Judge seeks legal advice in case

JEFFERSON CITY, Mo. -- Calling it a legal quandary such as he has never seen, a judge on Monday appointed a law professor to provide guidance on the attorney general's role in a lawsuit over state funding of family planning services.

James R. Devine, who teaches legal ethics and civil procedure at the University of Missouri Law School in Columbia, was named by Cole County Circuit Judge Byron Kinder as a special master to provide legal analysis and recommendations.

Kinder said he faced numerous questions after the Missouri Supreme Court ruled that Attorney General Jay Nixon had a conflict by defending two different interpretations of the law -- one backed by the Legislature, the other by the state health director.

At issue is a 1999 budget provision intended to withhold state family planning money from organizations that share a name, facility, expenses, employees or equipment with an affiliated abortion provider. The provision was aimed at Planned Parenthood.

But Health Director Maureen Dempsey agreed to contracts with Planned Parenthood operations because they used different names than the abortion-providing part of the business. State family planning money pays for contraceptives, disease and cancer screenings for low-income women, but not abortions.

In Planned Parenthood's lawsuit, Nixon's staff represented Dempsey's position and he hired an outside counsel, Jordan Cherrick of St. Louis, to represent the Legislature's position.

On Jan. 22, the Supreme Court sent the case back to Kinder so that Nixon could choose one side or the other. But Nixon then announced that he would stop defending the Legislature's position and dismissed Cherrick.

Kinder directed Nixon to appear in court anyway.

"I'm really in a quandary about how to proceed," Kinder said Monday. Appointing Devine, Kinder said, "is the quickest and most economical way to proceed."

'Doesn't make sense'

Kinder noted that he had twice ruled in favor of the state's authority to restrict funding to Planned Parenthood and was confused as to why Nixon would want to dismiss the case.

"You have won and you want to come and dismiss?" Kinder asked Assistant Attorney General Paul Maguffee. "That just doesn't make sense."

Arthur Benson, an attorney representing Planned Parenthood, had urged Kinder to grant Nixon's request.

Nixon said in a statement that the Supreme Court gave him the authority to dismiss the case.

"I have made that decision and our office stands ready to address our authority in this case with the court-appointed special master," Nixon said.

Kinder took exception to Nixon's dismissal of Cherrick. He said court rules allow only the court to dismiss an attorney.

"Mr. Cherrick is not excused in this case," said Kinder, who noted that the state has spent more than $186,000 to sue itself.

Cherrick did not immediately respond to a telephone message left Monday at his St. Louis office.

But in a Jan. 28 letter written to state Sen. David Klarich, R-Clayton, Cherrick declined to speak to a legislative committee about the issue because of his dismissal.

Cherrick did recommend that if lawmakers wanted to keep the restrictions in place, they should propose legislation -- not just budget language -- that would put conditions on the spending of family planning money.

He also suggested that lawmakers should clarify which family planning providers could receive money.

Devine, who has been teaching ethics for more than 20 years, said the case was unique and complex.

"I'm not sure what the specific issues are," Devine said Monday after being sworn in as a special master. "This is not a situation I've seen before, and as the judge said, it makes a wonderful law exam when we get it all done."

Kinder will not be bound by Devine's recommendations, which could come as early as April.