Walking out on the check: how Missouri abandoned its public defenders and left the poor to foot the bill.

• Author: Dandurand, Chris
• Position: NOTE

State ex rel. Missouri Public Defender Commission v. Pratte, 298 S.W.3d 870 (Mo. 2009) (en banc).

November 2008

"We're on the verge of collapse." (1)--J. Marty Robinson, Director of the Missouri State Public Defender System.

March 2009

"I think it burns you out.... [I]t was just an ongoing amount of wear and tear that just wore you out. " (2)--Kevin O'Brien, on leaving the Missouri State Public Defender System after ten years.

October 2009

"And so each day in Missouri, the State places the lives of poor citizens into the hands of attorneys who are underpaid, overworked, and badly supervised."" (3)--Assessment of the Missouri State Public Defender System prepared by The Spangenberg Group.

1. INTRODUCTION

   The Missouri State Public Defender System (MSPD) is at a tipping point. Every day, public defenders risk violating standards of professional responsibility and fight claims of ineffective assistance of counsel. (4) New attorneys enter the practice with ever-increasing amounts of law school debt and see little incentive to endure the work load of the public defender system for any longer than it takes to find a different job. (5) In State ex rel. Missouri Public Defender Commission v. Pratte, (6) the Supreme Court of Missouri acknowledged these problems and attempted to provide the MSPD with a means of keeping the state's indigent defense system afloat. After all, the constitutions of the united States and the State of Missouri grant each Missourian the right to counsel in criminal prosecutions, regardless of the defendant's ability to pay. (7)

   This Note looks at the Pratte decision, which arose primarily from the MSPD's most recent effort to cope with its drastically insufficient level of funding. in Missouri, as in many other states, the funding crisis has manifested itself in the form of extremely high caseloads for public defender offices. (8) Straining to prevent a system-wide collapse, the Missouri Public Defender Commission (Commission) enacted regulations that gave each district office of the public defender the power to manage its caseload. (9) These regulations effectively gave each district office the discretion to deny representation to indigent defendants who were otherwise entitled to counsel under Missouri law. (10) When circuit court judges began rejecting public defenders' attempts to employ the regulations, several different public defenders and the Commission sued to enjoin enforcement of the trial courts' orders. (11)

   Pratte is a consolidation of three writs of prohibition filed against three separate Missouri judges. At the circuit court level, in Pratte, the public defender sought a writ of prohibition to prevent Judge Pratte from appointing the public defender to represent an indigent defendant in contravention of the Commission's regulations. (12) In State ex rel. Missouri Public Defender Commission v. Hamilton, the Missouri Court of Appeals, Western District, consolidated writs of prohibition against two judges, Judge Hamilton and Judge oxenhandler; each writ sought to prevent the judge from appointing a public defender to represent an indigent defendant. (13) At the Supreme Court of Missouri level, Pratte consolidated the writ against Judge Pratte and the writs against Judges Hamilton and oxenhandler. (14)

   In Pratte, the Supreme Court of Missouri recognized the critical nature of the situation at the MSPD and attempted to provide measures that would help reduce the demand for public defender services. (15) While the court resolved the three writs of prohibition at issue in Pratte, a brief analysis of the court's suggestions leaves the MSPD with little reason to believe that assistance is on the way. it is unclear whether the legislature will respond to the opinion by providing the necessary funds of its own accord or if it will be the courts that ultimately provide the impetus for increased funding. However, the opinion does give rise to one fairly conservative prediction: excessive caseload litigation on behalf of the MSPD is not over in Missouri. The following discussion aims to clarify the implications of the Supreme Court of Missouri's attempt to manage the potentially disastrous--and fast-approaching--collapse of the Missouri State Public Defender System.

2. FACTS AND HOLDING

   It is no secret that the Missouri State Public Defender System is overworked and underfunded. (16) The office of the public defender faces a caseload crisis, caused in part by an ever-increasing number of prosecutions and a lack of commensurate increases in resources for the system. (17) Noticing the predicament, in 2006, the Missouri Senate authorized an interim committee to study the state's public defender system. (18) The committee found that six years had passed without the public defender's office adding any staff, yet the system's annual caseload totals rose by 12,000 cases. (19) Further, the committee noted problems concerning attorney retention, (20) office management, (21) and office space. (22) The increasing caseload and inadequate resources led the Commission to seek a remedy, which in turn gave rise to the issues the court addressed in Pratte.

