State ex rel. Gardner v. Carmody

• Decision Date: 01 December 2020
• Docket Number: No. ED 108380,ED 108380
• Citation: 618 S.W.3d 560
• Parties: STATE of Missouri EX REL., Kimberly GARDNER, in her capacity as the Circuit Attorney for the City of St. Louis, Appellant, v. Gerard T. CARMODY, in his capacity as Special Prosecutor, Respondent.
• Court: Missouri Court of Appeals

618 S.W.3d 560

STATE of Missouri EX REL., Kimberly GARDNER, in her capacity as the Circuit Attorney for the City of St. Louis, Appellant,

v.Gerard T. CARMODY, in his capacity as Special Prosecutor, Respondent.

No. ED 108380

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: December 1, 2020

Application for Transfer Denied April 6, 2021

FOR APPELLANT: Dawn M. Parsons, 2001 Wyandotte St., Kansas City, MO 64105, Stephen W. Miller, Roy L. Austin, Jr., Attorneys Pro Hac Vice, 1919 M Street, NW, 8^th Fl., Washington, DC 20036.

FOR RESPONDENT: Gerard T. Carmody, Ryann C. Carmody, Patrick G. Carmody, Ryan M. Prsha, 120 S. Central Ave., Ste. 1800, St. Louis, MO 63105.

ROBERT M. CLAYTON III, Judge

Kimberly Gardner, in her capacity as the Circuit Attorney for the City of St. Louis ("Gardner" or "the Circuit Attorney"), appeals the trial court's judgment on the pleadings in favor of Gerard T. Carmody, in his capacity as Special Prosecutor ("Gerard T. Carmody" or "Carmody") on Gardner's petition in quo warranto. We affirm.

I. BACKGROUND

Sometime prior to June 27, 2018, the Police Division, City of St. Louis, Missouri ("the Police Division"), filed a motion for the disqualification of the Circuit Attorney's Office ("the Circuit Attorney's Office" or "the Office") and for the appointment of a special prosecutor in the investigation and possible pursuit of criminal charges arising from the prosecution of former Governor Eric Greitens ("the Police Division's motion" or "the Police Division's motion for disqualification and for appointment of a special prosecutor"). The Police Division's motion alleged the Circuit Attorney's Office should be disqualified from the matter because the Office had a conflict of interest in that there was currently underway an investigation into allegations of perjury committed by persons associated with the Office related to the prosecution of former Governor Eric Greitens and "the Circuit Attorney [wa]s a potential witness to the activity."

On June 27, 2018, the Honorable Michael K. Mullen of the Circuit Court of the City of St. Louis ("Judge Mullen") heard the Police Division's motion for disqualification and for appointment of a special prosecutor and took it under submission. On June 29, Judge Mullen entered an order granting the Police Division's motion, finding in relevant part:

The [c]ourt now finds the Circuit Attorney's Office has a conflict of interest and hereby appoints Gerard T. Carmody, and Carmody MacDonald P.C. and its resources as Special Prosecutor to request subpoenas to aid in the Police Division's investigation and to pursue criminal charges and prosecution should the investigation reveal probable cause to believe criminal activity occurred in connection with [the prosecution of former Governor Eric Greitens].

It is further ordered that said Special Prosecutor shall possess the same powers as the duly elected prosecutor for the purposes of the matter for which he is appointed.

("Judge Mullen's June 2018 Order" or "the June 2018 Order").

Subsequently, Gerard T. Carmody, a member of the law firm of Carmody MacDonald P.C., "staffed" the special prosecutor matter and "select[ed] team members [from Carmody MacDonald P.C.] who ha[d] the experience and expertise to handle the matter effectively[,]" including: Carmody's daughter Ryann Carmody (an attorney and employee of Carmody MacDonald P.C. continuously since September 2013); Carmody's son Patrick Carmody (an attorney and employee of Carmody MacDonald P.C. continuously since March 2015); and "[o]ther attorneys ... of Carmody MacDonald P.C."

On May 17, 2019, Gardner filed the instant petition in quo warranto in the Circuit Court of the City of St. Louis against Gerard T. Carmody, along with suggestions in support and exhibits. The petition sought two, alternative forms of relief. First, Gardner requested the trial court to remove Carmody from his appointed office of special prosecutor on the grounds he "named or appointed his adult children, Ryann Carmody and Patrick Carmody, to the public office or employment, as members of his prosecutorial team, in violation of Article VII[,] Section 6 of the Constitution of Missouri."¹ Second, and in the alternative, Gardner's petition in quo warranto requested the trial court to quash Judge Mullen's June 2018 Order "to the extent the [June 2018] [O]rder unlawfully appointed an entire law firm as [s]pecial [p]rosecutor."

The Honorable Joan L. Moriarty of the Circuit Court of the City of St. Louis ("the trial court" or "the court") was assigned to Gardner's cause of action. Gerard T. Carmody subsequently filed an answer to Gardner's petition in quo warranto , along with suggestions in opposition and exhibits. Gardner then filed suggestions in further support of her petition, along with exhibits.

