State ex rel. Gordon v. Copeland, 17132

• Decision Date: 23 January 1991
• Docket Number: No. 17132,17132
• Citation: State ex rel. Gordon v. Copeland, 803 S.W.2d 153 (Mo. App. 1991)
• Parties: STATE of Missouri ex rel. R.J. GORDON, District Public Defender, Relator, v. The Honorable Richard D. COPELAND, Associate Circuit Judge, Circuit Court of Jasper County, Respondent.
• Court: Missouri Court of Appeals

Page 153

803 S.W.2d 153

STATE of Missouri ex rel. R.J. GORDON, District Public Defender, Relator, v. The Honorable Richard D. COPELAND, Associate Circuit Judge Circuit Court of Jasper County, Respondent.

No. 17132.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 23, 1991.

Larry Maples, Asst. Public Defender, Joplin, for relator.

Trina J. Scott, Joplin, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

CROW, Judge.

Relator, the District Public Defender for an area that includes Jasper County, brings this original proceeding in prohibition seeking a writ barring respondent, an associate circuit judge of the Circuit Court of Jasper County, from compelling relator to represent a juvenile in a proceeding under § 211.031.1(3), RSMo Cum.Supp.1989. The juvenile, born January 2, 1975, allegedly violated § 570.030, RSMo 1986, on June 6, 1990, by stealing a motor vehicle owned by his father.

The petition in the juvenile proceeding was filed July 10, 1990. Summonses were issued to the juvenile and his parents commanding them to appear for a hearing on the petition August 14, 1990.

On July 23, 1990, this entry was made on the juvenile court docket sheet: "Court appoints Public Defender to represent said juvenile." That same day a court assistant notified relator by letter that he had been appointed by the court to represent the juvenile.

On August 8, 1990, an assistant public defender dispatched a letter to the juvenile's parents stating an evaluation had been made per § 600.086, RSMo 1986, ¹ and the defender had determined the juvenile "is not eligible for Public Defender Services." The letter continued:

"If you feel that we are incorrect in saying you are not entitled to Public Defender Services, you can ask the Judge for a hearing concerning your eligibility. If the Judge grants you a hearing, you should bring proof of your monthly income and expenses to Court and bring an Attorney Information Sheet from at least two attorneys who state they will not represent you because you cannot meet their financial requirements. These financial requirements of the attorney should be set out in the Attorney Information Sheets enclosed.

...."

Copies of the letter were sent to the juvenile, the Jasper County Juvenile Office, and respondent.

On August 14, 1990, the juvenile, accompanied by his parents and an assistant public defender, appeared before respondent for the scheduled hearing. Also present were the chief juvenile officer, a deputy juvenile officer, and the lawyer for the juvenile office.

Respondent noted he had appointed relator to represent the juvenile July 23, 1990. Respondent asked the assistant public defender, "Are you declining that representation?"

The assistant public defender replied: "Yes, your Honor, and I would respectfully request permission to withdraw as counsel of record for [the juvenile]. After his parents filled out an application for services, we determined that they did not meet our guidelines for indigency and we sent them a declination card. I believe the purpose of today's hearing is to determine and appeal that decision if I'm correct."

Respondent asked the juvenile's parents whether they intended to hire a lawyer for their son. The father answered: "If we have to, we will. It depends on what has to be done. I talked with Mike ² after we got the letter and he said at that time not to."

Respondent thereupon questioned the juvenile about his assets. The juvenile revealed he was carrying no money, had none at home, and had no checking account or savings. He owned no vehicle, stocks, bonds, or other assets of significant value.

The assistant public defender then established, through testimony by the juvenile's parents, that the house where they reside is furnished by the father's employer. The father and mother own real estate in another locale worth $62,000, encumbered by a $42,000 lien. They have between $2,000 and $5,000 in a savings account, $300 to $400 in a checking account, and own stocks and mutual funds worth between $70,000 and $80,000. The father's gross monthly income is $1,440; the mother has monthly income of $1,698.

The juvenile's mother was asked whether she and her husband could hire a lawyer if relator was not appointed to represent their son. She answered, "Yes, we could afford it."

