Judge considers public defender lawsuit against governor

More than three million dollars spurred the public defender to take Governor Jay Nixon to court.

Judge Jon Beetem heard arguments Tuesday morning on Nixon’s motion to dismiss a lawsuit filed by the state’s Public Defender Commission over a July withholding of $3.5 million. The public defender’s office, which represents poor people accused of crime who can’t afford attorneys, claimed Nixon overstepped the separation of powers when he took the money away from an office in the judicial branch.

The lawsuit was an opening salvo in a contentious summer between the public defender’s office and the governor. In August, director Michael Barrett delegated Nixon to a Cole County case, as the public defender’s office grappled with high caseloads per attorney and an inability to make new hires. Judge Patricia Joyce eventually ruled Barrett did not have that authority. Nixon’s office cites the budget increases for the public defender system he’s authorized since taking office.

Solicitor General James Layton argued the governor has “complete discretion” to withhold money from all state agencies, including the public defender’s office. Nixon focuses on line items dealing with either capital improvements, or “new hires,” Layton said. The public defender can also still receive the money, should state revenues bounce back from the start of the fiscal year.

Nixon’s withholding came from money earmarked for “conflict cases,” when the public defender system has to bring in attorneys from a different office to handle multiple defendants accused of the same crime. David Wallis, head of Boone County’s public defender office, said he currently sends one attorney to counties more than an hour away from Columbia to handle their conflict cases, leading to several hours lost to just driving. Barrett said with $3.5 million, the office could set up a system of “panel attorneys” – private lawyers who sign up to receive a conflict case, and money from the state for participating. Wallis said more counties with “panel attorneys” would put at least one public defender back in the Columbia office full time, working on Boone County cases.

Jacqueline Shipma, the public defender office’s lawyer, said the governor could only withhold money from executive branch agencies. Since public defenders argue court cases opposite of prosecutors and, ultimately, the attorney general, the department would have a “conflict of interest” if it was, in fact, an executive agency.

Without the money, “we can’t adequately represent the clients that come through the door,” Shipma said.

Shipma added that the governor’s update about their FY 2017 budget would come in four equal parts, that ended up $3.5 million less than what the legislature approved them. This becomes important, Shipma said, since the legislature can override Nixon’s proclamation as soon as September. The governor can balance the budget through “controlling the rate” in which departments get money, rather than withholding the money outright.