County Clerk Diana Linnebringer says this receipt proves that she provided the documents requested by former sheriff J.T. Roberts.
PULASKI COUNTY, Mo. (March 31, 2010) — After more than a year of no court action, the attorney for former Pulaski County Sheriff J.T. Roberts agreed Wednesday to dismiss legal proceedings against Pulaski County Clerk Diana Linnenbringer and current Pulaski County Sheriff J.B. King.
However, the case has been dismissed “without prejudice,” which means it could be refiled at a later date.
Roberts had been the county sheriff for many years since he defeated the sheriff at the time, Don McCulloch, who is now the county’s presiding commissioner, for re-election in 1982. Roberts was himself defeated in 2004 by King, and lost a hard-fought race to King in 2008 by a narrow margin of only 38 votes out of 12,884 cast.
“I am relieved that this is over,” King said. “It has been a background problem since (the case) was filed. Any time you are involved in a court action between parties, there is a question on what is going to happen next and this is no different.”
The problems for King weren’t primarily in his day-to-day work as sheriff, he said.
“Most people have been proceeding on the assumption that I am the elected sheriff of the county. It was quite a topic of discussion from my fellow sheriffs in the Missouri Sheriffs’ Association and some of them had some deep concerns, but it has not been a major problem for Pulaski County,” King said. “They were concerned about the office of the sheriff, and anything that constitutes an assault on the dignity of the office of sheriff, they take a dim view of.”
Linnenbringer and Roberts weren’t immediately available for comment.
In his court petition filed on Dec. 3, 2008, Roberts sought not only a hand-done recount of the race that he lost, but also an entirely new election that would set aside the results of the Nov. 4, 2008 race. The court papers accused Linnenbringer of numerous improper actions in the election, most of which were categorically denied by her attorney in court papers filed a year ago.
The case had been scheduled for court action since early January of 2009 but repeatedly postponed. It was assigned to Judge William R. Haas, a senior judge from outside the area who was appointed by the Missouri Supreme Court to hear the case after all local judges decided they couldn’t hear the case due to conflicts of interest.
Nothing happened with the case for most of 2009 until the county’s attorney, Ivan Schraeder from the Missouri Association of Counties, filed a motion to dismiss it on Jan. 15. The judge never ruled on that motion since the case was dismissed by agreement of both sides. Roberts’ attorney, Richard Don Crites of Springfield, filed the motion to dismiss on March 31 and Circuit Court Clerk Rachelle Beasley confirmed Wednesday afternoon that the dismissal has taken place.
While the court case has now be dismissed, Roberts has made new claims earlier this month to KJPW/KFBD radio that 461 absentee ballots are missing and about 260 absentee ballots weren’t counted, as well as claims that none of the election judges were sworn in and bags of ballots were opened and not sealed. Linnenbringer issued a statement after hearing Roberts’ radio interview indicating that she will “stand by the election result” and praising the integrity of the eight election officials, four Republicans and four Democrats, who assisted her with counting the absentee ballots.
Roberts also claimed to the radio station that he hasn’t gotten documents he requested from Linnenbringer’s office. However, Linnenbringer produced a signed receipt issued by former Pulaski County Treasurer Barbara Thomas documenting that Roberts had paid the county for copies of documents he requested from the county clerk’s office.
On Jan. 15 of this year, the county attorney representing Linnenbringer and King filed a “motion to dismiss for lack of prosecution” which noted that Roberts’ attorney had conducted “on-site discovery and viewing of the election records and equipment” on March 17, 2009.
“Since March 17, 2009, some nine months have passed with no additional efforts having been taken by (Roberts) to advance the litigation or engage in any activity to bring the litigation to a conclusion,” the county’s attorney stated in the Jan. 15 court papers.
While King said he hasn’t had major problems doing his work as sheriff, failure by Roberts to pursue the case caused serious problems for the county clerk’s office, according to the court papers.
“(The) County Clerk has had to maintain her electronic election records and electronic election devices as they were at the time of the filing of the lawsuit in 2008 to preserve evidence related to the 2008 election that is the basis of the litigation,” according to the court papers, which resulted in the clerk’s office having additional expenses “in obtaining and using replacement and electronic election equipment in order to conduct elections during 2009 since this litigation was filed.”
The clerk’s office also was unable to do regular maintenance and upkeep on the election equipment, as required by the manufacturer, because of the pending litigation.
The dismissal of Roberts’ court case shortly before next Tuesday’s city council and school board elections will help the clerk’s office, according to the documents filed by the county’s attorney.
“(The) County Clerk has elections coming in the near future in which the electronic election equipment will be needed to be used or (she) will be required to incur additional expenses in obtaining and using replacement electronic election equipment again in order to conduct elections during 2010 commencing in April if the case is not dismissed,” according to the county’s court papers.
The county’s attorney also argued that King, although he has continued to serve as the county sheriff throughout the duration of the litigation, “is entitled to a timely resolution of his challenged election,” noting that Roberts “has provided no explanation for the passage of significant time since the last activity was engaged by him.”
According to the county’s attorney, several court precedents in Missouri allow judges to dismiss cases for lack of prosecution with as little as 45 days notice.
“The appellate court set out the test for upholding a dismissal by stating that one fair test to determine if the trial court acted properly is to determine whether the party had a reasonable opportunity to bring the matter to trial,” according to the county’s attorney. “If the passage of 45 days to obtain new counsel as in (a prior precedent case) is an appropriate time to pass before dismissal for failure to prosecute, surely the passage of nine months without any activity subsequent to agreed discovery is sufficient time for defendant to wait before seeking dismissal for failure to prosecute this action.”