IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MISSOURI 22?? JUDICIAL CIRCUIT ST. LOUIS CITY IN RE MOTION FOR SPECIAL PROSECUTOR, Cause No. CIRCUIT ATTORNEY KIMBERLY M. MOTION TO DISMISS POLICE DIVISION. CITY OF ST. MOTION TO DISOUALIFY THE CIRCUIT OFFICE AND APPOINT SPECIAL PROSECUTOR COMES NOW the Circuit Attorney Kimberly M. Gardner, duly elected and commission Circuit Attorney for the City of St. Louis Missouri (?Circuit Attorney?), by and through her undersigned Counsel Joseph P. Bednar, Jr., and moves this Honorable Court to deny and dismiss the Police Division, City Of St. Louis? (?Police Division?) Motion to Disqualify the Circuit Attomey?s Of?ce and Appoint Special Prosecutor (?Motion?) and Offers the following Suggestions in Support Thereof: INTRODUCTION There are no facts to support the conclusory allegations of the Police Division of unfairness or impartiality or to assert that the Circuit Attorney would not faithfully execute the duties Of her Office and uphold her oath Of of?ce. The Police Division?s Motion wrongfully infers that a Circuit Attorney must request investigative subpoenas as part of the Police Division?s investigation as ?56.085 merely authorized a prosecuting attorney to request an investigative subpoena when it states ?In the course of a criminal investigation, the prosecuting or circuit attorney may request. . she is not required to request a subpoena at the request Of the Police Division. WA 11457514.] The Police Division?s Motion misstates the law when it states that a prosecutor would be required to prosecute a case if the Police Division?s investigation reveals probable cause to believe that a violation of criminal law has occurred as a prosecution only occurs if ?in the judgement of such circuit attorney, the evidence presented to [her] is suf?cient to justify a prosecution. Movant Police Division has failed to offer, let alone establish, any facts that would establish a ?nding of a Con?ict of Interest justifying a disquali?cation. In this case no facts have been alleged. Without facts the court does not have a basis upon which to rule in the Movant Police Division?s favor. The Circuit Attorney and her of?ce are more than capable of evaluating allegations of wrongdoing against members, agents or representatives of her of?ce. FACTS 1. Circuit Attorney Kimberly M. Gardner was duly elected and commissioned as the Circuit Attorney for the City of St. Louis having been elected into of?ce by a vote of the people of the City of St. Louis pursuant to ?56.430 and taking the oath of of?ce on January 6, 2017. 2. The Circuit Attorney of the City of St. Louis is charged with managing and conducting all criminal cases, business and proceedings of which the Circuit Court of the City of St. Louis shall have jurisdiction. ?56.450 3. The City Counselor, an unelected position, is another appointed of?cial of the City of St. Louis who is charged with representation of all of City Departments and agencies 2 WA ll457514.1 including, but not limited to, the Police Division of the City of St. Louis, and has ?led the Motion on behalf of the Police Division. 4. The Police Division?s Motion is an unveri?ed Motion as there is no af?davit of reasonable cause or probable cause attached and/or incorporated offering the facts that would form the basis for disquali?cation of the Circuit Attorney. 5. The Police Division?s Motion alleges the Circuit Attorney is a ?potential? witness to allegations of perjury, not a likely witness. 6. The Police Division?s Motion alleges the ?Police Division currently needs an impartial prosecuting attorney to evaluate and request investigative subpoenas as part of the Police Division?s investigation of allegations of perjury involving the circuit attorney?s of?ce. 7. The Police Division?s Motion does not allege probable cause nor did the City Counselor assert there was probable cause to believe a crime of perjury had occurred, only that an allegation had been made. 8. The Police Division?s Motion does not assert ANY veri?ed facts that would substantiate an allegation that the Circuit Attorney has a con?ict even if one of her own agents or employees committed perjury. 