(The Center Square) – Judge John Torbitzky set a preliminary date of Sept. 25 for a possible trial in Republican Missouri Attorney General Andrew Bailey’s suit to remove Democratic St. Louis Circuit Attorney Kim Gardner.
Judge Torbitzky set the date at the end of a four-hour hearing on Tuesday that included a 50-minute recess for attorneys from both sides to meet and attempt to come to an agreement on what materials could be subpoenaed as evidence.
Bailey’s office wanted the quo warranto trial to start in late August and suggested both parties meet for conference calls twice monthly with Judge Torbitzky. During his request for an August trial, Deputy Attorney General William Corrigan mentioned how Judge Scott Millikan filed an order on Monday to hold Gardner in contempt of court after prosecutors from her office didn’t show up for a murder trial.
“This conduct thwarts and defeats the authority of the Circuit Court of the City of St. Louis,” Millikan wrote in an order for Gardner to appear before him on April 24 to explain why she shouldn’t be held in contempt, punishable by a fine or imprisonment or both.
“The state is concerned about the office in terms of its ability to protect the public safety,” Corrigan told the court. “The state is concerned about victims suffering, defendants suffering and the administration of justice suffering.”
Attorney Michael P. Downey, representing Gardner, told the court another attorney Ronald Sullivan, who teaches at Harvard Law School, wouldn’t be available in late August or the first three weeks of September, but could see the case resolved in 2023. He emphasized Judge Torbitzky can simplify the case and shorten a possible 15-day trial by throwing out some of the attorney general’s claims.
“We understand the desire to move this case quickly,” Downey said. “There’s a reality here though. As you’ve seen, the Attorney General has brought a 128-page pleading with 630 paragraphs. You have the opportunity to narrow that.”
Corrigan criticized delaying the trial due to Sullivan’s teaching schedule.
“The business of the people of St. Louis and the state of Missouri take precedent over the students at Harvard,” Corrigan said. “So he needs to either rearrange his schedule to try this in September, in my judgement, or not be involved.”
While arguing for a motion to dismiss, Jonathan Sternberg, representing Gardner, said the state can’t show willful or fraudulent violation or willful neglect of a public duty.
“It’s a poorly considered political move that doesn’t remotely state a lawful claim for Ms. Gardner’s ouster under the well-established law of Missouri,” Sternberg said.
Bailey’s office argued the pattern of behavior shows willful intent.
“It’s not discretionary to show up in court unprepared and to have the court dismiss the case out from under you because you’re not ready,” Assistant Attorney General Andrew Crane said. “That’s not doing your job. That’s not just using your discretion. It’s failing. And if you do it enough times and you don’t take any steps to stop it, it’s knowingly failing, it’s willfully failing.”
Attorney Jonathan Jeffress, representing the circuit attorney’s office, argued against dozens of requests for evidence made by Bailey’s office. After both sides met to attempt to reach an agreement on more than 50 requests for evidence, they couldn’t reach an agreement on more than 30. They included emails and documents pertaining to budgets, communications to victims and witnesses and employee satisfaction surveys.
“No government office should be able to be picked apart like this,” Jeffress said.
