“Hit or miss” might be the best way to describe the approach to legislation affecting the state’s legal community this summer.

Big pushes to alter the state’s judicial selection plan and bar punitive damages for public entities failed to make it to Gov. Jay Nixon’s desk. The issues received floor time, but the legislation didn’t have the momentum to overcome strong opposition.

Lawmakers, however, did end up passing legislation meant to alleviate some problems with child support cases and were poised to pass legislation designed to reduce the public defender system’s burgeoning caseload. The legislature even provided some extra money to the public defenders, an entity that usually finds itself on the outside looking in during the budget process.

Overall, budget writers also managed to keep funding for the judiciary steady amid a worsening economy.

Fight over Non-Partisan Court Plan stalls

Lawmakers critical of the Missouri Non-Partisan Court Plan pushed a raft of changes farther upstream in the legislative process than in past sessions.

While most of the state’s judges are elected, some are chosen in a system commonly known as the “Missouri Plan.” When a position in the state Supreme Court, an appeals court or certain circuit courts become vacant, the Appellate Judicial Commission selects three nominees to present to the governor. The governor can either select one of the choices or turn the decision over to the commission.

The plan is seen by some as a model for the rest of the country for choosing some of the state’s judges. But lawmakers pushing changes to the plan argued that the process is dominated by attorneys and shrouded in secrecy.

A proposed resolution called for a constitutional amendment that would have provided the governor with another appointee on the Appellate Judicial Commission. The amendment also would have made the terms of these gubernatorial appointments concurrent instead of staggered and would have posted the names of applicants to judicial positions online. A Senate version of the resolution would have given the governor five nominees to select from instead of three, allowed the governor to reject a judicial panel and let him or her receive a completely new list of nominees. That version also proposed removing the chief justice of the Missouri Supreme Court from the commission.

While the resolution made it to the floor of the Senate, opponents blocked the amendment from coming to a vote. The measure’s sponsor, Sen. Jim Lembke, R-St. Louis County, said it’s more likely the matter will come to the ballot through the initiative petition process.

“I just think it’s positive that we continue to debate this issue,” Lembke said.

But the changes drew the ire of the Missouri Bar Association, which came out strongly against changes to the plan. Skip Walther, a Columbia attorney who is the president-elect of the organization, said that the measure would inflict serious harm to the Missouri Plan.

“Judges in this state have enjoyed without any doubt an outstanding reputation,” Walther said. “We are blessed with a fine judiciary, and it’s primarily because we select judges the right way.”

Help on way for public defenders

Earlier this year, Missouri Supreme Court Chief Justice Laura Denvir Stith urged lawmakers to assist the state’s public defender system. For years, officials in that system have been sounding the alarm about the system’s burgeoning caseload, saying it threatens to deny criminal defendants their constitutional rights.

The legislators appeared to be listening, as a proposal crafted to help ease the caseloads of public defenders was sailing through the legislature.

Sen. Jack Goodman’s bill would allow the state’s Public Defender Commission to implement a maximum caseload standard. Goodman, R-Mt. Vernon, and others have argued that failure to allow such authority would place public defenders at risk of violating ethical obligations.

“These are folks who came out of law school with debt loads that exceed many people’s first- or second-time mortgages,” Goodman said earlier this year. “It’s not usually… a sexy cause for me to take up, advocating for more people to defend accused criminals. But I come at this from the perspective of a former assistant prosecuting attorney. And I have seen this crisis building and percolating over several years.”

Every defendant has a constitutional right to a speedy trial, and lawmakers have expressed concern that excessive workloads could lead to sentences being overturned because of poor representation in court.

Under the provisions of the bill, the director of the public defender system could contract excess cases – misdemeanors and low-level felonies – to private counsel when funds are available. If the money isn’t available, the director would notify the court that a public defender is unavailable. Any person who is eligible for services from the public defenders’ office would be placed on a waiting list.

The bill received unanimous support in the Missouri Senate and was up for final reading in the House as of press time.

Judiciary avoids budget cuts

Even in a sluggish economy, the state’s judiciary managed to avoid budget cuts thanks to the influx of a few million dollars in federal stimulus money.

The legislature ultimately adopted the Senate’s recommendation to appropriate about $190 million to the state’s judiciary, a slight increase from the previous fiscal year. Roughly $163 million came from state general revenue; $10 million is from federal funds and $10 million is derived from other sources. The judiciary also was allocated roughly $7 million from a vat of federal stimulus money that can be used for any purpose.

The Senate’s plan initially conflicted with the House version, which proposed reductions for circuit courts and the Office of State Courts Administrator. But House Budget Chairman Allen Icet, R-Wildwood, said the House had to compromise in order to craft a budget before a statutory deadline.

“Not that I actually liked to do that, but I was trying to reach a compromise in order to move the budget process forward,” Icet said.
Public defenders also received a slight increase in funding compared to last year, a boost that could be used to hire a small number of new employees. The agency could also receive $2 million in federal stimulus money to contract with private attorneys.

Icet argued the cash could help pare down the public defender’s caseload. When that occurs, he said, the state might pay less money in per diems to keep prisoners in county jails. That, he said, could make the money self-sustaining in subsequent budget years.

Cathy Kelly, the state’s deputy public defender, said the money will go a long way in helping the system go through its caseload. For example, Kelly said the contracting funds could allow public defenders to focus on cases closer to where they work instead of having to travel long distances to deal with faraway clients.

“That’s a huge time drain,” Kelly said, “because obviously they have to drive to another county to meet the client at the jail.”

Still punitive damages for public entities

Another controversial initiative pushed this year sought to bar public entities – such as schools or government agencies – from having to pay punitive damages.

The bill laid bare two distinct philosophies in the legislature. Some agreed with the bill’s sponsor, Rep. Tim Jones, R-Eureka, who said it was unwise to allow public dollars to be paid out for punitive damages in lawsuits.

“They’re not like a corporation,” Jones said during House debate on the legislation. “We appropriate the money to them, and it’s taxpayer money. So the taxpayers end up (paying) the bill for those claims.”

But other lawmakers argued that the bill absolved public entities of certain responsibility in the case of wrongdoing. That’s part of the argument David Moen, an attorney from Jefferson City, made to a Senate committee earlier this year.

“You’ve got to have a stick to hit the bad actor with,” Moen said. “And if you take it away, there won’t be any.”

While the bill also managed to get to the Senate floor for debate, it was killed by a Democratic filibuster.

Fatherering courts expanded

One bill that did make it through the legislative process was a bid to expand what are commonly known as “fathering courts.”

Sen. Jeff Smith’s bill allows circuit courts to establish separate entities to dispose of cases stemming from criminal nonsupport violations. These courts will have the authority to send defendants to educational, vocational or employment training, substance abuse treatment or work programs.

Individuals convicted of failing to pay for child support could have their sentences reduced if court-ordered treatment programs are completed or if those individuals resume payments. Additionally, the penalty for nonsupport would be lowered to a class A misdemeanor unless the defendant owes more than 12 months in child support payments. If that occurs, the offense reverts back to being classified a class D felony.

Smith said the bill would relieve the overcrowding of dockets due to child support cases. He added the measure would give people who are having trouble paying child support a way to rectify their situation.

The bill passed the Senate and the House without any opposition. Smith’s bill is currently awaiting Nixon’s signature.