DocketNumber: No. SC 96931
Citation Numbers: 561 S.W.3d 380
Judges: Wilson
Filed Date: 12/4/2018
Status: Precedential
Modified Date: 1/21/2022
This Court has the authority to "issue and determine original remedial writs." Mo. Const. art. V, § 4.1. Relator, Jackson County Prosecuting Attorney Jean Peters-Baker *383("Relator"), seeks a writ of prohibition barring Respondent, Judge Bryan E. Round ("Respondent"), from enforcing his order disqualifying the entire Jackson County Prosecuting Attorney's Office ("PAO") in the underlying post-conviction case. As in State ex rel. Gardner v. Boyer ,
Background
Following a jury trial, the movant in the underlying case, Tyrone Skinner was convicted and sentenced accordingly.
When Wolpink joined the PAO, a screening process was implemented to ensure Wolpink would not participate in any cases in which she was involved while employed by the MPDS (or any case related to such cases). Specifically, the prosecuting attorney directed all assistant prosecuting attorneys to review their current cases to determine whether Wolpink had been previously involved. Once the cases in which Wolpink had been previously involved had been identified, the deputy prosecuting attorney sent an office-wide e-mail indicating no one was to have contact with Wolpink regarding those cases. This list of cases was updated as the office became aware of additional cases in which Wolpink was involved, or as new cases were filed.
In February 2017, Skinner's new counsel filed an amended post-conviction motion.
*384After considering the parties' arguments, Respondent sustained Skinner's motion, disqualified the entire PAO, and appointed the Missouri Attorney General's Office ("AGO") to act in its place.
A few days later, Relator filed a motion to set aside Respondent's disqualification order, and a hearing was held. Sauls was the only witness called at this hearing. He testified the screening process in place at the PAO prevented Wolpink from having contact with any individual working on a case in which she was previously involved (or any case related to such cases), including Skinner's post-conviction proceeding. After confirming he was lead counsel for the state on Skinner's case, Sauls stated he had not had contact with Wolpink regarding Skinner's case, nor did he have knowledge of any confidential information Wolpink may have learned in her capacity as Skinner's direct appeal counsel. Sauls also confirmed that, going forward under the screening process, he would have no contact with Wolpink regarding Skinner's case. Nevertheless, Respondent issued an order overruling Relator's motion to set aside.
Thereafter, Relator sought a writ of prohibition in the court of appeals, and her petition was subsequently denied. Relator then sought the same relief in this Court, and a preliminary writ was issued. On September 6, 2018, oral argument was held and this case was submitted. A few days later, Respondent filed a motion to dismiss, claiming the preliminary writ should be dismissed based on a "change of a major material fact," i.e., Wolpink was no long employed by the PAO.
Analysis
"The writ of prohibition, an extraordinary remedy, is to be used with great caution and forbearance and only in cases of extreme necessity." State ex rel. Douglas Toyota III, Inc. v. Keeter ,
The Court will first address Respondent's motion to dismiss. Although Respondent does not expressly claim mootness, that is, in essence, the basis on which Respondent argues this case should be dismissed. "A case is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." State ex rel. Hawley v. Heagney ,
This case was rendered moot when Respondent vacated the disqualification order on October 3, 2018, because, after that date, a decision by this Court "would not have any practical effect upon any ... existing controversy." Hawley ,
Proceeding to the merits, in Lemasters, this Court set forth the framework to be applied when the disqualification of an entire prosecutor's office is sought. First, the court must determine whether a particular attorney in the office has a conflict prohibiting that attorney's participation in the underlying case. Lemasters ,
*386As in Lemasters - and unlike in Gardner - there is no debate here regarding whether an individual attorney had a conflict of interest prohibiting that attorney's participation in the underlying case. Wolpink plainly had a conflict prohibiting her from participating in Skinner's case in any way.
Application of the appearance of impropriety test conclusively shows that Wolpink's conflict should not be imputed to the entire PAO. The uncontroverted evidence shows the PAO implemented a "thorough and effective screening process" as required by Lemasters .
Despite this Court's holding in Lemasters and its application here, Respondent sustained Skinner's motion to disqualify, finding, "Wolpink owes a duty of ongoing loyalty to Movant, her former client, and that duty is inconsistent with the duties of her current office." Although Respondent correctly found Wolpink had an individual conflict (albeit for the wrong reason),
Respondent did, however, address whether Wolpink's conflict should be imputed during the hearing on Relator's motion to set aside. During that hearing, Respondent explained the decision to disqualify *387the entire PAO "was simply [out of] an abundance of caution." He explained he did not "see that there [was] a risk worth taking." Respondent also made clear he was not "accusing anybody of acting improperly," but, rather, he was concerned that it was "impossible to know what could happen and even though these screening practices are set up, it's impossible to say that there can't be some way in which there isn't an[ ] inadvertent disclosure, innocent as it may be, that could [a]ffect the case." In light of Lemasters , however, such vague and unsubstantiated reasons are insufficient to support disqualification of the entire PAO.
