author: JAMES K. PREWITT, Judge. NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri ex rel. FAMILY SUPPORT DIVISION, Petitioner-Appellant, v. Cynthia A. FOSTER, Respondent-Respondent.
    No. 26441.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 12, 2005.
    Petition for Rehearing and Transfer Denied Sept. 2, 2005.
    James Owen Kjar, Shipley & Kjar, L.L.C., Warsaw, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, and Deborah L. Price, Asst. Atty. Gen., St. Louis, MO, for Respondent.
   JAMES K. PREWITT, Judge.

The Family Support Division of the Department of Social Services (“Agency”) appeals from a judgment of the trial court reversing and remanding an administrative decision ordering Cynthia A. Foster (“Mother”) to pay child support for Cody D. Foster (“Child”) and provide medical insurance for Child.

Mother took custody of Child at age five months. Child, born on May 11,1994, was diagnosed with a mental illness resulting from his birth parents’ drug abuse. Child receives Supplemental Security Income (“SSI”). Mother adopted Child in 2000, four years prior to the administrative hearing.

Mother stayed at home in order to take care of Child. On October 9, 2003, the State took custody of Child, due to Mother’s inability to provide for him. Mother then took a part-time position at First Choice Administrators that paid $9.50 per hour. On November 23, 2003, Mother was terminated from this job.

Agency prepared a Notice and Finding of Financial Responsibility on December 16, 2003, ordering Mother to provide insurance and child support totaling $321.00 per month. Mother then requested a hearing to contest the Agency’s findings. At the January 29, 2004 hearing, Mother testified she began employment with Citizen’s Memorial Healthcare (“Citizen’s”) in January of 2004, for $8.93 an hour. Mother was ineligible for insurance with Citizen’s until May 1, 2004, and was not going to enroll Child at that time since she considered the plan “quite costly.” Citizen’s coverage would cost $47 per pay period for two people.

In its Findings, Agency determined Mother’s monthly gross income was $1,548, that she owed $102 for health insurance and was entitled to a credit for that, and she owed $304 in child support. Agency determined the initial Form No.14 calculation was incorrect, and a new calculation was necessary. It ordered Mother to pay $304 for child support and to “name and maintain child as a dependent on her health insurance policy.” On April 14, 2004, Mother filed a Petition for Review of Administrative Decision.

On July 1, 2004, the trial court reversed and remanded the Agency’s decision, concluding that Form No. 14:

was not designed, implemented or intended to be used in a case involving third party custody and that Form 14 fails to provide directions for use in a case involving third party custody, the use of Form 14 by the Agency in the Decision to determine the presumed correct amount of child support and the lack of rebuttal of that presumption is arbitrary, capricious, and unreasonable.

The Agency filed Notice of Appeal on August 5, 2004, but Mother was required to, and did, file the initial brief here.

“In an appeal from a circuit court’s reversal of an administrative agency’s decision, this court reviews the agency’s decision.” Garrett v. Mo. Dep’t of Soc. Servs., 57 S.W.3d 916, 917 (Mo.App.2001). The reviewing court must examine the record in the light most favorable to the administrative decision. Clark v. Reeves, 854 S.W.2d 28, 31 (Mo.App.1993). The usual scope of review is whether the decision is supported by competent and substantial evidence on the record as a whole. Chrismer v. Mo. Div. of Family Servs., 816 S.W.2d 696, 700 (Mo.App.1991). When its decision involves the interpretation of law and application of the law to undisputed facts, the court forms its own independent conclusions. Collins v. Dep’t of Soc. Servs., Family Support Div., 141 S.W.3d 501, 504 (Mo.App.2004).

In her first point, Mother contends the Agency proceedings were in error for applying Form No. 14 to a third-party custody situation because Form No. 14’s language only applies to child support between parents. Agency counters that all child custody awards may be calculated using Form No. 14.

Under the directions for use of Form No. 14, parties required to complete said form are “[t]he parent obligated to pay support and the parent entitled to receive support[J” See also Rule 88.01. Despite this instruction, the Agency is authorized by § 454.490.3, RSMo 2000, to order child support payments with the same force and effect of a circuit court. State of Missouri ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 609 (Mo.banc 2002). The Agency is granted authority to enforce child support payments by the legislature. Section 454.400, RSMo 2000. This enforcement is subject to judicial review. Hilburn, 91 S.W.3d at 609-10.

