No Appearance Of Impropriety

The Missouri Supreme Court held that a prosecutor’s office screening procedure effectively prevented imputed disqualification when a defendant’s appellate counsel moved to the office.

Counsel moved for disqualification in a subsequent post-conviction action

Application of the appearance of impropriety test conclusively shows that Wolpink’s conflict should not be imputed to the entire [Prosecuting Attorney’s Office]. The uncontroverted evidence shows the PAO implemented a “thorough and effective screening process” as required by Lemasters. Id. at 425. Notably, neither Respondent nor Skinner took issue with the scope or implementation of the screening process, and nothing in the evidence suggests anyone in the office failed to comply. To the contrary, the evidence shows Sauls, counsel for the state in Skinner’s case, and Wolpink worked on separate floors and never had a single conversation about Skinner or his case. Sauls also testified he had no knowledge of any confidential information Wolpink may have obtained during her previous representation of Skinner. As a result, “there are no facts that − if known to a reasonable person − would create an appearance of impropriety and cast doubt on the fairness of his trial” to Skinner. Id. at 424.

The lower court had erred in ordering disqualification

by disqualifying Relator, Respondent infringed upon Relator’s ability to carry out her duties as “a public officer.” State ex rel. Griffin v. Smith, 258 S.W.2d 590, 593 (Mo. banc 1953), overruled on other grounds by State v. Honeycutt, 96 S.W.3d 85 (Mo. banc 2003).

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, most, if not all, of Relator’s duties “involve a good faith exercise of the sound discretion.” State on inf. McKittrick v. Wallach, 182 S.W.2d 313, 319 (Mo. banc 1944). At every turn, she must “choose a course of action or non-action.” Id. As a result, the people of Jackson County believed that Relator, once elected, would exercise her discretion “to the dictates of [her] own judgment and conscience uncontrolled by the judgment and conscience of any other person.” Id. In essence, by electing Relator, the people of Jackson County decided Relator’s decision-making skills − i.e., her discretion − best represent their interests. By disqualifying Relator and appointing the AGO, Respondent’s order unjustifiably circumvents the voters’ choice to have their interests represented by Relator in Skinner’s case as in any other.

The screen must be effective and may not always suffice

To be clear, the Court does not hold a screening process will always be sufficient to dispel an appearance of impropriety. Id. at 425. For instance, as this Court explained in Lemasters, “when it is the prosecutor herself, i.e., ‘the boss,’ who supposedly is being screened from the remainder of her employees, rather than one assistant being screened from the others” even a “thorough and effective screening process” may not be sufficient to remove the appearance of impropriety. Id. (citing State ex rel. Burns v. Richards, 248 S.W.3d 603, 605 (Mo. banc 2008)).

Furthermore, when this issue is considered on appeal, the “trial court’s ruling on a motion to disqualify is reviewed for abuse of discretion.” Id. at 420. Accordingly, a situation may arise in which there is very little (yet sufficient) evidence to support the satisfaction of the appearance of impropriety test. Then, under the standard of review, an appellate court would be required to defer to the circuit court. Id. Neither of these situations is present here.

The lower court

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.

(Mike Frisch)