SUPREME COURT OF MISSOURI en banc DWIGHT LAUGHLIN, ) Opinion issued June 30, 2020 ) Respondent, ) ) v. ) No. SC98012 ) DEWAYNE PERRY AND ) ELLEN FLOTTMAN, ) ) Appellants. )
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY The Honorable James V. Nichols, Judge
Public defenders Dewayne Perry (hereinafter, “Perry”) and Ellen Flottma n
(hereinafter “Flottman”) appeal the circuit court’s judgment affirming a jury’s verdict in
favor of Dwight Laughlin (hereinafter, “Laughlin”) on his legal malpractice claim. Perry
and Flottman argue the circuit court erred in overruling their motion for judgment
notwithstanding the verdict (“JNOV”) because they had official immunity from being sued
for legal malpractice and because Laughlin failed to make a submissible case. This Court
holds public defenders are entitled to official immunity from suit. Because this point is dispositive, this Court does not reach Perry and Flottman’s other claim of error. The circuit
court’s judgment is reversed, and the case is remanded. 1
Factual and Procedural History 2
In 1933, the United States acquired land in Neosho, Missouri, on which to build a
United States post office, and the State of Missouri ceded jurisdiction over the land to the
federal government. 3 The United States Constitution provides, if a state cedes jurisdictio n
over federal property within the state, the United States has exclusive jurisdiction to hear
cases involving offenses committed on that federal property, depriving that state’s courts
of the authority to enforce state law on federal property. U.S. Const. art. I, sec. 8, cl. 17.
In 1993, Laughlin burglarized the Neosho post office and caused property damage.
The federal government declined to prosecute Laughlin, but state charges were filed. Perry
and another public defender, Mark White (hereinafter, “White”), were assigned to
represent Laughlin at his trial. Neither public defender challenged jurisdiction although
Laughlin thought the state “did not have the right to prosecute” him. Perry spoke with the
prosecuting attorney about the issue. Perry, White, and the prosecuting attorney all
believed concurrent jurisdiction to prosecute Laughlin existed, and none of them could
recall an instance in which the federal government had exclusive jurisdiction in a similar
criminal case. After a jury trial, Laughlin was found guilty and sentenced to thirty years’
1 This Court has jurisdiction. Mo. Const. art. V, sec. 10. 2 This recitation incorporates portions of State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695 (Mo. banc 2010), and State v. Laughlin, 900 S.W.2d 662 (Mo. App. S.D. 1995), without further attribution or citation. 3 Section 12.010. All statutory references are to RSMo 2000 unless otherwise indicated.
2 imprisonment on the burglary count and ten years’ imprisonment on the property damage
count, to be served consecutively.
Laughlin appealed. While his direct appeal was pending, Laughlin’s appointed
appellate public defender, James Martin (hereinafter, “Martin”), filed a Rule 29.15 post-
conviction motion, alleging “the trial court did not have jurisdiction to try [his] case since
it was a federal offense thereby preempting state court jurisdiction.” The motion court
denied his claim because “[n]o evidence was adduced showing the offense was not a state
offense or that the federal government had pre-empted jurisdiction.”
The court of appeals consolidated Laughlin’s direct appeal and his post-convictio n
appeal. Flottman represented Laughlin in this proceeding. Laughlin sent Flottman a letter
stating, “My charges were originally federal because the building was a post office” and
cited cases he alleged demonstrated “due process flaws.” However, Flottman could not
glean that Laughlin was conveying his desire to assert a jurisdictional challenge. She
believed there was concurrent jurisdiction and did not believe jurisdiction was a “good
issue.” Neither appeal challenged the circuit court’s jurisdiction to try his case. Both
judgments were affirmed. State v. Laughlin, 900 S.W.2d 662 (Mo. App. S.D. 1995).
