DocketNumber: 2017-SC-000092-DG
Citation Numbers: 553 S.W.3d 246
Judges: Keller
Filed Date: 8/16/2018
Status: Precedential
Modified Date: 10/15/2022
"I think the first duty of society is justice." Wendell Phillips, Disunion: Two Discourses at Music Hall (Jan. 20, *2511861 and Feb. 17, 1861). "Seeing that all men are born equal, our first civil duty is to see that our laws treat them so." Id. To this end, it is a strong tradition within our nation that all those charged with a crime are entitled to the effective assistance of counsel, no matter their financial assets. "[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. ... The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." Gideon v. Wainwright,
It is with this respectful stance that we must today examine the role of the public defender within the greater governmental composition. The parties before us ask this Court to determine whether a public defender, as an employee of the Department of Public Advocacy (DPA), a statutorily-created agency of the Commonwealth, is entitled to qualified immunity within our overall immunity analysis. The Hardin Circuit Court and Court of Appeals determined that these attorneys are entitled to claim the defense of qualified immunity. After thorough examination of our case law and the history and treatment of public defenders, we affirm those holdings and determine that employees of the DPA are entitled to assert qualified immunity within the proper context.
I. BACKGROUND
Steven M. Jacobi was appointed a public defender after being indicted in Hardin County. F. Larry Holbert, then an attorney with the local office of the DPA, served as Jacobi's counsel. In August 2003, Holbert facilitated a plea agreement on Jacobi's behalf in two separate cases. Jacobi was ultimately found guilty of manufacturing methamphetamine (gun enhanced), manufacturing methamphetamine (second offense), and possession of drug paraphernalia (second offense). Each case had a recommended concurrent sentence of twenty years and the two cases were to run consecutively for a total forty-year sentence. The sentences were, however, probated for five years.
In 2004, Jacobi's probation was revoked, and he was ordered to serve his forty-year sentence. In 2007, Jacobi was informed he was required to serve 85% of his sentence, pursuant to Kentucky Revised Statute (KRS) 439.3401, before parole eligibility, because he qualified as a "violent offender." He subsequently filed for post-conviction relief and the Court of Appeals, after the trial court's initial denial without hearing, required the circuit court to conduct a hearing as this mistake in advice could have been ineffective assistance of counsel. The prosecution and defense, instead, agreed to vacate the judgment of conviction and entered a newly-negotiated guilty plea. After being sentenced to a total twenty-year sentence, Jacobi was ultimately discharged from custody.
After his release, Jacobi filed a malpractice action against Holbert in Hardin Circuit Court in 2015, alleging that as a result *252of Holbert's negligent advice regarding parole eligibility, Jacobi had served years longer in prison than he expected when entering his guilty plea. The circuit court granted Holbert's motion to dismiss, finding that Holbert was entitled to qualified official immunity from suit. The Court of Appeals affirmed the trial court's dismissal, determining that Holbert, as an employee of the DPA was entitled to invoke the defense of qualified immunity in these circumstances. We granted discretionary review to resolve this important issue within our criminal justice system.
II. STANDARD OF REVIEW
"[W]hether a particular defendant is protected by official immunity is a question of law ... which we review de novo. " Rowan County v. Sloas,
III. ANALYSIS
A. THE IMMUNITY ANALYSIS FRAMEWORK
" 'Official immunity' is immunity from tort liability afforded to public officers and employees for acts preformed in the exercise of their discretionary functions." Yanero v. Davis,
Thus, we must first determine whether the DPA itself is a state agency to which immunity has been granted. "Governmental immunity extends to state agencies that perform governmental functions (i.e., act as an arm of the central state government) and are supported by money from the state treasury." Autry v. Western Kentucky University,
If the agency is determined to be clothed in immunity, we must resolve whether the agency's immunity extends to the particular acts of the employee in question. "Qualified official immunity applies to public officers or employees if their actions are discretionary (i.e., involving personal deliberation, decisions, and judgment) and are made in good faith and within the scope of their authority or employment." Caneyville Volunteer Fire Dept.,
B. THE ROLE OF THE DPA
The first determination we must make involves assessing what the DPA actually does. See Autry,
Historically, the DPA in Kentucky has been underfunded and overworked. In 2014, public defenders were appointed in 156,699 cases, averaging out to about 472 new cases per year per each public defender. David Serchuk, Kentucky Bar Association task force seeks to increase funding for burdened public defenders, INSIDER LOUISVILLE (June 19, 2015), https://insiderlouisville.com/government/kentucky-bar-association-creating-task-force-increase-funding-states-public-defenders/. This number has continued to rise. In the DPA's 2017 Annual Litigation Report, the organization reported 163, 158 total trial and post-trial cases, averaging 459 per attorney with only $276 funding per each case. DEPARTMENT OF PUBLIC ADVOCACY , ANNUAL LITIGATION REPORT ABOVE AND BEYOND: NOT THE PROBABLE , THE POSSIBLE FISCAL YEAR 2017, 2 (2017).
