State ex rel. Public Defender Com'n v. County Court of Greene County, 65388

• Decision Date: 20 March 1984
• Docket Number: No. 65388,65388
• Citation: 667 S.W.2d 409
• Parties: STATE ex rel. PUBLIC DEFENDER COMMISSION, Relator-Appellant, v. COUNTY COURT OF GREENE COUNTY, et al., Defendants-Respondents.
• Court: Missouri Supreme Court

Page 409

667 S.W.2d 409

STATE ex rel. PUBLIC DEFENDER COMMISSION, Relator-Appellant, v. COUNTY COURT OF GREENE COUNTY, et al., Defendants-Respondents.

No. 65388.

Supreme Court of Missouri,

En Banc.

March 20, 1984.

Mark A. Brittingham, Alan Kohn, St. Louis, for relator-appellant.

Theodore L. Johnson III, John W. Housley, Springfield, for defendants-respondents.

GUNN, Judge.

Relator appeals from the trial court's judgment denying its requested writ of mandamus. Relator, the Missouri Public Defender Commission, filed its petition in mandamus seeking to compel respondents, the County Court of Greene County, to provide office space and utility services for the Public Defender for the Thirty-first Judicial Circuit. Relator premised its case on § 600.040.1, RSMo Cum.Supp.1983, which requires the appropriate city or county to "provide office space and utility services ... for the circuit or regional public defender and his personnel." ¹ The trial court refused to issue the writ on the theory that the obligation placed on Greene County by reason of § 600.040.1 did not exist prior to the adoption of the Mo. Const. art. X, § 21, which mandates state funding for new local services required by a state agency. Hence, the trial court concluded, the obligation could not be enforced under this provision of the Constitution without a corresponding state appropriation and disbursement.

It is apparent on appeal that the county's responsibility to maintain the public defender's office was extant prior to article X, § 21 as a result of the unconstitutional nature of prior special legislation pertaining to public defenders which purported to exempt Greene County from its operation. Section 600.010, RSMo 1978 (added Laws 1976, p. 783; repealed Laws 1982, p. 696).

The constitutional challenge places this matter before this Court. Mo. Const. art. V, § 3. We reverse and remand the case to the trial court with directions that the writ of mandamus issue.

In 1976, the General Assembly enacted § 600.010 (§ 600.010, RSMo 1978) which provided, as here pertinent, that a public defender be appointed in every judicial circuit of the state having a population of not less than 75,000. But the Thirty-first Judicial Circuit (consisting solely of Greene County) was specifically exempted from the provisions of the law.

Relator argues that the special exemption violates the constitutional prohibition against special legislation. Mo. Const. art. III, § 40. And, as manifestly seen, it does indeed.

The background of the Public Defender Law follows. It was first enacted in 1972. Section 600.010, et seq., RSMo Cum.Supp.1975 (added Laws 1972, p. 1035). That version provided for the appointment of a public defender "[i]n each judicial circuit of the state which has a population of not less than 75,000 nor more than 150,000, or has a population of more than 200,000." Section 600.010, RSMo Cum.Supp.1975. ² The Thirty-first Judicial Circuit was excluded from the operation of this section, in that Greene County, its only constituent, had a population of less than 200,000 but more than 150,000. 1970 Census of Population, pt. 27, p. 27 (see § 1.100, RSMo 1978, authorizing the use of the decennial census).

In 1976, § 600.010 was amended to make the exclusion of the Thirty-first Circuit explicit. Section 600.010, RSMo 1978 (amended Laws 1976, p. 783). ³ As then amended, public defenders were appointed in each circuit having a population of not less than 75,000, except for the Thirty-first Circuit. Id. From its inception the Public Defender Law has required those counties within judicial circuits for which a public defender is appointed to provide office space and utility service. Section 600.040, RSMo Cum.Supp.1983; see Laws 1972, p. 1037. Greene County, being a part of the Thirty-first Judicial Circuit, was, of course, legislatively excluded from this requirement.