While incarcerated and after the appeals were final, Laughlin discovered the deed
to the post office and the federal and state provisions conferring exclusive federal
jurisdiction in his criminal case. Laughlin began filing pro se motions to secure his release
that were denied routinely until 2009. In November 2009, Laughlin petitioned for a writ
of habeas corpus to determine whether his criminal convictions were void because the
circuit court lacked jurisdiction over the subject matter. The state argued whether 3 jurisdiction was proper was litigated years ago, Laughlin was bound by the circuit court’s
judgment, and relief was barred due to his failure to raise the matter on appeal. After the
circuit court and court of appeals denied Laughlin relief, this Court issued a writ of habeas
corpus, holding Missouri did not have jurisdiction over offenses occurring in the Neosho
post office; therefore, the circuit court lacked jurisdiction to prosecute Laughlin for
burglary or property damage. State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 703
(Mo. banc 2010). Laughlin was discharged from custody.
In August 2011, Laughlin sued Perry, White, Martin, and Flottman, alleging legal
malpractice and breach of fiduciary obligation for their failure to assert the jurisdictio na l
challenge during their representation of him at trial, on appeal, and in his post-convictio n
proceedings. 4 All defendants raised official immunity as an affirmative defense,
contending official immunity applied to them because they were being sued for the
performance of their official duties as state agents, officers, or employees while performing
functions requiring a broad degree of discretion.
Laughlin submitted the legal malpractice claims at trial. Laughlin presented
testimony from an expert who opined the defendants breached the standard of care by
failing to pursue the jurisdictional challenge, which the expert characterized as “obvious. ”
The jury returned its verdict in Laughlin’s favor against Perry and Flottman and in Martin’s
favor against Laughlin. Perry and Flottman filed a JNOV motion alleging they were
4 Laughlin also sued another attorney who represented him in an appeal before the United States Court of Appeals for the Eighth Circuit in 1997. Laughlin volunta r ily dismissed that attorney and White prior to trial. 4 shielded from liability due to official immunity. The circuit court overruled their motion,
and they now appeal.
Standard of Review
“The standard of review for the denial of a judgment notwithstanding the verdict
(JNOV) is essentially the same as review of the denial of a motion for directed verdict.”
Spalding v. Stewart Title Guar. Co., 463 S.W.3d 770, 778 (Mo. banc 2015) (quoting
All Am. Painting, LLC v. Fin. Sols. & Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010)).
When reviewing the overruling of a JNOV motion, “[t]his Court must determine whether
the plaintiff presented a submissible case by offering evidence to support every element
necessary for liability.” Barron v. Abbott Labs., Inc., 529 S.W.3d 795, 799 (Mo. banc
2017) (quoting Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo. banc 2010)).
This Court reviews the evidence in the light most favorable to the jury’s verdict. W. Blue
Print Co., LLC v. Roberts, 367 S.W.3d 7, 12 (Mo. banc 2012).
Official Immunity
Perry and Flottman argue the circuit court erred in overruling their motion for JNOV
because they have official immunity from Laughlin’s legal malpractice claim. Perry and
Flottman maintain that, as public defenders, they are public employees employed by the
state of Missouri and were acting within the scope of their authority as public defenders
when choosing which strategies and defenses to pursue in Laughlin’s case. Perry and
Flottman contend foregoing the jurisdictional challenge was a discretionary decision
entitling them to official immunity.
5 This Court thoroughly explained the official immunity doctrine in State ex rel. Alsup
v. Kanatzar, 588 S.W.3d 187 (Mo. banc 2019). Alsup noted this Court has long held
official immunity “protects a public official from liability if that official acts within the
course of his [or her] official duties and without malice.” Id. at 190; see also Southers v.
City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008) (stating official immunity
protected “public employees” in the same manner). “Courts and legal commentators have
long agreed that society’s compelling interest in vigorous and effective administration of
public affairs requires that the law protect those individuals who, in the face of imperfec t
information and limited resources, must daily exercise their best judgment in conducting
the public’s business.” Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 836
(Mo. banc 1985). “Courts applying the doctrine of official immunity must be cautious not
to construe it ‘too narrowly lest they frustrate the need for relieving public servants of the
threat of burdensome litigation.’” Alsup, 588 S.W.3d at 191 (quoting Kanagawa, 685
S.W.2d at 836).
