# MO Governor Appointed as Public Defender (Legal?) **URL:** \ **Category:** In My Humble Opinion\ **Created:** [August 4, 2016, 6:10pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763 "2016-08-04T18:10:50Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [August 4, 2016, 6:10pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/1 "2016-08-04T18:10:50Z")
[Missouri’s head public defender assigns case to Gov. Nixon, cites overburdened staff](http://www.stltoday.com/news/local/state-and-regional/missouri-s-head-public-defender-assigns-case-to-gov-nixon/article_37809be0-b7ee-56b4-b478-bf8dfe01720f.html) > [@](#): > > Fed up with what he says is the governor’s failure to properly fund his overwhelmed office, the state’s lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month. > > Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation “to any member of the state bar of Missouri.” He’s starting with the state’s highest-profile lawyer: Nixon. > > Barrett says the governor has repeatedly declined to give the public defender system the money it requests and is withholding promised funding increases this year. I was originally thinking of putting this in MPSIMS because it’s a cute story, but I was also wondering about the legality of it. I would have thought the term “extraordinary circumstances” in context meant a genuine emergency that required the services of this particular lawyer. In this case, the guy is singling out the governor because he wants to pressure him to do what he (Barrett) wants, i.e. increase funds for his office. It’s hard to imagine that the law intended to give him the power to do that, and I’m wondering if that type of thing can stand up. I suppose in theory, if you buy in to the notion that this situation constitutes extraordinary circumstances, then he could force anyone he wants for any reason. Some lawyer he tangled with about something or other, a state legislator who he wants to pressure over something else. Here, it’s more closely tied to the need for public defenders, because he wants to alleviate the “extraordinary circumstances” by getting the governor to increase funding, but I don’t see how that matters legally. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [August 4, 2016, 6:40pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/2 "2016-08-04T18:40:28Z")
I would think the Governor can get out of it\*, but I like the move. And it will probably accomplish a more productive discussion of funding indigent defense services in Missouri. \*I’d raise the conflict of interest between the state prosecuting the individual and the prospect of the chief executive of the state defending him. ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [August 4, 2016, 6:55pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/3 "2016-08-04T18:55:28Z")
I agree with Procrustus, that the governor would probably have to recuse himself do to the conflict of interest. But I applaud the move. Ideally, Barrett should move on to any members of the bar in the statehouse and then prominent, high-priced Kansas City and St. Louis attorneys until there is enough political pressure to provide adequate funding to the department. ---
**Author:** ![ivylass](https://avatars.discourse-cdn.com/v4/letter/i/9de053/32.png) [@ivylass](https://boards.straightdope.com/u/ivylass)\ **Post date:** [August 4, 2016, 7:39pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/4 "2016-08-04T19:39:46Z")
As a publicity stunt, I think it’s brilliant. We’ll see what shakes out of the tree. ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [August 4, 2016, 9:36pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/5 "2016-08-04T21:36:02Z")
> [@Fotheringay-Phipps](#): > > I was originally thinking of putting this in MPSIMS because it’s a cute story, but I was also wondering about the legality of it. I would have thought the term “extraordinary circumstances” in context meant a genuine emergency that required the services of this particular lawyer. In this case, the guy is singling out the governor because he wants to pressure him to do what he (Barrett) wants, i.e. increase funds for his office. It’s hard to imagine that the law intended to give him the power to do that, and I’m wondering if that type of thing can stand up. I would take “extraordinary circumstances” to mean merely “there’s nobody in this office who can handle it,” rather than having anything to do with a particular lawyer. When the law was passed, it was probably intended for cases where every available lawyer in the office had a conflict of interest; here, the guy is saying there’s nobody in the office who can handle it because they’re already so overworked and juggling too many cases, so he has to appoint outside counsel. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [August 4, 2016, 10:14pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/6 "2016-08-04T22:14:07Z")
