Dwight Laughlin, Respondent, vs. Dewayne Perry and Ellen Flottman, Appellants.

DWIGHT LAUGHLIN, ) Opinion issued June 30, 2020 ) R espondent, ) ) v. ) No. SC98012 ) DEWAYN E PERRY AND ) ELLEN FLO TTMAN, ) ) Ap p e lla nts . ) APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY The Honorable James V. Nichols, Judge P ublic defenders Dewayne Perry (hereina fte r, "Perry") a nd Elle n F lo t t ma n (hereina fte r "Flottma n") appeal the circuit court's judgment affirming a jury's verdict in favor of Dwight Laughlin (hereina fte r, "Laughl in") on his legal malpractice claim. Perry a nd F lo ttma n argue the circuit court erred in overruli ng their motion for judgme n t notwit hst a nd in g the verdict ("JNOV") because they had official immunity from being sue d fo r le ga l ma lp ra c t ic e and because Laughlin failed to make a submissible case. This Court holds public defenders are entitled to o ffic ia l immu n it y fro m s uit. Because this point is

2

dispositive, this Court does not reach Perry and Flottma n's other claim of error. The circuit court's judgment is reversed, and the case is remanded. 1

Factual and Procedural History 2

In 1933, the United States acquired land in Neosho, Missouri, on which to build a Unite d States post office, and the State of Missouri ceded jurisdiction over the land to the federal government. 3 The United States Constitution provides, if a state cedes jurisdict io n over federal property within the state, the United States has exclus ive jurisd ict io n to hea r cases involving offenses committed on that federal property, depriving that state's courts of the authorit y to enforce state law on federal property. U.S. Const. art. I, sec. 8, cl. 17. In 1993, Laughli n burglar i zed the N eosho post office and caused property damage. The federal government declined to prosecute Laughlin, but state charges were filed. Perry and another public defender, Mark White (hereinafter, "White"), were assigned to represent Laughlin at his trial. Neither public defender challenged jurisdiction although Laughli n thought the state "did not have the right to prosecute" him. Perry spoke with the prosecuting attorney about the issue. Perry, White, and the prosecuting attorney all believed concurrent jurisd ic t io n to prosecute Laughli n existed, and none of them could recall an instance in which the federal governme nt had exclus ive jurisdict io n in a similar criminal case. After a jury trial, Laughlin was found guilt y and sentenced to thirty years'

1 This C ourt has jurisdict io n. Mo. Const. art. V, sec. 10. 2 This recitation incorporates portions of State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695 (Mo. banc 2010), and State v. Laughlin, 900 S.W.2d 662 (Mo. App. S.D. 1995), without further attributio n or citatio n. 3 S ection 12.010. All statutory references are to RSMo 2000 unless otherwise indicated.

3

impriso nme nt on the burglar y count and ten years' impriso nme nt on the property dama ge count, to be served consecutively. Laughli n appealed. While his direct appeal was pending, Laughli n's appointed appellate public defender, James Martin (hereinafter, "Martin"), file d a Rule 29.15 post- conviction motion, alleging "the trial court did not have jurisd ict io n to try [his] case sinc e it was a federal offense thereby preempting state court jurisdiction." The mo tio n cour t denied his claim because "[n]o evidence was adduced showing the offense was not a state offense or that the federal government had pre-e mp te d juris d ic t io n." The court of appeals consolidated Laughlin's direct appeal and his post-convic t i o n appeal. Flottma n represented Laughli n in this proceeding. Laughlin sent Flottma n a lette r stating, "My charges were originally federal because the building was a post office" and cited cases he alleged demonstrated "due process flaws." However, F lo ttma n could no t glean that Laughli n was conveyin g his d esire to assert a juris d ic t io n a l c ha lle n g e. She believed there was concurrent jurisdiction and did not believe jurisdiction was a "good issue." Neither appeal challenged the circuit court's jurisdiction to try his case. Both judgme nt s were affirmed. State v. Laughlin, 900 S.W.2d 662 (Mo. App. S.D. 1995). While incarcerated and after the appeals were final, Laughlin discovered the deed to the post office and the federal and state provisions conferring exclusive federal juris d ic t io n in his crimina l case. Laughli n began filing pro se mo tio ns to secure his release that were denied routinely until 2009. In N ovember 2009, Laughlin petitioned for a writ of habeas corpus to determine whether his c rimina l c o nvic t io ns were void because the circuit court lacked jurisdiction over the subject matter. The state argued whet he r