Public Defenders Are Public Employees
The question of whether official immunity applies to public defenders is an issue of
first impression for this Court. 5 A public defender’s duty to represent indigent individua ls
5 Although three appellate decisions have broached the topic, none of them resolved the issue. See Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo. App. W.D. 1986) (finding the client’s malpractice claim was premature and did not reach or rule on whether a public defender was protected by official immunity); Costa v. Allen, No. WD67378, 2008 WL 34735, at *5 (Mo. App. W.D. Jan. 2, 2008) (finding official immunity did not apply to public defenders, but after this Court accepted transfer of the case, this holding no longer held any precedential value); Kuehn v. Hogan, 321 S.W.3d 337, 344 (Mo. App. W.D. 2010) 6 is mandated by both the United States and Missouri constitutions, caselaw, and prescribed
by Missouri statute. The Sixth Amendment provides, “In all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”
“Because this right is ‘fundamental and essential to a fair trial,’ the constitutional guarantee
of counsel is ‘protected against state invasion by the Due Process Clause of the Fourteenth
Amendment.’” State ex rel. Mo. Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 605
(Mo. banc 2012) (quoting Gideon v. Wainwright, 372 U.S. 335, 341, 83 S. Ct. 792,
9 L.Ed.2d 799 (1963)). The Missouri Constitution provides, “in criminal prosecutions the
accused shall have the right to appear and defend, in person and by counsel.” Mo. Const.
art. I, sec. 18(a).
“To fulfill Gideon’s promise that ‘every defendant stands equal before the law,’ the
Missouri General Assembly has enacted an elaborate public defender system to provide
legal services to indigent defendants.” Mo. Pub. Def. Comm’n, 370 S.W.3d at 606 (interna l
citations omitted). Section 600.019.1 provides that the Office of State Public Defender
(hereinafter, “OSPD”) is “an independent department of the judicial branch of state
government.” See also State ex rel. Francis v. McElwain, 140 S.W.3d 36, 38 (Mo. banc
2004). The OSPD’s “complete budget” must be provided for “through an annual
appropriation subject to approval by the governor and the general assembly. ”
Section 600.040.2, RSMo Supp. 2013. The OSPD is headed by the Public Defender
Commission, comprised of members “appointed by the governor with the advice and
(Ellis, J., concurring) (positing public defenders should be shielded from liability by official immunity). 7 consent of the senate.” Section 600.015.1. The Public Defender Commission determines
compensation for public defenders. Section 600.021.3. Public defenders are prohibited
from limiting the availability of their services “based on a determination that the office has
exceeded a caseload standard” and “may not refuse to provide representation required
under [chapter 600] without prior approval from a court of competent jurisdictio n. ”
Section 600.062, RSMo Supp. 2013.
When construing the Missouri rules of professional conduct concerning conflicts of
interest requiring disqualification, this Court characterized a public defender as a “public
officer or employee” and a “governmental attorney.” State v. Lemasters, 456 S.W.3d 416,
420 (Mo. banc 2015). Moreover, section 600.040.3, RSMo Supp. 2013, provides, “Any
person who is a public defender or employee of a public defender shall be entitled to all
benefits of the Missouri state employees’ retirement system” as defined by statute.
There is no dispute state employee public defenders Perry and Flottman were acting
pursuant to their constitutionally and statutorily mandated duties by representing Laughlin
during his trial, appeal, and post-conviction proceedings. Laughlin did not allege or prove
Perry or Flottman acted with malice toward him during the representation.
While Laughlin concedes public defenders are state employees for purposes of
coverage under the State Legal Expense Fund (hereinafter, “SLEF”) as discussed below,
Laughlin argues public defenders are not “public officers” entitled to official immunity
based on the holding in State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761 (Mo. App.
E.D. 1981). In Eli Lilly, the Eastern District declined to extend official immunity to a
physician employed by a state mental health hospital who was sued for medical 8 malpractice. Id. at 766. The court determined that, even if the physician were a state
employee compensated by the state, “the performance of [his] duties does not require the
exercise of ‘discretion’ in the legal sense of that term” because “[s]hielding officials for
decisions other than those made in the exercise of the sovereign’s power which go to the
essence of governing, extends the doctrine of official immunity beyond its original intent
to promote smooth and effective government.” Id. at 764-65. Hence, the court concluded
only the discretionary decisions “which are a manifest exercise of the sovereign’s power
[are] those decisions which ‘go to the essence of governing.’” Id. at 765 (quoting Jones v.
