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Judge won't dismiss criminal case against McKenzie County Sheriff

Former McKenzie County Sheriff Gary Schwartzenberger, left, sits next to his attorney Tom Dickson at the Burleigh County Courthouse in Bismarck on Tuesday during a discovery hearing for his charge of misuse of county government funds. Bismarck Tribune photo

BISMARCK—A judge refused to dismiss the criminal case against the McKenzie County Sheriff accused of misusing his office credit card.

Gary Schwartzenberger is scheduled for trial on May 16 in the misdemeanor case his attorney believes would also be "conclusive" in deciding the fate of the removal proceedings pending against him.

South Central District Judge Sonna Anderson, who has presided over the case since the local judges recused themselves, denied a motion to dismiss during a hearing in Bismarck on Tuesday. She did not offer a reason.

"I'm not going to dismiss the complaint," Anderson said.

Schwartzenberger is accused of making excessive charges on his sheriff's office credit card during a trip to the 2015 Western State's Sheriff's Association Annual Conference in Las Vegas. These included his wife's airfare, an upgrade fee to a convertible rental car and a golf outing. He later paid the credit card bill himself, following some disagreement with the county.

The criminal affidavit filed against the former Marine alleges these charges were made in violation of a county policy that he pay on a personal card and seek reimbursement. But his defense attorney, Tom Dickson, argues there was no such policy, making the criminal accusations against him baseless.

In a biting brief, Dickson argued the prosecution is "personal and petty" and came only after Schwartzenberger criticized the local state's attorney's office. He also accuses other county employees of stealing money and facing no prosecution, but rather serving as witnesses in this case.

"(He) is being prosecuted on these trumped-up charges because, while popular with the people who voted, he is unpopular with the other county officials whose power and access to taxpayer-funded frivolity are challenged by this presence," Dickson wrote in his motion to dismiss the case.

In his reply, Assistant Attorney General Paul Emerson, who is prosecuting the case, argued that Schwartzenberger knew the proper procedure from his experience as a deputy.

"The charges in this case weren't paid for by the defendant on his personal credit card, as he surely knew they should be, with reimbursement sought from the county," Emerson wrote.

He further argued the prosecution was not vindictive or selective, because Schwarzenberger was not discriminated against for his race, gender, political views or other similar factor.

"The defendant's arguments are basically that, if someone else possibly committed a crime, it is OK for him to, in fact, do so," Emerson wrote. "Fortunately, that is not how the criminal justice system operates."

Schwartzenberger is suspended from his duties and faces removal proceedings that followed a recommendation from Attorney General Wayne Stenehjem and former Gov. Jack Dalrymple. The removal follows a petition from the county's acting State's Attorney Todd Schwarz last fall that cited this criminal case and allegations of bullying and retaliation within the office.

As the Attorney General's Office is handling the removal and criminal proceedings, Dickson argued in court Tuesday that all information pertaining to the removal case be handed over as discovery.

After arguments from both lawyers on Tuesday, Anderson agreed and ordered the information turned over within two weeks.

The Bismarck Tribune is a media partner with Forum News Service