State ex rel. Dir. of Revenue v. McBeth
| Decision Date | 09 May 2012 |
| Docket Number | No. WD 74514.,WD 74514. |
| Citation | 366 S.W.3d 95 |
| Parties | STATE ex rel. DIRECTOR OF REVENUE, State of Missouri, Relator, v. The Honorable Gerald D. McBETH, Assigned Judge of The Circuit Court of Platte, Co., Judicial Circuit, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
James A. Chenault, III, Jefferson City, MO, and Amy R. Ashelford, Platte City, MO, for appellant.
James D. Boggs, W. Christian Boggs, Kansas City, MO, for respondent.
Before: LISA WHITE HARDWICK, C.J., and JAMES M. SMART and ALOK AHUJA, JJ.
This is an original proceeding in which the Director of the Missouri Department of Revenue seeks a writ of prohibition directed to Judge Gerald D. McBeth, sitting by assignment in the Circuit Court of Platte County. In the underlying action, James D. Boggs petitioned for review of the Director's revocation of his driver's license, based on his refusal to submit to a chemical breath test following his arrest for driving while intoxicated. The trial court entered orders disqualifying the Platte County Prosecuting Attorney's Office, and a Department of Revenue staff attorney, from representing the Director. The court appointed a special prosecutor in their place. We granted a preliminary writ of prohibition preventing the trial court from enforcing its disqualification orders, and now make the writ absolute.
On January 23, 2011, Boggs was arrested for driving while intoxicated. Boggs allegedly refused to submit to a chemical breath test, and his license was accordingly revoked under § 577.041.1.1 Pursuant to § 577.041.4, Boggs petitioned for review of the revocation in the circuit court on February 4, 2011. This civil case—in which the challenged disqualification orders were entered—was assigned docket number 11AE–CV00381.
On May 6, 2011, the Prosecutor's Office filed an information in the circuit court charging Boggs with driving while intoxicated in violation of § 577.010. The criminal case was assigned docket number 11AE–CR01139.
Assistant Prosecuting Attorney Amy R. Ashelford appeared on behalf of the Director in the civil case, and for the State in the criminal case.
On October 6, 2011, Ashelford served Boggs with a notice to take his deposition in the license revocation case on October 17, 2011. According to Boggs' disqualification motion, he advised the Prosecutor's Office that he would assert his privilege against self-incrimination under the Fifth Amendment to the United States Constitution in any deposition, “as to all inquiries regarding the facts or circumstances which gave rise to his arrest and events occurring subsequent thereto.” According to Boggs' motion, the Prosecutor's Office then stated that if Boggs' invoked his Fifth Amendment privilege, the Director would move to strike Boggs' petition or seek to prevent him from testifying at trial.
In response, Boggs moved on October 12, 2011, to disqualify the Prosecutor's Office from representing the Director in the license revocation case. Boggs' motion argued that, if the court were to grant a future request to strike his pleadings, or preclude him from testifying, he “would be effectively deprived of any opportunity to challenge the Director's determination.” Further, Boggs' motion argued that simultaneous litigation of the civil and criminal cases by the Prosecutor's Office would permit prosecutors “to obtain information, testimony and strategy that [they] may readily use in the criminal proceeding but which [they] could not ethically or directly obtain in that action without violating [Boggs'] constitutional rights.” Boggs concluded that, [a]s a “minister of justice” [under the comments to Supreme Court Rule 4–3.8], Mrs. Ashelford cannot effectively honor her duty to zealously represent her client, the Director, while at the same time honoring her responsibility, as a prosecutor, to see that Petitioner, as a defendant in the criminal proceeding, is accorded procedural justice. Such an inherent conflict necessitates that the Platte County Prosecutor's Office be disqualified as counsel for the Director in the instant civil action.
It is a fundamental premise of our society that the State wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters. Appointment or representation of an interested prosecutor in the instant proceeding creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.
On October 20, 2011, James A. Chenault, III, Senior Counsel in the Department of Revenue's General Counsel's Office, entered his appearance as co-counsel for the Director.