State Highway Comm’n, 557 S.W.2d 225, 230 (Mo. banc 1977)).
Laughlin argues Eli Lilly remains valid law because it was not analyzed or overruled
in Southers when this Court explained the official immunity doctrine. Laughlin argues
Southers stated the goal of official immunity is “to permit public employees to make
judgments affecting public safety and welfare without concerns about possible personal
liability.” Southers, 263 S.W.3d at 611. While Southers did not overrule Eli Lilly, this
Court did not restrict official immunity only to those public officials’ actions that “go to
the essence of governing.” Id. at 610-11. When carefully examining Jones, which was the
quoted source of the “essence of governing” language relied on in Eli Lilly, it is clear Jones
was discussing sovereign immunity, not official immunity. Further, this Court has not
adopted Eli Lilly’s interpretation of official immunity in any case. Notably, this Court did
not make such a distinction in Alsup when extending official immunity to a teacher after
his implementation of restrictive behavioral intervention techniques resulting in a student
being injured. It is evident the teacher was not a “public official” engaged in the “essence 9 of governing” when interacting with the student. Alsup, 588 S.W.3d at 193. Hence,
Laughlin’s reliance on the “essence of governing” language from Eli Lilly to restrict offic ia l
immunity to public officials and not public employees is misplaced and has no applicability
here.
Public Defenders’ Duties Constitute Discretionary Acts
Perry and Flottman are not entitled to official immunity merely because they are
state or public employees conducting official duties. Official immunity only “protects
public employees from liability for alleged acts of negligence committed during the course
of their official duties for the performance of discretionary acts.” Southers, 263 S.W.3d at
610; Alsup, 588 S.W.3d at 190. The official immunity doctrine does not protect public
employees for alleged acts of negligence for the performance of ministerial duties.
Southers, 263 S.W.3d at 610. Hence, this Court must determine whether Perry and
Flottman’s decisions to forego challenging state jurisdiction were discretionary or
ministerial acts.
“Whether an act can be characterized as discretionary depends on the degree of
reason and judgment required.” Id. “A discretionary act requires the exercise of reason in
the adaption of means to an end and discretion in determining how or whether an act should
be done or course pursued.” Id. By contrast, Alsup defined a ministerial act as follows:
Generally, a ministerial act has long been defined as merely clerical. And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is likely to be delegated to subordinate officia ls. For more than a century, this Court has held that a ministerial or clerical duty is one in which a certain act is to be performed upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to … judgment or opinion concerning the propriety or
10 impropriety of the act to be performed. Thus, the central question is whether there is any room whatsoever for variation in when and how a particular task can be done. If so, that task–by definition–is not ministerial.
Alsup, 588 S.W.3d at 191 (internal citations and quotations omitted).
Perry and Flottman contend practically any decision or action taken by an attorney
in representing his or her client is discretionary in nature, including which defenses to assert
at trial and which legal arguments to present on appeal. Laughlin, however, characterizes
the jurisdictional challenge as a ministerial task because, once he advised Perry and
Flottman of his desire to challenge the circuit court’s jurisdiction, they had no discretion to
refuse to explore that defense. Laughlin discounts Perry’s testimony acknowledging there
was a jurisdictional issue in this case and he discussed the issue with the prosecuting
attorney and White, who all reached the same conclusion that concurrent jurisdictio n
existed. Laughlin also discounts Flottman’s testimony that, in her opinion, the
jurisdictional challenge was not a “good issue” to raise on appeal.
“As a practical matter, virtually any decision or action taken by an attorney during
trial involves the exercise of professional judgment and is clearly discretionary in nature.”
Kuehne, 321 S.W.3d at 347 n.8 (Ellis, J., concurring). It is undisputed attorneys exercise
discretion and judgment in formulating which strategies and defenses to present on their
clients’ behalf. State v. Basile, 942 S.W.2d 342, 355 (Mo. banc 1997) (holding “[d]efense
lawyers are given a broad range of leeway in determining what strategy to follo w”) ;
Hawkins v. State, 512 S.W.3d 112, 116 (Mo. App. E.D. 2017) (holding “[c]ounsel is
allowed wide latitude in conducting a defense and may use his [or her] best judgment”).