4 juris d ic t io n was proper was litigated years ago, Laughli n was bound by the circuit court's judgme nt, and relief was barred due to his fa ilure to raise the matter on appeal. After the circuit court and court of appeals denied Laughlin relief, this C ourt issued a writ of habea s corpus, holding Missour i did not have jurisd ic t io n over offenses occurring in the Neosho post office; therefore, the circuit court lacked jurisd ictio n to prosecute Laughli n fo r burglary or property damage. State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 703 (Mo. banc 2010). Laughlin was discharged from custody. In August 2011, Laughlin sued Perry, White, Ma rtin, and Flottman, alleging legal malpractice and breach of fiduciary obligation for their failure to assert the jurisd ic tio na l c ha lle n ge during their representation of him at trial, on appeal, and in his post-convic t i o n proceedings. 4 All defendants raised o ffic ia l immu n ity as an affirmative defense, contending official immunity applied to them because they were being sued for the performance of their official dutie s as state agents, o ffic e rs, or employees while performing funct io ns requiring a broad degree of discretion. Laughlin submitted the legal malpractice claims at trial. Laughlin present e d te s timo n y fro m a n expert who opined the defendants breached the standard of care by failing to pursue the jurisdictional challenge, which the expert characterized as "obvious. " The jury returned its verdict in Laughl in's favor against P e rry a nd F lo ttma n and in Mart in' s favor against Laughlin. P e rry a nd F lo ttma n file d a JNOV mo tio n a lle g in g they wer e 4 Laughlin also sued another attorney who represented him in an appeal before the Unite d States Court of Appeals for the Eigh t h C ircuit in 1997. Laughli n volunta r i l y d is mis s e d that attorney and White prior to trial.

5 shielded from liability due to official immunity. The circuit court overruled the ir mo t io n, and they now appeal. Standard of Review "T he standard of review for the denial of a judgme nt notwithsta nd ing the verd ic t (JNOV) is essentially the same as review of the denial of a motion for directed verdict." Spalding v. Stewart Title Guar. Co., 463 S.W.3d 770, 778 (Mo. banc 2015) (quoting All Am. Painting, LLC v. Fin. Sols. & Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010)). When review ing the overruli ng of a JN O V motion, "[t]his C ourt must determine whet he r the plaintiff presented a submissible case by offering evidence to support every element necessary for liability." Barron v. Abbott Labs., Inc., 529 S.W.3d 795, 799 (Mo. banc 2017) (quoting Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo. banc 2010)). This C ourt reviews the evidence in the light most favorable to the jury's verdict. W. Blu e Print Co., LLC v. Roberts, 367 S.W.3d 7, 12 (Mo. banc 2012). Official Immunity Pe rry a nd F lo ttma n argue the circuit court erred in overruli ng their motion for JN O V because they have o ffic ia l immu n it y fro m La ugh li n' s le ga l ma lp ra c t ic e c la im. Perry and F lo ttma n ma inta i n that, as public defenders, they are public employees employed by the state of Missouri and were acting within the scope of their authority as public defenders when choosing which strategie s and defenses to pursue in Laughli n's case. Perry and F lo ttma n contend foregoing the juris d ic t io n a l c ha lle n ge was a discretionary decision entitling the m to o ffic ia l immu n it y.

6 This Court thoroughly explained the official immunity doctrine in State ex rel. Alsup v . Kanatzar, 588 S.W.3d 187 (Mo. banc 2019). Alsup noted t his C ourt has long he ld o ffic ia l immu n it y "protects a public offic ia l from liability if that offic ia l acts within the course of his [or her] o ffic ia l d utie s a nd witho ut ma lic e ." Id. at 190; see also Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008) (stating official immunit y protected "public employees" in the same manner). "Courts and legal commentators have long agreed that society's compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imp e r fe c t infor ma t io n and limited resources, must daily exercise their best judgme nt in conduc t i n g the p ub lic's business." Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985). "Courts applying the doctrine of official immunity must be cautious no t to construe it 'too narrowly lest they frustrate the need for relieving public servants of the threat of burdensome litiga tio n.' " Alsup, 588 S.W.3d at 191 (quoting Kanagawa, 685 S.W.2d at 836). Public Defenders Are Public Employees The question of whether official immunity applies to public defenders is an issue of firs t imp re s s io n fo r this C o urt. 5 A public defender's duty to represent indigent individua ls 5 Although three appellate decisions have broached the topic, none of them resolved the issue. See Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo. App. W.D. 1986) (finding the client's malpractice claim was premature and did not reach or rule on whether a public defender was protected by official immunity); Costa v. Allen, No. WD67378, 2008 WL 34735, at *5 (Mo. App. W.D. Jan. 2, 2008) (finding official immunity did not apply to public defenders, but after this Court accepted transfer of the case, this holding no longer held any precedential value); Kuehn v. Hogan, 321 S.W.3d 337, 344 (Mo. App. W.D. 2010)

