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Public Defender Crisis Not Grounds for Suing State, Nor Governor

By George Khoury, Esq. on January 16, 2019 | Last updated on March 21, 2019

The state of Missouri and the state's governor, Michael Parson, can let out a collective sigh of relief.

That's thanks to a recent decision of the Eighth Circuit Court of Appeals ruling that each could claim sovereign immunity in the class action alleging the state denies indigent defendants adequate counsel because the state's public defenders are overworked, understaffed, and underfunded. And while the state and the governor may be off the hook, the case is far from over, as the state's public defender office, and several other defendants, were not dismissed.

Prioritizing Public Defense

Notably, the appellate decision means that ordering the state to provide more funding for public defenders is now off the table. Though, that was a long shot regardless as courts are loathe to order government entities to take actions that traditionally would be decided by legislative bodies. Surprisingly though, the state governor has withheld millions in funding from the public defender office, which could have helped to hire more attorneys.

But one of the remedies the court may be able to order could involve imposing limits on the number of cases public defenders could be assigned, and requiring the state to release non-violent offenders and put them on a waitlist for a public defender, and postpone trial until a public defender is available. Notably, Missouri spends the second least among the states on indigent defense at roughly $350 per case.

Legislative and Sovereign Immunity

In addition to sovereign immunity, Governor Parson, who was named in the suit after taking over office for Governor Greitens, asserted legislative immunity, claiming the case against him stemmed solely from his legislative action. The appellate court agreed, finding that the governor's role in ensuring indigent defense is provided by the state is limited, and that the actions alleged in the complaint compromise legislative action, for which, he cannot be sued over.

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