The Director filed suggestions in opposition to Boggs' disqualification motion on October 21, 2011. The Director pointed out that, under § 577.041.4, the Prosecuting Attorney is required to “appear at the hearing on behalf of the director of revenue” in license revocation cases, and that it frequently occurs that the Prosecuting Attorney is simultaneously representing the State in related criminal proceedings. The Director argued that, if the court accepted Boggs' claim of an inherent conflict of interest, “no prosecutor [could] represent the Director in any case brought pursuant to Mo.Rev.Stat. § 577.041,” effectively nullifying the legislature's directive that county prosecutors represent the Director in such cases. The Director noted that the Office of Chief Disciplinary Counsel had issued two informal advisory opinions under Rule 5.30(c), concluding that there was no conflict of interest inherent in such concurrent representation. The Director also argued that the concerns raised by Boggs—that invocation of his privilege against self-incrimination could prejudice him in the revocation proceeding, and that any statements he made in the civil case could be used against him in his criminal prosecution—would exist whether the Director was represented by the Prosecuting Attorney, or by other counsel. To the extent Boggs claimed that the Prosecuting Attorney's Office would not be capable of zealously representing the Director, due to its ethical obligations in connection with the criminal case, the Director attached a letter of the Department of Revenue's Managing Counsel formally waiving any conflict.
On October 24, 2011, the trial court granted Boggs' motion to disqualify the Prosecuting Attorney's Office without explanation, and took under advisement the propriety of Chenault's entry of appearance as co-counsel. On November 1, 2011, the trial court entered an Order Disqualifying Director of Revenue as Co–Counsel. That order stated:
his is an action brought under Section 577.041 RSMo which provides that the Prosecuting Attorney shall appear and represent the Director of Revenue in cases brought under Section 577.041. That section grants no authority to the Director of Revenue to enter a refusal case. The Department of Revenue is an administrative agency with powers limited to those granted by statute. The COURT FINDS the Director of Revenue has no statutory authority to enter his appearance in an action brought under Section 577.041 and is therefore prohibitedfrom so doing. It is therefore incumbent on the Court to appoint a Special Prosecuting Attorney to represent the Director.
On November 2, 2011, the circuit court appointed Steven B. Salmon to serve as Special Prosecuting Attorney in this case.
On November 10, 2011, the Director petitioned this Court for an extraordinary writ prohibiting the trial court from enforcing its orders disqualifying the Prosecutor's Office and the Department's Senior Counsel. We granted the preliminary writ, and stayed further proceedings in the license revocation case pending further order.2 The parties then briefed the case pursuant to Supreme Court Rule 84.24(i).
A writ of prohibition is available: (1) to prevent a usurpation of judicial power when the circuit court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.
State ex rel. McKeage v. Cordonnier, 357 S.W.3d 597, 599 (Mo. banc 2012) (citing State ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 32 (Mo. banc 2010)). Whether to issue a writ lies within our discretion; an extraordinary writ “does not issue as a matter of right.” State ex rel. Horn v. Ray, 325 S.W.3d 500, 504 (Mo.App. E.D.2010).
The irreparable harm category makes prohibition available “when there is an important question of law decided erroneously that would otherwise escape review by this Court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision.” This category allows prohibition to be considered as a remedy if a trial court disqualifies a lawyer from representing a client because the trial court's judgment, if erroneously entered, would cause considerable hardship and expense and the issue would otherwise escape appellate review.
State ex rel. Thompson v. Dueker, 346 S.W.3d 390, 393 (Mo.App. E.D.2011) (citations omitted). Irreparable harm justifying issuance of an extraordinary writ has been found in multiple cases in which a trial court disqualified a prosecuting attorney's office. See, e.g., State ex rel. Bennett v. Ravens, 258 S.W.3d 929, 931 (Mo.App. W.D.2008); State v. Eckelkamp, 133 S.W.3d 72, 75 (Mo.App. E.D.2004); State ex rel. Horn v. Ray, 138 S.W.3d 729, 735 (Mo.App. E.D.2002).
The Director's writ petition challenges both disqualification orders entered by the trial court: the order disqualifying the Platte County Prosecuting Attorney's Office, and the order disqualifying Department of Revenue Senior Counsel Chenault. At oral argument, however, the Director took the position that if we prohibited the trial court from disqualifying the Prosecuting Attorney's Office, there would be no need for this...
To continue reading
Request your trial