7 is mandated by both the United States and Missouri constit ut io ns, caselaw, and prescribed by Missouri statute. The Sixth Amendment provides, "In a ll c rimina l p ro s e c utio ns , th e accused shall enjoy the right ... to have the Assistance of Counsel for his defence." "Because this right is 'fund a me n ta l a nd e s s e ntia l to a fa ir tria l,' the constit ut io na l guara nt e e o f c o uns e l is 'protected against state invasion by the Due Process Clause of the Fourteenth Amendme nt.'" State ex rel. Mo. Pub. Def. Comm'n v. Waters, 370 S.W.3d 592, 605 (Mo. banc 2012) (quoting Gideon v. Wainwright, 372 U.S. 335, 341, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963)). The Missouri Constitution provides, "in c rimin a l p ro s e c utio ns th e accused shall have the right to appear and defend, in person and by counsel." Mo. C onst . art. I, sec. 18(a). "To fulfill Gideon's p ro mis e that 'every defendant stands equal before the law,' the Missouri General Assembly has enacted an elaborate public defender system to provide legal services to indigent defendants." Mo. Pub. Def. Comm'n, 370 S.W.3d at 606 (interna l c ita tio ns omitted). Section 600.019.1 provides that the Office of State Public Defender (hereina fte r, "OSPD") is "an independent department of the judicial branch of state government. " See also State ex rel. Francis v. McElwain, 140 S.W.3d 36, 38 (Mo. banc 2004). The OSPD's "complete budget" must be provided for "through an annual appropriation subject to approval by the governor and the general assembly." Section 600.040.2, RSMo Supp. 2013. The O SPD is headed by the Public Defender Commission, comprised of members "appointed by the governor with the advice and (Ellis , J ., concurring) (positing public defenders should be shielded from liability by o ffic ia l immu n it y ).

8 consent of the senate." Section 600.015.1. The Public Defender Commission determines compensation for public defenders. Section 600.021.3. Public defenders are prohibited from limiting the availability of their services "based on a determination that the office has exceeded a caseload standard" and "may not refuse to provide representation required under [chapter 600] without prior approval from a court of competent juris d ic t i o n . " Section 600.062, RSMo Supp. 2013. When construing the Missouri rule s o f professional conduct concerning conflicts of interest requiring disqualification, this Court characterized a public defender as a "public officer or employee" and a "governme nta l attorney. " State v. Lemasters, 456 S.W.3d 416, 420 (Mo. banc 2015). Moreover, section 600.040.3, RSMo Supp. 2013, provides, "Any person who is a public defender or employee of a public defender shall be entitled to all benefits of the Missouri s ta te employees' retirement system" as defined by statute. There is no dispute state employee public defenders P e rry a nd F lo ttma n were acting pursuant to their constit ut io na lly and statutorily mandated d utie s by representing Laugh l i n d uring his tria l, a ppeal, and post-convict io n proceedings. Laughli n did not allege or prove Perry or Flottma n acted with ma lic e to wa rd him d uring the representation. While Laughlin concedes public defenders are state employees for purposes of coverage under the State Legal Expense Fund (hereinafter, "SLEF") as discussed belo w, Laughli n argues public defenders are not "public officers" entitled to official immunit y based on the holding in State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761 (Mo. App. E.D. 1981). In Eli Lilly, the Eastern Distric t declined to extend offic ia l immunity to a physician employed by a state mental health hospital who was sued for medical

