Kim Gardner seeks stay, dismissal

St. Louis City Circuit Attorney Kim Gardner motioned to stay discovery until a judge addresses her motion to dismiss the quo warranto seeking her removal from office.

Missouri Attorney General Andrew Bailey’s initial quo warranto petition alleged that Gardner’s office has failed to prosecute pending cases, communicate with victims on updates in criminal cases and their disposition and charge new cases referred by the St. Louis Metropolitan Police Department.

Gardner’s March 14 answer to the petition denied most of the allegations against her while admitting mistakes in cases that attorneys in her office were assigned.

“She did not make any of the decisions complained of in the Petition,” the answer states. “Ms. Gardner does not have personal knowledge of all circumstances and reasons for each of the decisions complained of in the Petition.”

Gardner has hired Michael P. Downey of the Downey Law Group in St. Louis, Jonathan Sternberg, an attorney in Kansas City, and Ronald S. Sullivan, an attorney in Washington, D.C., to represent her in the quo warranto action. Gardner’s motion to dismiss noted that out of the six quo warranto cases issued against a prosecutor, two prosecutors have been removed from their positions for refusing to investigate cases they worked on.

In 1939, a Cole County prosecutor who knew illegal gambling facility operators had intentionally refused to investigate was ousted in State ex inf. McKittrick v. Wymore. And in 1940, a Jackson County prosecutor knowingly refused to investigate gambling, prostitution and illegal liquor facilities or investigate the corrupt election in 1936, in State ex inf. McKittrick v. Graves.

Gardner’s motion states that the petition “fails to come anywhere close to this high bar” of intentional malfeasance or willful misconduct.

“Instead, Mr. Bailey alleges negligence: mere violations of duty, mistakes, or thoughtless failures by others,” the motion states.

In a footnote, the motion noted that public officials other than prosecutors who have been unseated with a quo warranto also had failed in their duties with corrupt intent, not negligence.

After St. Louis City Circuit Court judges were dismissed from overseeing the case, the Missouri Supreme Court en banc assigned Missouri Court of Appeals Eastern District Judge John P. Torbitzky to handle proceedings. Bailey’s preliminary motion to remove Gardner from office while the case proceeds was granted on Feb. 27, and Gardner maintains her office until the preliminary order is made permanent or if the court issues an order on the matter.

In response to Bailey’s subpoena to the St. Louis City Circuit Court seeking records and other matters, the court has hired Booker T. Shaw of Thompson Coburn in St. Louis, a retired judge who previously served on the Missouri Court of Appeals Eastern District and St. Louis City Circuit Court benches.

The case is State of Missouri ex inf. Bailey, Attorney General, v. Kimberly M. Gardner, 2322-CC00383.