Attorney challenges rule on pro bono appointments

For a second time, a Kansas City attorney is arguing that a local court rule that allows the Jackson County Circuit Court to appoint attorneys as pro bono counsel in juvenile cases is unconstitutional.

John Ziegelmeyer, of HKM Employment Attorneys, is the second attorney to challenge the rule by filing a petition for a writ to block his appointment. Representing him in the matter is the first attorney to do so — Jonathan Sternberg, a Kansas City solo practitioner specializing in appellate law.

In response, the circuit court has removed Ziegelmeyer from a child-custody case. Through the process of seeking and obtaining a writ, Sternberg said it appears attorneys now have an avenue for declining juvenile appointments, regardless of the local rule.

In the midst of Ziegelmeyer’s challenge, the Jackson County Circuit Court is signaling an interest in doing more to encourage attorneys to accept those appointments.

At the circuit court monthly meeting April 27, Presiding Judge John Torrence told circuit judges the court has initiated a discussion with the Kansas City Metropolitan Bar Association about family court appointments.

“We’ve got some things we’ve been talking about doing in the future that will essentially just try to support and reward the lawyers who continue to accept and take the appointments for representation of parents in child-abuse and neglect cases,” he said.

Torrence declined to elaborate further, saying the discussions remain in an early stage. He also declined to comment on the Ziegelmeyer case.

AnnMarie Thomas, spokeswoman for the KCMBA, said the discussions are part of a broader conversation about recognizing lawyers’ pro bono service.

Sternberg’s own case goes back to April 2016, when he filed a petition to block the court from enforcing orders appointing him as an attorney in a child-custody case.

The court appointed him under Local Rule 21.6.1, which has been in place since the 1980s. It allows the court to appoint attorneys who live or work in Jackson County to juvenile cases.

Under the local rule, appointed attorneys may ask the courts to assess fees and costs. Sternberg said in his writ petition that in Jackson County, there is no source for funding to pay those fees.

Under Missouri law, courts are required to appoint counsel for indigent parents or guardians in cases in which there is a potential loss of parental custody.

Sternberg argued that under the Missouri Constitution’s Bill of Rights, Missourians have the right of “the enjoyment of the gains of their own industry.” He argued his appointment and the court’s refusal to allow him to withdraw from it violated his rights to those gains.

The Supreme Court granted a preliminary writ, staying his appointment to the case. The Supreme Court dismissed his case a short time later because the issue of his appointment became moot.

Sternberg opposed the dismissal, however, saying the underlying issue remained unaddressed.

“It’s a classic ‘Capable of repetition, yet evading review’ case,” he said, noting an exception that would allow the Supreme Court to consider the case despite mootness.

Sternberg said his client’s arguments mirror those he made in 2016.

“This is a pretty extreme burden on him to handle a case involving the custody of three children, which is going to be pretty protracted,” he said.

On April 18, the Supreme Court granted Ziegelmeyer a preliminary writ. Already, Sternberg said the circuit court has released Ziegelmeyer from his appointed case.

Sternberg now is watching to see if the Supreme Court will dismiss the case or take it up for consideration.

Sternberg said since his case, lawyers have approached him about the issue, but until Ziegelmeyer did so, none had been willing to challenge their appointments in court.

“When I explain you had to go all the way to the Supreme Court and stick your neck out there, many lawyers are understandably reticent to do that, or they say, ‘Oh, I don’t think my firm would let me,’” he said.

Sternberg said he supports providing incentives — particularly payment — for attorneys who take on such cases. Still, he said if the court rule isn’t changed, people will continue to challenge their appointments.

“Someone is going to challenge it, the Supreme Court will grant a writ — clearly the Supreme Court is interested in it — the person will be let out and it will be dismissed,” he said. “I wonder, how many people will do this before it’s deemed capable of repetition, yet evading review.”

The case is State ex rel. Ziegelmeyer v. Youngs, SC97084.