9 malpractice. Id. at 766. The court determined that, even if the physic ia n were a state e mp lo yee compensated by the state, "the performance of [his ] duties does not require the exercise of 'discretion' in the legal sense of that term" because "[s]hielding officials for decisions other than those made in the exercise of the sovereign's power which go to the essence of governing, extends the doctrine of official immunity beyond its original intent to promote smooth and effective government." Id. at 764-65. Hence, the court concluded only the discretionary decisions "which are a manifest exercise of the sovereign's power [are] those decisions which 'go to the essence of governing.'" Id. at 765 (quoting Jones v. State Highway Comm'n, 557 S.W.2d 225, 230 (Mo. banc 1977)). Laughli n argues Eli Lilly remains valid law because it was not analyze d or overrule d in Southers when this C ourt explained the o ffic ia l immu n it y doctrine. Laughli n argue s Southers stated the goal of o ffic ia l immu n it y is "to p ermit p ub lic e mp lo ye e s to ma k e judgments affecting public safety and welfare without concerns about possible personal liability." Southers, 263 S.W.3d at 611. W hile Southers did not overrule Eli Lilly, this Court did not restrict official immunity only to those p ub lic o ffic ia ls ' a c tio ns that "go to the essence of governing." Id. at 610-11. When carefully examining Jones, which was the quoted source of the "essence of governing" language relied on in Eli Lilly, it is c le a r Jones was discussing sovereign immunity, not official immunity. Further, this C ourt has no t adopted Eli Lilly's inte rp re ta t io n o f o ffic ia l immunit y in any case. Notably, this Court did not make such a distinct io n in Alsup when extending official immunity to a teacher after his imple me nta t io n of restrict ive behaviora l interve nt io n techniq ues resulting in a stud e nt being injured. It is evident the teacher was not a "public official" engaged in the "esse nc e

10 of governing" when interact ing with the student. Alsup, 588 S.W.3d at 193. Hence, Laughlin's reliance on the "essence of governing" language from Eli Lilly to restrict offic ia l immu nity to public officials and not public employees is misplaced and has no applicabil it y here. Public Defenders' Duties Constitute Discretionary Acts Perry and Flottman are not entitled to official immunity merely because they are state or p ub lic e mp lo ye es conducting official duties. O ffic ia l immu n it y o nly "p ro te c t s p ub lic e mp lo ye e s fro m lia b ilit y for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts." Southers, 263 S.W.3d at 610; Alsup, 588 S.W.3d at 190. The official immunity doctrine does not protect public employees for alleged acts of negligence for the performance of ministerial duties. Southers, 263 S.W.3d at 610. Hence, this C ourt must determine whether Perry and F lo ttma n's decisions to forego challenging state jurisdiction were discretionary or min is te r ia l a c ts. "Whether an act can be characterized as discretionary depends on the degree of reason and judgment required." Id. "A discretionary act requires the exercise of reason in the adaption of means to an end and discretion in determining how or whether an act should be done or course pursued." Id. By contrast, Alsup d e fine d a min is te r ia l a c t a s fo llo ws : Generally, a ministerial act has long been defined as merely clerical. And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is likely to be delegated to subordinate officia ls. For more than a century, this C ourt ha s he ld tha t a minis te r ia l o r c le ric a l d u t y is one in which a certain act is to be performed upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to ... judgment or opinion concerning the proprie ty o r

11 impropriety of the act to be performed. Thus, the central questio n is whet he r there is any room whatsoever for variation in when and how a particular task can be done. If so, that task–by definition–is no t min is te r ia l. Alsup, 588 S.W.3d at 191 (interna l citations and quotatio ns o mitte d ). Perry and Flottma n contend practically any decision or action taken by an attorney in representing his or her client is discretionary in nature, including which defenses to assert at trial and which legal arguments to present on appeal. Laughlin, however, characterizes the juris d ic t io n a l c ha lle n ge as a ministerial task because, once he advised Perry and F lo ttma n o f his d e s ire to c ha lle n ge the circuit court's jurisd ict io n, they had no discretio n to refuse to explore that defense. Laughlin discounts Perry's testimony acknowledging there was a jurisdictio nal issue in this case and he discussed the issue with the prosecuting attorney and White, who a ll reached the same conclusion that concurrent jurisd ic t i o n e xisted. Laughlin also discounts Flottman's testimony that, in her opinion, the jurisdictional challenge was not a "good issue" to raise on appeal. "As a practical matter, virtually any decision or action taken by an attorney during trial invo lves the exercise of professional judgment and is clearly discretionary in nature." Kuehne, 321 S.W.3d at 347 n.8 (Ellis, J., concurring). It is undisputed attorneys exercise discretio n and judgme nt in formula t ing which strategie s and defenses to present on the ir c lients ' behalf. State v. Basile, 942 S.W.2d 342, 355 (Mo. banc 1997) (holding "[d]efense lawyers are given a broad range of leeway in determining what strategy to follo w ") ; Hawkins v. State, 512 S.W.3d 112, 116 (Mo. App. E.D. 2017) (holding "[c]ounse l is allowed wide latitude in conducting a defense and may use his [or her] best judgme nt " ). Further, "appellate counsel does not have a duty to raise every appealable issue; counsel

