State ex rel. Scott v. Roper, 65918

Decision Date02 April 1985
Docket NumberNo. 65918,65918
Parties, 53 USLW 2521 STATE ex rel. Stephen C. SCOTT, Relator, v. Ellen S. ROPER, Judge, Division 3, Circuit Court of Boone County, Respondent.
CourtMissouri Supreme Court

Stephen C. Scott, Columbia, for relator.

John Ashcroft, Atty. Gen., Debra Neff, Jefferson City, for respondent.

Tom B. Brown, Edina, for amicus curiae Missouri Bar.


Relator Stephen C. Scott seeks to prohibit Respondent Judge Ellen S. Roper from appointing him to represent an indigent prison inmate in an action to recover damages for an alleged medical malpractice. Relator challenges the constitutionality of § 514.040, RSMo 1978, purporting to authorize such an appointment and claims that compelled representation violates his rights under the federal and state constitutions. This Court has jurisdiction. Mo. Const. art. V, § 4. Our preliminary order must be made permanent.

The underlying suit, Jack L. Wright v. University of Missouri Medical Center and Doctor "John Doe", Boone County Circuit Court Case No. 29AUG 83-411620, was filed pro se on August 25, 1983. The pleading was styled "Civil Tort Complaint for Medical Malpractice/Negligence." Attached to the pleading was a Motion to Proceed in Forma Pauperis, a Pauper's Affidavit, and a Motion for Appointment of Counsel. The essence of the complaint as set forth in the pleading is that permanent stitches were left in plaintiff's body after surgery by the physician and the hospital. Plaintiff claims $300,000 actual damages and $300,000 punitive damages.

On August 29, 1983, the Honorable Ellen S. Roper, Judge, entered the following order: "Motion to Proceed in forma pauperis is sustained. Petition is ordered filed. Summons is ordered issued. Mid-Missouri Legal Services appointed to represent plaintiff." Mid-Missouri Legal Services filed a motion and affidavit for withdrawing as appointed counsel, alleging that their charter prohibited them from accepting fee-generating cases. Respondent permitted their withdrawal and appointed relator to represent plaintiff.

Relator filed a "Motion to Quash Appointment of Counsel for Plaintiff and to Permit Counsel to Withdraw; Alternative Motion For Payment of expenses; and, Request to Hold Adverse Ruling in Abeyance to Permit Filing of Petition For Writ of Prohibition." On March 23, 1984, respondent conducted a hearing on these motions. At the hearing, relator testified that the statute under which the court was purportedly exercising its authority was unconstitutional. He further argued that plaintiff's case would require at least $2,500 in expenses in order to proceed. Plaintiff testified that he contacted one attorney in St. Louis, one in Kansas City, and one in Springfield but they would not take his case. He did not remember their names.

Relator argues, inter alia, that requiring him to represent the plaintiff in the underlying action is an unconstitutional taking of his property without just compensation. He also avers that he cannot be compelled to advance litigation expenses because that would also amount to a taking of property without just compensation. He claims that such compelled representation is a violation of due process and amounts to an involuntary servitude. 1 Relator suggests that he was apparently appointed pursuant to § 514.040, RSMo 1978 inasmuch as no other authority for such appointment has been located. The Attorney General, on the other hand, arguing in behalf of respondent, contends that this duty imposed on the individual attorney is a "professional obligation to represent an indigent plaintiff as part of his duties as an officer of the court," and "[a]n applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining."


Although it is not clear that respondent relied solely upon § 514.040, RSMo 1978 to justify her appointment of relator, we initially address relator's argument that the statute is unconstitutional. The statute provides:

If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.

