State ex rel. Marshall v. Blaeuer

DONNELLY, Judge. This is an original action for writ of prohibition prosecuted by Thomas Marshall, Regional Public Defender for the 14th Judicial Circuit, against The Honorable Channing D. Blaeuer, Circuit Judge of the 14th Judicial Circuit. We have jurisdiction pursuant to Mo. Const, art. V, § 4. Relator contends that respondent exceeded his jurisdiction by appointing him to represent inmates at the Missouri Training Center for Men in their habeas corpus actions challenging the conditions of their confinement. The essence of relator’s argument is that § 600.042, RSMo Cum.Supp. 1984, gives respondent authority to appoint the Public Defender in only a limited set of cases and that provision of counsel in all other cases is left to the discretion of the Director of the Public Defender System and to the Defenders. The relevant portions of § 600.042 are as follows: 2. The director and defenders shall, within guidelines as established by the commission and as set forth in subsection 3 of this section, accept requests for legal services from eligible persons entitled to counsel under this chapter or otherwise so entitled under the constitution or laws of the United States or the state [112] of Missouri and provide such persons with legal services when, in the discretion of the director or the defenders, such provision of legal services is appropriate. 3. The director and defenders shall provide legal services to an eligible person: (1) Who is detained or charged with a felony, including appeals from a conviction in such a case; (2) Who is detained or charged with a misdemeanor which will probably result in confinement in the county jail upon conviction, including appeals from a conviction in such a case; (3) Who is detained or charged with a violation of probation or parole; (4) For whom the federal constitution or the state constitution requires the appointment of counsel; and (5) For whom, in case in which he faces a loss or deprivation of liberty, any law of this state requires the appointment of counsel. Subsection 2 requires the director and defenders (1) to accept requests for legal services from eligible persons who are entitled to counsel thereunder, and (2) to provide legal services to those persons “when, in the discretion of the director or the defenders, such provision of legal services is appropriate.” The only limitation set by subsection 2 on the exercise of discretion is that which may be contained in “guidelines as established by the [Public Defender Commission] and as set forth in subsection 3 of [§ 600.042]_” Subsection 3 mandates the provision of legal services in the enumerated types of cases. Respondent argues that petitioners herein are persons “detained ... with a felony,” under § 600.042.3(1) and that “[t]he entire thrust of the public defender legislation is to provide free legal assistance to a particular class of individuals in the criminal justice system....” We believe that respondent misconstrues § 600.042.3(1). The subsection, taken in its entirety and in context, indicates that it is intended to require a public defender in the guilt determination stages of prosecution because it “includ[es] appeals from a conviction in a case”. Such a reading, moreover, is consistent with the history preceding enactment of Chapter 600. That is, the public defender system had its genesis in this Court’s opinion in State v. Green, 470 S.W.2d 571 (Mo. banc 1971), wherein it was held that it was the duty of the State to provide legal services to “an indigent accused of crime” and that no longer would uncompensated private counsel be compelled to bear that burden alone. It is also important to note that, in Green, this Court enforced the constitutional limitation on the authority of courts to direct the State to pay the fees and expenses of appointed counsel. Thus, a court may not compel the State to expend public funds to prosecute the claims of prisoners challenging the conditions of their confinement unless there is authorization by statute or rule of this Court. As we have said, § 600.042.3(1) provides no such authorization. In further support of its position, respondent cites Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), which held that counsel must be appointed to represent indigents in their Rule 27.26 proceedings. Fields, however, did not involve mandatory appointment of a public defender. This Court has recently held that § 600.042.3(5) requires the appointment of a public defender in Rule 27.26 proceedings because “Rule 27.26(h) ... has ‘the force and effect of law.’ Mo. Const, art. V, § 5.” State ex rel. Public Defender Comm’n v. Bonacker, 706 S.W.2d 449 (Mo. banc 1986). In the present cases, respondent has not referred us to, and our research has not revealed “any law of this state requiring] the appointment of counsel” (§ 600.042.-3(5)) to represent indigent inmates in challenging the conditions of their confinement. We hold, therefore, that, in the absence of authorization by statute or rule, the respondent had no authority to compel the [113] State to expend public funds, by the appointment of a public defender, to prosecute the underlying claims herein. The writ is made absolute. HIGGINS, C.J., and BILLINGS, WEL-LIVER, ROBERTSON and RENDLEN, JJ., concur. BLACKMAR, J., dissents in separate opinion filed.