Missouri AG faces ‘high bar’ in effort to oust St. Louis prosecutor for neglect of duties

In hearing Tuesday, judge will try to simplify, set trial date for a case seeking removal of Kim Gardner as circuit attorney

By: - April 18, 2023 9:35 am

St. Louis Circuit Attorney Kim Gardner faces an effort by the attorney general to remove her from office (Wiley Price/St. Louis American).

If the case seeking to oust St. Louis Circuit Attorney Kim Gardner gets to trial, she will argue that only corrupt and intentional refusal to do her job, not disagreement about prosecutions or mistakes by subordinates, are sufficient to remove her.

In a motion to dismiss the ouster case, Gardner cites the only two instances where the courts have removed sitting prosecutors as the standard for such actions. Attorney General Andrew Bailey, who in February filed the case, known in law as a writ of quo warranto, is engaged in a political crusade, Gardner’s filings argue.

If the bar is lowered, attorney Jonathan Sternberg wrote, quo warranto “would be a political tool for an attorney general to remove a politically opposite prosecutor whenever he can comb through all the cases in her office and point to a few failings with which he disagrees.”

Bailey filed the petition seeking Gardner’s removal for neglect of her duties less than a week after Janae Edmondson, a Tennessee teenager, was severely injured in downtown St. Louis when she was struck by a car allegedly driven by Daniel Riley, who was free on bond while awaiting trial for armed robbery.

In an updated petition filed March 21, Bailey outlines 10 counts alleging Gardner has performed so poorly that it has left St. Louis residents at risk. He specifically alleges her office has failed to process and to prosecute cases promptly and with competence, failed to meet its legal obligations to give victims information about the progress of their case and provide defendants the evidence against them.

Gardner “has lost the trust of the people and left crime victims in the dark,” the petition filed by Bailey’s office states.

Bailey’s petition also says she should be ousted for her office’s purposeful violation of the Sunshine Law dating to a 2019 request by refusing to turn over documents to John Solomon, a Washington, D.C. reporter who is a Fox News contributor and former staff member of The Hill.

The case is up for a hearing Tuesday afternoon before Judge John Torbitzky, assigned to the case from the Eastern District Court of Appeals after all the judges in the St. Louis circuit recused themselves.

In a notice to the attorneys, Torbitzky wrote that the hearing is intended to simplify the case, identify documents both sides can agree on for evidence, speed the exchange of information and set a trial date.

Gardner, a Democrat and the city’s first Black prosecutor, is serving her second term as circuit attorney and would be up for re-election in 2024. She has repeatedly come under fire from conservative Republicans, and last year survived an effort to strip her of her law license based on the way she conducted a 2018 investigation of then-Gov. Eric Greitens.

After Edmondson was injured, Gardner lost support among Democrats, with Mayor Tishaura Jones saying she had “lost the trust of the people,” and several St. Louis lawmakers calling for her to resign.

A new legal problem developed Monday for Gardner in a case that parallels some of the specific cases cited in Bailey’s petition. Judge Scott Millikan ordered Gardner to appear in court April 24 for a possible contempt citation after no one from her office showed up for a scheduled murder trial.

Missouri Attorney General Andrew Bailey addresses a crowd at the state Supreme Court Building after being sworn into office on Jan. 3, 2023 (photo courtesy of Missouri Governor’s Office).

Past ouster cases

On Thursday in Jefferson City, the history of quo warranto – from its origin in English common law to its use in Missouri courtrooms – was the subject of a discussion hosted by the Federalist Society Jefferson City Lawyers Chapter.

All the attorneys on the panel – former Missouri Supreme Court Chief Justice Mike Wolff, former state Senator and lobbyist Kurt Schaefer and Western District Appeals Court Judge Edward Ardini – have been involved in the prosecution, defense or hearing of quo warranto cases.

The panel conspicuously avoided direct mention of the Gardner case.

Anyone who saw a notice about the discussion and came expecting commentary on the ongoing case was sure to be disappointed, Wolff said.

“There might be a lot of people showing up for a burlesque show and then finding out that everybody’s keeping their clothes on,” he said.