“The Missouri Supreme Court shall have in effect a rule establishing guidelines by which any award of child support shall be made in any judicial or administrative proceeding!;,]” and “[s]aid guidelines shall contain specific, descriptive and numeric criteria which will result in a computation of the support obligation.” Section 452.340.8, RSMo 2000. Supreme Court Rule 88.01(a) grants administrative agencies the right to determine child support payments using “all relevant factors, including statutorily relevant factors.” Rule 88.01(b) makes the amount calculated a rebuttable presumption. Section 454.400, RSMo 2000 establishes the Division of Child Support Enforcement “to administer the state plan for child support enforcement,]” including the ability “to adopt, amend and repeal rules and regulations.” Section 454.400.2(5), RSMo 2000.

Under this authority, 13 CSR 30-5.010 (2004) sets forth the Agency’s method to calculate child support payments between parents or any custodial party. This regulation applies to establishing or modifying child support obligations. Calculation methods include the use of Form No. 14, under subsection 13 CSR 30-5.010(B) (2004), as well as available financial information. 13 CSR 30-5.010 (2004). The agency “may issue a notice and finding of financial responsibility to a parent who owes state debt or is responsible for the support of a child on whose behalf the custodian of that child is receiving support enforcement services!)]” Section 454.470.1, RSMo 2000.

The amount of child support calculated pursuant to Form No. 14 “is the amount of child support to be awarded in any judicial or administration proceeding for ... child support.” Rule 88.01. See also State ex rel. Dept. of Soc. Servs. Div. of Child Support Enforcement v. Kost, 964 S.W.2d 528, 529 (Mo.App.1998).

We conclude the legislature and the Missouri Supreme Court intended that Form No. 14 cover all administrative child support, including that such as this. The Agency did not err by using Form No. 14 in its calculation of Mother’s child support obligation. Point I is denied.

In her second point, Mother contends that Agency’s determination that she owes $304 per month in child support is “arbitrary, capricious, and unreasonable” because it considered Child’s SSI payment as a non-relevant factor in its calculation.

The directions for use of Form No. 14 state, in part: “Excluded from gross income is ... supplemental security income (SSI) benefits!.]” SSI eligibility is based on need and paid to families of disabled children “to ensure that the recipient’s needs are met at a subsistence level.” Kost, 964 S.W.2d at 530. “SSI benefits received for a disabled child are intended to supplement other income, not substitute for it.” Id. Monthly SSI benefits received do not diminish the child support contribution required by the non-custodial parent for care and accordingly, any child support obligation is not impacted by the receipt of SSI on the disabled child’s behalf. Id. Point Two is denied.

The judgment is reversed and the cause remanded to the trial court to set aside the judgment and enter judgment affirming the decision of the Family Support Division of the Department of Social Services.

GARRISON, P.J., concurs.

RAHMEYER, J., files separate dissenting opinion.

NANCY STEFFEN RAHMEYER, Judge.

I respectfully dissent. I believe this case does not come within section 452.340.8 or section 454.400 and, thus, is a case of first impression. As such, I would find that Rule 88 and the use of the Form No. 14 are not warranted in a third-party custody arrangement.

I arrive at this conclusion because chapter 452 is entitled “Dissolution of Marriage, Divorce, Alimony and Separate Maintenance” and concerns itself primarily with dissolution and custody matters. The issues involving children in foster care are not contained within these sections of the statute. Likewise, section 454.470, which is in the chapter entitled “Enforcement of Support Law,” provides that the director may issue a notice and finding to a parent who owes a state debt or who is responsible for-the support of a child on whose behalf the custodian of that child is receiving support enforcement services from the division. Section 454.465 determines what a “state debt” is:

a payment of public assistance by the division of family services to or for the benefit of ... the caretaker of the child, creates an obligation, to be called “state debt,” which is due and owing to the department by the parent, or parents, absent from the home where the dependent child resided at the time the public assistance was paid.