Effective April 1, 1982, the Public Defender Law was substantially revised. Section 600.011, et seq., RSMo Cum.Supp.1983. This revision created a new state agency, the Public Defender Commission, with the power to establish local or regional public defender offices. Id., § 600.021(4). Shortly after its creation, the Commission appointed a public defender for the Thirty-first Judicial Circuit and requested Greene County to provide support for the office pursuant to § 600.040. The request was refused on the basis of the Mo. Const. art. X, § 21, and this action followed.

Mo. Const. art. X, § 21 provides:

The state is hereby prohibited from reducing the state financed proportion of the costs of any existing activity or service required of counties and other political subdivisions. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly or any state agency of counties or other political subdivisions, unless a state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.

This provision of the Constitution, along with certain other sections, was adopted November 4, 1980 and became effective thirty days after that date. Id.; Mo. Const. art. XII, § 2(b).

The issue presented to this Court is whether Greene County's financial responsibility under § 600.040, sought to be enforced by the Public Defender Commission, is a "new activity or service or an increase in the level of any activity or service beyond that required by existing law," within the meaning of § 21 of article X. A threshold question, then, is whether existing law at the time of § 21 required Greene County to fund the operation of a public defender office. This question may be answered affirmatively, thus obviating any further § 21 inquiry, if the following two conditions are met: First, the exclusion of Greene County from the provisions of the Public Defender Law (as it existed prior to § 21) was unconstitutional; and, second, the remainder of the Public Defender Law, purged of the exclusion, is severable from the unconstitutional provision and therefore of continuing effect. We hold that these two conditions are met and that Greene County may not therefore claim exemption from the requirements of § 600.040.

In testing the constitutionality of Greene County's former exclusion from the ambit of the Public Defender Law, it is unnecessary to consider any version of that act prior to the 1976 amendment. Under the 1976 version, public defenders were appointed in all judicial circuits having a population of at least 75,000, except the Thirty-first. Section 600.010, RSMo 1978. Consequently, all counties in judicial circuits having a population of 75,000 or more were required to maintain a public defender office, except for Greene County. Section 600.040, supra.

Art. III, § 40 of the Missouri Constitution provides:

The general assembly shall not pass any local or special law:

....

(30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.

It has been suggested that there are two criteria for determining whether a law is special: first, the classification must be reasonable and not arbitrary; second, the privilege or liability created by the law must apply to all entities within the classification. Menorah Medical Center v. Health & Educational Facilities Auth., 584 S.W.2d 73, 81 (Mo. banc 1979). "[A] law is not special in the constitutional sense if it applies alike to all of a given class provided the classification thus made is not arbitrary or without a reasonable basis." Marshall v. Kansas City, 355 S.W.2d 877, 884 (Mo. banc 1962).

Under this approach, it would appear to be unnecessary to inquire whether the classification employed by the Public Defender Law was arbitrary or unreasonable, as the law on its face did not purport to apply alike to all members of a described class.

However, it is not enough to demonstrate constitutional invalidity to conclude that the statute excepts from its scope persons or things which would, but for the exception, otherwise be affected. In order to find such a statute invalid as a special law, it must be found that members of a stated class are omitted "whose relationship to the subject-matter cannot by reason be distinguished from that of those included." McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, 817 (banc 1953) (quoting City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, 5 (banc 1929)). Thus, even a facially special statute, such as the one considered here, may pass muster under § 40(30) if it is determined that some characteristic of the excluded item provides a reasonable basis for excluding it, considering the purpose of the enactment. In this manner, attention is properly focused on "the appropriateness of [the law's] provisions to the objects that it excludes." State ex inf. Barrett v. Hedrick, 294 Mo. 21, 241 S.W. 402, 407 (banc 1922) (quoting Budd v. Hancock, 66 N.J.L. 133, 48 A. 1023, 1024 (1901)).

This analysis might suggest that the law concerning special legislation does not differentiate between facially special laws and those which purport to be general, as any exclusion must be reasonable and not arbitrary, whether achieved through classification or express exception. However, there is one pertinent distinction.

Concerning unconstitutional special legislation, this Court has cited the principle that the "[o]ne who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Id., at 241 S.W. at 420 (quoting Stewart v. Brady, 300 Ill. 425, 133 N.E. 310, 314 (1921)). If relator in this case were to be impressed with such a burden, its challenge would fail, as there was no showing made before the trial court regarding the reasonableness of the exclusion, and ...