Missouri AG Andrew Bailey argues judge was wrong to order him to sit for deposition

Missouri Attorney General Andrew Bailey addresses a crowd at the state Supreme Court Building after being sworn into office on Jan. 3, 2023 (photo courtesy of Missouri Governor's Office).

Missouri Attorney General Andrew Bailey doesn’t believe he should have to sit for a deposition over an alleged ethics breach by his office, arguing in a motion filed Thursday that a judge must reverse her “unprecedented order.”

Clay County Circuit Court Judge Karen Krauser issued an order last week allowing attorneys for Jackson County to question Bailey under oath about his interactions with a county official that appeared to have violated rules of professional conduct set by the state Supreme Court.

Bailey’s office is suing Jackson County over its property assessment process.

Attorneys are not allowed to communicate about a lawsuit with individuals represented in the case by another lawyer without consent. Members of the Jackson County Legislature are represented — along with the county executive and other defendants in the case — by the Jackson County Counselor’s Office.

In a motion filed Thursday, Bailey’s office called the judge’s order “incorrect as to the facts and the law” and argued it disregards a rule against depositions of top-level agency officials. Legal experts interviewed by The Independent said forcing a sitting attorney general to sit for a deposition was highly unusual.

Beyond that, Bailey’s office argues, the attorney general’s interactions with the county official, Sean Smith, amounted to “a brief, casual meeting between two elected officials and their campaign staffs unrelated to the lawsuit but where, at most, a passing remark was made about the lawsuit.”

“This order chills the attorney general’s free-speech rights on the campaign trail and effectively imposes an unconstitutional prior restraint on his speech, as well as on the speech of others that talk to him, which the attorney general cannot control,” Bailey’s motion states.

Bailey included the motion — along with a motion to disqualify Jackson County’s attorneys from representing the county legislature — in a press release announcing the filing. Neither document shows as having been officially filed on the state courts website.

In the motion to disqualify, Bailey said Jackson County attorneys’ representation of legislators poses an “egregious conflict of interest.”

Questions about Bailey’s interactions with Smith arose as part of his lawsuit against Jackson County over its property assessment process.

Bailey’s lawsuit claims Jackson County violated a law requiring it to offer physical inspections to homeowners whose properties had increased in value by more than 15%.

Jackson County has denied the accusations and argued Bailey waited too long to file the case since tax bills have already been paid and money distributed. Beyond that, the county argues, the attorney general can’t file a case unless the State Tax Commission has attempted to resolve the issue first.

A spokeswoman said the county does not comment on ongoing litigation.

Krauser’s order came in response to a motion for sanctions filed by attorneys for Jackson County, arguing both Bailey and a deputy violated attorney conduct rules when they discussed the case with Smith.

But while the county has maintained that it did not violate the law when it reassessed property values, Bailey’s motion says, some members of the legislature have acknowledged problems with the process or called it illegal. He argues that poses a conflict of interest and that attorneys for the county cannot represent both the county and legislators.

Legislators also passed a resolution calling for the results of the 2023 assessment process to be set aside and that property values be increased by 15% across the board.

“Even though both the legislature and the other county entities are all defendants in this case, their interests are directly adverse,” Bailey said. “The Jackson County Counselor’s Office’s representation of the legislature while representing these other defendants is, therefore, improper and a conflict of interest.”

Bailey’s motion cites statements made by only two legislators who took issue with the property assessment process. There are nine members of the Jackson County Legislature.

In his motion to vacate Krauser’s order requiring a deposition, Bailey said attorneys for the county had already been allowed to question staffers from his office over the meetings with Smith. The county attorneys, he said, didn’t present a compelling case about why they need testimony from Bailey himself.

Another staffer in Bailey’s office sat for a deposition about the meeting between Bailey and Smith but gave little information about the conversation beyond that the two discussed the property assessment case and discussed “preparing a joint statement regarding this lawsuit.”

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