Petsch v. Jackson Cnty. Prosecuting Attorneys Office

553 S.W.3d 404

Ruth PETSCH, District Defender of Area 16 Public Defender Office, and Area 16 Public Defender Office, Appellants,

v.JACKSON COUNTY PROSECUTING ATTORNEYS OFFICE, Respondent.

WD 81536

Missouri Court of Appeals, Western District.

Filed: June 26, 2018

Daniel M. Nelson, Terrence M. Messonnier, Kansas City for respondent.

John C. Aisenbrey, Jessica L. Pixler, Kansas City for appellant.

Before Division One: Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Edward R. Ardini, Jr., Judges

Lisa White Hardwick, Judge

Ruth Petsch, the District Defender of the Area 16 Public Defender Office, and the Area 16 Public Defender Office (collectively, "the District Defender") filed an application for review of the Presiding Judge’s order denying her request for relief for caseload issues concerning two public defenders. On appeal, the District Defender contends the Presiding Judge erred by refusing to hold a hearing on the record; denying her request for relief in the form of wait lists and the appointment of private counsel; concluding that caseload issues did not render the two public defenders unable to provide effective assistance of counsel because such conclusion was against the weight of the evidence; and failing to declare that Section 600.063, RSMo 2016,¹ is subordinate to Rule 4 and is not the exclusive remedy for excessive caseloads for public defenders. Because the Presiding Judge’s failure to hold the hearing on the record precludes us from conducting meaningful appellate review of his decision, we reverse and remand the case to the circuit court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

On November 1, 2017, the District Defender filed her first motion requesting a conference, pursuant to Section 600.063, to discuss caseload issues in her office with the Presiding Judge of the Jackson County Circuit Court.² Section 600.063 provides:

1. Upon approval by the director or the commission, any district defender may file a motion to request a conference to discuss caseload issues involving any individual public defender or defenders, but not the entire office, with the presiding judge of any circuit court served by the district office. The motion shall state the reasons why the individual public defender or public defenders will be unable to provide effective assistance of counsel due to caseload concerns. When a motion to request a conference has been filed, the clerk of the court shall immediately provide a copy of the motion to the prosecuting or circuit attorney who serves the circuit court.

2. If the presiding judge approves the motion, a date for the conference shall be set within thirty days of the filing of the motion. The court shall provide notice of the conference date and time to the district defender and the prosecuting or circuit attorney.

3. Within thirty days of the conference, the presiding judge shall issue an order either granting or denying relief. If relief is granted, it shall be based upon a finding that the individual public defender or defenders will be unable to provide effective assistance of counsel due to caseload issues. The judge may order one or more of the following types of relief in any appropriate combination:

(1) Appoint private counsel to represent any eligible defendant pursuant to the provisions of section 600.064;

(2) Investigate the financial status of any defendant determined to be eligible for public defender representation under section 600.086 and make findings regarding the eligibility of such defendants;

(3) Determine, with the express concurrence of the prosecuting or circuit attorney, whether any cases can be disposed of without the imposition of a jail or prison sentence and allow such cases to proceed without the provision of counsel to the defendant;

(4) Modify the conditions of release ordered in any case in which the defendant is being represented by a public defender, including, but not limited to, reducing the amount of any bond required for release;

(5) Place cases on a waiting list for defender services, taking into account the seriousness of the case, the incarceration status of the defendant, and such other special circumstances as may be brought to the attention of the court by the prosecuting or circuit attorney, the district defender, or other interested parties; and

(6) Grant continuances.

4. Upon receiving the order, the prosecuting or circuit attorney and the district defender shall have ten days to file an application for review to the appropriate appellate court. Such appeal shall be expedited by the court in every manner practicable.

5. Nothing in this section shall deny any party the right to seek any relief authorized by law nor shall any provisions of this section be construed as providing a basis for a claim for post-conviction relief by a defendant.

6. The commission and the supreme court may make such rules and regulations to implement this section. Any rule or portion of a rule, as that term is defined in section 536.010, that is created by the commission under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2013, shall be invalid and void.

In her motion, the District Defender requested that the conference be held under certain conditions, including that: (1) the prosecuting attorney be excluded from the conference; (2) the conference cover all of the attorneys in Area 16’s office; (3) individual attorneys be permitted to decline to accept individual cases when they are violating or at risk of violating Rule 4 and the Sixth Amendment right to effective assistance of counsel; (4) the conference be held on the record; and (5) the conference be open to the public except when individual cases were discussed.

The Presiding Judge denied the District Defender’s request for a conference. In his order, the Presiding Judge found that the District Defender’s conditions were unlawful and explicitly prohibited by Section 600.063. The Presiding Judge stated that he was "deeply interested and available to promptly confer with the District Defender and Prosecutor to address the caseload issues which are claimed to exist and address possible remedies," but that the District Defender’s motion was not filed in good faith and was not a legitimate motion under Section 600.063.

The following week, the District Defender filed a second motion requesting a conference to discuss caseload issues. In this motion, the District Defender omitted the conditions listed in the first motion. The District Defender did not, however, identify any individual public defenders whose caseloads would be discussed, as required by Section 600.063.1. Instead, the District Defender listed the individual cases that her office would not be able to accept.

The Presiding Judge denied the District Defender’s second motion. In his order, the Presiding Judge found that the motion’s allegation that "[t]he individual public defender or defenders to be discussed at the conference are unable to provide effective assistance of counsel due to excessive existing caseloads" was conclusory and did not satisfy Section 600.063.1’s requirement that "[t]he motion shall state the reasons why the individual public defender or defenders will be unable to provide effective assistance of counsel due to caseload concerns." (Emphasis added.) Again, the Presiding Judge stated that he would not consider the motion a legitimate motion under Section 600.063.

One month later, on December 15, 2017, the District Defender filed a third motion requesting a conference to discuss caseload issues. In this motion, the District Defender identified two specific public defenders, Laura O'Sullivan and William Jobe, to be discussed at the conference. In an exhibit attached to the motion, the District Defender set out caseload statistics for all of the public defenders in her office, noting the number and types of cases assigned to them as well as the total estimated hours for each attorney’s workload under the standards developed in 2014 by the consulting firm RubinBrown.³ The District Defender also attached as exhibits affidavits from O'Sullivan and Jobe in which they described their caseloads and explained, in detail, the specific reasons why they believed they were unable to meet their ethical obligations to their clients, including their concerns pertaining to communication, diligence, investigation, and competence.

In her motion, the District Defender requested that the Presiding Judge schedule a conference; find that O'Sullivan and Jobe are unable to provide effective assistance of counsel due to caseload issues; place cases on a waiting list for defender services; appoint private counsel to represent eligible defendants; and declare Sections 600.062⁴ and 600.063"unconstitutional insofar as they are construed to require public defenders to accept cases for which they lack the time and resources to provide effective assistance of counsel and to risk professional sanctions because of such compelled representation."

The Presiding Judge held a conference on January 10, 2018. Present at the conference were the District Defender and her attorneys, the Chief Deputy Prosecutor of the Jackson County Prosecuting Attorney’s Office ("the Prosecuting Attorney"), the Presiding Judge, the previous Presiding Judge, and the Presiding Judge-Elect. The Presiding Judge denied the District Defender’s request that the conference be on the record on the basis that Section 600.063 makes no provision for an evidentiary hearing.

After the conference, the...