I do not believe either prong is at issue in this case with a child who was in the custody of the Benton County Division of Family Services. There is nothing in the record to indicate that a state debt was proven or plead, nor was there any indication that the custodian of the child was receiving support enforcement services from the division.

I believe the trial court correctly determined that Rule 88 was inapplicable to a third-party custody arrangement. All of the comments and presumptions for use of the Form No. 14 support that reasoning. For instance, the worksheet refers to “the parent obligated to pay support” and “the parent entitled to receive support.” If the Form No. 14 were to be used with the State as the “parent entitled to receive support,” there would still have to be some dollar amount used for the “parent entitled to receive support.” The directions for use become nonsensical when the State’s income is used in the Form No. 14. Among the assumptions used to calculate the child support, guidelines are based on “the income shares model, which seeks to apportion to the child the amount that the parents would have spent if the household were intact.” Again, what income would be apportioned to the child had the grandmother’s home remained intact? Throughout the assumptions, the term “parent entitled to receive support” is used. There is no assumption for a child in third-party custody. In fact, an obvious dilemma will be presented when a child is placed with a relative. If the guidelines apply to third-party custody, are both parents and the custodian’s income to be used in the Form No. 14? There is no provision for such in the Form No. 14.

I believe public policy supports a decision that Rule 88 is inapplicable in third-party custody cases such as this. By this ruling, we place grandmother in a horrible quandary when faced with providing necessary care for a child with extraordinary medical needs. If she had kept the child in her home, she would have the benefit of the child’s social security payments plus the total amount of her own income to provide a home for the child, but the child’s health needs would still not be met. On the other hand, because she could not provide the necessary health benefits for the child without assistance from the State, she voluntarily placed the child in a situation to benefit from better health care and is now being forced to keep health insurance on the child (with no indication that the health insurance is necessary or used by the State) and lose approximately one-fourth of her disposable income, severely limiting her capacity to provide for herself or future care for the child. I do not think the legislature contemplated a situation such as this when enacting chapters 452 and 454. I would find the use of Rule 88.01(b) and the Form No. 14 to be inapplicable in a third-party custody situation and would affirm the trial court’s decision.

      . Rule 84.05(e) states: “If the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than of the circuit court, the party aggrieved by the agency decision shall file the appellant’s brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs. The party aggrieved by the circuit court decision shall prepare the respondent’s brief and serve it in a time otherwise required for the respondent to serve briefs.”

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . All rule references are to Supreme Court Rules (2004), unless otherwise stated.

      .The State of Missouri now refers to the Division of Family Services (DFS) as the Family Support Division (FSD).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James Roger DAVIS, Appellant.
    No. WD 63669.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    James R. Wyrsch, John Johnston, Co-Counsel, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.

      Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

James Roger Davis appeals his convictions and sentences for two counts of statutory sodomy in the second degree, under section 566.064, RSMo 2000. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Kennedy JONES, Respondent, v. THE HOUSING AUTHORITY OF KANSAS CITY, Missouri, Appellant.
    No. WD 64200.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    See also 118 S.W.3d 669.
    David C. Vogel, Kansas City, MO, for Respondent.
    Kevin R. Thomas, Kansas City, MO, for Appellant.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This is the second appeal in what otherwise might have been a simple lawsuit interpreting the Missouri Sunshine Law, Sections 610.010-610.027. Much of the factual background of this controversy is contained in Jones v. Housing Authority of Kansas City, Missouri, 118 S.W.3d 669 (Mo.App.2008). This case seeks a determination as to what records a public governmental body that oversees subsidized housing must disclose in response to a request for records that contain identifying information of a housing authority’s tenants.

In December of 2000, the respondent, Kennedy F. Jones, d/b/a Shiloh Ridge Apartments, sought the following information from the appellant, Housing Authority of Kansas City, Missouri (“HAKC”): (1) information on a purported tenant of Section 8 (federally funded assistance) housing, including her social security number as well as present and past addresses; (2) information as to landowners, owners and managers, since January 1,1993, of all public housing programs in Kansas City; and (3) the same detailed information, including the social security number and birth-dates, of all tenants who had participated in Section 8 or Missouri Housing Development programs from January 1, 1993, to the present date. HAKC supplied the information regarding the landlords, owners and managers (in response to request (2) above) in January of 2001. However, it did not provide records pertaining to the individual tenant or to all other tenants who were beneficiaries of government-assisted housing.