Yet, despite these challenges, the DPA continues to strive to perform its legislatively-directed tasks. These tasks are not limited to the important role of representing every single indigent defendant who requests, and is entitled to, an attorney. KRS 31.030 lists multiple authorities and duties for the DPA and even states that the list is not exhaustive. Some of these tasks include "promulgating standards and administrative regulations, rules, and procedures[,]" KRS 31.030(4) ; "[c]onducting *254research into, and developing and implementing methods of, improving the operation of the criminal justice system with regard to indigent defendants and other defendants in criminal actions," KRS 31.030(8) ; and to "seek and apply for and solicit funds for the operation of the defense of indigent persons or protection of the persons with disabilities programs from any source, public or private ..." KRS 31.030(12). These are just a few of the diverse and far-reaching tasks the DPA continues to undertake towards the goal of universal justice in the Commonwealth.
C. THE DPA IS A STATE AGENCY AND ITS EMPLOYEES ARE, THEREFORE, ENTITLED TO QUALIFIED IMMUNITY
State agencies performing governmental functions are clothed in immunity. Autry,
1. The DPA is a legislatively created arm of the government
The Kentucky legislature specifically created the DPA to address the need for counseling and advocating on behalf of indigent defendants. In 1972, the General Assembly created the agency and it has remained in effect since that time. The statutes governing the agency have been amended in some ways but the agency itself remains constant as its employees continue to advocate for our indigent population. Although not necessarily conclusive, this factor-creation by the General Assembly-weighs in favor of finding that the DPA is a state agency. It is treated as an extension of the Commonwealth itself. But, as stated in Autry, that agency must also be performing a governmental function.
2. The DPA is performing an essential governmental function, rather than a proprietary function
An integral portion of our immunity analysis requires us to determine what the agency in question does and whether that is an essential governmental function. For example, this Court had to determine whether fire departments *255were entitled to an immunity defense. In holding the department in question was entitled to immunity, we stated that "fire departments perform a paradigmatic function of the government in keeping the populous and its property safe from fire." Caneyville Volunteer Fire Dept.,
"Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe." Frederick Douglass, Address in Washington, D.C. on the 24th anniversary of Emancipation (1886). It cannot be denied that this agency is designed to help ensure the sanctity of our justice system. We cannot ignore that it is a heady undertaking for our government to guarantee the right to counsel under both the federal and state constitutions, pursuant to the judicial decree of Gideon v. Wainwright. It is only through the actions and hard work of the DPA that this challenge and obligation can be achieved. We hold that the assurance of justice for indigent defendants is an essential governmental task. Not only is it essential but it is constitutionally-mandated. Without the legislative creation of the DPA, these indigent defendants would be subject to the whims of a turbulent procedural mire, swung to and fro without hope of finding solace. It is our government's prerogative and responsibility to provide for the constitutional rights of such defendants.
Often, the governmental function analysis is contrasted to proprietary undertakings that an agency may partake in. "A proprietary function is of the type normally engaged in by businesses or corporations and will likely include an element of conducting an activity for profit." Caneyville Volunteer Fire Dept.,
a reasonable compromise between allowing state agencies to perform their governmental functions without having to answer for their decisions in the context of tort litigation, and allowing private enterprises to pursue their legitimate business interests without unfair competition from government agencies performing purely proprietary functions without the same costs and risks inherent in commercial enterprise.
