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Missouri judge asked to toss case over public defender wait list now that it’s gone

The state argues a class action challenging a since-eliminated waiting list should be dismissed as moot, but the plaintiffs say a budget boost is not guaranteed in the future.

ROLLA, Mo. (CN) — Attorneys for Missouri argued in state court Friday that a class action challenging a controversial waiting list to assign indigent criminal defendants to public defenders should be dismissed because the list has been eliminated.

When the class action was filed in 2019, it claimed there were over 4,600 people on the list, 600 of whom were incarcerated.

At the time of the lawsuit, state law allowed presiding judges to place cases on a waiting list for defendant services if a public defender shows that they are unable to provide effective counsel due to an excessive caseload. But in February 2021, Phelps County Judge William Hickle found the system to be unconstitutional and ordered a stay in the case to allow both sides to find a solution.

Jason Lewis of the Missouri Attorney General’s Office argued Friday that the case has been rendered moot because the list had been reduced to zero as of Nov. 30, 2021, a product of several factors including a $3.6 million increase in the Public Defenders Office’s budget this year designated to hire 53 new attorneys to help manage the staggering caseloads.

Arguing for the plaintiffs, ACLU attorney Anthony Rothert countered that the list was only eliminated due to the budget allocation, which is not guaranteed from year to year by the Legislature. He asked Hickle to enter a permanent judgment in favor of the plaintiffs.

Hickle didn’t issue a ruling at the conclusion of the nearly two-hour hearing held via WebEx, giving Rothert two weeks to file a response to a brief recently filed by the state. But he did indicate that a stay in the case could be in order when he does rule, likely next month.

“The question is whether or not the problem appears to be permanently solved,” the judge said.

He continued, “There'll be a point in time where if a year or two goes by and we see that things are running in such a way that we're just not seeing any wait list on the horizon, at some point, I think that we can say that it might well be likely the issue is not going to recur. … I don't think we're there yet, quite frankly. The wait list has just been eliminated a month and a half or so ago.”

Lewis began his arguments by saying the budget allocation as well as the reallocation of resources, communication with courts about criminal docket management and contracting private counsel on low-level misdemeanor cases have helped eliminate the list.

“While this case certainly raises important issues on the merits, there's no indication that those issues will recur, let alone even have a strong probability recurring,” Lewis told Hickle.

Attorneys argued the status of a class action lawsuit over Missouri's public defender waiting list on Friday, Jan. 7, 2022. (Screenshot via Courthouse News)

Rothert countered that this case is an exemption to the mootness doctrine.

“This is different than cases where there's been legislation,” Rothert told the court. “Here, the wait list may be temporarily not necessary, but it is not eradicated. And moreover, there wasn't legislation passed. The walls are still all in place. What happened is there was a budget increase that is subject to reappropriation.”

Mary Fox, director of the state’s public defender system, testified during the hearing.

Under Lewis’ questioning, Fox said the budget allocation allowed her office to hire 53 additional attorneys and provided $400,000 for the creation of a parole revocation defense team.

There were 1,036 defendants on the list when the budget was approved. Fox said it took about five months to reduce that to zero.

Rothert spent most of his cross-examination on the current, past and future budget allocations the department has and expects to receive.

Fox responded that the list could not have been eliminated without the $3.6 million in additional funds and that the department did not have resources to provide adequate counsel if the additional funds were taken away.

“I will tell you that [the] Public Defender [Office] has never had a cut to its core budget,” Fox testified. “So, once we have received authorization or something, that it's never been taken away in subsequent years. So, I am extremely confident that the 53 additional attorneys we received for the trial offices will not be taken away from the public defender system in subsequent years.”

In his forthcoming reply brief, Hickle asked Rothert to highlight any other case law on mootness that might pertain to the matter.

The ACLU filed the class action on behalf of several plaintiffs who were on the wait list. The suit blamed “chronic underfunding” and an increasing caseload that has caused a staffing crisis, leading to public defenders “typically operating at more than double the maximum workload capacity than would allow for the consistent provision of constitutionally adequate representation to their clients.”

Missouri officials, at the start of a two-day bench trial in November 2020, argued the wait list was the best option among bad choices in balancing right to counsel with overwhelming caseloads.

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