Public defenders: Withholdings case should go to trial

The Missouri public defender system's challenge to Gov. Jay Nixon's budget withholds should go forward, attorney Jacqueline Shipma told Circuit Judge Jon Beetem Monday in a four-page filing.

Shipma's brief was a response to the state's 12-page "renewed motion to dismiss" - or, in the alternative, to rule in the state's favor - filed Oct. 21 by Solicitor General Jim Layton.

Both sides are continuing to argue about State Public Defender Michael Barrett's lawsuit, filed in July after Nixon's July 6 withholding of $3.5 million in new money for the statewide public defender system, as part of a larger action blocking, at least temporarily, spending that had been authorized in the Legislature's 2016-17 budget the governor had signed.

Nixon since has restored some of the withheld funds announced in July, but none of the public defender money has been restored.

Barrett argued in his lawsuit the governor's action violated Missouri's Constitution, when he withheld more money from the public defender system's budget than he withheld from other budget lines.

Shipma's motion Monday first argued Layton's motion asked Beetem to rule the case isn't timely, even after Beetem ruled Sept. 28 that three of the four issues raised in the original lawsuit could be tried now.

Shipma also noted Layton's "second and third points rely on the unsupported claim that the Office of State Public Defender is an agency subject to the governor's withhold authority in" the state Constitution.

Layton asked Beetem to rule in the state's favor, based on the "pleadings" the state made in its defense against the public defender's original lawsuit.

Barrett argued in July that public defenders are part of the Judicial branch of state government, and the governor can't withhold money in that part of the budget unless he withholds money from all parts of state government - which the July withholdings didn't do.

Layton wrote in the Oct. 21 filing: "The Public Defender System is a state agency performing an executive function (and) is thus subject to governors' authority to reduce appropriations."

And, Layton argued, since the public defenders don't perform either judicial or legislative functions, they must be part of the executive branch of government.

But, Shipma said, state law is clear that "the Office of State Public Defender is an independent department of the judicial branch of state government."

And, she wrote, "Interpreting Article IV, Section 27 (of the Constitution) to allow a withholding against the Office of State Public Defender would result in a violation of the separation of powers clause of the Missouri Constitution."

While the issue is one of "first impression" - meaning the courts haven't ruled on it before - Shipma wrote: "Defendant is not entitled to judgment as a matter of law.

"Plaintiffs have stated a claim for relief (and) Defendant's arguments against Plaintiffs' claims and interpretation of the law may be raised after Plaintiffs have had the opportunity to present its case to the Court."

In a brief appearance before Beetem last Friday, both Layton and Shipma said they didn't need to make oral arguments on their dueling briefs - so now it again is up to Beetem to decide if the public defenders' case against Nixon and the withholds is an issue that needs a court trial.