State ex rel. O'Brien v. Ely

718 S.W.2d 177, 1986 Mo. App. LEXIS 4814

Opinions

SHANGLER, Judge.

The relator Public Defender for the Sixteenth Judicial Circuit petitioned for our writ to prohibit the respondent circuit judge from appointment of the Public Defender as counsel for the contemnor cited for failure to pay an award of child support in a domestic relations proceeding. The petition of the relator alleges that the pretended appointment of the Public Defender as counsel for a civil contempt contemnor usurps judicial authority not granted by Public Defenders Chapter 600, under which the circuit judge purports to act. Our preliminary rule issued on the petition. It is now made absolute.

An order was entered by the respondent circuit judge on October 24, 1983 in the case: In re Barbara A. White and Vernon L. Stapleton, Domestic Relations case No. DR83-2784, that Stapleton pay to White child support money of $46.15 per week. Thereafter, on December 24, 1985, the county prosecutor moved the court for a citation of contempt against Stapleton and submitted, in support, an affidavit of ar-rearages that $1,292.20 was past due on the judgment. The motion alleged that Stapleton “willfully failed and refused to make payments,” and prayed the court to enter an order “directing respondent to show cause why he/she should not be held in contempt of the orders of the Court and for such other relief as may be proper.” ¹

A show cause order issued, and a hearing was scheduled for March 25,1986. The contemnor Stapleton appeared pro se and White appeared with the prosecutor as counsel. The court invited the comments of the principals, and the prosecutor made the overture:

Your Honor, the State’s evidence will be that there’s been no payment since July, that he was employed during that time period just up until recently, and — an open and shut case, Your Honor, in our opinion.

The court was then informed that Stapleton was without a lawyer. The court thereupon conducted this inquiry:

The Court: All right. Mr. Stapleton, are you employed?

Stapleton: No.

The Court: Do you have any funds with which to retain an attorney?

Stapleton: No. I don’t.

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The Court: What is your situation?

Stapleton: I don’t have any money to get an attorney. I can’t afford any.

The Court: I won’t hear the case today. I’ll continue it and I’m going to appoint the Public Defender as your attorney. I’ll make a finding that you’re indigent and this case will be rescheduled.²

The order of appointment issued to the Public Defender, who thereupon moved the court to allow him to withdraw on the ground that the appointment was beyond the scope of representation allowed by § 600.042.3, RSMo Supp.1984, and hence beyond the jurisdiction of the court to fashion and enforce. The circuit judge denied the request to withdraw as appointed counsel, and thereupon our writ was sought, and issued.

The pleadings of the principals formulate two issues (1) the authority of the circuit court under § 600.042.3, RSMo Supp.1984, to appoint the Public Defender to represent an indigent person in a proceeding for civil contempt for failure to obey an order to pay child support (2) the authority of the circuit court under § 600.086.3, RSMo Supp.1984, to act as the determinant, in the first instance, that the person is indigent, and hence eligible for representation by the Public Defender.

The briefs address only the first issue, although the oral argument of the Public Defender alludes to them both. The brief of the Public Defender argues, simply, that § 600.042³ does not encompass a party to a domestic relations case — except, arguably, where the party was cited for contempt for failure to comply with an order in that case, and “in fact faces a loss of liberty.” In such circumstances, the Public Defender acknowledges, the party “faces a loss or deprivation of liberty” — jail in fact — so that the party, if indigent, becomes entitled to the services of the Public Defender under components (4) and (5) of § 600.042.3 and the constitutional standard that statute enacts. The Public Defender argues, however, the fact of indigency once determined, the fact of the financial inability to make the payment required by the order of the court is also determined,⁴ thus the con-temnor Stapleton does not face jail — “the loss or deprivation of liberty” — and the provision of legal service to such a contemnor is beyond the authority granted to a defender by § 600.042.3 and beyond the jurisdiction of a court to impose.