Caneyville Volunteer Fire Dept.,
3. The DPA is supported by the state treasury
Historically, the justification for the theory of sovereign immunity is to limit the negative impact legal liability can have upon the public treasury. See Coppage Construction Co., Inc., 459 S.W.3d at 865 (Venters, J., concurring). "[T]he historical origin of the doctrine of sovereign immunity was, in part, the protection of the king's purse." Id. If legal liability for the agency in question would jeopardize the public treasury, then there is a strong justification for the agency being immune from suit, subject to limitations or waiver by the legislature. The DPA is funded through the budget created by the Kentucky General Assembly; the funds come directly from the Commonwealth's treasury. See DEPARTMENT OF PUBLIC ADVOCACY , ANNUAL LITIGATION REPORT ABOVE AND BEYOND : NOT THE PROBABLE , THE POSSIBLE FISCAL YEAR 2017, 3 (2017). Public defenders are paid by the state treasury; they pay into the retirement system. The historical justification for sovereign immunity is present here. Increasing costs for the DPA in defending against malpractice suits would inevitably trickle down to taxpayers and ultimately negatively impact the entire state and the indigent defendants being represented.
4. This immunity extends to public defenders as employees of the DPA
For all these reasons, we hold that the DPA is a state agency clothed in governmental immunity. As such, public defenders, as employees of the DPA, are, in certain circumstances, entitled to assert qualified immunity as a defense. "[P]ublic employees acting in their individual capacities are entitled only to official immunity for their discretionary acts occurring within the scope of their employment." Commonwealth of Kentucky Board of Claims v. Harris,
i. DPA attorneys may be "employees" of the state but are still empowered to act independently to represent their clients
Appellant argues that the immunity analysis should begin and end with whether a public defender acts as an "agent" of the Commonwealth. But this is a misrepresentation of our immunity analysis. The question is not limited to whether the specific employee is an "agent" of the Commonwealth but whether the agency for which he or she works is an agent of the Commonwealth. As held herein, the DPA is a state agency entitled to governmental immunity. Appellant does correctly state that public defenders are agents of their clients alone, rather than serving the interests of another party; however, this does not mean that public defenders cannot be employees of the Commonwealth. The descriptions are not mutually exclusive. Appellant misunderstands from *257where a public employee's immunity stems; it is an extension of the agency's immunity rather than a determination made on individual levels for each employee. The employee and his or her acts specifically come into consideration in the discretionary versus ministerial analysis. Agent and employee are not interchangeable terms; simply because a public defender is the legal agent of his indigent client does not mean he is no longer employed by the Commonwealth.
Additionally, a public defender's employment by the Commonwealth does not diminish his independent agency in advocating for his client. The Kentucky Supreme Court rules still dictate the bounds of a public defender's ethical behavior. Even though the coffers of the Commonwealth's treasury are utilized in paying the public defender, the public defender can still exercise independent judgment in representing his or her client. Appellant argues that holding public defenders are DPA employees entitled to qualified immunity will ipso facto remove the independent nature of a public defender's representation of clients. This is simply a legal fallacy. The DPA works independently and establishes its own rules and administrative procedures to maintain this independent representation. If an indigent defendant ever feels the need to raise the issue of independent advice of counsel, it is an issue distinct from the immunity analysis. Here, we must judge the immunity of the DPA as a whole within a larger framework. And there is no fundamental basis for finding that payment by the Commonwealth will affect the ability of public defenders to independently represent their clients. Public defenders are not paid by a merit system; their salary is not linked to the success or failure of their clients' cases. There is no reason to assume that being an employee of the Commonwealth affects the independent representation of indigent clients by public defenders.
ii. Public defenders act as adversaries to prosecutors, not to the interests of the Commonwealth
Appellant also premises his argument on the idea that public defenders, as representatives of an indigent criminal defendant, are working adverse to the interests of the Commonwealth and its citizens. This is simply not so. Providing legal counsel to indigent persons is a very integral interest of the Commonwealth at large. "The public defender's role is that of an adversary to the prosecutor-not an adversary of the system but an integral part of it." Stephen L. Millich, Public Defender Malpractice Liability in California, 11 WHITTIER L. REV. 535, 537 (1989). Our criminal justice system is an adversarial one; however, its adversarial nature is, in essence, of benefit to the Commonwealth itself. Prosecutors protect society by attempting to protect citizens from criminal behavior. Judges ensure the neutral and unbiased nature of the system. Public defenders, in turn, protect society by ensuring that indigent defendants are treated equally by the system and that every defendant has an equal opportunity for defending himself. These are vital interests for a civilized society. Despite public defenders acting as adversary to prosecutors, they are acting in advance of society's interests as a whole: the interest of having a fair, equal, and just criminal system.
