State high court offers new solution on defender cases

Missouri public defenders see a silver lining in what on the surface appeared to be a dismal opinion Tuesday from the Missouri Supreme Court.

The high court struck down rules the Missouri Public Defender Commission enacted in 2008 that allow public defenders to refuse certain types of cases. Those rules conflict with state statutes guaranteeing poor defendants the right to an attorney, the court ruled in its unanimous opinion.

But, as public defenders read the decision, opinion author Judge Michael A. Wolff shoved open the door to a new option. Public defender offices can’t refuse some cases and take others, but particularly burdened offices might be able to refuse to take any new cases.

The president of the Missouri Association of Prosecuting Attorneys isn’t convinced of that hopeful interpretation. Even if Wolff raised the possibility, many prosecutors dispute the case-counting methods that produce the caseload limits for each office, said Dwight Scroggins, president of the organization.

“The determination of ‘excessive caseload’ is at the heart of this issue,” he said. “The numbers don’t bear out this huge crisis.”

Dan Gralike, a deputy director of the Missouri Public Defender system who argued one of the two cases before the high court, said he started reading Tuesday’s decision with a sense of disappointment. But near the end of the 36-page opinion, “I started to realize this might be heading in a direction favorable to the public defender.”

After ruling that the administrative rules violated state statutes for public defenders to refuse certain types of cases and accept others, Wolff raised the “proper remedy” for the public defender’s office to control its caseload.

Once the system has certified a district office as having “limited availability” because of excessive defender caseloads, public defenders in that office need to sit down with prosecutors and judges and talk about possible solutions.

These informal conferences have happened in defender offices around the state, to limited success, said Cat Kelly, a deputy director of the system.

At these sit-downs, Wolff wrote, the parties may agree on possible solutions, such as prosecutors agreeing to limit the cases where the state seeks jail time. Then the judge raised a final option.

If prosecutors, judges and defenders can’t agree on solutions to ease defender caseloads, the public defender’s administrative rules authorize the system to “make the office unavailable for any appointments until the caseload falls below the commission’s standard,” Wolff wrote.

In a footnote, Wolff indicated that in two-thirds of the 21 states with statewide public defender systems, public defenders have the authority to refuse appointments due to caseloads.

The opinion doesn’t say what happens when a public defender office decides to refuse appointments. But Wolff did spend several pages discussing issues related to appointing private attorneys.

Missouri lawyers have an obligation to perform public service, he noted. And the public defender system has a process in place to compensate attorneys for their litigation costs should they step up and represent indigent defendants.

“The troubling question of paying lawyers is not presented directly in these writ proceedings, but the issue lurks behind the application of the only coercive remedy the trial judges of this state currently possess – the appointment of counsel who would be required to work without pay,” Wolff wrote.

Kelly read the opinion as validating the Public Defender Commission’s power to set caseload caps.

“We’re gratified that the court has recognized our lawyers cannot take on case after case with no upper limit,” Kelly said.

As for the buried possibility in Wolff’s opinion, Kelly said, “As always, the devil is in the details.”

The consolidated cases decided by the Missouri Supreme Court are State ex rel. Missouri Public Defender Commission v. The Hon. Kenneth Pratte, SC89882, and Missouri Public Defender Commission v. The Hon. Gene Hamilton and the Hon. Gary Oxenhandler, SC90195.