The circuit judge responds that the authority of a Public Defender to agree to give services does not depend upon the class of case — whether domestic relations or criminal — but, under § 600.042.3(5), whether the indigent is a person “[f]or whom, in a case in which he faces a loss or deprivation of liberty, any law of this state requires the appointment of counsel.” The circuit judge responds also that the supplemental order of April 8, 1986 [see n. 2] determines from the preliminary evidence⁵ that Stapleton “is either indigent or, in the alternative, has intentionally and contumaciously placed himself in a position that [sic] he cannot comply with the Court’s Order of Support,” and hence “faces a loss or deprivation of liberty.” Thus, the circuit judge reasons, the Public Defender must respond under § 600.042.3(5) — as well as under the constitutional principle of Argersinger v. Hamlin, 407 U.S. 25 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)—to his request for legal services.

We need not, and do not, undertake to respond to this ravel of argument and counter-argument. Nor do we concede them validity. We observe only that our Supreme Court en banc has but recently related that the public defender system was a response to their opinion in State v. Green, 470 S.W.2d 571 (Mo. banc 1971) “that it was the duty of the State to provide legal services to ‘an indigent accused of crime,’ ” so that § 600.042.3, taken in terms of that antecedent history and its own context, “indicates that it is intended to require a public defender in the guilt determination stages of prosecution_” State ex rel. Marshall v. Blauer, 709 S.W.2d 111, 112[1] (Mo. banc 1986) [emphasis added]. We observe also the pre-Blauer ruling by the Eastern District in State ex rel. Shaw v. Provaznik, 708 S.W.2d 337 (Mo.1986), that the public defenders enactment “does not authorize a public defender to represent a person facing a charge of civil contempt” [at 339[1-3]]. See also State of Missouri ex rel. T. Patrick Deaton v. Honorable J. Miles Sweeney, 716 S.W.2d 21 (Mo.App.So.Dist.,1986). Nevertheless, a person found [or cited] to have “ ‘contemptuously placed himself in a position so that he cannot pay [the] child support awards,’ ” although entered in a proceeding of civil contempt, actually faces an indirect criminal contempt, so that, if indigent, is entitled to appointed counsel on constitutional principles and to the services of the public defender under § 600.042.3(4) [id. at 340].

Our decision rests, rather, on the second issue raised by the pleadings and argued, albeit not briefed: the authority of the circuit court under § 600.086.3 to act as the determinant, in the first instance, that the person is indigent, and hence eligible for representation by the Public Defender. The writ of prohibition functions to confine judicial activity to within the limits of a cognizable authority, so as to prevent the usurpation of judicial power. State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382[1-4] (Mo. banc 1980). The writ issues not of right, but at discretion, and is determined on grounds prompted by discretion. State ex rel. Hannah v. Seier, 654 S.W.2d 894, 895[1, 2] (Mo. banc 1983). Thus, a preliminary rule may be made absolute on a reason not briefed, but urged for the first time in oral argument, or “examin[ation of] new points not offered ab initio.” State ex rel. Carver v. Whipple, 608 S.W.2d 410, 412[1] (Mo. banc 1980). We determine that the determination in the first instance, by the respondent circuit judge that Stapleton was indigent impaired the duty of the public defender under § 600.086.3, constituted a judicial usurpation of authority, and an excess of jurisdiction. State ex rel. Shaw v. Provaznik, 708 S.W.2d at 339[1-3].

The procedure to determine the indigen-cy, and hence eligibility, of a person for representation by a public defender is delineated in § 600.086 of the enactment on Public Defenders. A person becomes eligible under that section: “when it appears from all the circumstances of the case including his ability to make bond, his income and the number of persons dependent on him for support that the person does not have the means at his disposal or available to him to obtain counsel in his behalf and is indigent as hereafter determined.” The actual determination of indigency, subsection 3 directs: “shall be made by the defender or anyone serving under him at any stage of the proceedings and shall be subject to appeal to the court before which the case is pending.” A person who claims indigency, moreover, must support that initiative by an affidavit of the factual information necessary for the determination of that issue. The “director or anyone serving under him” is empowered by subsection 5 to “institute an investigation into the financial status of any person seeking the services of the state public defender system” and is granted the authority to compel any person responsible for the support of the claimant or any person who holds property for the claimant to disclose information relevant to the inquiry — and even enables the investigator authority to probe records of public and private sources for information germane to the determination. The burden to persuade the defender or the court of the eligibility to receive legal services under the enactment, subsection 6 directs, “shall lie on the accused or the defendant.” A person who intentionally falsifies an affidavit with the purpose to obtain public defender services, subsection 4 declares, “shall be guilty of a class A misdemeanor.”