Further, “appellate counsel does not have a duty to raise every appealable issue; counsel 11 may strategically decide to forgo certain arguments in favor of others.” Meiners v. State,
540 S.W.3d 832, 838 (Mo. banc 2018). Hence, a public defender’s decision concerning
which defenses to raise or which issues to present on appeal “requires the exercise of reason
in the adaption of means to an end and discretion in determining how or whether an act
should be done or course pursued.” Southers, 263 S.W.3d at 610. These decisions are not
clerical in nature with no regard to the public defender’s judgment or opinion concerning
the propriety of raising the defenses or issues on appeal. Perry and Flottman had no clear
and unequivocal duty to assert the jurisdictional challenge. These decisions, therefore, are
not ministerial. Alsup, 588 S.W.3d at 191.
Laughlin claims Perry’s and Flottman’s assumptions concurrent jurisdiction existed
without further researching the issue was negligent because any competent attorney would
have done so, especially after he brought this claim to their attention. This argument
conflates whether Perry’s and Flottman’s actions were discretionary in nature for offic ia l
immunity purposes with whether they violated the standard of care in performing those
discretionary acts to be found negligent. Whether a party is immune from suit precedes
whether a party has violated the standard of care. Nevertheless, Laughlin equates
researching the jurisdictional issue with a doctor’s function when he or she is diagnosing a
medical condition and determining a treatment plan, which he argues could be considered
ministerial acts. To support this argument, Laughlin relies on a concurring opinion in
Canon v. Thumudo, 422 N.W.2d 688, 705 (Mich. 1988), which relied on Eli Lilly, and
opined:
12 A government doctor should not be deemed immune from tort liability merely because he is employed by the government. His actions and decisions should be deemed immune only when he is acting as a unique ly governmental doctor, such as when he is determining the scope of the government’s involvement with a particular patient. While decisions to admit or release patients from government facilities may thus be deserving of immunity, routine medical decisions—diagnoses, prescriptions, and structuring of treatment plans—should not be so shielded by this Court in the declaration of the common law of this state from accountability for malpractice.
he majority in Canon stated otherwise: “To adopt such a definition for ‘ministerial’ would
come close to eliminating all immunity for professionals by confusing the issues of
immunity and negligence. The distinction is significant. If every act which deviates from
a professional norm were to be categorized as ‘ministerial,’ immunity would seldom shield
professional discretion.” Id. at 691. Hence, this case does not aid Laughlin or persuade
this Court to find Perry’s and Flottman’s decisions concerning whether to raise the
jurisdictional challenge were ministerial. Public defenders are the epitome of “individ ua ls
who, in the face of imperfect information and limited resources, must daily exercise their
best judgment in conducting the public’s business.” Kanagawa, 685 S.W.2d at 836.
Choosing which defenses to raise and arguments to pursue on appeal on behalf of indige nt
clients constitute discretionary acts entitled to official immunity.
Other Jurisdictions Support Public Defender Immunity
While the application of Missouri’s official immunity jurisprudence affords Perry
and Flottman protection, this Court’s decision also is in line with decisions from other
jurisdictions. Initially, this Court recognizes the United States Supreme Court has held
federal public defenders are not entitled to absolute immunity under federal law for state
13 malpractice actions. Ferri v. Ackerman, 444 U.S. 193, 205, 100 S. Ct. 402, 410, 62 L.Ed.2d
355 (1979). Ferri did not extend this holding to the states, however, explaining:
We are not concerned with the elements of a state cause of action for malpractice and need not speculate about whether a state court would consider [a] petitioner’s allegations sufficient to establish a breach of duty or a right to recover damages. Nor are we concerned with the question whether [a state] may conclude as a matter of state law that [a] respondent is absolutely immune. For when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.