12 may strategically decide to forgo certain arguments in favor of others." Meiners v. State, 540 S.W.3d 832, 838 (Mo. banc 2018). Hence, a public defender's decision concerning which defenses to raise or which issues to present on appeal "requires the exercise of reason in the adaption of means to an end and discretion in determining how or whether an act should be done or course pursued." Southers, 263 S.W.3d at 610. These decisions are not clerica l in nature with no regard to the public defender's judgme nt or opinion concer ni n g the propriety of raising the defenses or issues on appeal. Perry and Flottman had no clear and unequivoca l duty to assert the jurisd ict io na l challe nge. These decisions, therefore, are no t min is t e r ia l. Alsup, 588 S.W.3d at 191. Laughli n claims Perry's and Flottman's a s s ump tio ns concurrent juris d ic t io n e xis t e d without furthe r researching the issue was neglige nt because any competent attorney would have done so, especially after he brought this claim to their attention. This argume n t conflates whether Perry's and Flottman's actions were discretio nar y in nature for offic ia l immunity purposes with whether they violated the standard of care in performing those discretionary acts to be found neglige nt. Whether a party is immune from suit precedes whether a party has violated the standard of care. Nevertheless, Laughlin equates researching the jurisd ic t io na l issue with a doctor's funct io n when he or she is diagnos ing a medical condition and determining a treatment plan, which he argues could be considered ministerial acts. To support this argument, Laughlin relies on a concurring opinion in Canon v. Thumudo, 422 N.W.2d 688, 705 (Mich. 1988), which relied on Eli Lilly, and opined:

13 A government doctor should not be deemed immune from tort liabil it y merely because he is employed by the government. His actions and decisions should be deemed immune only when he is acting as a uniq ue l y governmental doctor, such as when he is determining the scope of the go ve rn me n t's invo lve me n t with a p a rtic ula r p a tie nt. W hile d e c is io ns to admit or release patients from government facilities may thus be deserving o f immu n it y, ro utine me d ic a l d e c is io ns—diagnoses, prescriptions, and structuring of treatment plans—should not be so shielded by this Court in the declaration of the common law of this state from accountability for malpractice. The majority in Canon stated otherwise: "To adopt such a definition for 'mini sterial' would come close to eliminating all immunity for professionals by confusing the issues o f immunit y and neglige nce. The distinct io n is signif ica nt . If every act which deviates from a professional norm were to be categorized as 'min is te r ia l,' immunity would seldom shield p ro fe s s io na l d is cre tio n ." Id. at 691. Hence, this case does not aid Laughlin or persuade this C ourt to find Perry's and Flottman's decisions concerning whether to raise the jurisdictional challenge were ministerial. Public defenders are the epitome of "individ ua ls who, in the face of imperfect information and limited resources, must daily exercise their best judgme nt in conducting the public's business." Kanagawa, 685 S.W.2d at 836. C hoosing which defenses to raise and argume nt s to pursue on appeal on behalf of indige nt clients constitute discretio nary acts entitled to offic ia l immunity. Other Jurisdictions Support Public Defender Immunity While the application of Missouri's official immunity jurisprudence affords Perry a nd F lo ttma n protection, this C o urt's d e c is io n a ls o is in line with d e c is io ns from other juris d ic t io ns. Initia l ly, this Court recognizes the United States Supreme C ourt has he ld federal public defenders are not entitled to absolute immunity under federal law for state

14

malpractice actions. Ferri v. Ackerman, 444 U.S. 193, 205, 100 S. Ct. 402, 410, 62 L.Ed.2d 355 (1979). Ferri did not extend this holding to the states, however, explaining: We are not concerned with the elements of a state cause of action for malpractice and need not speculate about whether a state court would consider [a] petitioner's allegations sufficient to establish a breach of duty or a right to recover damages. Nor are we concerned with the question whether [a state] may conclude as a matter of state law that [a] respondent is absolutely immune. For when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunit y, unless, of course, the state rule is in conflict with federal law.

