Petsch v. Jackson Cnty. Prosecuting Attorney's Office (In re Area 16 Pub. Defender Office III)

• Decision Date: 09 June 2020
• Docket Number: WD 82962
• Citation: 609 S.W.3d 743
• Parties: IN RE: AREA 16 PUBLIC DEFENDER OFFICE III Ruth Petsch, Appellant, v. Jackson County Prosecuting Attorney's Office, Respondent.
• Court: Missouri Court of Appeals

609 S.W.3d 743

IN RE: AREA 16 PUBLIC DEFENDER OFFICE III

Ruth Petsch, Appellant,

v.Jackson County Prosecuting Attorney's Office, Respondent.

WD 82962

Missouri Court of Appeals, Western District.

OPINION FILED: June 9, 2020

Motion for Rehearing and/or Transfer to the Supreme Court Denied July 23, 2020

Application for Transfer Denied November 24, 2020

John C. Aisenbrey, Bradley J. Yeretsky, and Jessica L. Pixler, Kansas City, MO, for appellant.

Terrence M. Messonnier, Kansas City, MO, for respondent.

Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge

Cynthia L. Martin, Judge

Ruth Petsch ("Petsch"), the District Defender of the Area 16 Public Defender Office, and the Area 16 Public Defender Office (collectively "the District Defender") file an application for review of the presiding judge's order denying the District Defender's request for relief under section 600.063¹ for caseload issues concerning two public defenders. The District Defender argues that the trial court erred in concluding that the two public defenders specifically, and the other public defenders in the Area 16 Public Defender Office generally, were able to provide effective assistance of counsel and had no caseload issues warranting relief. The District Defender also asserts that the trial court committed error by failing to declare sections 600.062 and 600.063 subordinate to Rule 4 of the Rules of Professional Conduct because, without this conclusion, sections 600.062 and 600.063 are unconstitutional as applied. Finding no error, we affirm.

Factual and Procedural Background

In late 2017, the District Defender filed a series of motions requesting a conference to discuss caseload issues with then-Presiding Judge of the Circuit Court of Jackson County, Missouri,² Judge John M. Torrence ("Judge Torrence"), pursuant to section 600.063.³ The District Defender's third motion, filed December 15, 2017, requested a conference to discuss the caseload issues of two particular public defenders, Laura O'Sullivan ("O'Sullivan") and William Jobe ("Jobe"). Judge Torrence held a conference on January 10, 2018, in which the Jackson County Prosecuting Attorney's Office ("Prosecutor") participated. No record was made of the proceeding. Following the conference, Judge Torrence entered an order denying relief. The District Defender filed an application for review to this Court as authorized by section 600.063.4. We reversed Judge Torrence's order and remanded the matter for further proceedings, due to the lack of a reviewable record. Petsch v. Jackson Cty. Prosecuting Attorneys Office , 553 S.W.3d 404 (Mo. App. W.D. 2018) (" Petsch I ").

On July 19, 2018, the day after our mandate was issued in Petsch I , Judge Torrence emailed Joseph Megerman ("Megerman"), the deputy district defender of the Area 16 Public Defender Office,⁴ and asked whether Megerman would be willing to meet with Judge Torrence and two other circuit court judges to discuss the remanded matter. Megerman responded on August 6, 2018, and declined Judge Torrence's invitation. The District Defender never followed up to schedule a conference to address the caseload issues of O'Sullivan and Jobe that were raised in the December 15, 2017 motion.

Instead, the District Defender filed an amended motion ("Amended Motion") on October 10, 2018, (nearly four months after the issuance of our mandate in Petsch I ). The Amended Motion requested a conference to address the caseload issues of two different public defenders, specifically David Wiegert ("Wiegert") and Walter Stokely ("Stokely").⁵ The District Defender and the Prosecutor mediated the issues raised in the Amended Motion in December 2018, but the mediation was unsuccessful.

