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STATE EX REL. AREA 25 TRIAL ) 

OFFICE, and, MISSOURI STATE ) 

PUBLIC DEFENDER, ) 

 ) 

 Relators-Appellants, ) 

 ) 

v. ) No. SD37064 

 ) 

HONORABLE KENNETH G. ) Filed: August 3, 2021 

CLAYTON, ASSOCIATE CIRCUIT ) 

JUDGE, ) 

 ) 

 Respondent-Respondent. ) 

ORIGINAL PROCEEDING IN PROHIBITION 

PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT 

The Missouri State Public Defender and its Area 25 Trial Office (“Relators”) seek 

a permanent writ of prohibition against the Honorable Kenneth G. Clayton, Associate 

Circuit Judge of the 25th Judicial Circuit (“Respondent”) to prevent Respondent from 

enforcing an order (“the sanctions order”) that directed the Area 25 Trial Office to pay 

$762.68 as sanctions after an attorney assigned to that office traveled internationally to 

Mexico the week before he was scheduled to try a jury case before Respondent. 

Respondent, sua sponte, continued the trial on the ground that he would not expose court 

personnel and a jury panel to a potential COVID-19 risk. The sanction amount was equal 

to the prosecutor’s mileage reimbursement paid to the complaining witness in the case. 
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Because Respondent did not find that Relators had acted in bad faith in, 

respectively, approving and then engaging in that international travel, and no evidence in 

the record indicates that Relators acted in bad faith, we now make permanent our 

preliminary writ of prohibition. 

Background 

Andrew Russek (“Mr. Russek”), an Assistant Public Defender in the Area 25 

Trial Office, was assigned to represent Charles Allee in his criminal case. Mr. Russek 

filed a motion asserting his client’s right to a speedy trial, and the trial was scheduled for 

January 21, 2021. 

In December 2020, with the approval of his supervisor, District Defender 

Matthew Crowell (“Mr. Crowell”), Mr. Russek planned to vacation in Mexico from 

January 10, 2021, to January 18, 2021. The prosecutor for the State, Kevin Hillman 

(“Mr. Hillman”), was aware that Mr. Russek was going to Mexico and would be 

returning shortly before trial. The parties had scheduled depositions for Tuesday, January 

19, 2021, two days before the trial was scheduled to begin. 

When a legal dispute arose with respect to those depositions, Mr. Hillman 

contacted Respondent on Friday, January 15th, and asked him if he would have time to 

conduct a Webex hearing on the parties’ dispute. Mr. Hillman noted that Mr. Russek was 

in Mexico on vacation but would return soon. Respondent replied by email to Mr. 

Hillman and Mr. Russek on Monday, January 18th, writing: 

As Mr. Russek was recently in Mexico, a hotspot for Covid19 

according to the [Center for Disease Control (“CDC”)], it is my opinion 

that, according to the CDC travel guidelines, he must quarantine for 7 days 

with a negative test or 10 days without a test upon returning to the United 

States. 
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I do not expect to have a jury trial or any appearance in court in 

person by Mr. Russek until compliance with the CDC guidelines is 

demonstrated to me. 

If you [Mr. Hillman] or Mr. Russek has a different opinion, I am 

available at 8:30 or 1:30 tomorrow to discuss by Webex. 

Mr. Hillman responded that day by informing Respondent and Mr. Russek that his 

complaining witness, the victim in the case, had already traveled to Missouri from 

Maryland for the trial. 

The court held a Webex hearing on the Covid issue on Tuesday, January 19th. 

During the hearing, Mr. Russek informed Respondent that he had returned from Mexico 

the previous day. Mr. Russek said that he had not been tested for COVID, and he had not 

quarantined. He said his understanding was that the CDC guidelines requiring those who 

had traveled to Mexico to quarantine for at least 7 days upon return did not go into effect 

until January 25th, a date after the trial would be over. 

Even though Mr. Hillman and Mr. Russek announced that they were ready to try 

the case as scheduled, Respondent cancelled the trial setting, stating that he was “not 

gonna have a trial under these circumstances.” He suggested to Mr. Hillman that he 

could request other relief, and the parties could have a separate hearing on that request. 

On January 20th, Respondent entered a written order continuing the trial on his 

own motion, and it stated that 

[t]he Court, being advised that [Mr. Russek] has recently traveled to 

Cancun, Mexico, and has not complied with the CDC guidelines for travel 

to Mexico since his return, and being advised that a positive test for 

Covid-19 has been suffered by an employee of the Pulaski County 

Prosecuting Attorney and other employees who work in the Pulaski 

County Courthouse, hereby orders the jury trial of this matter canceled for 

January 21, 2021. 
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Mr. Hillman then filed a motion seeking sanctions (“Motion for Sanctions”) that 

alleged the State was fully prepared to go to trial, and that Mr. Russek had “[a] week 

before trial, . . . announced that he was travel[]ing to Cancun, Mexico for a vacation from 

January 15-19, 2021.” The Motion for Sanctions claimed that Administrative Order 

2020-01 of the 25th Judicial Circuit had been in place since March 2020, and it prohibited 

anyone who had traveled to a foreign country within the last 14 days from entering into a 

courthouse in that circuit. It also claimed that CDC guidelines recommended that anyone 

traveling internationally by air get tested for COVID-19 and quarantine for at least 7 days 

upon their return. The Motion for Sanctions stated that the complaining witness had 

traveled by car, 982 miles one way, in order to be present for trial. The Motion requested 

that “[t]he Office of the Public Defender” be ordered to pay the victim’s mileage at the 

rate of $0.37 per mile, which totaled $726.68. 