> [@Procrustus](#): > > I would think the Governor can get out of it\*, but I like the move. And it will probably accomplish a more productive discussion of funding indigent defense services in Missouri. > \*I’d raise the conflict of interest between the state prosecuting the individual and the prospect of the chief executive of the state defending him. I don’t find that a compelling argument. The state pays the regular public defenders. Honestly, I tend to think that it cuts the other way. After all, it’s the executive’s job to enforce the laws, which means that the Governor arguably has a **greater** duty to personally step in to get the job done. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 4, 2016, 10:57pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/7 "2016-08-04T22:57:22Z")
> [@Flyer](#): > > I don’t find that a compelling argument. The state pays the regular public defenders. > > Honestly, I tend to think that it cuts the other way. After all, it’s the executive’s job to enforce the laws, which means that the Governor arguably has a **greater** duty to personally step in to get the job done. Of course it is a conflict. He would have an ethical duty to use any legal tool available to help his client. As Governor, he has the pardon power. He just ticks off his client list: pardon, pardon, pardon… ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [August 4, 2016, 11:13pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/8 "2016-08-04T23:13:58Z")
What kind of Democratic governor vetoes spending for public defenders? ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [August 5, 2016, 12:49am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/9 "2016-08-05T00:49:26Z")
> [@Trinopus](#): > > What kind of Democratic governor vetoes spending for public defenders? The kind that can get elected in Missouri. 😉 ---
**Author:** ![RetroVertigo](https://avatars.discourse-cdn.com/v4/letter/r/b38774/32.png) [@RetroVertigo](https://boards.straightdope.com/u/RetroVertigo)\ **Post date:** [August 5, 2016, 1:12am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/10 "2016-08-05T01:12:09Z")
> [@Fotheringay-Phipps](#): > > [Missouri’s head public defender assigns case to Gov. Nixon, cites overburdened staff](http://www.stltoday.com/news/local/state-and-regional/missouri-s-head-public-defender-assigns-case-to-gov-nixon/article_37809be0-b7ee-56b4-b478-bf8dfe01720f.html)I was originally thinking of putting this in MPSIMS because it’s a cute story, but I was also wondering about the legality of it. I would have thought the term “extraordinary circumstances” in context meant a genuine emergency that required the services of this particular lawyer. In this case, the guy is singling out the governor because he wants to pressure him to do what he (Barrett) wants, i.e. increase funds for his office. It’s hard to imagine that the law intended to give him the power to do that, and I’m wondering if that type of thing can stand up. > > I suppose in theory, if you buy in to the notion that this situation constitutes extraordinary circumstances, then he could force anyone he wants for any reason. Some lawyer he tangled with about something or other, a state legislator who he wants to pressure over something else. Here, it’s more closely tied to the need for public defenders, because he wants to alleviate the “extraordinary circumstances” by getting the governor to increase funding, but I don’t see how that matters legally. I get the reason behind his stunt, and agree with position. However, is it really fair to that eventual defendant to assign a lawyer who hasn’t argued a case in almost a decade. ---
**Author:** ![5\_time\_champ](https://avatars.discourse-cdn.com/v4/letter/5/278dde/32.png) [@5\_time\_champ](https://boards.straightdope.com/u/5_time_champ)\ **Post date:** [August 5, 2016, 1:52am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/11 "2016-08-05T01:52:19Z")
While I voted for Jay Nixon a number times over the years, he is the epitome of the saying: Never let the perfect be the enemy of the good. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [August 5, 2016, 2:52am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/12 "2016-08-05T02:52:06Z")
[Nixon says Barrett doesn’t have the authority.](http://www.stltoday.com/news/local/govt-and-politics/nixon-says-public-defender-maneuver-not-legal/article_3b78abf2-30d8-54f6-9873-2634583e5091.html) ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 5, 2016, 3:07am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/13 "2016-08-05T03:07:26Z")
> [@RetroVertigo](#): > > I get the reason behind his stunt, and agree with position. However, is it really fair to that eventual defendant to assign a lawyer who hasn’t argued a case in almost a decade. Excellent point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2016, 3:20am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/14 "2016-08-05T03:20:02Z")