Moreover, contravention of Lemasters is not the sole basis on which the Court makes its preliminary writ permanent. Here, the writ must be made permanent because - as in Gardner - Respondent's order disqualifying the entire PAO will cause Relator to suffer "absolute irreparable harm" absent intervention by this Court. Douglas Toyota III, Inc. ,
The unparalleled authority of the American prosecutor has often been attributed to the fact that district attorneys in the United States are elected, county-level officials. Prosecutorial power, in this view, is an outgrowth of the peculiar emphasis the United States places on local, democratic control. The "locally elected status" of American prosecuting attorneys provides them with an "independent source of power" and is the reason they enjoy "discretionary privilege unmatched in the world."
David Alan Sklansky, The Nature and Function of Prosecutorial Power ,
Therefore, by disqualifying Relator, Respondent infringed upon Relator's ability to carry out her duties as "a public officer." State ex rel. Griffin v. Smith ,
The harm, however, does not stop at Relator. Respondent's order also affects the people of Jackson County. By virtue of her position as an elected prosecuting attorney, *388most, if not all, of Relator's duties "involve a good faith exercise of the sound discretion." State on inf. McKittrick v. Wallach,
Due to the irreparable harm caused when an entire prosecuting attorney's office is disqualified, a circuit court should not do so absent a finding of an actual conflict of interest that must be imputed to the entire office under either the Rules of Professional Conduct or the appearance of impropriety test. Lemasters ,
To be clear, the Court does not hold a screening process will always be sufficient to dispel an appearance of impropriety.
In short, only in rare circumstances should a circuit court interfere with the democratic process and override the voters' choice as to who is best suited to represent the interests of the people as prosecuting attorney, even with respect to a single case. Unless there is an individual attorney with a conflict of interest that prevents his or her participation in the case, and that attorney's conflict must be imputed to the entire office either under the Rules of Professional Conduct or because *389"a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial" to the defendant, id. at 423, circuit courts should not interfere with the elected prosecuting attorney's statutorily authorized duty to represent the interests of the public by ordering an unnecessary, office-wide disqualification. Griffin ,
Conclusion
For the reasons set forth above, this Court's preliminary writ of prohibition is made permanent.
All concur.
Skinner was convicted of unlawful use of a weapon and armed criminal action. He was sentenced concurrently for a total prison term of 18 years.
Before his direct appeal had concluded, Skinner filed a premature pro se motion for post-conviction relief in July 2014. See Rule 29.15(b) ("If an appeal of the judgment ... is taken, the motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming such judgment or sentence."). Accordingly, the circuit court stayed Skinner's post-conviction proceeding and suspended the due date of Skinner's amended motion until 90 days after the mandate issued on his direct appeal. Because Skinner's premature filing of the pro se motion, and the circuit court's subsequent staying of the underlying proceedings, are not at issue in this writ proceeding, the procedure of the underlying case will not be addressed further.
Skinner's amended post-conviction motion did not include any claims against Wolpink but stated she may be called as a witness.
In its motion to dismiss, Respondent informed the Court Wolpink provided the PAO with official notice of her termination on September 7, 2018, and indicated her last day of employment would be Friday, September 28, 2018.
It also appears the second exception, known as the "public interest" exception, applies here. Gurley ,
See , e.g. , Rule 4-1.10 "Imputation of Conflicts of Interest: General Rule;" and Rule 4-1.11 "Special Conflicts of Interest for Former and Current Government Officers and Employees."
In Gardner ,
Because, under Rule 4-1.11(a), Wolpink is "a lawyer who has formerly served as a public officer or employee of the government," Rule 4-1.11(a)(2) prohibited her participation in the state's representation in Skinner's post-conviction case because such proceedings were "in connection with a matter in which [Wolpink] participated personally and substantially," i.e., Skinner's direct appeal. Likewise, Wolpink was required to comply with Rule 4-1.9(c), which prohibited her "(except in circumstances not pertinent here) from revealing any information relating to her representation of [Skinner] or using such information to his disadvantage." Lemasters ,
Because Wolpink is both a former and a current public officer or employee, the relevant rule to consult is Rule 4-1.11(b). Lemasters ,
Wolpink's conflict was not due to her "ongoing duty of loyalty," but rather, as explained above in note 8, under Rule 4-1.11(a)(2).
In his order disqualifying the entire PAO, Respondent relied on section 56.110, RSMo 2016, which provides, "If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his or her office, ... the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause." § 56.110 RSMo 2016. At most, section 56.110 gives Respondent the authority to disqualify Wolpink due to her individual conflict because section 56.110 plainly refers to a personal (as opposed to an imputed, office-wide) conflict. Section 56.110 makes no mention of the situation present here, i.e., whether Wolpink's conflict should be imputed to the entire PAO. Moreover, under no circumstances does the authority conferred by section 56.110 permit Respondent to not follow this Court's decision in Lemasters with the resulting irreparable harm discussed below.
This Court does not believe Respondent intended to cause such harm. Indeed, it appears Respondent did not believe there was any harm at all. At the hearing on Relator's motion to reconsider, Respondent asked Relator, "What's the big deal? Why are you guys [ (i.e., Relator) ] so adamant about who represents the State on this case?" But whether Respondent recognized it, the harm caused by his order is both substantial and irreparable.
Another example in which the appearance of impropriety test was satisfied is State v. Ross ,