The key points the panel made were that a quo warranto action, as interpreted recently by the courts, must cite violations of the official misconduct law during the current term of office and that it does not bar the official, if removed, from seeking and winning that office again.

Sometimes misconduct is “in the eye of the beholder, and you’ve got to be mindful, when is the next election?” Ardini said. “If the next election is in two months, what’s the point of bringing it to the court, right? I mean, even if you’re successful, it may be a month, you know, that the person is out, and then maybe put right back in.”

Gardner announced in late March that she intends to seek another term.

Many of the specific cases cited in Bailey’s action are from Gardner’s first term, but a near-equal number are from the current term that began in 2021 or were cases that overlapped the two terms.

At its base, a quo warranto action accuses someone of usurping the power of an office. The statute being used by Bailey in his action against Gardner requires an officeholder to forfeit their position for “willful or fraudulent violation or neglect of any official duty.”

Ardini first used a quo warranto action to remove a county official who had violated the Missouri Constitution’s ban on nepotism. Public officers forfeit their position if they hire or vote to hire a relative for public employment or a position in an appointive office, paid or unpaid.

“In nepotism, it’s almost a light switch, you’ve either done it or you’ve not,” Ardini said. “There are no defenses.”

When the charge is based on performance in office, the panel said, the issue is far more complicated.

Only two elected prosecutors have been removed from office by the courts. Both were in the 1930s and early 1940s and both were notoriously corrupt.

In one, Attorney General Roy McKittrick in 1940 won the ouster of Jackson County Prosecutor W.W. Graves on charges he ignored flagrant gambling, liquor and prostitution in Kansas City. The gambling and other vices were so open that newspapers published the addresses of known lawbreaking. 

In the other, McKittrick proved in 1939 that Cole County Prosecuting Attorney Carl Wymore knew that slot machines, dice machines and other illegal devices and schemes were operated openly in Jefferson City.

“They were in hotel lobbies, public eating places, taverns, drug stores, cafes, gasoline filling stations and other places, and, with few exceptions, were in plain view of the public,” the Missouri Supreme Court opinion ordering Wymore’s removal stated.

In a case McKittrick lost, and which Gardner’s defense is using as an example of why she should not be removed, St. Louis County Prosecuting Attorney Stanley Wallach was acquitted of neglect of duties. McKittrick alleged Wallach had failed to prosecute liquor law violations.

Wallach was able to show that his actions were within the scope of his prosecutorial discretion, Wolff said. Not every case presented by police will result in charges, he noted.

“You’re going to have a certain number of cases where prosecution is declined, and you’re going to have a certain number of law enforcement people who are going to be ticked off about that,” Wolff said. “But that is the nature of discretion. So it seems to me that in the area of duty, or neglect of duty, there’s a fairly high bar for prosecutors.”

In Bailey’s filing, the attorney general argues that Gardner should be ousted for neglect of her duties. She has an unacceptable backlog of unprocessed cases, with reviews taking as much as eight months, the petition states. Bailey also cites the large numbers of cases dismissed before trial and the office policy of only prosecuting cases where the evidence in hand leaves no reasonable doubt about the guilt of the accused.

In her response, Gardner’s attorneys argue that even if every allegation made by Bailey is true, it does not meet the standard for ouster.

Instead of alleging intentional and willful conduct, Bailey’s petition “generally alleges misjudgments by line attorneys in the conduct of a few dozen cases out of the thousands of cases Ms. Gardner’s office has prosecuted in her tenure.”

Bailey should know that the standard in Missouri is corruption, not disagreements over prosecutorial philosophy, Gardner argues in her response to his petition.

“Mr. Bailey’s action is frivolous, for political and not legitimate purposes,” her attorneys wrote.

But no matter the motivation behind a quo warranto action, Schaefer said, the courts will take it seriously. 

“Even if there is politics in how a quo warranto is brought,” Schaefer said, “a judge needs to determine whether it is a case that warrants removal.”

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Rudi Keller
Rudi Keller

Rudi Keller covers the state budget and the legislature. A graduate of the University of Missouri School of Journalism, he spent 22 of his 32 years in journalism covering Missouri government and politics for the Columbia Daily Tribune, where he won awards for spot news and investigative reporting.