Calling it nothing more than a “gross power grab” and “an affront to the liberties of all Missourians,” St. Louis Circuit Attorney Kim Gardner has asked a judge to throw out the effort by Missouri Attorney General Andrew Bailey to remove her from office.
Gardner filed her response to Bailey’s quo warranto motion Tuesday night. Her attorneys argue that Bailey, a Republican, has come nowhere close to proving that Gardner had committed the “intentional acts of fraud and corruption” that are outlined in the Missouri statute on quo warranto proceedings.
Instead, Gardner, a Democrat, wrote, Bailey’s filing included nothing more than “bare violations, delays, and unfortunate failures by subordinates in her office.”
Bailey launched his effort to remove Gardner late last month after a series of events that led to a teenage volleyball player losing her legs. The driver of the car that caused the crash, 21-year-old Daniel Riley, was out on bond on armed robbery charges with required GPS monitoring. He had violated the terms of his release multiple times, but Gardner’s office never officially filed a motion to revoke that bond and send him to jail.
Bailey called the Riley case part of a pattern of dereliction of duty in Gardner’s office that included allowing cases to languish, which led to charges being dropped for failure to prosecute; not keeping in touch with the families of victims in cases and not filing charges on cases brought to her office by the St. Louis Metropolitan Police Department.
Gardner on Tuesday also asked the judge hearing the case, John Torbitzky of the Missouri Court of Appeals, to halt discovery, saying Bailey was conducting a “fishing expedition” aimed largely at people not associated with her office. The attorney general has issued subpoenas for documents from Mayor Tishaura Jones, Comptroller Darlene Green and the local crime data network known as REJIS.
Bailey has also scheduled videotaped depositions of current and former top aides to Gardner and of the circuit attorney herself.
It is not yet clear when Torbitzky will hear the various motions. He was assigned to the case as a special judge after the recusal of the entire bench of the 22nd Circuit. The court itself has been served with a subpoena from Bailey.
The filings
The 19-page response to Bailey’s allegations begins with a swipe at the attorney general, saying he failed to follow proper formatting procedures. Gardner’s attorneys then go through each of the accusations line by line, denying all of them. They say Bailey appeared to pull much of his material from various news articles that did not always accurately summarize the sequences of events.
In asking Torbitzky to dismiss the case entirely, Gardner accuses Bailey of attempting to use the 150-year-old quo warranto statute as nothing more than a political tool against a prosecutor from the opposing party. The attorney general, her attorneys wrote, could provide no case law or legal authority supporting the idea that Gardner’s actions rose to the level of willful or fraudulent neglect as required by state law.
The statute, attorneys wrote, had only been used against prosecutors six times since 1877 and had led to an ouster just twice. Both prosecutors removed had ignored illegal gambling in their jurisdictions.
The only logical conclusion, Gardner’s attorneys said, is that the quo warranto statute is “not a vehicle for inserting the courts into a political difference of opinion about how a prosecutor’s office should be run” or “a forum for complaining about mistakes by a circuit attorney’s office. Rather, the question is whether the prosecutor was intentionally acting with a corrupt purpose.”
Even if every one of Bailey’s allegations were true, attorneys said, it would mean only that Gardner was negligent in supervising her office — a “mere violation of official duty.”
Gardner’s legal team
Michael Downey, who represented Gardner in her disciplinary proceeding last year related to her prosecution of then-Gov. Eric Greitens, officially joined her legal team on Tuesday, along with another attorney from his office, Page Tungate. Jonathan Sternberg, who also has experience with attorney disciplinary cases, also was added.
Downey had previously represented Gardner without payment and said he does not expect his firm to be compensated for the quo warranto proceedings. Sternberg did not immediately respond to a request for comment on payment.
Also added on Tuesday was Ronald Sullivan, a Harvard law professor who helped Gardner with the Greitens case. Convicted rapist Harvey Weinstein is among his former clients.