D. PUBLIC POLICY SUPPORTS THE GRANTING OF IMMUNITY TO PUBLIC DEFENDERS
"It is beyond challenge that public policy is determined by the constitution and the legislature through the enactment of statutes."
*258Giuliani v. Guiler,
1. Public defenders have no discretion in choosing clients or cases
The threat of a malpractice action can often be mitigated, although not eliminated, by using discretion in taking on clients and cases. A public defender, however, has no such discretion. "[A] public defender may not reject a client, but is obligated to represent whomever is assigned to her or him, regardless of her or his current caseload or the degree of difficulty the case presents." Dziubak v. Mott,
The public defender, once appointed, cannot refuse to represent unpopular or obnoxious clients, but a private attorney usually can. Economically, the public defender cannot charge a fee to cover a malpractice insurance premium, but a private attorney can and will. In addition, a public defender is paid at the same rate for a murder case as for a reckless driving defense, which may not be the case for a successful private practitioner.
Stephen L. Millich, Public Defender Malpractice Liability in California, 11 WHITTIER L. REV. 535, 538 (1989). The public defender has no possible tools to utilize in protecting himself or herself from the threat of malpractice action by disgruntled clients. They must take every case in which the court deems appointment necessary. The public defender is unable to manage the practice of law in a proprietary and risk-reducing manner like private practitioners. This difference directly relates to the fact that public defenders are responsible for undertaking a governmental task, without distinction of who requests the service if that person is indigent. As such, it is sensical to allow the DPA's immunity to extend to public defenders, as a governmental mitigation for the risks which DPA attorneys are required to accept.
2. Public defenders are working in an underfunded and overworked environment
It is common knowledge, and has been cited to herein, that the DPA is a government agency that consistently works with scarce resources, limited funding, and an ever-increasing workload. "An increasing crime rate and an economic climate which has resulted in increased claims of indigency and lower state budgets to fund government positions have caused public defender caseloads to grow dramatically." Dziubak,
3. Court-appointed attorneys are an essential facet of our criminal justice system and should be immune from suit, just like judges and prosecutors
Judges, prosecutors, and public defenders are a protective unit for the criminal justice system. They work in tandem to protect the various interests of society and defendants within our criminal process. Prosecutors enjoy absolute immunity in some situations and qualified immunity in others. See McCollum v. Garrett,
4. Failing to immunize public defenders in these situations would have a chilling effect on indigents' representation
"The potential 'chilling effect' that the threat of legal malpractice suits has against court appointed contract attorneys without some qualified immunity is especially evident considering the unique relationship between [an appointed] attorney and his client." Browne v. Robb,
Immunizing public defenders "ensure[s] that the public defender will be devoted solely to the client's case without concern for subsequent personal liability." Stephen L. Millich, Public Defender Malpractice Liability in California, 11 WHITTIER L. REV. 535, 542 (1989). "The conflict of interest disappears and the defendant receives quality representation. This also ensures that the criminal justice system works as it is supposed to work, i.e., the public defender effectively represents the client to the best of that lawyer's ability within the established rules."
5. Limited resources of the DPA should be utilized in defending accused persons, rather than defense of malpractice claims
This Court has recognized that there are inherent "social costs" to litigation with a governmental entity: "the expenses of litigation, the diversion of official energy from pressing public issue, and the deterrence of able citizens from acceptance of public office." Caneyville Volunteer Fire Dept.,
6. Public defenders encourage the effective function of the criminal justice system
"The accused defendant is not the sole beneficiary [of the public defender system]. Society as a whole depends upon the role of defense counsel to secure an ordered system of liberty and justice, as ordained by our Constitution."