On April 1, 2019, Presiding Judge, Judge David M. Byrn⁶ ("Presiding Judge"), set the Amended Motion for a conference on May 30, 2019. The District Defender filed a second amended motion ("Second Amended Motion") on May 22, 2019, to provide updated information about Wiegert's and Stokely's respective caseloads. The Second Amended Motion asked the Presiding Judge: to hold a hearing on the record to address caseload concerns; to find that Wiegert and Stokely are unable to provide effective assistance of counsel due to their respective excessive caseloads, and that their excessive caseloads cannot be relieved by reassignment to other public defenders because they also have excessive caseloads; to create a waitlist for public defender services; and to appoint private counsel to represent eligible criminal defendants. The Second Amended Motion also asked the Presiding Judge to adopt the RubinBrown⁷ standards for measuring public defender caseloads. While not specifically addressed in the Second Amended Motion's request for relief, the Second Amended Motion included allegations: (1) that sections 600.062⁸ and 600.063⁹ cannot be construed to be the exclusive remedy available to public defenders with excessive caseloads because to so hold would conflict with the mandates of the Rules of Professional Conduct set forth in Rule 4 and the constitutional due process and equal protection rights of criminal defendants; and (2) that sections 600.062 and 600.063, as presently construed, violate the separation of powers doctrine because the statutes interfere with the Supreme Court of Missouri's exclusive right to regulate attorney conduct.

On May 30, 2019, the Presiding Judge held a conference on the record to consider the caseload issues set forth in the Second Amended Motion. Pursuant to section 600.063, both the District Defender and the Prosecutor participated in the conference.

At the outset, the Presiding Judge told the parties that he would proceed with the matter as a conference, and not as a trial or administrative hearing. The Presiding Judge advised that as a result, all in attendance would have the opportunity to submit any information believed relevant to the decision he would be required to make pursuant to section 600.063, and that information could be presented through written materials or unsworn testimony¹⁰ during which the District Defender, the Prosecutor, or the Presiding Judge could ask questions. Neither the District Defender nor the Prosecutor objected to the Presiding Judge's stated ground rules for conducting the conference. The District Defender presented the unsworn testimony of nine witnesses, and the District Defender, the Prosecutor, and the Presiding Judge each submitted written materials.

The Presiding Judge issued a judgment/order on June 27, 2019, and a nunc pro tunc judgment/order correcting typographical and grammatical errors on June 28, 2019 ("Order").¹¹ The Order concluded that the proceeding contemplated by section 600.063 is a conference, not a hearing. The Order noted that the Second Amended Motion did not seek specific relief regarding the constitutionality of sections 600.062 and 600.063, but instead merely made allegations to the effect that the statutes were not constitutional as applied. The Order held that even assuming the District Defender's allegations were sufficient to constitute a request for relief, sections 600.062 and 600.063 were not unconstitutional.

The Order noted that although a district defender's section 600.063 motion must be limited to requesting a determination that specifically named public defenders cannot provide effective assistance of counsel due to caseload issues, a presiding judge is nonetheless permitted to consider information about the workloads of all public defenders in the district defender's office, as that information is relevant to determining whether "the identified attorneys' cases cannot simply be reassigned" as a means of resolving alleged caseload issues. Petsch I , 553 S.W.3d at 410 n.6. Relying on data from the State of Missouri Public Defender Commission Fiscal Year 2018 Annual Report, the Order noted that the District Defender had seen a 63 percent reduction in the number of cases assigned to it annually over the last ten years despite the District Defender maintaining essentially the same number of attorneys. The same report also indicated that the annual number of cases closed by the District Defender each year decreased by 58 percent from fiscal year 2004 to fiscal year 2018, and that in fiscal year 2018, each attorney in the Area 16 Public Defender Office was assigned, on average, 85.5 cases in fiscal year 2018, while the statewide average for the same time period was 198 cases. The Order then compared statistics from the Yearly Circuit Court Profiles compiled by the Office of State Court Administrators ("OSCA") for the 16th Judicial Circuit, served by the Area 16 Public Defender Office, and the 21st Judicial Circuit,¹² served by the Area 21 Public Defender Office. After examining the statistics, the Order found that "the District 21 Office is assigned and disposes of significantly more cases each year, doing so with approximately [one-half] of the number of public defenders when compared to the District 16 Office." The Order ultimately concluded that, based on the information and data presented at the conference, "it is not reasonable to conclude, under any standard or legal burden, that the District 16 office has caseload issues."

The Order further found that Wiegert and Stokely do not have caseload issues, and that Wiegert and Stokely are each able to provide effective assistance of counsel. The Order noted that, while Wiegert and Stokely asserted that they concluded they had caseload issues in early October 2017, each attorney also acknowledged that they did not receive nor were they assigned a large number of cases in October 2017. The Order found that Wiegert's and Stokely's alleged caseload concerns were prompted by the Missouri Supreme Court's disciplinary action In re Hinkebein , No. SC96089 (Mo. banc Sept. 12, 2017). The Order concluded that the Hinkebein disciplinary action did not burden public defenders with additional requirements regarding...