As proceedings to oust Gardner begin, experts wonder if move will succeed
After several months of harsh words and dueling legal briefs, state Attorney General Andrew Bailey’s bid to oust St. Louis Circuit Attorney Kim Gardner is heading to a courtroom.
Judge John Torbitzsky will hear motions on Tuesday involving what’s known as a quo warranto. That’s the judicial procedure that Bailey is trying to use to remove Gardner from office.
The catalyst for Bailey’s move came when Daniel Riley seriously injured teenage athlete Janae Edmondson, who was walking in downtown St. Louis. Riley had violated terms of his bail numerous times before his car crashed, causing Edmondson to lose both of her legs.
But Bailey has pointed to broader issues than just the Edmondson case: In an amended petition that was filed last month, Bailey sought to portray Gardner’s office as awash in dysfunction — resulting in giant caseloads and dismissal of cases due to a failure to prosecute.
“[Gardner] is quick to deflect blame onto the attorneys she has failed to supervise, train, and support,” Bailey wrote in a March court filing. But Gardner “fails to heed another Missourian’s wisdom that the buck stops with her.”
Gardner has said Bailey has no grounds to remove her from office. She added in a recent filing that Bailey’s move is “for political and not legitimate purposes.”
“Mr. Bailey improperly seeks to hold Ms. Gardner strictly liable for any purported mistake of an employee in the Circuit Attorney’s Office, without regard to whether Ms. Gardner took or failed to take any action with regard to that mistake, and without regard to whether Ms. Gardner ordered, approved or ratified the conduct at issue,” her attorneys stated in an April court filing.
After the filing made that argument, the St. Louis Post-Dispatch reported that an assistant circuit attorney resigned from her post. She cited Gardner’s brief blaming her staff for the office’s problems as a sign of continued dysfunction when she quit last week.
And Gardner faced more turmoil on Monday after a judge filed for her to be held in contempt after an assistant circuit attorney didn't show up to a murder trial.
"This conduct thwarts and defeats the authority of the Circuit Court of St. Louis," wrote Judge Scott Millikan.
Millikan ordered Gardner to appear before the court on April 24 on the contempt filing.
‘Willful neglect’ standard
Most legal experts who have spoken to St. Louis Public Radio about the Gardner quo warranto point to a precedent set in a 1995 Missouri Supreme Court case that could be critical in determining whether Bailey’s effort is successful.
That decision involved a bid to oust a sheriff in Cass County. Then-Supreme Court Judge Stephen Limbaugh noted that a successful quo warranto required proving that the officeholder engaged in “willful neglect.”
“It is something more than just a mere mistake or the thoughtless failure to act,” Limbaugh wrote. “Neglect pertains to nonfeasance, the failure to act, whereas willfulness refers to intentional or self-determined conduct. Implicit in the idea of willfulness is the actor’s knowledge of the duty neglected; one cannot intentionally neglect a duty without knowing that the duty exists.”
Attorney Joe Dandurand was part of the last attempt by an attorney general to oust a county prosecutor. He was also a Cass County judge when the 1995 Supreme Court case was decided.
Dandurand said if Bailey can’t convince Torbitzsky that Gardner willfully neglected her duties, then he won’t be successful in ousting her.
“It's a high bar,” Dandurand said. “But this is not to say that there can't be evidence to the prosecutor's neglect of duty that is willful that is so compelling that a quo warranto shouldn’t be issued.”
Some, including Dandurad, believe if Bailey is successful, it could set a major precedent around prosecutorial discretion.
Some Gardner critics question whether quo warranto is way to go
Defense attorney David Mueller, who is running against Gardner in the 2024 Democratic primary, is critical of her performance but doesn’t support the move to oust her.
“To me, it's a voters' rights issue,” Mueller said. “Voters pretty overwhelmingly voted for Kim Gardner in the 2020 election. And it's concerning when you see this dovetailed with the state [attempt at] taking over the St. Louis Metropolitan Police Department again. It feels like the state of Missouri is trying to take over city and city politics. It's inappropriate. These are local problems with local solutions.”
Another critic who isn’t sold on Bailey’s quo warranto efforts is state Rep. Lane Roberts.
The Joplin Republican is sponsoring legislation that would allow the governor to appoint a special prosecutor to handle certain types of cases. As written, it would only affect the City of St. Louis.
While Roberts is deeply critical of Gardner’s performance in office, he said recently on an episode of the Politically Speaking podcast that quo warranto “is not a solution.”
“If she were ousted, what prevents her from running again next time and getting reelected? It's not a solution,” Roberts said. “The solution for me is that we have a mechanism in place that allows the governor when things get out of hand to step in and make a state contribution to making it right.”
Others like Republican Gov. Mike Parson said that what Bailey is doing is appropriate.
“I think [Bailey] is doing the right thing,” Parson said to reporters in March. “You’re doing what the system allows you to do: You’re putting it in front of a judge to go through there and see the facts of the case.”
If Bailey is successful, Parson will appoint Gardner’s successor, who would serve until the end of 2024.
Tuesday’s hearing is the first step in what could be a lengthy process. No matter what Torbitzsky decides, the case is likely to end up before the Missouri Supreme Court.