Thereafter, Gerard T. Carmody filed a motion for judgment on the pleadings on Gardner's petition in quo warranto , which the trial court granted. Gardner appeals.

II. DISCUSSION

Gardner raises three points on appeal, arguing the trial court erred in granting judgment on the pleadings in favor of Gerard T. Carmody on Gardner's petition in quo warranto. For the reasons discussed below, we disagree.

A. Standard of Review and Gardner's Petition in Quo Warranto in this Case

An appellate court reviews a trial court's grant of a motion for judgment on the pleadings de novo. Woods v. Missouri Department of Corrections , 595 S.W.3d 504, 505 (Mo. banc 2020) ; French v. Missouri Department of Corrections , 601 S.W.3d 299, 300 (Mo. App. W.D. 2020). "A motion for judgment on the pleadings is properly granted if, from the face of the pleadings, the moving party is entitled to judgment as a matter of law." French , 601 S.W.3d at 300 (quotation omitted); see also Woods , 595 S.W.3d at 505 (similarly finding).

As is evident below, the issues raised in Gardner's points on appeal involve the application of a constitutional provision to the alleged facts set out in the pleadings in this case, statutory interpretation, and the interpretation of a court order, which are all issues of law our Court reviews de novo. See State ex rel. George v. Verkamp , 365 S.W.3d 598, 600 (Mo. banc 2012) (statutory interpretation and application of a provision of the Missouri Constitution to stipulated facts are reviewed by an appellate court de novo ); In re T.A.S. , 62 S.W.3d 650, 657 (Mo. App. W.D. 2001) ("[t]he interpretation of a court order is a question of law which [an appellate] court reviews de novo ") (citing Jacobs v. Georgiou, 922 S.W.2d 765, 769 (Mo. App. E.D. 1996) ).

In this case, Gardner's petition in quo warranto requested, inter alia , the trial court to remove Carmody from his appointed office of special prosecutor on the grounds he "named or appointed his adult children, Ryann Carmody and Patrick Carmody, to the public office or employment, as members of his prosecutorial team, in violation of Article VII[,] Section 6 of the [Missouri] Constitution ...."

B. Relevant Law Regarding Missouri's Constitutional Ban on Nepotism and Petitions in Quo Warranto

Article VII, Section 6 of the Missouri Constitution provides: "[a]ny public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment." Mo. Const. Art. VII, Section 6. Under this self-executing provision, "a public officer ‘forfeits by the act forbidden, and therefore his act results in a status’ – that of interloper." State ex inf. Dykhouse v. City of Columbia , 509 S.W.3d 140, 150 (Mo. App. W.D. 2017) (quoting State ex inf. Norman v. Ellis , 325 Mo. 154, 28 S.W.2d 363, 366 (Mo. banc 1930) ). It is undisputed in this appeal that a person such as Gerard T. Carmody who is appointed special prosecutor is a public officer who is subject to Missouri's constitutional ban on nepotism. See Mo. Const. Art. VII, Section 6 ; Jenkins & Kling, P.C. v. Missouri Ethics Com'n , 945 S.W.2d 56, 59 (Mo. App. E.D. 1997) ("[a] person who is appointed a special prosecutor becomes for that purpose a public officer").

The Missouri Supreme Court has issued two decisions concerning Article VII, Section 6 of the Missouri Constitution that are relevant to this appeal: State ex inf. Atty. Gen. v. Shull , 887 S.W.2d 397, 398-401 (Mo. banc 1994) and State ex inf. Ashcroft v. Alexander , 673 S.W.2d 36, 38 (Mo. banc 1984). On the one hand, in Shull , the Supreme Court held "a public officer violates [Missouri's constitutional ban on nepotism] when he or she appoints, by participating in the appointing process [by casting a vote for the appointment], a relative who is within the forbidden degree of relationship to public office." 887 S.W.2d at 398-401 (finding a presiding county commissioner violated Missouri's constitutional ban on nepotism and forfeited her office when, by virtue of her office, she participated in the process of appointing her sister-in-law to a board of trustees by casting a vote for the appointment even though the commissioner's vote was not a deciding vote) (overruled on other grounds by State v. Olvera , 969 S.W.2d 715, 716 n.1 (Mo. banc 1998) ). On the other hand, in Alexander , the Missouri Supreme Court held that where a statute provides for the appointment of a person by a court, and therefore there is no provision in the law for such an appointment by a public officer, an allegation of nepotism against the public officer as to such an appointment must fail. 673 S.W.2d at 38.

In accordance with the principles that forfeitures are not favored and the ouster of a public officer is a drastic remedy which must be strictly construed, we hold the two aforementioned cases collectively provide: an allegation of nepotism against a public officer as to an appointment of a relative must fail if the law provides for the appointment at issue by a court, there is no provision in the law for such an appointment by a public...