These facts are undisputed; therefore, this court’s only determination is a question of law. At issue is whether the requested information is exempted from disclosure as a “closed record” under the Missouri Sunshine Law. The trial court entered summary judgment in favor of Jones.

Facts

Jones filed this suit, titled petition for “Mandamous [sic] and Mandatory Injunction,” seeking information about the particular tenant and all tenants who had lived in Section 8 housing since 1993 and requesting attorney fees for HAKC’s knowing violation of the Sunshine Law. In its defense, HAKC maintained that the requested records were protected by a disclosure exemption within the Sunshine Act, Section 610.021(8), and denied that its actions constituted a knowing violation of the Act under Section 610.027.3. It also moved for summary judgment, but did not raise any federal privacy act violations or specifically challenge Jones requesting tenants’ social security numbers. The trial court ultimately entered summary judgment for Jones on the disclosure of information, but denied his request for attorney fees. Both sides appealed. This court found that a record had not been made on the issue of attorney fees and, therefore, dismissed the appeal for lack of a final judgment. Jones, 118 S.W.3d at 676.

After the case was remanded, the trial court again sustained Jones’ motion for summary judgment on the applicability of the Sunshine Law and compelled HAKC to supply the requested information within five days. This time, however, the court found that HAKC had purposefully violated Missouri’s Sunshine Law and, therefore, sustained summary judgment in favor of Jones for attorney fees in the amount of $10,154.31.

The four points now raised by HAKC on appeal can be boiled down into two issues: (1) Does the requested information fall under the “welfare cases” exception, Section 610.021(8), causing them to be “closed records” of a public agency; and, if not, (2) Has HAKC knowingly violated the Act by denying access to the requested records?

ARGUMENT

This court’s review of a grant of summary judgment is governed by ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); because this case presents solely a question of law, it shall be reviewed de novo.

Here, as is often the case, two sets of laws — both with salutary purposes — conflict in a way so as to prevent an obvious resolution. The legislature has stated that the Sunshine Law is to be liberally construed, Section 610.011.1, that there is a presumption that public records are open unless specifically exempted, Section 610.022.5, and that any statutory exceptions are to be strictly construed, Section 610.011.1.

For HAKC to prevail, the requested information must fall within an exception to the Sunshine Law. Section 610.021(8) lists “[wjelfare cases of identifiable individuals” as one such exception. The question remains, do the records containing detailed identifying information regarding the particular tenant (e.g., social security number, address, past employers, and past residences) and all tenants who have lived in Section 8 housing since 1993 (e.g., full names, birthdates, social security numbers, the addresses of the premises involved, dates of entering and leaving the premises, and the amount of rent paid) constitute “welfare cases of identifiable individuals”?

The term “welfare” or “welfare cases” is not defined in the Sunshine Law or in the Housing Authorities Law, Sections 99.010-99.230. The Housing Authority Law does, however, contain language allowing housing projects to provide “housing, for persons of moderate income, offices, [and] stores ... provided that such activities be undertaken only in conjunction with the provision of housing for persons of very low and lower income.” § 99.020(12)(b). This area of the law also acknowledges that there is a shortage of safe accommodations persons of low income can afford and allows local communities to set up these authorities to provide safe and sanitary dwellings. § 99.030. Section 99.030(3) further declares, “the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent.”

Jones relies on the doctrine of in pari materia to argue that “housing authorities created under Chapter 99 R.S.Mo were not intended to be included in the meaning of ‘[wjelfare cases of identifiable individuals’ under the Sunshine Law.” He also asserts that housing assistance is not “welfare,” since other statutes relating to health and welfare programs do not reference or include Section 8 housing, particularly Section 205.967.1(1).

The fact that Chapter 99 housing authorities are not expressly listed in Section 205.967.1(1) does not imply that subsidized housing and/or paying less than the market rate for a lease is not “welfare” or “public assistance.” Indeed, this statute explicitly states that public assistance benefits means “anything of value,” including “shelter.” § 205.967.1(1). The legislature’s intent behind creating public housing is apparent from Section 99.030, which states that “providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent ... and are governmental functions of state concern.” This very direct language, coupled with the language contained in Sections 99.020(12), 99.090, and 99.100, makes quite clear Missouri’s policy to provide adequate housing to persons of low income through subsidized housing.

