Sullivan v. Dalton

HOLSTEIN, Judge. Petitioners Christene Sullivan and Joseph Downey are respectively an assistant public defender and the Director of the Missouri Public Defender Commission. They seek to set aside an order by respondent, Honorable Donald E. Dalton, Judge of the 11th Judicial Circuit, appointing a public defender to represent an individual charged with violation of an ordinance of the City of Bowling Green. The petition is denied. Sharon Tophinke is charged with violating an ordinance of the City of Bowling Green which carries a maximum penalty of ninety days incarceration.1 She appeared pro se in the Municipal Division of the Pike County Circuit Court for the City of Bowling Green and requested a jury trial. Pursuant to Rule 37.61, the cause was certified to the presiding judge and the case was assigned to respondent. The City of Bowling Green seeks incarceration. Ms. To-phinke is indigent. The public defender was ordered to represent her. The appellants submit that the public defender should not be appointed to represent indigent defendants charged with ordinance violations because of the limited staff and resources of the public defender system and an asserted state policy against using state tax funds for “purely municipal purposes.” Section 600.042.3 RSMo 1986 states in part: The director and defenders shall provide legal services to an eligible person: [[Image here]] (4) For whom the federal constitution or the state constitution requires the appointment of counsel; (5) For whom, in case [sic] in which he faces a loss or deprivation of liberty, any law of this state requires the appointment of counsel. Here the parties do not dispute that the state and federal constitutions require appointment of counsel when a defendant is faced with a deprivation of liberty. In addition, Rule 37.50 provides in part: [I]f any person charged with an ordinance violation, whose conviction would likely result in confinement, shall be without counsel upon his first appearance before a judge, it shall be the duty of the judge to advise him of his right to counsel, and of the willingness of the judge to appoint counsel to represent him if he is unable to employ counsel. Upon a showing of indigency, it shall be the duty of the judge to appoint counsel to represent the defendant. Article V, § 5 of the Missouri Constitution gives all rules established by this Court the force and effect of law. State ex rel. Public Defender Comm’n v. Bonacker, 706 S.W.2d 449, 450 (Mo. banc 1986). In this case, the city is seeking incarceration and the defendant has been determined to be indigent. Therefore, the appointment of the public defender is, at the very least, authorized by the statute. With regard to petitioners’ first claim, this Court is not unmindful of the limited resources of the office of public defender and the ever increasing demand for legal services by indigent defendants. Trial judges dealing with criminal trials on a daily basis are in an even better position to understand the strain on local public de [391] fender offices. Should a trial judge perceive that the pressures of municipal ordinance representation by the public defender are too great, he or she may consider alternatives, such as appointing attorneys who have volunteered, on a pro bono basis, •to represent indigent persons accused of ordinance violations, or informing the city’s attorney that the court will not consider imposing incarceration for particular types or classes of ordinance violations unless the city provides counsel to represent indigents charged with violations of ordinances. However, the primary authority and responsibility for relieving the problem of limited public defender resources remains with the General Assembly. It may add resources or may choose to relieve the public defender of representing indigents accused of violating municipal ordinances, and either require cities to provide counsel or remove municipal authority to impose incarceration for violation of ordinances. “The legislature knows how to prohibit certain representations by public defenders, when such is its purpose.” State ex rel. Marshall v. Blaeuer, 709 S.W.2d 111, 113 (Mo. banc 1986) (Blackmar, J. dissent, n. 1). The petitioners’ second claim is that there is a general policy against using state tax funds for purely municipal purposes. At the heart of petitioners’ argument is their claim that the purpose of providing appointed counsel is to facilitate the city’s goal of incarcerating Ms. Tophinke. The argument is rejected. The purpose of appointing counsel was stated in Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796-797, 9 L.Ed.2d 799: From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. The right to appointed counsel for an indigent whose liberty is at risk is not merely a local matter; the concern for equality before the law necessarily permeates to every level and every branch of government. The legislature has wisely responded to that concern by enacting the public defender law. Even assuming the municipality obtained some advantage by utilizing public defender services, that does not prohibit the legislature from providing counsel to indigents in municipal cases. The public policy on the subject is expressed in art. X, § 10(b) of the Missouri Constitution: Nothing in this Constitution shall prevent the enactment of general laws directing the payment of funds collected for state purposes to counties or other political subdivisions as state aid for local purposes. There is no public policy against the state providing aid to local government, provided it is done by way of a general law. No claim is made that § 600.042.3 is not a law of general application. In this particular case, the trial judge used his discretion to require the public defender to represent an indigent defendant in an ordinance violation where the city seeks incarceration. There is no showing of an abuse of that discretion. The petition seeking to set aside the order appointing the public defender is denied. The order staying proceedings is dissolved. ROBERTSON, RENDLEN, HIGGINS and COVINGTON, JJ., concur. BLACKMAR, C.J., dissents in separate opinion filed. CRIST, Special Judge, dissents and concurs in dissenting opinion of BLACKMAR, C.J. BILLINGS, J., not sitting. Footnotes [1] Section 79.470 RSMo 1986, applicable to fourth class cities, permits such cities to "impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days imprisonment, or both the fine and imprisonment.”