Perhaps more to the point, the Missouri Supreme Court says: > [@](#): > > Some suggestion has been made that the director of the public defender’s office has the ability to appoint members of the private bar to work for free under section 600.042.5(1), RSMo 2000. Section 600.042.5(1) provides that “[t]he director may … [d]elegate the legal representation of any person to any member of the state bar of Missouri.” However, section 600.042 states that the director only may assign cases to members of the private bar if the assigned counsel is paid for the work he or she is assigned to do. Quoting State ex rel. Missouri Public Defender Comm. v Pratte, 298 S.W.3d 870, 890 at FN 35 (2009). Moreover: > [@](#): > > However, the primary authority and responsibility for relieving the problem of limited public defender resources remains with the General Assembly. It may add resources or may choose to relieve the public defender of representing indigents accused of violating municipal ordinances, and either require cities to provide counsel or remove municipal authority to impose incarceration for violation of ordinances. Sullivan v. Dalton, 795 SW 2d 389, 391 (1990). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 5, 2016, 7:44am UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/15 "2016-08-05T07:44:46Z")
Maybe I’m missing something. But I would have thought having the power to delegate the job to any lawyer in the state meant that Barrett could use lawyers who weren’t employees of the Public Defender’s office. I don’t think it means Barrett has the power to compel lawyers to serve as public defenders. ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [August 5, 2016, 1:22pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/16 "2016-08-05T13:22:04Z")
So if I’m reading Bricker’s second quote correctly, the court has said that it’s ultimately the responsibility of the General Assembly to provide resources for the PD office, or to require cities themselves to either provide counsel or not be allowed to lock people up. Yes, I can see how that would work really well. :rolleyes: ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [August 5, 2016, 3:06pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/17 "2016-08-05T15:06:22Z")
> [@Bricker](#): > > Perhaps more to the point, the Missouri Supreme Court says: > > Quoting State ex rel. Missouri Public Defender Comm. v Pratte, 298 S.W.3d 870, 890 at FN 35 (2009). Well, the beauty of assigning the Governor to the case is that he presumably is already being compensated by the state ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 5, 2016, 4:43pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/18 "2016-08-05T16:43:34Z")
I don’t believe a court would find that “extraordinary circumstances” means “any time the head of the agency believes that the agency is receiving a lower budget allocation than he would like.” I agree that in many (all?) states, the public defenders are woefully underfunded. It’s politically an easy area to cut and a difficult one to fund. The job here is for the courts to determine what is a minimum constitutional level of representation that a defendant is entitled. For one lawyer to have 125 active criminal cases at once is absurd and an effective denial of representation. However, in many cases, the courts exacerbate the problem. In my state, the Supreme Court has ruled that we must file “Anders” types of appeals in state habeas cases (when the lawyer believes that the issues raised are frivolous, we file a brief anyways if the client demands). That’s absurd. First, the state is not required to even have a post-conviction relief system, and if it does, prisoners are not guaranteed the right to counsel at the trial stage, let alone the appellate stage. Anders was related to a direct appeal, not a denial of a habeas petition. It seems as if on one hand, we want to bend over backwards to give defendants more meaningless procedural rights (and an Anders appeal is about as tree killingly meaningless as you can get) without paying for it. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 5, 2016, 6:58pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/19 "2016-08-05T18:58:15Z")
> [@Procrustus](#): > > I would think the Governor can get out of it\*, but I like the move. And it will probably accomplish a more productive discussion of funding indigent defense services in Missouri. > \*I’d raise the conflict of interest between the state prosecuting the individual and the prospect of the chief executive of the state defending him. I was under the impression that most prosecutions under state laws were actually handled by the cities or counties? If so, does that affect the conflict issue? ---
**Author:** ![Dendarii\_Dame](https://avatars.discourse-cdn.com/v4/letter/d/bbce88/32.png) [@Dendarii\_Dame](https://boards.straightdope.com/u/Dendarii_Dame)\ **Post date:** [August 5, 2016, 7:55pm UTC](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763/20 "2016-08-05T19:55:02Z")
This is the kind of thing I’d expect to happen on a show like Boston Legal. [Next page](https://boards.straightdope.com/t/mo-governor-appointed-as-public-defender-legal/761763.md?page=2)