Because of the legislative intent in Chapter 99 that a local housing authority provide low-cost housing to low-income persons, it is not necessary to resort to a dictionary definition of “welfare” or “welfare cases” to resolve this dispute under the Missouri Sunshine Law. The operative words in Section 610.021(8) are “welfare” and “identifiable individuals.” Although the word “cases” following “welfare” may arguably create some ambiguity, the legislature has otherwise expressed a clear mandate to exclude information about identified persons who, because of need, receive government assistance for shelter.

This court believes that preventing the disclosure of individuals’ highly personal identifying information trumps the public’s access to these specific records. The stigma of releasing the name, address(es), birthdate, and social security number of persons who live, or have lived, in public housing since 1993 far outweighs any benefit from making this information public. If the legislature so desires, a further refinement specifying what types of housing authority records constitute public records may be in order.

Having determined that the trial court erred in granting summary judgment in favor of Jones since the requested information fell within an exception to Missouri’s Sunshine Law, this court need not address the award of attorney fees. Accordingly, the trial court’s judgment is reversed, and the cause remanded to enter summary judgment in favor of HAKC.

All concur.

      . All statutory references are to RSMo. (2000) unless otherwise indicated.

      . The trial court's June 20, 2002 judgment, which was the subject of the first appeal, found that HAKC had violated the Sunshine Act, but did not do so purposefully so as to warrant an award of attorney fees. Immediately after the case was remanded, Jones filed a "Motion to Enforce” the June 2002 judgment that this court sent back as not yet being a final judgment. Over HAKC's objections, the trial court sustained the motion, ordering HAKC to comply "by providing 'records of welfare cases of identifiable individuals’ ” and further awarded Jones "reasonable attorney fees in accordance with the Sunshine Laws and invites Plaintiff's counsel to submit a time record of his efforts and his hourly rate.” Jones then filed a new motion for summary judgment on entitlement to the records and attorney fees. In sustaining this motion, which is the judgment now on appeal, the court stated that the June 2002 judgment "be and hereby is confirmed and Defendant shall within five (5) days provide Plaintiff all information requested.” The information Jones was ordered to provide included records on (1) the individual tenant, (2) landlords, owners and managers since 1993 (which had already been supplied in January of 2001), and (3) all tenant participants since 1993. The judgment went on to award attorney fees without mentioning that HAKC’s violation was "knowing” under Section 610.027.

      . Subsection 205.967.1(1) defines "[pjublic assistance benefits, programs and services” as:
      anything of value, including money, food, food stamps, commodities, clothing, utilities, utilities payments, shelter, drugs and medicine, materials, goods, and any service, including institutional care, medical care, dental care, child care, psychiatric and psychological service, rehabilitation instruction, training, or counseling provided pursuant to chapters 198, 207, 208, 209, and 660, RSMo, or benefits, programs, and services provided or administered by the department of social services!)]

      . Section 99.020(12)(b) states that a "[h]ous-ing project” means any work or undertaking "Mo provide decent, safe and sanitary urban or rural dwellings, apartments or other living accommodations for persons of very low and lower income.”

      . Section 99.090.1 declares Missouri policy to be "that each housing authority shall manage and operate housing projects owned by it in an efficient manner so as to enable it to fix the rentals for its very low and low-income tenants at the lowest possible rates.”

      . Section 99.100.1(1) dictates that a housing project "may rent or lease the dwelling accommodations therein only to persons of very low income, low income or moderate income and at rentals within the financial reach of such persons.”


text:
    Shuchun BEASLEY, Appellant, v. William W. BEASLEY, Respondent.
    No. WD 64308.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    Geoffrey W. Preckshot, Columbia, MO, for Appellant.
    Charles J. Dykhouse, Columbia, MO, for Respondent.
    Before HOWARD, P.J., SMART and NEWTON, JJ.
   ORDER

PER CURIAM.