9. The Police Division?s Motion does not assert ANY facts, let alone veri?ed facts, or af?davits or even the statement of one individual within the Police Division that would substantiate an allegation that neither the Circuit Attorney nor other prosecutors employed by her would not fairly evaluate or prosecute allegations of perjury involving the Circuit Attomey?s Of?ce. 3 WA ll457514.1 11. The Police Division does not as standard procedure recuse themselves from investigating one of their of?cers who has been accused of criminal activity. ARGUMENT I. STANDARD OF REVIEW - MOTION To DISMISS STANDARD. The Pleading ?led by the St. Louis City Counselor on behalf of the Police Division is ?led in the form of a ?Motion? when one might more properly consider another form of pleading, including a Petition, as there is not a cause of action pending related to the subject matter of the Motion ?led. As a result, the Circuit Attorney would suggest the Court apply the standard for a Motion to Dismiss to the ?Motion? ?led by the Police Division as it encompasses a standard that is liberal, but still has some basic requirements for a pleading to satisfactorily state a claim for relief. motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition.? Bromwell v. Nixon, 361 393, 398 (Mo. banc 2012). In evaluating such a motion, the Court must ?determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.? City of Lake Saint Louis v. City of O?Fallon, 324 756, 759 (Mo. banc 2010). trial court may dismiss a claim when a party fails to state a cause of action or fails to state facts entitling [it] to relief. Town Country Appraisals, LLC v. Hart, 244 187, 189 (Mo. App. ED. 2007). If the facts alleged, even if true, would not constitute a violation of the relevant legal standard or duty, a motion to dismiss for failure to state a claim should be granted. See Manzer v. Sanchez, 985 936, 938-39 (Mo. App. ED. 1999). 4 WA 11457514.] Missouri is a fact-pleading state. As plaintiff, the Police Division is obliged to allege the facts upon which its claim rests on the face of its Motion. ?In Missouri, motions to dismiss for failure to state a claim have substantially more ?bite? under our ?fact pleading? rule than they do under the federal system of ?notice pleading.?? ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp, 854 371, 379-80 (Mo. banc 1993). ?[W]here the federal courts rely on summary judgment procedures to dispose of baseless claims, such continues to be the role of motions to dismiss in Missouri.? Id. (emphasis added, internal citations omitted). Additionally, conclusory allegations are disregarded. See Hendricks v. Curators of University of Missouri, 308 740, 747 (Mo. App. W.D. 2010) we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, ?[c]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted?) (quoting Willamette Indus, Inc. v. Clean Water Comm 34 197, 200 (Mo. App. W.D. 2000)); see also Jennings v. Bd. of Curators of Missouri State Univ., 386 796, 798 (Mo. App. SD. 2012) (?Our rules demand more than mere conclusions that the pleader alleges without supporting facts. We disregard such conclusions in determining whether a petition states a claim?) (Internal citations and quotation marks omitted). 11. THE OFFICE OF CIRCUIT ATTORNEY Before reaching a decision ?rst as to whether there is a con?ict of interest we should review the respective positions involved in this matter, especially the duty, authority and responsibilities of the Circuit Attorney and the duties allegedly owed to the Police Division. 5 WA 11457514.] The responsibility of a public prosecutor differs from that of the usual advocate; her duty is to seek justice, not merely to convict. Berger v. United States, 295 US. 78, 88 (1935);; Model Code of Prof?l Responsibility EC 7-13 (1980). The American Bar Association Standards for Prosecutors: "The duty of the prosecutor is to seek justice, not merely to convict." The county prosecutor, or in the case of the City of St. Louis, the Circuit Attorney is an elected of?ce unique to the world. The Prosecutor is not the arm of the Mayor or the Judge or the Governor of the State, or the President of the United States, he or she is the independent attorney elected by a vote of the people to seek justice in the manner she sees best for the community, and if the electorate are disappointed they can vote her out of of?ce. The Missouri Supreme Court many years ago in State ex rel. Dowd v. Nangle, 365 M0. 134, 276 135 (Mo banc 1955) in rather strong language (as emphasized below) described the power and authority of the Circuit Attorney?s of?ce that bears repeating today: In what of?ce has the law lodged the duty and responsibility for the commencement of prosecution of a criminal offense and carrying the same forward to its conclusion? Unquestionably such is the responsibility of the circuit attorney or prosecuting attorney. ?56.450 provides that the circuit attorney shall ?manage and conduct all criminal cases, of which the circuit court shall have jurisdiction In State ex inf. McKittrick v. vaore, 345 M0. 