Gov. Jay Nixon violated Missouri's Constitution when he withheld more money from the public defender system's budget than he withheld from other budget lines, the system's lawyer told Cole County Circuit Judge Jon Beetem Tuesday.
"Our argument is, you can't reduce (funding) with respect to us, because you didn't do it to the state or an agency as required" by the constitutional language, Jacqueline Shipma, the public defenders' general counsel, told the judge.
"Because we can't spend this $3.5 million the Legislature appropriated to us, we can't fill vacant attorney positions - positions we couldn't fill last year because of budget shortfalls."
The public defenders argue they provide a service guaranteed by the U.S. Constitution - making sure poor people who can't afford a lawyer but are charged with crimes - have a lawyer to fight those charges in court.
Solicitor General James Layton argued when the governor determines withholdings are necessary to keep the state's budget in-balance, "he tends to pick line items like this one, that address people to be hired.
"You don't want to start down the road of hiring people on the premise that you have the ability to hire under that line item, and then it turns out that you don't have enough money to fund those new positions - and you have to fire the people you just hired."
And because it's a withholding, the governor can decide to release the money later in the business year and the affected agency still would have time to use it.
Shipma said that argument isn't accurate.
"While (releasing the money) may be a possibility," she told Beetem, "it isn't something we can count on (to) make plans. It doesn't change the fact that we're being harmed now."
Layton reminded Beetem that former State Auditor Tom Schweich raised some of the same issues in his 2011 challenge to withholdings Nixon made in June 2011, affecting the state budget year that began July 1, 2011.
Layton noted Beetem was the trial judge in that case and wrote in June 2012: "The governor has complete discretion to control the rate at which an appropriation is spent. The word 'any' gives the governor the choice of what appropriations are subject to this control."
And, Layton argued, that's what Nixon did this year when his July withholdings included $3.5 million in new funding for the public defender system.
Layton acknowledged the Missouri Supreme Court in 2013 didn't address the issues Beetem had considered in the Schweich case. It decided, instead, that Schweich had filed his case too soon because the business year had not ended and it wasn't obvious the governor's withholdings wouldn't be restored to the budget.
"We're in that same boat today," Layton said. "It is entirely hypothetical to say that this restriction will continue for (the rest of) the fiscal year.
"We don't know, at this point, anything except that there is a restriction - and there's no question, under the law, that the governor can impose a restriction."
But, Shipma countered this case is not the same as Schweich.
"We know, at this moment, based on our facts, that (the governor) has reduced our appropriation," she said.
Although his proclamation to the Legislature defines the budget change as a withhold, the information contained in the public defender system's state budget shows a distribution of money that is $3.5 million less than lawmakers approved in the state budget, she said.
The public defenders also argued Nixon couldn't restrict the system's appropriations because public defenders are "an independent department of the judicial branch," Shipma said. "We're not on the same side as the executive (branch) in our cases."
Layton disagreed.
"Providing or being counsel to indigent individuals is not a judicial function," he argued. "It is an executive one" - and the governor clearly has authority to control the flow of money to any executive agency, whenever revenues are coming into the state slower than predicted.
Beetem gave both sides 15 days to file suggested orders for him to consider.
The judge didn't announce a deadline for ruling in the case.
Previous coverage:
Public defenders' funding battles with Nixon continue, Aug. 28, 2016
Governor defends record on public defender budget, Aug. 9, 2016
Nixon to defend a criminal case? Public defender chief assigns governor to case in protest, Aug. 5, 2016
Missouri public defender system sues over funding cuts, July 6, 2016