Ms. Shuchun Beasley appeals the circuit court’s judgment involving the characterization and division of marital and non-marital property and the denial of her claim for invasion of privacy in the dissolution of marriage action. For the reasons stated in the memorandum to the parties, we affirm. Rule 84.16(b)


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Justin D. SARDESON, Defendant-Appellant.
    No. 26220.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 17, 2005.
    Motion for Rehearing or Transfer Denied Sept. 8, 2005.

      Ellen H. Flottman, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

A circuit clerk in charge of seating a venire pool from a master list of prospective jurors inadvertently created a jury list by ordering the computer to seat the jurors according to their birthdates. The first members of the venire were the oldest and the last were the youngest; therefore, the seating was not random but according to age. The question before this Court is whether that jury selection process was a substantial failure to comply with chapter 494. We find that it was and are forced to reverse and remand for a new trial.

Chapter 494, entitled “General Provisions As To Juries,” sets forth the procedures for the qualification and selection of jurors. Specifically, section 494.400 provides in pertinent part, “[a]ll persons qualified for grand or petit jury service shall be citizens of the state and shall be selected at random from a fair cross section of the citizens of the county.” (emphasis added). Section 494.415 further provides, “[f]rom time to time and in a manner prescribed by the board of jury commissioners there shall be drawn at random from the master jury list the names or identifying numbers of as many prospective jurors as the court may require.” (emphasis added). Section 494.420.2 continues, “[wjhenever a judge of the circuit court shall require a panel of jurors for jury service, he shall designate the number of jurors required. This number of jurors shall be randomly selected in a manner specified by the board of jury commissioners from the qualified jury list.” (emphasis added).

The State does not argue that the jury selection in this case complied in any way with chapter 494; the State initially argues that the claim is waived because an objection was not made at the time of jury selection. However, section 494.465 specifically provides:

1. A party may move to stay the proceedings or for other appropriate relief including, in a criminal case, to quash the indictment if there has been a substantial failure to comply with the declared policy of sections 494.400 to 494.505.... Such motion may be made at any time before the petit jury is sworn to try the case or within fourteen days after the moving party discovers or by the exercise of reasonable diligence could have discovered the grounds therefor, whichever occurs later.
2.If the court determines that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with the declared policy of sections 494.400 to 494.505, the court shall stay the proceedings pending the selection of the jury in conformity with the declared policy or grant other appropriate relief.

The clerk’s error of seating the jury by age was not discovered until after the trial despite the fact the prosecuting attorney brought to the court’s attention that it appeared the jury panel had been seated according to age. That is because the clerk assured the trial court that the jury panel was not seated by age, that it was indeed a random selection. Admirably, the prosecuting attorney pressed the issue a second time because she was “afraid that the court of appeals is going to look at this and say any idiot would have seen that they were seated from oldest to youngest” prior to the trial, but was again assured that the jury panel was randomly seated and the trial was commenced. Clearly, then, defense counsel did not have the actual knowledge that the jury panel was not randomly selected until the court acknowledged that error after the trial to the prosecuting attorney and defense counsel. As soon as defense counsel was informed of the error, he filed an amended motion for new trial, which included a complaint regarding the jury selection process. The request for relief was timely filed.

Next, the State argues that the substantial failure to comply with chapter 494 in the selection process did not rise to a constitutional violation. The State admits that a criminal defendant has the right to select a jury from venires that represent a fair cross section of the community, but argues that Defendant failed to make “a prima facie” case that this panel was not a fair cross section of the community. The State’s argument misses the mark. Defendant does not have to establish a prima facie case; it is undisputed that this venire panel did not represent a fair cross section of the community. The court advised the parties of such.

Seventy-one people, seated in reverse chronological age, made up the venire panel from which the petit jury was to be selected; the selection process commenced with potential juror No. 1, who was the oldest member of the panel, and proceeded until twelve jurors plus two alternates were chosen. After strikes for cause and each party’s peremptory challenges, only the members of the venire panel through No. 45 remained eligible for selection as a potential juror. The jury that was ultimately seated to try Defendant, who was twenty-two years of age, ranged in age from seventy-three years to forty-four years of age. In other words, because the seating was not in a random order, there was no possibility that anyone in this veni-re panel who ranged in age from twenty-three to forty-two years could have been selected for the petit jury because they were seated at the end of the panel. Pursuant to chapter 494, the clerk had no discretion to seat the jury in the courtroom in any fashion other than a random order.