Id. at 197-98 (footnotes omitted). In Tower v. Glover, 467 U.S. 914, 923, 104 S. Ct. 2820,
2826, 81 L.Ed.2d 758 (1984), the United States Supreme Court held state public defenders
are not immune from federal suit brought pursuant to section 42 U.S.C. § 1983 for
intentional misconduct. Yet Tower recognized:
Immunities in this country have regularly been borrowed from the Englis h precedents, and the public defender has a reasonably close ‘cousin’ in the English barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contractua l relationship with their clients, and they are incapable of suing their clients for a fee.
Id. at 921. Hence, while no jurisdiction—including Missouri—extends immunity to public
defenders for intentional misconduct, several jurisdictions have extended immunity in
some manner to public defenders for alleged negligent acts, whether through judicia l
immunity, official immunity, statutory immunity or some other variation thereof.
The seminal case extending judicial immunity to public defenders is Dziubak v.
Mott, 503 N.W.2d 771 (Minn. 1993). The Minnesota Supreme Court relied on several
public policy reasons to support its decision:
14 Immunity from suit for public defenders best serves the indigent populatio n in preserving the resources of the defender’s office for the defense of the criminally accused. Immunity also aids in the recruitment of qualified attorneys to represent indigent clients in criminal proceedings. Immunity preserves the criminal justice system which relies upon the judge, prosecutor and public defender as essential participants. This serves the best interests of indigent defendants and of society as a whole ....
Since justice demands that a defense be provided to criminal defendants who are not able to afford privately retained counsel, it is essential that a suffic ie nt number of qualified attorneys be willing and able to provide this defense. Immunity will aid in the continued recruitment of attorneys to perform this service in our criminal justice system; such service is eagerly sought by most attorneys. The accused defendant is not the sole beneficiary. Society as a whole depends on the role of defense counsel to secure an ordered system of liberty and justice, as ordained by our Constitution.
The extension of immunity to public defenders will ensure that the resources available to the public defender will be used for the defense of the accused, rather than diminished through the defense of public defenders against civil suits for malpractice. Immunity will conserve these resources to provide an effective defense to the greatest number of indigent defendants.
Id. at 777-78; see also Scott v. City of Niagara Falls, 407 N.Y.S.2d 103, 106 (N.Y. Sup.
Ct. 1978) (granting public defenders judicial immunity but not extending immunity to
negligent performance of ministerial tasks requiring no judgment or discretion). 6
Kentucky extended qualified immunity to public defenders, engaging in a very
similar analysis as this Court concerning public defenders engaging in discretio na r y
functions. See Jacobi v. Holbert, 553 S.W.3d 246, 256 (Ky. 2018) (holding public
6 Two states declined to extend judicial immunity to public defenders. See Schreiber v. Rowe, 814 So.2d 396, 398-99 (Fla. 2002) (rejecting extension of judicial immunity to public defenders but noting the legislature extended the waiver of sovereign immunity to public defenders, which exempted them from personal liability); Shubert v. Ada Cty., 461 P.3d 740, 749 (Idaho 2020) (declining to extend common law quasi-judicial immunity to public defenders because they do not act as an arm of the court).
15 defenders have qualified immunity when acting in good faith and within the scope of their
employment). Pennsylvania, however, rejected qualified immunity. Reese v. Danforth,
406 A.2d 735, 737 (Pa. 1979). Reese is distinguishable from Missouri’s approach because
Reese holds qualified immunity applies only to policymaking officials and does not extend
to mere public employees. Id.
Several states have extended immunity to public defenders through statutory
enactment. In some instances, jurisdictions enacted statutes expressly protecting public
defenders or include public defenders explicitly within the definition of state or public
employee. See Gross v. Rell, 40 A.3d 240, 251 n.7 (Conn. 2012) (noting public defenders
were added to the definition of state officers and employees entitled to qualified statutory
sovereign immunity under Connecticut General Statute § 4-141(5)(B)); Johnson v.