169, 181, 132 979, 986. we said that a circuit or prosecuting attorney ?is a quasi judicial of?cer, retained by the public for the prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent, between the certainly and the doubtfully guilty.? And in State ex rel. Grif?n. v. Smith. 363 Mo. 1235, 1239. 258 590, 593. we discussed the dignity and importance of the of?ce of prosecutor and recognized that he, like every other attorney at law, is an of?cer of the court, nevertheless ?he is not a mere lackev of the court nor are his conclusions in the discharge of his of?cial duties and responsibilities, in anvwise subservient to the views of the judge as to the handling of the State ?s cases. These cases, and others that might be cited, support the conclusion that the prosecutor has the sole authority and discretion to nolle prosequi a criminal proceeding or to elect to reduce the offense charged before trial. If a Circuit Attorney has the sole authority to nolle prosequi (or dismiss) or reduce charges in a criminal proceeding before trial, there is no mandatory duty for the Prosecutor to 6 WA 11457514.] ?le charges against any individual whether one agrees or disagree with the Prosecutor?s decision. The Circuit Attorney has no statutory mandatory duty to ?le charges against an individual simply because the police want you to ?le charges against someone. The statutory duty alleged in their Motion is a misstatement of the law because they failed to recite to the court the remainder of the sentence which is in the judgment of such circuit attorney, the evidence presented to him is sufficient to justify a 56.470 THE POLICE DIVISION LACKS STANDING Their Motion Offers no statutory authority to substantiate why they have standing to assert the Circuit Attorney should be disquali?ed only a conclusory allegation that she cannot be impartial or fair to the Police Division. They offer no factual allegation of associational standing or direct standing as they have not identi?ed anyone in the Police Division who suffers a concrete injury if the Circuit Attorney fails to request an investigative subpoena. Most importantly they cannot establish that the Circuit Attorney is required to issue an investigative subpoena or to ?le criminal charges. If the Police Division cannot establish a duty owed to them, they cannot establish standing. They did not establish a duty owed and misstated the law to this Honorable Court. IV. CONFLICT OF INTEREST STANDARD One may disagree with her decision, just as one may disagree with a judge?s decision or the Police Divisions decision to write a ticket or give a warning, or to ?nd or not ?nd police misconduct in an internal affairs investigation. Such a disagreement does not mean that Police 7 WA 11457514.] Of?cer or Judge has a con?ict of interest because they view justice or fairness different than another individual. What matters is who holds the of?ce, and what is the of?ceholder's statutorily mandated duty. That someone alleges they may not get the decision they want from a public of?cial does establish the public of?cial has a con?ict of interest, nor is it a suf?cient basis to establish a con?ict of interest to disqualify the public of?cial from exercising the duties of her of?ce. What a slippery slope that would be if Police suddenly decided they could shop for prosecutors and judges. While we know that is not the intent of the Police Division, we certainly do not want any precedence to be established that dissatisfaction with a ?ling decision or ruling is the basis to assert con?ict of interest in a criminal prosecution. V. THE AUTHORITY The Circuit Attorney understands this Court holds broad discretion in determining whether or not a con?ict exists and whether or not another attorney should be appointed to prosecute the case. The decision to disqualify the prosecuting attorney and appoint another attorney to prosecute a criminal case lies within the sound discretion of the trial court. State v. Eckelkamp, 133 72 (Mo.App. ED. 2004), citing State v. Copeland, 928 828, 840 (Mo. banc 1996). However the court is still required to establish a factual basis for the Order. Movant has not presented to this Honorable Court a single fact to establish that the Circuit Attorney has an inability to be impartial and fairly evaluate whatever evidence there may be and make a decision to request an investigative subpoena, or a ?ling decision based upon her sense of justice, not the Police Division?s sense of justice or anyone else?s sense of justice. 