Citing to State v. Gilmore, 661 S.W.2d 519, 523 (Mo. banc 1983), the State next argues that, even if there was a substantial deviation from the statute, Defendant must show prejudice. Gilmore is not on point. At issue in Gilmore was a claim that the presiding judge of the judicial circuit took it upon himself to excuse one of the individuals who was scheduled to be on the jury panel. Id. at 523. There was no systematic violation of chapter 494 and no showing that it was a denial of a fair cross section of the community requirement. Id. at 523.

On the other hand, this case involves violations of the statutory jury selection requirements that are so systematic in nature as to amount to a “substantial” failure to comply with the statutes, thereby entitling a defendant to relief, even in the absence of a clear showing of actual prejudice or a constitutional violation. We find State v. Gresham, 637 S.W.2d 20, 26 (Mo. banc 1982), and its progeny to be persuasive on the issue before us.

In Gresham, the appellant claimed that the court did not substantially comply with section 494.240 and, most importantly, that the selection method utilized desteoyed the randomness of the jury selection. Id. at 21. Our supreme court found that the requirements of the then section 494.240 requiring the names to be placed in a box and thoroughly mixed were not complied with, nor was the clear intent of the statute, that the slips of paper contain only the name, adhered to so that there be no further discretionary screening of the names drawn. Id. at 23. The court specifically stated that no untoward motives were ascribed to the board and rejected the State’s claim that there was no actual prejudice. Id. at 24. The court stated:

Such a practice defeats the very purpose of the jury selection process. A system has been established by statute that provides, insofar as is practical, for a random selection of jurors from a cross-section of the community and from various locations within the county.

Id. The court continued:

“We do not mean to say that there was any fraud practiced in this case. That is beside the point. The legislature has seen fit to prescribe the manner of selecting juries. The officers charged with this duty must at least substantially comply with the procedure prescribed. Courts are not authorized to ignore, emasculate, or set aside the statutory provisions.”

Id. at 26 (quoting State v. McGoldrick, 361 Mo. 737, 236 S.W.2d 306, 308 (1951)); State v. Henke, 820 S.W.2d 94, 96 (Mo.App. W.D.1991); see also State v. Barner, 659 S.W.2d 326, 328 (Mo.App. S.D.1983).

Likewise, a process where the sheriff shuffled the cards but passed over potential jurors who had previous substantial service as jurors was found deficient in State v. Bynum, 680 S.W.2d 156, 161 (Mo. banc 1984). Again, the court made no intimation that the sheriff made any attempt at improper personal selection of jurors as the good faith of the officer was not at issue in the ease. Id.

In State v. McCaw, 668 S.W.2d 603, 604 (Mo.App. E.D.1984), the eastern district reversed and remanded for a new trial after a judgment where the court delegated the excusing of potential jurors and the summons of talesman. The court concluded,

In the absence of prejudice to the defendant, the test is whether the statutes were substantially complied with. The purpose of the statutory process is to ensure random selection of jurors, to prevent jury packing or selection of jurors “with reference to particular cases.” With the handpicking of over half of the panel, this objective was frustrated here.

Id. (quoting Gresham, 637 S.W.2d at 25) (internal citations omitted).

Because there was a substantial failure to comply with the statutory mandate regarding a random selection of the jury panel, we have no choice but to reverse this conviction and remand it for a new trial.

GARRISON, P.J., and PREWITT, J., concur.

      . We ascribe good faith to the actions of the circuit clerk as that is not an issue in this case.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . The State makes much of the lack of an objection by the Defendant. We fail to see how a complaint by the defense attorney would have had more effect on the court than a complaint by the prosecuting attorney. The court, relying on the assurances of the clerk, denied any further investigation into the matter and proceeded with the trial. Again, we assume good faith on the part of the prosecuting attorney, defense attorney, clerk and court.

      . Section 494.240, which set out the procedure for selecting jurors, was repealed in 1989. See, now, section 494.410.