It is evident, as State ex rel. Shaw v. Provaznik, 708 S.W.2d at 341[4—6] holds, that under § 600.086.3

it is the public defender who must in the first instance determine eligibility within the financial rules of legal representation at public expense ... The judiciary is to intervene only upon appeal of the public defender’s adverse decision.

It is equally evident that the determination of indigency the statute contemplates, whether by the defender in the first instance or by the court on appeal, is judicial in nature: as a fact found from evidence under a burden of proof imposed, met and acquitted. The statute contemplates that the determination shall issue after a deliberate inquiry, and to that end, requires the claimant to assert verified facts in support, and empowers the defender access to information even otherwise privileged.

The action of the respondent circuit judge to adjudicate the indigency of the party Stapleton, not as a subject of appeal but in the first instance,⁶ was an arrogation under § 600.086.3, and prevented the public defender from the performance of that statutory duty. The respondent circuit judge exercised a subject matter jurisdiction the statute does not grant. It was an excess of jurisdiction the writ of prohibition will redress. State ex rel. Shaw v. Provaznik, 708 S.W.2d at 339[1-3].

Our preliminary rule in prohibition is made absolute.

CLARK, C.J., and PRITCHARD and DIXON, JJ., concur.

TURNAGE, J., concurs in separate opinion.

MANFORD, J., concurs in concurring opinion of TURNAGE, J., in separate opinion.

LOWENSTEIN, J., dissents in separate opinion.

Footnotes

1

. The motion of the prosecutor to cite for contempt is not before us as an exhibit or other supplement to this original proceeding for writ of prohibition. The excerpt is rescripted from the brief of the relator Public Defender and its authenticity is not disputed by the respondent circuit judge.

2

. The brief of respondent circuit judge cites a supplemental order entered by the court on April 8, 1986, an order not formally before us in these proceedings. The authenticity of that entry is not disputed, and since it bears on the arguments of law the principals present, we set out its terms. The order was, as we reconstruct it, entered contemporaneously with the order to deny the motion of the Public Defender to withdraw, also on April 8, 1986.

The trial court, having reviewed the verified application for contempt citation, and supporting affidavit, is not in a position to predetermine that the nature of the infractions is of insufficient gravity to warrant the imposition of imprisonment if Respondent is found in contempt of court, which would constitute a deprivation of liberty as contemplated by Section 600.042.3(5).

Furthermore, the Court has heard evidence from the Respondent himself leading to a finding by the Court that the Respondent is either indigent or, in the alternative, has intentionally and contumaciously placed him- ' self in a position that he cannot comply with the Court’s Order of Support, neither of which preclude a finding of contempt in any event.

3

. The director and defenders shall provide legal services to an eligible person:

(1) Who is detained or charged with a felony, including from a conviction in each 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 [a]

•

* case in which he faces a loss or deprivation of liberty, any law of this state requires the appointment of counsel.

Inadvertently omitted by the revisor of statutes. See L.1982, pp. 700-701.

4

. See State ex rel. Stanhope v. Pratt, 533 S.W.2d 567, 575 (Mo. banc 1976).

5

. If that evidence consists of testimony other than the terse Stapleton response our opinion already recites, it has not been reported to us.

6

. The perfunctory procedure adopted by the respondent circuit judge to come to the fact of indigency — even were the matter properly before the court as an appeal — lacks even color of compliance with the essential proofs the statute requires for that determination.