The argument: that it is legal to discriminate against gay people in Missouri.

The county’s new legal team, brought in from outside county government, is the Lewis Rice law firm. Lawyers for Lewis Rice are asking a judge to amend the nearly $20 million jury verdict in Wildhaber’s discrimination case, or to order a new trial.

The jury delivered its verdict Oct. 25. The deadline to file post-trial motions was Monday, when the verdict would otherwise have become final.

In the opening pages of the motion, the lawyers for Lewis Rice make it clear that the tactic had ruffled feathers among some St. Louis County officials.

“The county executive and the county counselor have openly and publicly stated their disdain for the state of Missouri law on sexual orientation discrimination,” according to the court filing. “But they are also fiduciaries, responsible to the taxpayers, and must respect the current state of the law, no matter how much they are disappointed by its failure to protect all groups deserving of protection.”

In other words, the state law is the way to challenge this verdict, no matter how distasteful the strategy is to them.

The Lewis Rice lawyers said Wildhaber brought his suit under the Missouri Human Rights Act, which “does not currently offer protections against sexual orientation discrimination.”

“In the end, a Jury of County residents was permitted to adjudge an un-pleaded claim that Plaintiff knows does not exist under the MHRA,” the motion said. “And the Jury awarded extreme punitive damages for ‘outrageous conduct’ upon a claim that Missouri law does not currently recognize.”

The jury ordered the county to pay Wildhaber nearly $20 million for discrimination and retaliation by county police. Wildhaber said he was advised to “tone down his gayness,” was passed up for promotion 23 times and had been transferred to a precinct far from his home in retaliation for filing an EEOC complaint.

Last month, Page, the county executive, made it known that he was upset with the trial strategy the county had used. He said he was “horrified and surprised that argument was used and I don’t want to see it used again. I have a general rule that I don’t manage departments, but this is going to be an exception.” And the county counselor, Orwick, has said she “specifically instructed” two lawyers working on the case not to make the argument and was mortified and surprised when they did it anyway.

Page said in a statement Tuesday: “I co-sponsored the Missouri Non-Discrimination Act bill in 2006 when I was in the state Legislature. Sadly, it did not pass then and is still not law today. I would not have authorized an appeal of the crippling monetary award without also pursuing a settlement or without making major changes to the leadership of the department and the training of its officers.”

Page spoke with reporters after the County Council meeting on Tuesday afternoon: “I think when the smoke clears, everyone will understand that I’ve moved forward in a way that is responsible to St. Louis County taxpayers and recognizes the horrible experience that we all learned about in the trial … .”

One reason the judge should order a new trial, the county argues, is that the plaintiffs were allowed in closing arguments to say things that weren’t true. “In closing argument, Plaintiff repeatedly stated that discrimination based on sexual orientation or ‘sex stereotyping’ constitutes actionable, unlawful discrimination under the MHRA,” the motion said.

The County Council on Nov. 5 approved a contract for $75,000 to hire Lewis Rice to handle its response to the verdict. On Monday, Page asked the council to double that amount to $150,000. In a written request for the council to consider the matter at a future meeting, Page cited “the volume of materials, complexity and significance” as reasons for the increase.

Lawyers with Lewis Rice, in a written statement shared by Page’s office, said that the firm remains “committed to diversity and inclusion.”

“… St. Louis County’s leaders have made clear to us that they share that same commitment. As attorneys, however, we owe a duty to our clients to make legal arguments, consistent with the current law, that best advance and protect our clients’ legal positions, no matter our personal views.” 

Nassim Benchaabane of the Post-Dispatch contributed to this report.