. To take just a few examples from the many in this case, there is no conceivable

reason why a motion to modify child custody and child support obligations should be under

advisement for a half decade before a decision is made; nor is there any excuse for not

finalizing a stipulated motion agreeing to modify a dissolution decree for part of 2023, all

of 2024, and well into 2025. This misconduct is inexcusable. It is made worse by the fact

McGaugh violated Rule 2-2.16 by failing to be honest about his actions with the

The people who come before Missouri courts deserve timely answers, particularly

when certainty in family life and finances is on hold while they wait. McGaugh was and

is ethically obligated to provide those answers in a reasonably expeditious fashion. But he

2 repeatedly failed to do so. McGaugh's repeated and astoundingly egregious failure to

discharge his core judicial responsibilities is compelling evidence he is unfit to serve. If

the constitution—the ultimate legal authority—so permitted, I would vote to remove him

from office.

______________________ Zel M. Fischer, Judge