Federal judge: Attorney general can’t intervene in caseload lawsuit

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A federal judge has refused to let the Missouri Attorney General’s Office intervene in a case that it claims could trigger “monumental changes to Missouri’s criminal justice system.”

U.S. District Judge Nanette K. Laughrey on July 12 denied the attorney general’s motion to intervene in the suit, which has given rise to a proposed settlement that purports to reform public-defender caseloads and practices.

The suit was brought in 2017 by several indigent criminal defendants represented by the American Civil Liberties Union of Missouri and other groups. Alleging “multiple and longstanding systemic deficiencies” in public-defender services, they named various state entities. Most of those state entities won dismissals in February, so the only remaining defendants are part of the Public Defender System — defendants who, the attorney general has argued, desire essentially the same outcome as the plaintiffs.

On May 13, the parties filed a proposed consent judgment. They agreed the public defenders would overhaul their handling of all stages of criminal cases, from initial appearances to direct appeal. They also laid out a new method for assigning cases to assistant public defenders such that the expected number of hours required would not exceed a standard of a 2,080-hour work-year (40 hours per week for 52 weeks, with no allotment for vacation, sick time or holidays).

The day after the filing of the proposed settlement, Attorney General Eric Schmitt filed a motion to intervene. He claimed the proposed settlement “would allow untold numbers of alleged felons to avoid criminal prosecution because the Commission does not want its attorneys working more than 40 hours per week.”

The judge, however, has found the motion untimely. She observed that the attorney general’s office had “actively litigated” the case for nearly two years to win dismissal of the other state defendants, which included the governor and the state of Missouri. The attorney general was “fully aware,” she continued, that the dismissals it sought could result in the sole remaining defendants having “legal interests that ‘mirror those of the plaintiffs.’”

If the attorney general wanted the state to have a more active role, Laughrey added, he should not have sought the dismissals, and should have filed to intervene to protect the state’s interests “at the latest” right afterword.

In addition, Laughrey concluded that even if the motion had been timely, the attorney general had not demonstrated a “cognizable interest in the subject matter of the litigation” that “might be impaired by the disposition of the case.” While the proposed judgment might have “indirect effects” on the top prosecutor’s enforcement function, “any such effects would not create the kind of direct, substantial impairment that permits intervention as of right.”

Laughrey is allowing the attorney general until July 26 to file an amicus brief that “addresses whether the proposed consent judgment comports with Missouri law and whether it will unavoidably and adversely affect public safety and welfare in a concrete and particularized way.”

A spokesman for the attorney general wrote in an email: “We’re closely reviewing the judge’s decision and will decide on next steps shortly.”

The public defender did not respond to a request for comment.

The case is Dalton et al. v. Barrett et al., 2:17-cv-04057.