Public-defender immunity case before Missouri's top court

By Jessica Shumaker
BridgeTower Media Newswires
ST. LOUIS, MO — The Missouri Supreme Court is poised to decide for the first time whether public defenders are covered by official immunity.

The court this month court heard arguments in the case of Dwight Laughlin, a man who was represented by public defenders and later sued them for legal malpractice.

Laughlin was convicted in circuit court of breaking into the Neosho post office in Newton County in 1993.

While serving a 40-year prison sentence, Laughlin filed a habeas petition with the Missouri Supreme Court. The high court voided his conviction in 2010, finding that the state’s court system never had jurisdiction in the case because the building belonged to the federal government.

Laughlin then sued the public defenders who had failed to raise the jurisdiction argument during his prosecution.

In 2018, a Newton County jury found against Dewayne Perry, who represented Laughlin at trial, and Ellen Flottman, who handled Laughlin’s appeal. The jury awarded Laughlin $600,000 in damages.

After the trial, the public defenders sought a judgment notwithstanding the verdict and were denied, prompting their appeal to the Missouri Court of Appeals Southern District.

In June, the Southern District affirmed the verdict, ruling that public defenders don’t need official immunity because they are covered by the State Legal Expense Fund. The Supreme Court granted transfer of the case in September.

Zachary Bluestone, deputy solicitor general of the Missouri Attorney General’s Office in Jefferson City, represented Perry and Flottman. He argued that the only disputed issue before the court is whether public defenders are engaged in discretionary or ministerial conduct.

He argued that the lawyers’ conduct was discretionary in nature, and it should be covered by official immunity.

“Representing criminal indigent defendants and, more specifically, deciding which defenses should be raised and pursued certainly qualifies as discretionary conduct due to the amount of reasoning and judgment that are demanded,” he said.

Judge Mary R. Russell said it appears that other states are split on providing immunity to public defenders, with the minority view being that immunity should be provided.

“Why should we follow that minority viewpoint?” she asked.

Bluestone disagreed on that point, saying that of the 20 or so states that have considered the issue, the majority of those states have provided immunity either through statutory or judicial means.

“I think the majority haven’t considered it explicitly,” he said.

Judge Zel M. Fischer also quizzed Bluestone about what relief would be available to victims of legal malpractice if official immunity applies.

Bluestone said a remedy exists for wrongfully convicted individuals, as well as other avenues for pursuing monetary damages.

In addition to arguing that public defenders’ work is discretionary, Bluestone also maintained that denying immunity to public defenders would have wider-reaching effects.

“Almost all of the arguments raised by Laughlin, if adopted by the court, would at least call into question longstanding immunities in other contexts — both official immunity as it relates to other government employees and prosecutorial and judicial immunities,” he said.

Russell asked about the availability of the State Legal Expense Fund and whether that is a basis for denying immunity.

Bluestone said no, adding that he believes the Southern District’s ruling considering the availability of the fund “conflated sovereign immunity and official immunity.”

Laughlin was represented by William J. Fleischaker of Fleischaker & Williams in Joplin.

He opened by arguing that the only valid reason for the court to allow public defenders to be covered by official immunity is to protect the assets of the State Legal Expense Fund.

“We believe that’s a policy issue that should be decided by the legislature and not by this court,” he said.

Fischer noted that the fund “is a statutory creature” subject to appropriation and repeal decisions in the legislature.

“So how much of your own house do you want to bet if you’re a public defender?” he asked.

“I bet it every day because I’m a private attorney,” Fleischaker replied.

Judge Laura Denvir Stith also asked about the difference between being insured and having immunity.

“Official immunity exists even though there’s insurance policies,” she said.

Stith also asked why doctors or lawyers who are employed by the state wouldn’t be covered by immunity.

Fleischaker said their duty isn’t to the broader public but to an individual patient or client.

During rebuttal, Judge W. Brent Powell asked Bluestone if a ruling for public defenders also would extend immunity to doctors at state-owned medical institutions.

Bluestone said that would depend on the facts of a particular case.

“I do think that you would need to look at what acts are being undertaken,” he said, noting that some prescribed courses of action may be considered ministerial in nature, not discretionary.