Respondent found the juvenile did not have funds to hire counsel but his parents were financially able to do so. Respondent determined, however, that inasmuch as the father owned the vehicle the son allegedly stole, the parents were victims and had no legal obligation to hire counsel for their son. Respondent denied the assistant public defender's request to withdraw as counsel for the juvenile.

Relator thereupon commenced the instant proceeding in this Court. We issued a preliminary order in prohibition barring respondent from requiring relator to represent the juvenile until further order by us.

Relator's brief presents two points relied on; the first is:

"Respondent exceeded his jurisdiction in holding an eligibility hearing to determine whether or not [relator] would be required to provide representation in the underlying case, because the court clearly had no jurisdiction to hold any hearing or make any determination as to the eligibility of the juvenile for public defender representation in that: (A) the Public Defender clearly is required by law to make the initial eligibility determination; (B) the Public Defender had done so and had found the juvenile to be ineligible; (C) no further determination by the court was authorized absent an appeal by the party found to be ineligible; (D) and the record shows that neither the juvenile nor his parents appealed [relator's] determination of non-eligibility."

We agree with relator that under § 600.086.3, RSMo 1986, ³ the public defender makes the initial determination of whether a person seeking public defender representation is indigent. State ex rel. Shaw v. Provaznik, 708 S.W.2d 337, 341 (Mo.App.1986).

We also agree with relator that he made a determination on that issue in the underlying case by letter of August 8, 1990.

Additionally, we agree with relator that the judiciary may intervene only upon appeal of that decision. § 600.086.3; Shaw, 708 S.W.2d at 341.

However, we reject relator's contention that no one appealed that decision. At the outset of the hearing August 14, 1990, the assistant public defender stated he believed its purpose was "to determine and appeal" relator's decision that the juvenile was ineligible for public defender services. The assistant public defender presented evidence about the assets and income of the juvenile's parents and argued to respondent that such evidence was relevant to the juvenile's eligibility for public defender representation.

While neither the juvenile nor his parents announced they were appealing relator's decision of August 8, 1990, it is obvious they also viewed the August 14, 1990, hearing as an appeal of that ruling. The juvenile's father stated he and his wife would hire a lawyer if they had to, a clear implication they were not treating relator's decision as final and were expecting respondent to decide whether relator had ruled correctly in declaring the juvenile ineligible for public defender representation.

We hold the proceeding of August 14, 1990, was an appeal from relator's determination of August 8, 1990, that the juvenile was ineligible for public defender representation. Indeed, the juvenile's eligibility for public defender services was the only issue addressed at the August 14 proceeding. Respondent was authorized by § 600.086.3, RSMo 1986, to decide that issue. Relator's first point is denied.

Relator's second point maintains respondent exceeded his jurisdiction in holding the juvenile was entitled to public defender representation. Relator argues respondent applied "inappropriate eligibility standards" in that respondent (a) held the parents had no legal responsibility to hire a lawyer for their son, and (b) refused to consider the parents' financial situation in determining whether the juvenile was eligible for public defender services. Relator asserts, "[T]he law requires that the financial situation of the parents be taken into account and provides that legal representation is a necessary element of parental support."

Relator points to § 600.086.5, RSMo 1986, ⁴ which authorizes a public defender to require the parents, guardians or other persons responsible for the support of a minor seeking public defender services to execute and deliver "such written authorization as may be necessary to provide the director or anyone serving under him with access to records of public or private sources, otherwise confidential, or any other information which may be relevant to the making of a decision as to eligibility." Relator says this clearly implies that those responsible for the support of a minor are also responsible to the extent of their ability to provide legal services for him.

The "State public defender system," § 600.011(7), RSMo 1986, is established by chapter 600, RSMo 1986, as amended. We find nothing in that chapter, as it presently exists, which disqualifies an indigent juvenile from public defender services if his parents are financially able to hire a lawyer. Such a provision did exist prior to April 1, 1982. It was § 600.073, RSMo 1978, which read:

"When any minor who is subject to the jurisdiction of a juvenile court as provided by chapter 211, RSMo, is brought before a juvenile court in connection with a proceeding where the minor is alleged to have violated a state law or is charged with delinquent behavior and appears without counsel, the judge shall advise such minor and his parents or guardian of the minor's right to be represented by counsel and that counsel will be appointed to represent the minor if neither the minor nor his parents or guardian are financially able to obtain counsel. If neither the minor nor...