State ex rel. Peters-Baker v. Round

• Decision Date: 04 December 2018
• Docket Number: No. SC 96931,SC 96931
• Citation: 561 S.W.3d 380
• Parties: STATE EX REL. Jean PETERS-BAKER, Relator, v. The Honorable Bryan E. ROUND, Respondent.
• Court: Missouri Supreme Court

561 S.W.3d 380

STATE EX REL. Jean PETERS-BAKER, Relator,

v.The Honorable Bryan E. ROUND, Respondent.

No. SC 96931

Supreme Court of Missouri, en banc.

Opinion issued December 4, 2018

The prosecutor was represented by Terrence M. Messonnier and Robert E. Sauls of the Jackson County prosecutor’s office in Kansas City, (816) 881-3524.

Skinner was represented by Laura Grether Martin of the public defender’s office in Kansas City, (816) 889-7699.

Paul C. Wilson, Judge

This Court has the authority to "issue and determine original remedial writs." Mo. Const. art. V, § 4.1. Relator, Jackson County Prosecuting Attorney Jean Peters-Baker ("Relator"), seeks a writ of prohibition barring Respondent, Judge Bryan E. Round ("Respondent"), from enforcing his order disqualifying the entire Jackson County Prosecuting Attorney’s Office ("PAO") in the underlying post-conviction case. As in State ex rel. Gardner v. Boyer , 561 S.W.3d. 389, 2018 WL 6321238 (Mo. banc 2018), also handed down this date, Respondent’s order fails to comply with this Court’s holding in State v. Lemasters , 456 S.W.3d 416 (Mo. banc 2015), and will cause irreparable harm if relief is not granted. Accordingly, this Court’s preliminary writ of prohibition is now made permanent.

Background

Following a jury trial, the movant in the underlying case, Tyrone Skinner was convicted and sentenced accordingly.¹ Skinner appealed, and Jeanette Wolpink of the appellate division of the Missouri Public Defender System ("MPDS") was appointed to represent him. Wolpink represented Skinner throughout his direct appeal, and his convictions and sentences were affirmed. State v. Skinner , 494 S.W.3d 591 (Mo. App. 2016). After Skinner’s appeal was resolved, but before his amended post-conviction motion was filed, Wolpink left the MPDS and was hired by the PAO.²

When Wolpink joined the PAO, a screening process was implemented to ensure Wolpink would not participate in any cases in which she was involved while employed by the MPDS (or any case related to such cases). Specifically, the prosecuting attorney directed all assistant prosecuting attorneys to review their current cases to determine whether Wolpink had been previously involved. Once the cases in which Wolpink had been previously involved had been identified, the deputy prosecuting attorney sent an office-wide e-mail indicating no one was to have contact with Wolpink regarding those cases. This list of cases was updated as the office became aware of additional cases in which Wolpink was involved, or as new cases were filed.

In February 2017, Skinner’s new counsel filed an amended post-conviction motion.³ When Robert Sauls of the PAO entered his appearance, Skinner filed a motion to disqualify the entire PAO alleging Wolpink was "privy to attorney/client confidences and matters of trial strategy" because she represented him in his direct appeal. Notably, however, Skinner’s motion did not claim that the PAO’s screening process was insufficient or that anyone at the PAO failed to comply with the screening process with respect to Skinner’s case. Relator filed a response acknowledging Wolpink had a conflict which prohibited her from participating in Skinner’s case but arguing there was no basis for imputing her conflict to the entire PAO and, therefore, the motion to disqualify should be overruled.

After considering the parties' arguments, Respondent sustained Skinner’s motion, disqualified the entire PAO, and appointed the Missouri Attorney General’s Office ("AGO") to act in its place.

A few days later, Relator filed a motion to set aside Respondent’s disqualification order, and a hearing was held. Sauls was the only witness called at this hearing. He testified the screening process in place at the PAO prevented Wolpink from having contact with any individual working on a case in which she was previously involved (or any case related to such cases), including Skinner’s post-conviction proceeding. After confirming he was lead counsel for the state on Skinner’s case, Sauls stated he had not had contact with Wolpink regarding Skinner’s case, nor did he have knowledge of any confidential information Wolpink may have learned in her capacity as Skinner’s direct appeal counsel. Sauls also confirmed that, going forward under the screening process, he would have no contact with Wolpink regarding Skinner’s case. Nevertheless, Respondent issued an order overruling Relator’s motion to set aside.