E. LEGAL COUNSEL INVOLVES DISCRETIONARY DECISIONS
We have held that the DPA is a state agency performing a governmental task. As such, the agency's immunity extends to its employees performing discretionary tasks. "When performance of the job allows for the governmental employee to make a judgment call, or set a policy, the fact that there is uncertainty as to what acts will best fulfill the governmental purpose has resulted in immunity being extended to those acts where the governmental employee must exercise discretion." Marson v. Thomason,
The act of advising a client is, at its core, a discretionary function. It involves examining the legal landscape, the multi-faceted issues within each separate case, determining what is important and which facts are negligible, taking into consideration the background and history of each individual client, and ultimately deciding the best course of action to take in each case. This is clearly a discretionary task. The analysis is not as black and white as Appellant argues; it is not a ministerial task to simply advise correctly. The law is a field of gray in a world of black and white; as lawyers, we are consistently taught that the answer "depends" upon numerous factors. What is right in each situation may change with the slightest fluctuation in the facts presented to the attorney. We cannot say that this is a ministerial task. We are not saying that the task facing a public defender will always be discretionary; these issues, like the law, are not so black and white or bright-line. But, in this case, in advising a client, the public defender here was performing a discretionary task. As such, Holbert was entitled to assert qualified immunity as a defense to Jacobi's legal malpractice claim. Jacobi did not allege that Holbert acted in bad faith or outside the scope of his employment. We therefore affirm the holdings of both the Hardin Circuit Court and the Court of Appeals in dismissing Jacobi's action on the basis of immunity.
F. THIS DECISION DOES NOT NEGATIVELY AND DISCRIMINATORILY IMPACT THE RIGHTS OF INDIGENT DEFENDANTS
At oral argument, Appellant seemed to argue that allowing public defenders to assert immunity would leave indigent defendants as the only group unable to sue their attorneys for malpractice. This broad statement is inaccurate and misleading. The General Assembly has made a limited waiver of immunity for negligence claims sustained due to the actions of agency employees, stemming from ministerial actions. See KRS 49.020(1) and KRS 49.060. By statute, the Kentucky Claims Commission (commonly referred to *262as the "Board of Claims") is authorized to hear these claims of negligence. Jacobi has alleged negligence on the part of his counsel, Holbert, a state agency employee. Our recognition of Holbert's qualified immunity does not foreclose all potential remedies for Jacobi; instead, it merely recognizes that the proper avenue for recovery of negligence against public employees is by statute and through the Claims Commission. This is a rational limitation of liability for agency employees and does not foreclose all paths to recovery for indigent defendants. We make no finding as to the potential liability of all public defenders in negligence actions; here, the specific allegations deal with the legal counsel provided to Jacobi and involve discretionary acts. However, that does not mean that every action against a public defender would present the same set of facts and legal issues. Thus, this recognition of immunity does not discriminatorily impact the rights of indigent defendants.
IV. CONCLUSION
Public defenders are integral actors within the Commonwealth's justice system. The DPA is a state agency that, through the employ of public defenders, carries out an integral and essential governmental function: protecting the legal rights of indigent defendants. As such, public defenders performing discretionary tasks in good faith and within the scope of their employment are entitled to assert qualified immunity to any negligence claim. Jacobi did not allege that Holbert acted in bad faith or outside the scope of employment. Therefore, Holbert, in giving legal advice to an indigent defendant, was performing a discretionary task while employed by a state agency. He is entitled to the defense of qualified immunity. We therefore affirm the Hardin Circuit Court and the Court of Appeals in dismissing Jacobi's claims.
All sitting.
All concur.
See also Ky. Const. 11 ("In all criminal prosecutions the accused has the right to be heard by himself and counsel[.]") and U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy ... the Assistance of Counsel for his defence.").
This is a distinct analysis from that dictated by Comair, Inc. v. Lexington-Fayette Urban Cnty. Airport Corp.,
We also note that, although Appellant cites to federal cases holding that federal public defenders are not immune in certain actions, these cases are not binding upon this Court. "[W]hen state law creates a cause of action, the State is free to define the defense to that claim, including the defense of immunity...." Ferri v. Ackerman,