Id. at 197-98 (footnotes omitted). In Tower v. Glover, 467 U.S. 914, 923, 104 S. Ct. 2820, 2826, 81 L.Ed.2d 758 (1984), the United States Supreme Court held state public defenders are not immune from federal suit brought pursuant to section 42 U.S.C. § 1983 for intent io na l mis c o nd uc t . Yet Tower recognized: Immunit ies in this country have regular l y been borrowed from the Engl i s h precedents, and the public defender has a reasonably close 'c o us in' in th e Englis h barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contrac t ua l relationship with their clients, and they are incapable of suing their clients for a fee.

Id. at 921. Hence, while no juris d ic t io n—inc lud i ng Missouri—extends immunity to public defenders for intent io na l miscond uct , several jurisdictions have extended immunity in s o me manner to public defenders for alleged negligent acts, whether through judic ia l immunity, official immunity, statutory immunity or some other variation thereof. The seminal case extending judicial immunity to public defenders is Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993). The Minnesota Supreme Court re lie d o n several public policy reasons to support its decision:

15

Immu n it y fro m s uit fo r public defenders best serves the indigent populat io n in preserving the resources of the defender's office for the defense of the criminally accused. Immun i t y a ls o a id s in the re c ruit me nt o f q ua li f i e d a tto rne ys to re p re s e nt ind ige n t c lie nts in c rimin a l p roceedings. Immu n i t y preserves the criminal justice system which relies upon the judge, prosecutor and public defender as essential participants. This serves the best interests of indigent defendants and of society as a whole ....

Since justice demands that a defense be provided to criminal defendants who are not able to afford privately retained counsel, it is essential that a suffic ie nt number of qualified attorneys be willing and able to provide this defense. Immu n it y will a id in the c o ntinu e d re c ruit me nt of attorneys to perform this service in our crimina l justice system; such service is eagerly sought by mo s t attorneys. The accused defendant is no t the s o le b e ne fic ia r y. Society as a whole depends on the role of defense counsel to secure an ordered sys te m o f liberty and justice, as ordained by our Constitution.

The extensio n of immunit y to public defenders will ensure that the resourc e s available to the public defender will be used for the defense of the accused, rather than diminis hed through the defense of public defenders against c ivil suits for malpractice. Immunity will conserve these resources to provide an effective defense to the greatest number of indigent defendants.

Id. at 777-78; see also Scott v. City of Niagara Falls, 407 N.Y.S.2d 103, 106 (N.Y. Sup. Ct. 1978) (granting public defenders judicial immunity but not extending immunity to negligent performance of ministerial tasks requiring no judgment or discretion). 6

Kentucky extended qualified immunity to public defenders, engagin g in a ve r y s imila r a na lys is as this C ourt concerning public defenders engaging in discretio na r y funct io ns. See Jacobi v. Holbert, 553 S.W.3d 246, 256 (Ky. 2018) (holding public

6 Two states declined to extend judicial immunity to public defenders. See Schreiber v. Rowe, 814 So.2d 396, 398-99 (Fla. 2002) (rejecting extension of judicial immunity to public defenders but noting the legislature extended the waiver of sovereign immunity to public defenders, which exempted them from personal liability); Shubert v. Ada Cty., 461 P.3d 740, 749 (Idaho 2020) (declining to extend common law quasi-jud ic ia l immu n i t y to public defenders because they do not act as an arm of the court).

16

defenders have qualified immunit y when acting in good faith and within the scope of the ir e mp loyment). Pennsylvania, however, rejected qualified immunity. Reese v. Danforth, 406 A.2d 735, 737 (Pa. 1979). Reese is distinguishable from Missouri's approach because Reese holds qualified immunity applies only to policymaking officials and does not extend to mere public employees. Id. Several states have extended immunity to public defenders through statutory enactment. In some instances, jurisdictions enacted statutes expressly protecting public defenders or include public defenders explic itly within the definitio n of state or pub lic employee. See Gross v. Rell, 40 A.3d 240, 251 n.7 (Conn. 2012) (noting public defenders were added to the definition of state officers and employees entitled to qualified statutory sovereign immun it y under C onnectic ut General Statute § 4-141(5)(B)); Johnson v. Halloran, 742 N.E.2d 741, 744 (Ill. 2000) (recognizing public defenders do not have sovereign immunity but enjoy qualified immunity under chapter 745 ILCS 19/1, Illino is' public and appellate defender immunity act, except for willful and wanton misconduct) ; Wright v. Elston, 701 N.E.2d 1227, 1233 (Ind. Ct. App. 1998) (holding public defenders were entitled to statutory immunity pursuant to the Indiana Tort Claim Act, Indiana Code § 34-6- 2- 38(b), defining them as state and public employees); Ramirez v. Harris, 773 P.2d 343, 344-45 (holding Nev. Rev. Stat. § 41.0307.4(b) d e fined public defenders as public o ffic e r s and precluded them from being sued for malpractice); Tenn. Code Ann. § 8-14- 109 (providing absolute immunity for "any act of negligence arising from the execution of the [public defender's] official duties as an employee of the district public defenders ...."); Tenn. Code Ann. § 8-14-108 (defining public defenders as state employees); and Mooney