Respondent granted the Motion for Sanctions and ordered that the amount 

requested be “deposited with the Pulaski County Circuit Clerk by the Missouri State 

Public Defender, Area 25 Trial Office within 30 days of this Order.” 

Standard of Review 

We review a trial court’s decision to invoke its inherent powers to 

sanction for an abuse of discretion. Rea v. Moore, 74 S.W.3d 795, 799 

(Mo.App.S.D.2002). The trial court abuses its discretion when its ruling 

“is clearly against the logic of the circumstances and is so arbitrary and 

unreasonable as to shock the sense of justice and indicate a lack of careful 

consideration.” Id. “[I]f reasonable persons can differ about the propriety 

of the action taken by the trial court, then it cannot be said that [it] abused 

its discretion.” Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 303 (Mo. 

banc 1992) (internal quotation marks omitted). We view the evidence in 

the light most favorable to the trial court’s ruling. See id.

Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D. 2014). 
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Analysis 

While we are skeptical that a particular branch office of the Missouri Public 

Defender is an appropriate entity to sanction, we need not decide that question. Relators’ 

first point claims that Respondent abused his discretion in imposing sanctions as “there 

was no finding or evidence in the record of ‘bad faith’ by [Mr. Russek], [Mr. Crowell,] or 

the Area 25 Trial Office.” That assertion has merit, and it is dispositive of Relators’ 

request for a permanent writ prohibiting Respondent’s imposition of sanctions. 

A trial court may use its inherent powers to impose sanctions only when parties 

act in bad faith. Davis v. Wieland, 557 S.W.3d 340, 349 (Mo. App. W.D. 2018).1 

While trial courts have inherent powers to sanction parties who act 

in bad faith, courts are encouraged to do so “sparingly, wisely, 

temperately, and with judicial self-restraint.” A.J.H. ex rel. M.J.H. v. 

M.A.H.S., 364 S.W.3d 680, 682 (Mo. App. E.D. 2012). A court should 

rarely invoke this inherent power because “[i]t is only one short step from 

the assertion of inherent power to the assumption of absolute power.” 

Id. (quoting McPherson v. U.S. Physicians Mutual Risk Retention Group, 

99 S.W.3d 462, 477 (Mo. App. W.D. 2003)). 

Woodson v. Bank of Am., N.A., 602 S.W.3d 316, 326 (Mo. App. E.D. 2020). 

“Bad faith” does not have a concrete definition, but it requires something more 

than bad judgment or negligence; bad faith “imports a dishonest purpose, moral obliquity, 

conscious wrongdoing, breach of a known duty through some ulterior motive or ill will 

partaking of the nature of fraud. It also embraces actual intent to mislead or deceive 

another.” Davis, 557 S.W.3d at 350 (quoting A.J.H., 364 S.W.3d at 683). 

Relators argue that, while the sanctions order calls Mr. Russek’s conduct 

“irresponsible[,]” it makes no finding of bad faith, and there is no evidence in the record 

 

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 “The purpose of allowing courts to impose sanctions based on their inherent authority is two fold: one, to 

allow the court to vindicate judicial authority without resort to the more drastic sanctions like contempt of 

court; second, to make a prevailing party whole for expenses caused by his opponent’s obstinacy.” A.J.H. 

ex rel. M.J.H. v. M.A.H.S., 364 S.W.3d 680, 682 (Mo. App. E.D. 2012). 
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to support a finding of a dishonest purpose, conscious wrongdoing, fraud, or actual intent 

to mislead or deceive. Respondent now argues that Relators’ conduct evidenced bad faith 

in that it exhibited “disregard for the safety of the jurors, court staff, and opposing 

counsel during a global pandemic [which] is the breach of a known duty through some 

ulterior motive or ill will[.]” Respondent does not identify the alleged ulterior motive or 

ill will harbored by Relators. 

The sanctions order, in its entirety, reads as follows: 

[T]he Court finds that this matter was set for jury trial on January 21, 

2021. That date was set on November 19, 2020. On or about January 15, 

2021, the Court was notified that [Mr. Russek] was in Cancun, Mexico for 

a brief vacation. The Court was provided with the [CDC] guidelines for 

travel by U.S. residents to Mexico. Upon review of those guidelines, the 

Court sent an e-mail to the parties requesting a hearing regarding the issue 

and whether the jury trial scheduled for January 21, 2021 would proceed. 

At that hearing, the Court inquired of [Mr. Russek] as to his compliance 

with the CDC guidelines for travel to Mexico and was informed that only 

face masking and hand washing had been complied with, and that no other 

CDC guideline[s] were being observed. [Mr. Russek] appeared for that 

hearing from his office by Webex. Pursuant to those guidelines, [Mr. 

