Bailey’s case to remove Gardner will continue after departing judge denies dismissal
Missouri Attorney General Andrew Bailey’s bid to oust St. Louis Circuit Attorney Kim Gardner will continue.
Judge John Torbitzky on Tuesday denied most of Gardner’s motion to dismiss what’s known as a quo warranto.
“The number of alleged incidents and cases impacted, particularly when considering all of the allegations in each of these counts together, and in combination with the allegations that the examples are part of a pattern and practice of conduct, gives rise to a reasonable inference that [Gardner] has intentionally failed to act contrary to a known duty,” Torbitzky wrote. “The facts alleged in the petition also permit the reasonable inference that [Gardner] was aware of occurrences in her office and yet took no action.”
Gardner’s spokeswoman did not immediately return a request for comment on Torbitzky’s orders.
Bailey spokeswoman Madeline Sieren said he was “extremely pleased with the judge’s order.”
Bailey says Gardner is responsible for a chaotic and toxic work environment that’s led to the office fully collapsing. But Gardner wanted Torbitzky to throw the case out because she says he didn’t prove that she willfully neglected her duties.
Some of the accusations in Bailey’s petition include mismanaging her office so seriously that cases were either delayed or dismissed. She’s also accused of not communicating with crime victims.
“There is also a reasonable inference that [Gardner’s] subordinates were acting at her direction or in accordance with her policies,” Torbitzky wrote. “Whether any alleged failure of one of those subordinates could subject [Gardner] to ouster need not be answered at this time because the breadth of the allegations give rise to reasonable inference that [Gardner] has refused to perform her duties as circuit attorney.”
Torbitzky did dismiss, however, contentions that Gardner failed or refused to timely move for the disposal of property, refused to comply with the state’s open records laws and mismanaged her office’s finances.
Torbitzky wrote that those allegations “do not suggest willful neglect of office or any other basis for removal.”
Torbitzky also made a number of decisions on what would be allowable under a lengthy subpoena from Bailey’s office. With exceptions, Torbitzky largely denied Gardner’s efforts to limit turning over numerous documents to Bailey.
He also ruled that efforts to quash former Assistant Circuit Attorney Natalia Ogurkiewicz’s subpoena was denied, but added that Ogurkiewicz is “directed to ensure that her production of documents does not include privileged information or information that would be considered a closed record.”
He said subpoenas to Marvin Teer, a former employee, and Christopher Hinkley, a current employee, would apply “only to personal devices and only to documents and communications with members of the CAO.”
“The judge agreed with us and denied Gardner’s motion on all of the most important claims in our suit. Furthermore, the judge also ordered the Circuit Attorney’s Office to produce almost all of the documents we demanded,” Sieren of Bailey’s office said. “We are pushing forward with our efforts to remove Ms. Gardner from office to protect the people of St. Louis.”
New judge will hear case
Torbitzky, a state appellate judge who was assigned to hear the case, will no longer be presiding over it as he approved her motion to change judges. The state Supreme Court will name a replacement to take over the case.
St. Louis University law professor Anders Walker said that each side is allowed one request to change judges. Gardner didn’t provide a reason for asking for the change.
Walker said it’s possible that Gardner is looking past this phase of the quo warranto proceedings and is instead preparing for the Missouri Supreme Court to eventually hear the case.
“She's really ramping up the narrative that she tried to reform the system,” said Walker, pointing to remarks Gardner made over the weekend. “And now she wants to go head to head with the attorney general, the Supreme Court and maybe even the governor. This is just what she wants. She wants a showdown.”