Halloran, 742 N.E.2d 741, 744 (Ill. 2000) (recognizing public defenders do not have
sovereign immunity but enjoy qualified immunity under chapter 745 ILCS 19/1, Illino is’
public and appellate defender immunity act, except for willful and wanton misconduct) ;
Wright v. Elston, 701 N.E.2d 1227, 1233 (Ind. Ct. App. 1998) (holding public defenders
were entitled to statutory immunity pursuant to the Indiana Tort Claim Act, Indiana Code
§ 34-6-2-38(b), defining them as state and public employees); Ramirez v. Harris, 773 P.2d
343, 344-45 (holding Nev. Rev. Stat. § 41.0307.4(b) defined public defenders as public
officers and precluded them from being sued for malpractice); Tenn. Code Ann. § 8-14-
109 (providing absolute immunity for “any act of negligence arising from the execution of
the [public defender’s] official duties as an employee of the district public defenders ….”);
Tenn. Code Ann. § 8-14-108 (defining public defenders as state employees); and Mooney 16 v. Frazier, 693 S.E.2d 333, 337 (W. Va. 2010) (citing Public Defender Services Act, W.
Va. Code § 29-21-20, providing court-appointed counsel immunity from legal malpractice
claims).
In other instances, courts construed statutory language defining public employees
to include public defenders. See Wallin v. McCabe, 293 P.3d 81, 83 (Colo. App. 2011)
(characterizing public defenders as public employees who have immunity derived from
Colorado statute); Vick v. Haller, 512 A.2d 249, 252 (Del. Super. Ct. 1986) (holding public
defenders have qualified immunity under Delaware’s state tort claims act and reaffir med
by Browne v. Robb, 583 A.2d 949, 951 (Del. 1990), and Hanson v. Morton, 67 A.3d 437,
441 (Del. 2013)); Nieves v. Office of the Pub. Def., No. 082262, 2020 WL 1870253, at *7-
8 (N.J. Apr. 15, 2020) (holding legal malpractice claims against public defenders are
subject to the New Jersey Torts Claim Act, N.J. Stat. § 59:2-1(a)—which places conditio ns
and limits on the ability to recover damages—because the office of the public defender is
a public entity and its public defenders are public employees); Coyazo v. State, 897 P.2d
234, 238 (N.M. Ct. App. 1995) (finding public defenders are public employees for purposes
of the New Mexico Tort Claims Act, N.M. Stat. § 41-4-3F, and have immunity from legal
malpractice claims); Wooten v. Vogele, 769 N.E.2d 889, 893-94 (Ohio 2001) (defining
public defenders as employees of a political subdivision who perform a governme nta l
function under Ohio Tort Liability Act, Ohio Rev. Code § 2744.03(A)(6), holding public
employees liable only for conduct that is manifestly outside the scope of employment or
for conduct that is malicious, reckless, or done in bad faith); Bradshaw v. Joseph, 666 A.2d
17 1175, 1176-77 (Vt. 1995) (determining public defenders are state employees under statute
governing tort claims against the state and had immunity from being sued for negligenc e). 7
SLEF Coverage Does Not Preclude Official Immunity Application
The final question this Court must address is whether SLEF coverage for public
defenders is a valid basis to deny them official immunity. The General Assembly created
the SLEF in 1983. State ex rel. Hawley v. City of St. Louis, 531 S.W.3d 602, 604 (Mo. App.
E.D. 2017). The fundamental purpose of the SLEF is
to protect the covered employees from the burden and expense of civil litigation relating to the performance of their duties. The purposes are apparent. A competent employee, who is in demand elsewhere, may be unwilling to work for the state without protection. Those who do serve may be unwilling to take necessary risks for fear of litigation.
Cates v. Webster, 727 S.W.2d 901, 907 (Mo. banc 1987) (Blackmar, J., concurring in part
and dissenting in part). “[Section] 105.711 applies to lawsuits brought against any officer
or employee ‘arising out of and performed in connection with his or her official duties on
7 Three states declined to extend statutory immunity to public defenders based on the nature of their duties. See Barner v. Leeds, 13 P.3d 704, 714 (Cal. 2000) (holding public defenders are not entitled to statutory immunity from malpractice claims because the nature of their representation did not involve policy decisions and discretionary acts as contempla ted under California’s immunity statute); Shubert, 461 P.3d at 750-51 (holding public defenders are not entitled to statutory immunity under the discretionary function exemptio n of the Idaho immunity statute); Trobaugh v. Sondag, 668 N.W.2d 577, 585 (Iowa 2003) (declining to extend statutory immunity to public defenders because a legal malpractice claim was not the functional equivalent of other causes of action specifically exempted under the Iowa Tort Claims Act, Iowa Code § 669.14). Further, Michigan declined to extend immunity for appointed criminal attorneys, finding no rationale to distinguis h between appointed and private counsel. Donigan v. Finn, 290 N.W.2d 80, 82 (Mich. App. 1980).