8 WA ll457514.l No facts were offered to establish even reasonable belief that a crime has occurred, and the Police Division admitted they do not have probable cause that a crime occurred. It seems extremely premature to ?nd the Circuit Attorney has a con?ict of interest to evaluate the issuance of an investigative subpoena when no facts have been presented to her as to what documents need to be reviewed. There is no basis to disqualify the Circuit Attorney when the City Counselor admits there is no reasonable belief a crime has been committed, and no probable cause a crime has been committed. In regard to the issuance of an investigative subpoena, on these conclusory allegations there is no need for a prosecutor at all as a prosecutor is not required to request an investigative subpoena under any circumstances. In the instant case the Police Division has failed to identify with suf?cient particularity the purpose or scope of an investigative subpoena and or the facts to establish that the Circuit Attorney is required to issue an investigative subpoena. Because they can?t. In regards to the ?ling of criminal charges, there is no need to consider issues related to her inability to exercise ?justice? in a ?ling decision, as the Police Division admits they do not have probable cause, and the law does not require her to ?le charges even if there is probable cause. If so, deferred prosecutions would be unavailable to prosecuting attorneys as a tool of law enforcement and alternative sentencing. VI. CONCLUSION 9 WA 11457514.] There are no facts to support their conclusory allegations that the Circuit Attorney would not faith?illy execute the duties of her of?ce and uphold her oath of of?ce. The Police Division?s Motion wrongfully infers that a Circuit Attorney must request investigative subpoenas as part of the Police Division?s investigation as ?56.085 merely authorized a prosecuting attorney to request an investigative subpoena when it states ?In the course of a criminal investigation, the prosecuting or circuit attorney may request. . she is not required to request a subpoena at the request of the Police Division. The Police Division?s Motion misstates the law when it states that a prosecutor would be required to prosecute a case if the Police Division?s investigation reveals probable cause to believe that a violation of criminal law has occurred as a prosecution only occurs if ?in the judgement of such circuit attorney, the evidence presented to [her] is suf?cient to justify a prosecution. Movant Police Division has failed to offer, let alone establish, any facts that would establish a ?nding of a Con?ict of Interest justifying a disquali?cation. In this case no facts have been alleged. Without facts the court does not have a basis upon which to rule in the Movant Police Division?s favor. The Circuit Attorney and her of?ce are more than capable of evaluating allegations of wrongdoing against members, agents or representatives of her of?ce. This Honorable Court should exercise extreme caution before entering an Order ?nding that an elected of?cial should be disquali?ed from exercising her lawful duties the voters elected her to exercise as it is a slippery slope to permit the Police to assert ?con?ict of interest? without testimony under oath or an of?cer who has signed an af?davit as to the facts they believe constitute a con?ict of interest, only an assumption the current Circuit Attorney will not 10 WA n457514.1 grant their request nor ?le charges against someone they currently do not have probable cause to even submit a case. WHEREFORE, Movant respectfully requests the Motion to Disqualify the Circuit Attomey?s Of?ce and Appoint Special Prosecutor be denied and dismissed, if however the Court decides to appoint a Special Prosecutor over the Circuit Attorney?s objection, the Circuit Attorney would recommend Prosecuting Attorney Jean Peters Baker of Jackson County Missouri, who was the Special Prosecutor in the criminal case referred to in the Police Division?s Motion given her familiarity with the case, and for such other and further relief as this Honorable Court deems just and proper. SPENCER FANE LLP T. By: \l?if Josq?lgP/Bednar, Jr. #33921 304 East High Street Jefferson City, MO 65101 (573) 634-8116 Telephone (573) 634-8140 Facsimile ibednar@spencerfane.com ATTORNEY FOR CIRCUIT ATTORNEY KIMBERLY M. GARDNER CERTIFICATE OF SERVICE I hereby certify that the foregoing was emailed to Judge Michael K. Mullen, Presiding Judge and to Julian Bush and Christine Hodzic of the City of St. Louis Counselor?s Of?ce this 28th day of June, 2018. 1 1 WA 11457514.]