The first courtroom showdown between the city’s top prosecutor and the state’s attorney general was as illuminating and dramatic as an episode of Law & Order.
If Mr. Bailey doesn’t like the job Ms. Gardner is doing, that’s his right…he can support another candidate in the next election and hope the people of St. Louis agree with him. But the law of Missouri doesn’t allow him to use this court to oust Ms. Gardner for stuff he doesn’t agree with.”-Jonathan Sternberg, attorney representing Circuit Attorney Kim Gardner
On Tuesday, lawyers for St. Louis Circuit Attorney Kimberly M. Gardner and Missouri Attorney General Andrew Bailey met before Judge John Torbitzky in a packed fourth-floor courtroom room in the city’s Civil Courts building. The courtroom drama that included arguments about subpoenas, trial timelines, and contents of the case lasted for more than four hours.
In the end, Judge Torbitzky said he’d rule on most of the issues on another date. He did, however, set a tentative date for a possible three-week trial beginning September 25, 2023.
Gardner’s attorneys’ first order of business was challenging Bailey’s “quo warranto” lawsuit filed in mid-February. They maintain that the lawsuit should be dismissed because it doesn’t meet the criteria of atypical”quo warranto” case.
Bailey’s lawsuit claims that Gardner should be removed from office because she failed to prosecute cases, failed to keep victims informed and failed to review thousands of cases submitted by St. Louis police and failed to meet the obligations of her office.
Noting that Gardner refutes all charges, one of her attorneys, Jonathan Sternberg,defined Bailey’s actions as a “poorly stated political move that doesn’t remotely state a lawful claim for Ms. Gardner’s ouster under Missouri law.” Bailey, Sternberg added, must “show that Ms. Gardner intentionally failed or refused a duty.”
Torbitzky interrupted to ask why it isn’t fair to assume that Gardner showed “intentional conduct” when “you take all of the content of the entire (quo warranto) petition together?”
Sternberg immediately countered that Bailey had shown no evidence that Gardner’s conduct was deliberate.
“It has to be the intentional failure of a known duty,” Sternberg argued, adding: “So, unless they have some fact that they can allege-which they don’t-that Ms. Gardner engineered this for some reason, it doesn’t meet that standard…which is not a high burden.”
Judge Torbitzky pressed Bailey’s attorneys to define what was in their petition that would allow him to believe that Gardner’s conduct was “intentional as opposed to just negligent?”
Adam Crane, Missouri Assistant AG,responded by defining “willful neglect” as “when a public official knows that they need to do more but fails to do so.” The petition, Crane added, is “replete with examples that show a repeated pattern of Gardner failing her personnel and the duties of her office.”
Accusations and calls for Gardner’s removal from office reached a fevered pitch in February when a 17-year-old volleyball player was critically injured in a crash caused by 21-year-old Daniel Riley-who was on bond on a robbery case. The crash led to amputation of her legs.
Gardner’s office was targeted even though Judge Bryan Hettenbach, who issued Riley’s recognizance bond, hadn’t revoked it even after numerous violations and a request from Gardner’s office that he be jailed.
That case and high-profile critic’s claims that her “understaffed, dysfunctional “office has mishandled cases heightened calls for Gardner’s removal..
Torbitzky asked Crane why Gardner should be held liable for her subordinate’s actions. The assistant AG attorney answered: “We’re obviously talking about inaction not necessarily any particular action…when assistants have failed to accomplish the circuit attorney’s goals, the circuit attorney has failed.”
At that point, Gardner’s attorneys invoked the history of Missouri law, in particular “quo warranto” lawsuits filed in the state. They argued that there were no cases in Missouri history where a public official was ousted from office because of repeated failures of their subordinates without any intentional direction of their actions.
Sternberg insisted Bailey’s allegations“don’t remotely come close to meeting” the bar of the 13 cases in Missouri history where public officials have been ousted under quo warranto. Those cases, the attorney added, included corrupt officials who misused public funds, provided kickbacks to friends or “intentionally turned a blind eye toward notorious organized crime due to their own involvement in those offenses.”
Going back as far as the 1940s, Sternberg stated that most “quo warranto” petitions revolved around people accused of “official corruption” who showed willful neglect which included malfeasance. In Gardner’s case, he continued, Bailey’s lawyers have shown no examples of “corruption or willful malfeasance.”
Gardner’s attorneys also raised a 1967 Missouri Supreme Court case that specifically defined the criteria of “quo warranto” petitions. The high court ruled that such petitions must show “willful and deliberate acts of aggression and coercion.” Therefore, Sternberg argued that Bailey must show that Gardner either committed “willful or deliberate acts of aggression and coercion” or that she intentionally failed to act contrary to her duties.
In further dissection of Bailey’s lawsuit, Sternberg noted how the attorney general “plucked 40 select cases out of Gardner’s 19,300” court cases to try and show that she “purposely engineered the outcome of those cases” which supposedly proves “willful neglect.”
After dismissing the tactic, Sternberg took a swipe at Bailey’s qualifications and motives behind his lawsuit.
“This is an attack on the democratic process by someone who was never elected,” Sternberg said. “If Mr. Bailey doesn’t like the job Ms. Gardner is doing, that’s his right…he can support another candidate in the next election and hope the people of St. Louis agree with him.
“But the law of Missouri doesn’t allow him to use this court to oust Ms. Gardner for stuff he doesn’t agree with.”
A statement released from Gardner’s office Tuesday, carried a similar tone. It also possibly spoke to one of Gardner’s attorneys, Natalia Ogurkiewicz, who abruptly resigned from her post last week. In her resignation letter, Ogurkiewicz cited a “toxic work environment” as a reason for her departure.
“With this Quo Warranto, the Attorney General of the State of Missouri has launched a full-out attack not only against St. Louis Circuit Attorney Kim Gardner, but against her entire staff,” Gardner’s statement read. “No other office in America is the subject of such scrutiny, and any staff that experienced this, no matter their leader, would feel demoralized and broken.
“That is, of course, the Attorney General’s goal – to break down the office until people quit, even if it means cases cannot be prosecuted.”