   Under Missouri Revised Statutes section 600.017(10), the Missouri Public Defender Commission has the power to promulgate "any rules needed for the administration of the state public defender system." (23) In December of 2007, the Commission exercised this power by enacting title 18, section 104.010 of the Missouri Code of State Regulations (18 CSR 10-4.010) to create a protocol that limits the number of cases a district office of the public defender can accept. (24) This protocol comes into effect when the circuit court places the district office on "limited availability" status. (25) A district office acquires limited availability status when its caseload exceeds the maximum caseload standard permitted under 18 CSR 10-4.010 for three consecutive months. (26) In calculating a district office's maximum caseload, Missouri incorporates national standards approved by the National Advisory Council of the United States Department of Justice Task Force on the Courts in 1972. (27) The three writs of prohibition that form the issues in Pratte arose out of public defenders' attempts to limit their caseloads using the Commission's protocol as established by 18 CSR 10-4.010. (28)

   1. Facts in Writ Against Judge Pratte

      In Missouri Public Defender Commission v. Pratte, the Commission, Director of the Missouri Public Defender System J. Marty Robinson, and District Public Defender Wayne Williams petitioned the Supreme Court of Missouri for a preliminary writ of prohibition seeking to restrain the trial court judge from appointing a public defender to a case. (29) The petitioners argued that Judge Pratte violated the Commission's caseload limiting rule 18 CSR 10-4.010(2)--by appointing the public defender to represent an indigent defendant while the district office was certified as one of limited availability. (30) Title 18, section 10-2.010(2) (18 CSR 10-2.010(2)) of the Missouri Code of State Regulations prohibited access to public defender services for an indigent person who previously had retained private counsel; (31) the defendant in the case previously had retained private counsel paid for by his friends and relatives. (32) After Judge Pratte overruled the individual public defender's motion to rescind the appointment, the petitioners filed a petition for a preliminary writ of prohibition in the Supreme Court of Missouri, and the court granted the writ. (33) The other two cases arose from different facts, but similarly challenged the validity of the Commission's rules.

   2. Facts in Writ Against Judge Oxenhandler

      Another regulation promulgated by the Commission, 18 CSR 10-4.010, permits a district on limited availability to designate categories of cases for exclusion after a consultation between the court, the prosecution, and the public defender's office. (34) Relying upon this regulation, the public defender office chose to exclude from its services representation of all new probation revocation cases in which a suspended execution of sentence had been previously imposed. (35) in a case immediately following the public defender office's decision, a defendant came before the court for violating probation under a suspended execution of sentence and requested a public defender. (36) In contravention of the Commission's rule, Judge Oxenhandler appointed the public defender's office to represent the indigent defendant. (37) The appointed public defender, the Commission, and Director Robinson responded by filing a petition for a writ of prohibition in the Missouri Court of Appeals, Western District, against Judge Oxenhandler. (38)

      First, the Western District consolidated the case with Judge Hamilton's case (39) and issued preliminary orders of prohibition to prevent both judges from proceeding further in the cases before them. (40) Subsequently, a three-judge panel concluded that Missouri Revised Statutes section 600.042.2 mandates that the State provide representation for indigent defendants facing probation violations and that the Commission cannot promulgate regulations in conflict with the statutory mandate. (41) As a result, the court quashed the preliminary order of prohibition and denied the public defender's request to restrain Judge Oxenhandler's decision to appoint a public defender to the case. (42)

   3. Facts in Writ Against Judge Hamilton

      As noted above, the Western District consolidated the writ against Judge oxenhandler with the writ against Judge Hamilton. (43) in the case involving Judge Hamilton, the indigent defendant appeared without counsel after being charged with violation of probation. (44) Because the district was certified as one of limited availability, Judge Hamilton appointed District Public Defender Kevin O'Brien to represent the defendant in O'Brien's private capacity "as a member of the local bar." (45) O'Brien argued that Missouri...