Appeals court nixes sanction for vacationing attorney

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The Court of Appeals Southern District on Aug. 3 threw out a sanctions order against a mid-Missouri public defender’s office after an attorney’s vacation to Mexico in the middle of a pandemic caused a judge to postpone a trial.

The appellate court said there was no evidence that the Area 25 Trial Office and the assistant public defender, Andrew Russek, had acted in bad faith. The judge’s findings merely suggested that he found their actions “negligent and ill-advised,” the court said.

Russek represented a defendant who was scheduled to go to trial in a criminal matter in Pulaski County on Jan. 21. Russek had a planned vacation in Cancun the week before. When Associate Circuit Judge Kenneth G. Clayton learned that Russek had just returned from what he described as a “hotspot” for COVID-19, he canceled the trial setting. 

Clayton’s order noted that guidelines from the Centers for Disease Control and Prevention called for travelers to Mexico to quarantine for at least seven days upon return, and that the 25^th Judicial Circuit’s protocols prohibited anyone who had traveled to a foreign country within the last 14 days from entering a local courthouse. The judge said Russek and his office should have been aware of those measures and that their behavior was “irresponsible.”

Pulaski County Prosecutor Kevin Hillman sought sanctions against the defender’s office for the trial’s cancelation, arguing that he’s been ready to go to trial and that the victim in the case already had traveled 982 miles from Maryland to attend. Clayton ordered a payment of $762.68 as a sanction, which represented the victim’s mileage at 37 cents per mile.

Judge Don E. Burrell wrote that the Southern District was “skeptical that a particular branch office of the Missouri Public Defender is an appropriate entity to sanction,” but ultimately the court didn’t reach that issue. Instead, Burrell wrote, the judge abused his discretion by ordering the sanction without finding “something more” than just bad judgment by the defender.

“Respondent has not cited, and we have been unable to find, any evidence in the record that would support a finding that Relators acted in bad faith, in other words, that they acted with a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud, or had an actual intent to mislead or deceive another,” Burrell wrote. Judges Mary W. Sheffield and Nancy Steffen Rahmeyer concurred.

Hillman declined to comment on the ruling. Mary Fox, director of the Missouri State Public Defender System, said the incident was the result of a misunderstanding.

“I think the COVID rules that have been put in place by the courts, we have done our best to follow,” she said. “We’re appreciative of the courts that have put in place protections for our staff and our clients who are appearing in court,” she said.

According to court records, Russek’s client, Adam Charles Allee, was tried in April, resulting in a conviction on charges of violating a protective order. He was placed on probation in lieu of a prison sentence.

The case is State ex rel. Area 25 Trial Office v. Clayton, SD37064. 

Correction: This post has been updated to indicate that, while the Southern District said the trial judge’s order suggested the defender’s actions were “negligent and ill-advised,” the appeals court didn’t make such a finding itself. We regret the error.