Thereafter, Relator sought a writ of prohibition in the court of appeals, and her petition was subsequently denied. Relator then sought the same relief in this Court, and a preliminary writ was issued. On September 6, 2018, oral argument was held and this case was submitted. A few days later, Respondent filed a motion to dismiss, claiming the preliminary writ should be dismissed based on a "change of a major material fact," i.e., Wolpink was no long employed by the PAO.⁴ On October 3, 2018, Respondent vacated his order disqualifying Relator from the underlying case.

Analysis

"The writ of prohibition, an extraordinary remedy, is to be used with great caution and forbearance and only in cases of extreme necessity." State ex rel. Douglas Toyota III, Inc. v. Keeter , 804 S.W.2d 750, 752 (Mo. banc 1991). "The essential function of prohibition is to correct or prevent inferior courts and agencies from acting without or in excess of their [authority or] jurisdiction." Id. As a result, departure "from the usual application of prohibition ... requires a peculiarly limited situation where some absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court’s order." Id. at 752 (quotation marks and alteration omitted). Because Respondent’s order disqualifying the elected prosecuting attorney and her entire office presents one of the uniquely limited situations in which a party will suffer "absolute irreparable harm" if writ relief is not granted, this Court’s preliminary writ is now made permanent. Id.

The Court will first address Respondent’s motion to dismiss. Although Respondent does not expressly claim mootness, that is, in essence, the basis on which Respondent argues this case should be dismissed. "A case is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." State ex rel. Hawley v. Heagney , 523 S.W.3d 447, 450 (Mo. banc 2017) (citation omitted). There are, however, two narrow exceptions to the mootness doctrine: (1) when a case becomes moot after submission and argument, State ex rel. Donnell v. Searcy , 347 Mo. 1052, 152 S.W.2d 8, 10 (Mo. banc 1941) ; and (2) when the issue raised is one of general public interest and importance, recurring in nature, and will otherwise evade appellate review, Gurley v. Mo. Bd. of Private Investigator Examiners , 361 S.W.3d 406, 414 (Mo. banc 2012). If either of these exceptions exist, an appellate court may choose to exercise its discretion to decide the case, notwithstanding that it has become moot.

This case was rendered moot when Respondent vacated the disqualification order on October 3, 2018, because, after that date, a decision by this Court "would not have any practical effect upon any ... existing controversy." Hawley , 523 S.W.3d at 450. But Respondent did not vacate his order until after this case was argued and submitted on September 6, 2018, and, therefore, the first exception applies. As a result, this Court "will exercise its right of unlimited discretion to complete its deliberation of the case and prepare an opinion and enter a final judgment on the merits." Donnell , 152 S.W.2d at 10.⁵

Proceeding to the merits, in Lemasters, this Court set forth the framework to be applied when the disqualification of an entire prosecutor’s office is sought. First, the court must determine whether a particular attorney in the office has a conflict prohibiting that attorney’s participation in the underlying case. Lemasters , 456 S.W.3d at 420. The Rules of Professional Conduct aid the court in determining whether such a conflict exists. See , e.g. , Rule 4-1.7 "Conflict of Interest: Current Clients;" Rule 4-1.8 "Conflict of Interest: Prohibited Transactions;" Rule 4-1.9 "Duties to Former Clients;" and Rule 4-1.18 "Duties to Prospective Client." Second, if (and only if) such a conflict exists, the court then must determine whether that individual attorney’s conflict is to be imputed to the entire office. Lemasters, 456 S.W.3d at 422. A conflict can be imputed in one of two ways: either (1) by the Rules of Professional Conduct,⁶ or (2) by the appearance of impropriety test – i.e., whether "a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial" to the defendant.⁷ Id. at 422-23.

As in Lemasters - and unlike in Gardner - there is no debate here regarding whether an individual attorney had a conflict of interest prohibiting that attorney’s participation in the underlying case. Wolpink plainly had a conflict prohibiting her from participating in Skinner’s case in any way.⁸ Id. at 420. Accordingly, it next must be determined whether Wolpink’s conflict of interest should be imputed to the entire PAO. Because the parties correctly agree Wolpink’s conflict is not imputed to the entire PAO under the Rules of Professional Conduct,⁹ the Court will only address whether Wolpink’s conflict nevertheless should be imputed under the appearance of impropriety test.

Application of the appearance of impropriety test conclusively shows that Wolpink’s conflict should not be imputed to the entire PAO. The uncontroverted evidence shows the PAO implemented a "thorough and effective screening process" as required by Lemasters . Id. at 425. Notably, neither Respondent nor Skinner took issue with the scope or implementation of the screening process, and nothing in the evidence...