18 behalf of the state, or any agency of the state’ ….” Smith v. State, 152 S.W.3d 275, 280
(Mo. banc 2005). This section further provides:
The [SLEF] shall be the exclusive remedy and shall preclude any other civil actions or proceedings for money damages arising out of or relating to the same subject matter against the state officer or employee, or the officer’s or employee’s estate. No officer or employee of the state or any agency of the state shall be individually liable in his or her personal capacity for conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state.
Section 105.711.5, RSMo Supp. 2014. This section reinforces the SLEF’s purpose to
protect state employees by limiting the circumstances in which they may be sued and held
liable for conduct arising out of and in connection with their official duties.
The parties do not dispute Laughlin’s damages award against Perry and Flottma n
would have been paid from the SLEF because they are state employees whose alleged
malpractice arose out of their official duties on the state’s behalf. See Johnson, 719 S.W.2d
at 828 (stating payment of any award against a public defender for a client’s successful
malpractice claim would have been made from the SLEF). However, Perry and Flottma n
argue SLEF coverage does not preclude their assertion of official immunity pursuant to
section 105.726.1. Laughlin disagrees, arguing the SLEF creates blanket immunity for all
state employees, regardless of whether they are acting in a discretionary or ministe r ia l
capacity, but waives sovereign immunity for those actions by creating a legal defense fund
that compensates individuals injured by state employees.
Section 105.726.1 provides in pertinent part, “Nothing in sections 105.711 to
105.726 shall be construed to broaden the liability of the State of Missouri … nor to abolish
or waive any defense at law which might otherwise be available to any agency, officer, or 19 employee of the State of Missouri.” Although a state employee may be afforded protection
from personal liability for damages under the SLEF, section 105.726.1’s plain langua ge
expressly provides this protection does not preclude a state employee from asserting any
and all available defenses, including official immunity that could relieve a state employee
of liability or prevent the suit from proceeding.
“‘Immunity’ connotes not only immunity from judgment but also immunity from
suit.” Alsup, 588 S.W.3d at 190 (quoting State ex rel. Mo. Dep’t of Agric. v. McHenry,
687 S.W.2d 178, 181 (Mo. banc 1985)). Laughlin fails to cite any case holding SLEF
coverage precludes a party from asserting official immunity as a defense to suit or any case
in which exposure to personal liability was a factor in determining whether a party may
assert official immunity. If this Court construed section 105.726.1 as Laughlin contends
and declined to extend official immunity to public defenders solely because they have
SLEF coverage, this would effectively end SLEF coverage for other state employees who
are entitled to assert official immunity. Laughlin’s assertions that SLEF coverage affords
injured parties a means to recover monetary damages and that he will be left without a
remedy if this Court applies official immunity to public defenders are also unpersuas ive.
Having no remedy or recourse occurs in every case in which official immunity applies and
serves as no reason to carve out an exception for malpractice claims against public
defenders solely on that basis.
To adopt Laughlin’s argument is to fail to acknowledge protection from personal
liability for a judgment differs significantly from a suit being initiated. Protection from
personal liability still subjects a public defender to all of the burdens of litigation— fro m 20 discovery to trial—which can be complex, time-consuming, and serve as a distraction from
an overwhelming caseload. Consequently, if these cases were permitted to go to trial, the
benefits of immunity from suit would be lost even if, ultimately, the public defenders were
not liable personally for any costs or judgments that resulted. Finally, this Court is mindful
that the SLEF is a statutory creation, subject to appropriation by the legislature, which may
choose to amend, defund, or eliminate this coverage at any time.
Conclusion
Public defenders are entitled to official immunity because they are public employees
whose official statutory duties concern the performance of discretionary acts. The circuit
court’s judgment is reversed, and the cause is remanded.
_________________________________ GEORGE W. DRAPER III, CHIEF JUSTICE
All concur.