Appeals court finds no nepotism in Carmody family legal team

Scott Lauck//December 8, 2020

The Missouri Court of Appeals Eastern District ruled Dec. 1 that the appointment of the law firm Carmody MacDonald as a special prosecutor did not violate the state’s ban on nepotism.

St. Louis Circuit Attorney Kim Gardner had challenged the appointment of Gerard Carmody and his firm after a judge named them to lead an investigation in the wake of Gardner’s prosecution of former Gov. Eric Greitens. Two of the lawyers aiding Carmody were his daughter Ryann Carmody, a principal at the firm; and his son Patrick Carmody, an associate.

Gardner’s office filed a quo warranto action, alleging that Carmody had violated Article VII, Section 6 of the Missouri Constitution, which bars officials from appointing a relative to public office or employment. Last year, Judge Joan Moriarty ruled in favor of the Carmody attorneys as a matter of law. The Eastern District agreed.

Judge Robert M. Clayton III, writing for the court, said special prosecutors are regarded as public officials, and that state law requires the ouster of officials who take part in appointing their own relatives within the fourth degree, by consanguinity or affinity.

However, the Missouri Supreme Court ruled in 1984 in State ex inf. Ashcroft v. Alexander that such a claim must fail when the relatives were appointed by a court. Judge Michael Mullen’s 2018 order for a special prosecutor had specified “Gerard T. Carmody, and Carmody MacDonald P.C. and its resources.”

“It was Judge Mullen — in other words, a court — who appointed these resources of Carmody MacDonald P.C. as special prosecutors, notwithstanding the fact Gerard T. Carmody later ‘staffed’ the special prosecutor matter” with two lawyers who are his children, Clayton wrote. Judges Colleen Dolan and Mary K. Hoff concurred.

Gardner’s office had argued that Carmody’s use of his son and daughter on the case was essentially the same as a circuit attorney’s hiring of assistants. Clayton called that a “creative argument” but said it would lead to the “absurd and unreasonable conclusion” that special prosecutors also could hire staff and negotiate a budget with the St. Louis Board of Alderman.

Gardner’s office didn’t immediately comment on the ruling.

The case ultimately stems from Gardner’s prosecution of the former governor on a felony charge that stemmed from an incriminating photo Greitens allegedly took of a woman with whom he’d had an affair and another felony based on allegations involving an improperly-obtained donor list from a charity Greitens founded. The case ultimately died when Greitens resigned in 2018.

Carmody was appointed to investigate William Tisaby, a former FBI agent hired by Gardner as part of her investigation of Greitens. Tisaby was indicted in 2019 for allegedly lying during a deposition. The criminal case remains pending.

The case is State ex rel. Gardner v. Carmody, ED108380.