17

v. Frazier, 693 S.E.2d 333, 337 (W. Va. 2010) (citing Public Defender Services Act, W. Va. Code § 29-21-20, providing court-appointed counsel immunity from legal malpract ice c la ims ).

In other instanc es, courts construed statutory langua ge defining public emplo ye e s to include public defenders. See Wallin v. McCabe, 293 P.3d 81, 83 (Colo. App. 2011) (characterizing public defenders as public employees who have immunity derived from Colorado statute); Vick v . Haller, 512 A.2d 249, 252 (Del. Super. Ct. 1986) (holding pub lic defenders ha ve q ua lifie d immu n it y under Delaware's state tort claims act and reaffir med by Browne v. Robb, 583 A.2d 949, 951 (Del. 1990), and Hanson v. Morton, 67 A.3d 437, 441 (Del. 2013)); Nieves v. Office of the Pub. Def., No. 082262, 2020 WL 1870253, at *7- 8 (N.J. Apr. 15, 2020) (holding legal malpractice claims against public defenders are subject to the New Jersey Torts Claim Act, N.J. Stat. § 59:2-1(a)—which places conditio ns and limits on the ability to recover damages—because the office of the public defender is a public entity and its public defenders are public employees); Coyazo v. State, 897 P.2d 234, 238 (N.M. Ct. App. 1995) (finding public defenders are public employees for purposes of the New Mexico Tort Claims Act, N.M. Stat. § 41-4- 3F, and have immun it y from le ga l malpractice claims); Wooten v. Vogele, 769 N.E.2d 889, 893-94 (Ohio 2001) (defini ng public defenders as employees of a political subdivision who perform a governme nta l funct io n under O hio Tort Liabilit y Act, O hio Rev. C ode § 2744.03(A)(6), holding pub lic employees lia b le only for conduct that is manifestly outside the scope of employment or for conduct that is malicious, reckless, or done in bad faith); Bradshaw v. Joseph, 666 A.2d

18

1175, 1176-77 (Vt. 1995) (determining public defenders are state employees under statut e governing tort claims against the state and had immunit y from being sued for neglige nc e ) . 7

SLEF Coverage Does Not Preclude Official Immunity Application The fina l question this Court must address is whether SLEF coverage for public defenders is a valid basis to deny them official immunity. The General Assembly created the SLEF in 1983. State ex rel. Hawley v. City of St. Louis, 531 S.W.3d 602, 604 (Mo. App. E.D. 2017). The fundamental purpose of the SLEF is to protect the covered employees from the burden and expense of civil litigation relating to the performance of their duties. The purposes are apparent. A competent employee, who is in demand elsewhere, may be unwilling to work for the state without protection. Those who do serve may be unwilling to take necessary risks for fear of litigation.

Cates v. Webster, 727 S.W.2d 901, 907 (Mo. banc 1987) (Blackmar, J., concurring in part and dissenting in part). "[Section] 105.711 applies to lawsuits brought against any offic e r or employee 'arising out of and performed in connection with his or her official duties on

7 Three states declined to extend statutory immunity to public defenders based on the nature of their duties. See Barner v. Leeds, 13 P.3d 704, 714 (Cal. 2000) (holding public defenders are not entitled to statutory immunity fro m malpractice claims because the nature of the ir representation did not involve policy decisions and discretionary acts as contempla ted under California 's immunity statute); Shubert, 461 P.3d at 750-51 (holding public defenders are not entitled to statutory immunity under the discretio na r y funct io n exemp t io n of the Idaho immunity statute); Trobaugh v. Sondag, 668 N.W.2d 577, 585 (Iowa 2003) (declining to extend statutory immunity to public defenders because a legal malpract ice claim was not the functional equivalent of other causes of action specifically exempted under the Iowa Tort Claims Act, Iowa Code § 669.14). Further, Michigan declined to extend immunity for appointed criminal attorneys, finding no rationale to distinguis h between appointed and private counsel. Donigan v. Finn, 290 N.W.2d 80, 82 (Mich. App. 1980).