Russek] should have been tested for COVID-19 one to three days prior to 

returning from Mexico, should have stayed home for at least seven days 

upon return, should have been tested 3-5 days after his return, and if he 

was not tested after return, should have stayed home for 10 days. The 

Court notes that those guidelines had an effective date of January 26, 

2021. Even assuming such guidelines should not have been followed after 

their publication but before January 26, 2021, the Presiding Judge of the 

25th Circuit Court had issued, in Administrative Order 2020-01, 

requirements that no person traveling out of the United States within 14 

days of requested access should be allowed access to the courthouses in 

this Circuit. As an attorney practicing in the 25th Circuit, [Mr. Russek] 

should have known this requirement, which was issued on March 16, 

2020. This Court does not find that Administrative Order 2020-01 has 

been modified in any way which would allow a person traveling 

internationally to be allowed access to the courthouse sooner than 14 days 

after such travel. It[] is not this Court’s job, nor [Mr. Hillman]’s job, to 

proactively monitor any person’s compliance with the administrative 

orders of the Circuit Court. However, once it is brought to the attention of 

the Court[,] that a possible violation of such administrative orders has 

occurred, it is the job of the Court to enforce those orders. The CDC 
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guidelines formed the basis of the inquiry, however, considering the 

Administrative Order, this Court is confident that continuing the trial of 

this matter was required due to the irresponsible actions of [Mr. Russek]. 

[Mr. Russek] chose to travel internationally, and while he may not have 

been specifically aware of the Administrative Order, his superiors 

should have been and should have taken action to prevent such travel. 

This Court assumes that [Mr. Russek] requested and was granted vacation 

time and that he informed his supervisors of the nature of his proposed 

travels. The result of the failure of [Mr. Russek]’s supervisors to take 

action is the continuance of this case from its trial date of January 21, 

2021. It is noted that [Mr. Russek] has vigorously complained that 

Defendant’s right to a speedy trial has been violated. Had [Mr. Russek]’s 

supervisors taken action to prevent counsel’s travel, or had [Mr. Russek] 

considered that international travel is not recommended, Defendant’s trial 

would have occurred on January 21, 2021. The continuance of the jury 

trial from January 21, 2021 is specifically due to the actions of [Mr. 

Russek] and the failure of his supervisors to be aware or take action 

regarding international travel of their employee. 

Coincidentally, during the hearing prompted by [Mr. Russek]’s 

international travel, [Mr. Hilman] informed the Court that a member of his 

office staff had tested positive for COVID-19 and that at least two other 

individuals in the Pulaski County Courthouse had tested positive. Those 

individuals were not involved in this matter, nor would they have been in 

attendance at the trial of this case, and therefore, while the Court 

considered those facts as additional facts in the determination to continue 

[this] trial, this Court determined to continue the trial of this case due to 

[Mr. Russek]’s travel as discussed above. This Court determined that it 

could not expose a jury panel to [Mr. Russek] under the conditions 

discussed above. Doing so would have been a violation of the Circuit 

Court’s Administrative Order by this Court. 

. . . . 

[T]he Court finds that, but for [Mr. Russek]’s irresponsible behavior, this 

case would have proceeded to trial on January 21, 2021. Therefore, the 

request for sanctions is granted in the amount of $762.68, which is ordered 

to be deposited with the Pulaski County Circuit Clerk by the Missouri 

State Public Defender, Area 25 Trial Office within 30 days of this Order. 

Upon deposit, the Pulaski County Circuit Clerk shall hold such funds for 

10 days, and then, unless otherwise ordered by this Court, shall disburse 

such funds to the alleged victim in this matter. 

(Emphasis added.) 
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The sanctions order contains no finding of bad faith on the part of Mr. Russek or 

his supervisor, Mr. Hillman. Instead, it characterized Mr. Russek’s behavior as 

“irresponsible[,]” said that he and his supervisors “should have known” of the 

administrative order, and claimed that his supervisors “fail[ed] to be aware or take 

action” regarding Mr. Russek’s travel. Although these findings suggest that Respondent 

found Relators’ actions to be negligent and ill-advised, no evidence adduced at the 

hearing on sanctions supports a finding that Relators were acting in bad faith. 

“[I]f the trial court does not make an explicit finding as to bad faith, there must at 

least be evidence in the record which would support such a finding.” A.J.H., 364 S.W.3d 

at 682. Respondent has not cited, and we have been unable to find, any evidence in the 

record that would support a finding that Relators acted in bad faith, in other words, that 

they acted with a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a 

known duty through some ulterior motive or ill will partaking of the nature of fraud, or 

had an actual intent to mislead or deceive another. See Davis, 557 S.W.3d at 350. 

In the absence of such evidence, Respondent misapplied the law and thereby 

abused his discretion in imposing sanctions against Relators. This court’s preliminary 

order in prohibition is hereby made permanent. 

DON E. BURRELL, J. – OPINION AUTHOR 

MARY W. SHEFFIELD, P.J. – CONCURS 

NANCY STEFFEN RAHMEYER, J. – CONCURS