This statute was first enacted in 1821, and it was passed against the background of already existing poor laws. 1 Mo.Terr. & State Laws Ch. 363, at 843 (1821). For example, the court of common pleas was already empowered to spend county funds for the maintenance of the poor. 1 Mo.Terr. & State Laws Ch. 121, at 340 (1815). Counties were saddled with the responsibility of supporting and maintaining their poor. When the legislature passed these laws, they intended to relieve a particular class of persons. For one hundred and seventy years the legislature has retained the classification for persons deemed poor: "[A]ged, infirm, lame, blind or sick persons, who are unable to support themselves, and when there are no other persons required by law and able to maintain them, shall be deemed poor persons." § 205.590, RSMo 1978. We do not believe that the plaintiff in the underlying suit can bring himself within the definition of the term as used by the legislature when § 514.040 was enacted 2 or that the statute authorizes the appointment in this case.


The more important consideration is whether respondent has the inherent power to compel relator to serve as a plaintiff's counsel in a civil malpractice action without compensation and without provision for litigation expenses. We treat first relator's contention that he cannot be compelled to spend his own funds for litigation, such as for obtaining depositions and securing expert testimony. See Williamson v. Vardeman, supra, at 1215; People v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337, 340 (1966); State v. Robinson, 123 N.H. 665, 465 A.2d 1214, 1217 (1983). In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982), this Court, faced with a situation "approaching crisis proportion," held that "[w]e know of no requirement of either law or professional ethics which requires attorneys to advance personal funds in substantial amounts for the payment of either costs or expenses of the preparation of a proper defense of the indigent accused." Wolff v. Ruddy, supra, at 67. To abandon this rule in a civil suit where the requirement of counsel is less compelling would be illogical and manifestly unjust, and we decline to so hold. While compelled representation without a source for litigation expenses might work a perversion of justice, we nevertheless must address whether the court can compel such representation independent of the issue concerning litigation expenses.


The precise question of whether the court has the inherent power to appoint and compel counsel to serve without compensation in civil cases has not been resolved in this State. While there is a long history of appointment of counsel in criminal cases, no such similar history exists for civil cases. Appointments in criminal cases can be traced to statehood. Our first constitution authorized the appointment of counsel in certain criminal trials involving slaves. Mo. Const. art. 3 § 27 (1820). Although this court long ago rejected the idea of gratuitous service as "too fanciful and romantic," Kelley v. Andrew County, 43 Mo. 338, 342 (1869), in dicta in a later case it was noted that an attorney representing an indigent criminal defendant does so without compensation as an "officer of the court." State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 184 (1943). During this time and until a later opinion by this Court, Missouri attorneys willingly accepted such appointments in the face of a growing hardship imposed on the Bar. See Bradley, "Court Appointed Counsel for Indigent in Missouri: Reasonable Compensation and Expenses Should be Allowed," 21 J.Mo. Bar 101 (1965); Light, "Compensation and Expenses for Appointed Counsel in Criminal Cases," 4 J. Mo. Bar 97 (1948); Richardson, Reardon & Simeone, "Legal Aid to Indigents in Criminal and Quasi-Criminal Proceedings," 19 J.Mo. Bar 525 (1963). As one of the last states to decide the question, we held in 1971 that attorneys would no longer be compelled to render gratuitous service. State v. Green, 470 S.W.2d 571 (Mo. banc 1971). Cf. Wolff v. Ruddy, supra.

A similar paucity of case law concerning appointments in civil cases exists in other jurisdictions. 3 The vast majority of courts considering appointments without compensation do so in the context of a criminal case, and even these decisions contain a diversity of views. Of those courts addressing the issue of uncompensated criminal appointments it would appear that a majority would not require compensation. The "claimed majority," however, "is not nearly so solid or monolithic" as one might expect. Shapiro, "The Enigma of the Lawyer's Duty to Serve," 55 N.Y.U.L.Rev. 735, 755 (1980). A strong minority of courts adhere to the position that such compelled representation is unjustified and unconstitutional. We believe that it is essential to examine these various decisions, their efficacy, and their application to civil cases such as the one at bar.

The issue of compelled representation in criminal cases first arose in the context of a suit by the lawyer against a county government to...

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