19

behalf of the state, or any agency of the state' ...." Smith v. State, 152 S.W.3d 275, 280 (Mo. banc 2005). This section further provides: The [SLEF] shall be the exclusive remedy and shall preclude any other civil actions or proceedings for money damages arising out of or relating to the same subject matter against the state officer or employee, or the officer's or e mp lo ye e's estate. No officer or employee of the state or any agency of the state shall be individually liable in his or her personal capacity for conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state.

Section 105.711.5, RSMo Supp. 2014. This section reinforces the SLEF's purpose to protect state employees by limiting the circumstances in which they ma y be sued and he ld liable for conduct arising out of and in connectio n with the ir o ffic ia l d utie s . The parties do not dispute Laughlin's damages award against Perry and Flot t ma n would have been paid from the SLEF because they are state employees whose alleged malpractice arose out of their official duties on the state's behalf. See Johnson, 719 S.W.2d at 828 (stating payment of any award against a public defender for a client's successful malpractice claim would have been made from the SLEF). However, Perry and Flottma n argue SLEF coverage does not preclude their assertion of offic ia l immunity pursuant to section 105.726.1. Laughlin disagrees, arguing the SLEF creates blanket immunity for all state employees, regardless of whether they are acting in a discretionary or ministe r ia l capacity, but waives sovereign immunity for those actions by creating a legal defense fund that compensates individ ua ls injured by state employees. Section 105.726.1 provides in pertinent part, "Nothing in sections 105.711 to 105.726 shall be construed to broaden the liability of the State of Missouri ... nor to abolish or waive any defense at law which might otherwise be available to any agency, officer, or

20

employee of the State of Missouri." Although a state employee may be afforded protection from personal liability for damages under the SLEF, section 105.726.1's p la in la ng u a g e expressly provides this protection does not preclude a state employee from asserting any and all available defenses, inc lud in g o ffic ia l immunity that could relieve a state employee of liability or prevent the suit from proceeding. "'Immun it y' connotes not only immun it y from judgme nt but also immunit y fr o m s uit. " Alsup, 588 S.W.3d at 190 (quoting State ex rel. Mo. Dep't of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985)). Laughlin fails to cite any case holding SLEF coverage precludes a party from asserting official immunity as a defense to suit or any case in which exposure to personal liability was a factor in determining whether a party may a s s e rt o ffic ia l immu n it y. If this C ourt construed section 105.726.1 as Laughlin contends and declined to extend official immunity to public defenders solely because they have SLEF coverage, this would effectively end SLEF coverage for other state employees who are entitled to assert offic ia l immunity. Laughli n's assertions that SLEF coverage affords injured parties a means to recover monetary damages and that he will b e le ft witho ut a remedy if this C o urt a p p lie s o fficial immunity to public defenders are also unpersuas i ve . Having no remedy or recourse occurs in every c a s e in whic h o ffic ia l immu n it y a p p lie s and serves as no reason to carve out an exception for malpractice claims against pub lic defenders s o le ly o n tha t b a s is. To adopt Laughlin's argument is to fail to acknowledge protection from personal lia b ility for a judgment differs significantly from a s uit b e ing init ia te d . Protection fro m personal liability still subjects a public defender to all of the burdens of litigation—fro m

21

discovery to trial—which can be complex, time-consuming, and serve as a distractio n fro m an overwhelming caseload. Consequently, if these cases were permitted to go to trial, the benefits of immunity from suit would be lost even if, ultimately, the public defenders were not liable personally for any costs or judgme nt s that resulted. F ina lly, this C o urt is min d f u l that the SLEF is a statutory creatio n, subject to appropriation by the le gis la t u re, which ma y choose to amend, defund, or eliminate this coverage at any time. Conclus ion Public defenders are entitled to official immunity because they are p ub lic e mp lo y e e s who s e o ffic ia l statutory duties concern the performance of discretionary acts. The circuit court's judgment is reversed, and the cause is remanded.

_________________________________ G EORGE W. DRA PER III, CHIEF JUSTICE

All c o nc ur.