Court of Appeals of Missouri, Eastern District, Writ Fourth Division
STATE OF MISSOURI, ex rel., KIMBERLY M. GARDNER, CIRCUIT ATTORNEY OF THE CITY OF ST. LOUIS, Relator,
HONORABLE MICHAEL F. STELZER, CIRCUIT JUDGE, DIVISION SIX, TWENTY-SECOND CIRCUIT, Respondent.
of Prohibition City of St. Louis Circuit Court Cause No.
Honorable Mary K. Hoff Judge.
Kimberly M. Gardner, Circuit Attorney of the City of St.
Louis (Circuit Attorney) seeks a Writ of Prohibition to
prevent Respondent, the Honorable Michael F. Stelzer
(Respondent or Judge Stelzer) from enforcing his order of
December 18, 2018, denying Circuit Attorney's Motion to
Quash Subpoena of Chris Hinckley, Chief Warrant Officer for
the Circuit Attorney Office (Hinckley), and denying Circuit
Attorney's Motion to Dismiss St. Louis Metropolitan
Police Officer John Doe's (John Doe) underlying Motion
for Temporary Restraining Order and Permanent Injunction (TRO
Attorney also filed Suggestions in Support of Writ of
Prohibition, Exhibits, and Motions to Seal Exhibits. This
court issued a Preliminary Order in Prohibition and sealed
the exhibits. Respondent filed a Combined Motion to Dismiss
and Suggestions in Opposition and Exhibits. We dispense with
further briefing as permitted by Rule 84.24(i). We make the
Preliminary Order in Prohibition permanent.
FACTUAL AND PROCEDURAL BACKGROUND
September 4, 2018, John Doe filed a TRO Motion against
Circuit Attorney and the St. Louis Police Department alleging
that on August 28, 2018, he and several other officers of the
St. Louis Metropolitan Police Department were placed on an
"exclusion list" by Circuit Attorney without
explanation and alleged this was detrimental to his job,
reputation, and promotion. John Doe filed a (TRO Motion)
prohibiting the dissemination of this "exclusion
list" to the public and demanded that the Circuit
Attorney be required to indicate the reasoning and procedures
established for inclusion on this list.
September 5, 2018, Circuit Attorney filed a Motion to Dismiss
this action based on the insufficiency of the TRO Motion,
alleging that the TRO Motion failed to state a claim upon
which relief can be granted because John Doe failed to state
a cognizable claim. Both the TRO Motion and Circuit
Attorney's Motion to Dismiss were heard on September 6,
2018, by Judge Stelzer without a record.
September 6, 2018, Judge Stelzer issued an order granting the
TRO Motion, which prohibited the voluntary dissemination of
the exclusion list, and denied Circuit Attorney's Motion
October 4, 2018, Circuit Attorney filed a Consent Memorandum,
consenting to a permanent order and agreeing to keep
confidential and refrain from disseminating the exclusion
list. Neither the September 6, 2018, order granting the TRO
Motion nor the October 4, 2018, consent memorandum addressed
John Doe's request for an order mandating Circuit
Attorney to provide the reasons or procedures for the
placement of officers' names onto the exclusion list.
December 6, 2018, Hinckley was served with a subpoena to
appear for deposition regarding the exclusion list. On
December 7, 2018, Circuit Attorney filed objections and a
Motion to Quash Subpoena based on work product, privilege
grounds, and infringement of her discretion and authority as
elected circuit attorney. On December 18, 2018, Judge Stelzer
summarily denied this Motion to Quash after hearing without a
record. On January 7, 2019, Circuit Attorney filed this Writ
of Prohibition with Suggestions in Support and Exhibits. On
January 8, 2019, we issued a Preliminary Order in Prohibition
directing Judge Stelzer to refrain from all action in Cause
No. 1822-CC11132 until further notice. Thereafter, Judge
Stelzer, John Doe, and the St. Louis Police Officers
Association filed their Combined Motion to Dismiss and
Suggestions in Opposition with attached Exhibits.
STANDARD OF REVIEW
writ of prohibition, an extraordinary remedy, is to be used
with great caution and forbearance and only in cases of
extreme necessity." State ex rel. Gardner v.
Boyer, 561 S.W.3d 389, 394 (Mo. banc 2018) (quoting
State ex rel. Douglas Toyota III, Inc. v. Keeter,
804 S.W.2d 750, 752 (Mo. banc 1991)). "The essential
function of prohibition is to correct or prevent inferior
courts and agencies from acting without or in excess of their
[authority or] jurisdiction." Id.
"Prohibition is a discretionary writ that may be issued
to prevent an abuse of judicial discretion, to avoid
irreparable harm to a party, or to prevent the exercise of
extra-jurisdictional authority." State ex rel. Akers
v. Hardy-Senkel, 554 S.W.3d 532, 534 (Mo. App. E.D.
2018). Prohibition will lie if a "petition does not
state a viable theory of recovery, and relator was entitled
to be dismissed from the suit as a matter of law."
State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330
(Mo. banc 2009) (quoting State ex rel. Union Elec. Co. v.
Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008)) (internal
quotations omitted). Thus, "[i]n the context of a motion
to dismiss for failure to state a cause of action, it has
long been held that where a petition reveals that the pleader
has not stated and cannot state a cause of action of which
the circuit court would have jurisdiction, then prohibition
will lie." Id. (internal quotations omitted).
"If the complaint is insufficient to justify court
action, it is fundamentally unjust to force another to suffer
the considerable expense and inconvenience of litigation in
addition to being a waste of judicial resources and taxpayer
money." State ex rel. Church & Dwight Co., Inc.
v. Collins, 543 S.W.3d 22, 26 (Mo. banc 2018) (quoting
State ex rel. Union Elec., 256 S.W.3d at 81).
Writ of Prohibition, Circuit Attorney argues that Judge
Stelzer abused his discretion in refusing to grant Circuit
Attorney's Motion to Dismiss the TRO Motion filed by John
Doe due to the inadequacy of the TRO Motion. Specifically,
she alleges that the TRO Motion failed to plead facts
invoking substantive principles of law that entitled John Doe
to relief. We agree and find that John Doe's underlying
TRO Motion is patently insufficient such that Judge Stelzer
abused his discretion in not granting Circuit Attorney's