State ex rel. Mo. Pub. Defender Comm'n v. Waters

Decision Date31 July 2012
Docket NumberNo. SC 91150.,SC 91150.
Citation370 S.W.3d 592
PartiesSTATE ex rel. MISSOURI PUBLIC DEFENDER COMMISSION, Cathy R. Kelly and Rod Hackathorn, Relators, v. The Honorable John S. WATERS and the Honorable Mark Orr, Respondents.
CourtMissouri Supreme Court


Stephen F. Hanlon and Laura A. Fernandez, Holland & Knight LLP, Washington, D.C., J. Gregory Mermelstein, Public Defender's Office, Columbia, Stacey H. Wang, Holland & Knight LLP, Los Angeles, and Michael P. Gunn and John R. Gun, The Gunn Law Firm PC, St. Louis, for Relators.

Donovan D. Dobbs, Amy J. Fite and Benjamin J. Miller, Christian County Prosecutor's Office, for Respondents.


The Missouri Public Defender Commission petitions this Court for a writ of prohibition ordering the trial court to withdraw its appointment of the public defender's office to represent Jared Blacksher, alleging that the appointment violated 18 CSR 10–4.010 (“the rule”). That administrative rule, promulgated by the commission pursuant to its rulemaking authority under section 600.017(10),1 adopts a “caseload protocol” that permits a district defender office to decline additional appointments when it has been certified as being on limited availability after exceeding its caseload capacity for at least three consecutive calendar months.

When the commission or other state agencies promulgate a rule addressing an issue within the scope of their authority, the rule must be followed unless it has been held invalid or inapplicable. See Foremost–McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (Mo. banc 1972). Here, the trial court did not refuse to apply the rule after finding that it was promulgated improperly or that public defenders were not overworked or that the other requirements for the rule's application were not met. In fact, as discussed below, there have been no such findings in this case, either by the trial judge or by the master later appointed by this Court. Rather, the trial court said it believed it “had no choice” but to appoint a public defender, regardless of the public defender's ability to provide competent and effective representation in another case, because to do otherwise would have violated the defendant's Sixth Amendment right to counsel, as the court could identify no other realistic mechanism by which to provide other counsel.

The trial court erred insofar as it believed that the Sixth Amendment requires appointment of counsel without regard to whether counsel would be able to offer competent representation. State ex rel. Missouri Pub. Defender Comm'n v. Pratte, 298 S.W.3d 870, 875 (Mo. banc 2009), held, and the Court here reaffirms, that the Sixth Amendment right to counsel is a right to effective and competent counsel, not just a pro forma appointment whereby the defendant has counsel in name only.

Further, while the Court appreciates the trial court's concerns that the alternatives of appointing private counsel or not seeking jail time will be inadequate to alleviate the public defender's case overload, a judge cannot pick which administrative rules to follow based on a personal belief that a rule, however well-intended, may not achieve its purpose. A properly promulgated administrative rule must be followed unless invalidated. While Pratte invalidated the portion of the rule that had permitted a public defender office to refuse categories of cases, it affirmed the general authority of the commission to issue administrative rules—an authority not questioned here. Id.

Moreover, while the parties litigated below whether the rule was a good or effective one, no showing was made that it was inapplicable, other than the assertion rejected in Pratte that the Sixth Amendment does not permit consideration of whether counsel can offer competent and effective representation as required by the rule. While a declaratory judgment action might yet be brought by which the overall validity of the rule could be considered under the standards applicable to the review of administrative rules, that case is not presentedhere. Further, although a party properly may attack the application of 18 CSR 10–4.010 in a particular case in the future, no showing was made here that the regulation was not applicable. In these circumstances, it was error to fail to apply the rule.

The trial court also erred in holding that the rule provides no realistic alternative mechanisms for handling the issue of excessive appointments. While the public defender commission's regulations cannot bind a trial judge or prosecutor directly, trial judges have inherent authority, and an inherent responsibility, to manage their dockets in a way that respects the rights of the defendant, the public and the State and that respects the obligation of public defenders to comply with the rules governing their representation. An effective means of so doing is for judges to “triage” cases on their dockets so that those alleging the most serious offenses, those in which defendants are unable to seek or obtain bail, and those that for other reasons need to be given priority in their resolution also are given priority in appointment of the public defender and for scheduling of trial, even if it means that other categories of cases are continued or delayed, either formally or effectively, as a result of the failure to appoint counsel for those unable to afford private counsel. While Pratte properly held that the public defender does not have the authority under sections 600.042.4(3) and 600.086 to set such case priorities, judges inherently have authority to manage their dockets in this manner.

Regardless of whether the promulgation and substance of the regulation and protocol adopted thereunder ultimately are found to be valid or invalid in whole or in part upon proper challenge, the inherent authority of courts to manage their caseloads in this manner will continue and should be utilized so as to best ensure that a defendant's constitutional rights, the defender's ethical duties and the State's right to prosecute wrongdoers are respected.

Here, because no showing was made nor finding entered that the rule was promulgated invalidly or was inapplicable under the facts of this case, the court erred in failing to apply it. The parties met and conferred, but neither the public defender nor the prosecutor reached an agreement to resolve the problem. Because the meetings were ineffective and the rule was not found invalid, the rule should have been applied and the public defender should not have been appointed to represent Mr. Blacksher.

Because, during the course of this appeal, Mr. Blacksher's case was resolved by a guilty plea, this Court makes its preliminary writ permanent only to the extent of ordering the trial court to vacate its order appointing the public defender to represent him.


The commission is an administrative agency created by the General Assembly. § 600.015.2 As a creature of statute, an administrative agency's authority is limited to that given it by the legislature. See Parmley v. Missouri Dental Bd., 719 S.W.2d 745, 755 (Mo. banc 1986). When an agency statutorily is authorized to engagein rulemaking, “regulations may be promulgated only to the extent of and within the delegated authority” of the agency's enabling statute. Hearst Corp. v. Dir. of Revenue, 779 S.W.2d 557, 558 (Mo. banc 1989). The rules adopted “may not conflict with statutes,” Pratte, 298 S.W.3d at 882, and a statute may not conflict with the constitution. State v. Kinder, 89 S.W.3d 454, 459 (Mo. banc 2002). Rather, “if it is at all feasible to do so, statutes must be interpreted to be consistent with the [Missouri and federal] constitutions.” State v. Stokely, 842 S.W.2d 77, 79 (1992).

The office of state public defender is charged with providing representation to indigent defendants facing criminal charges pressed by the State.3 The office operates under the control of the public defender commission, which is assigned various responsibilities and vested with corresponding powers necessary and convenient to fulfilling those responsibilities. § 600.015 to 600.101. The director is authorized to “administer and coordinate the operations of defender services and be responsible for the overall supervision of all personnel, offices, divisions and facilities of the state public defender system.” § 600.042(4). Additionally, section 600.017(10) authorizes the commission to [m]ake any rules needed for the administration of the state public defender system.”

B. Promulgation and Substance of 18 CSR 10–4.010

The commission promulgated 18 CSR 10–4.010 in response to mounting concern that, due to the growth in the number and complexity of cases requiring public defender services without a corresponding increase in the number of public defenders, some public defenders' caseloads had increased to a level that interfered with their ability to fulfill their constitutional, statutory and ethical obligations to represent their clients effectively and competently.

To address that concern, the commission enacted 18 CSR 10–4.010 with the express purpose of ensuring “that cases assigned to the Missouri state public defender system result in representation that effectively protects the constitutional and statutory rights of the accused.” 18 CSR 10–4.0 10. 4 As an integral part of the rule, the commission is required to “maintain a caseload standards protocol identifying the maximum caseload each district office can be assigned without compromising effective representation.” Id. at 10–4.010(1)(A). When a district office exceeds the maximum caseload standard for three consecutive calendar months, “the director may limit the office's availability to accept additional cases by filing a certification of limited availability” with the appropriate court. Id. at 10–4.010(2)(A). The protocol...

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