State v. MorrisonState v. Morrison
Lead
The opinion of the court was delivered by
The State of Kansas brought a quo warranto action pursuant to
Morrison appealed, and the Court of Appeals concluded that the undisputed facts did not, as a matter of law, satisfy the criteria for judicial ouster established by caselaw applying
Facts
The parties do not dispute the facts of this case. The Court of Appeals’ recitation of the facts is quoted below.
“Morrison was elected to the Prairie Village City Council in 2008 and re-elected in 2012. Kelley Malone was Morrison’s long-time friend and a former coworker. In 2011, Malone began to have substance abuse problems. Eventually, Malone lost his job and became homeless. At this point, Malone called Morrison seeldng help, as he believed he had nowhere else to turn. Morrison arranged for Malone to stay in a hotel for a week, bought him clothes, and set up a job interview for him. With employment, Malone’s circumstancesimproved and he was able to purchase a home.
“Unfortunately, the following year Malone relapsed. He again lost his home and feared for his life because he came to believe that a ‘hit’ had been taken out against him. On Saturday, October 27,2012, Malone again sought Morrison’s help. Morrison called his church seeking both advice and sanctuary for Malone. A pastor informed him that the church could not accommodate Malone and, further, that putting Malone in a hotel was ill-advised. Morrison then called a Prairie Village dispatcher, Dawn Johnson, to inquire into public resources available to assist the homeless. Johnson told Morrison that the usual practice was for a police officer to take the person to the City Union Mission in Kansas City, Missouri. Morrison arranged a spot for Malone at the City Union Mission, however, Malone refused to go as he did not believe it was a safe location. Morrison did not consider his own home a viable place for Malone to stay as Morrison lived with his elderly parents. Morrison’s mother’s immune system was so compromised that Morrison himself would check into a hotel when he contracted an illness or cold so as not to expose his mother to illness. Morrison feared a stranger in his home would endanger his mother’s fragile health.
“At a loss, Morrison made the fateful decision to house Malone in city hall for a few days. The Prairie Village City Hall and police station are located in the same complex, separated by a long corridor. Access to city hall after normal business hours requires entering the police station, walking past the dispatch window, and passing through a locked door opened using a four digit security code. Each city councilman had a unique security code, though there were no policies or restrictions as to how those security codes could be used. The security code permitted access to tire employee lounge, a weight room, and a locker room but not to any work spaces or other areas of city hall.
“That Saturday evening, Morrison brought Malone to city hall around 6 p.m. Morrison walked to tire dispatch window where Johnson was working and told her that he and Malone were there for a neighborhood meeting. Morrison also told Johnson not to be alarmed if she saw Malone on the surveillance cameras as he was with Morrison. Johnson was suspicious of Morrison’s explanation and sent the following message to a Prairie Village police officer:
‘Ok, you know the homeless guy I told you David Morrison was calling about? Well he just took him over to city hall. Telling me “they” were having a meeting with the rest of the neighborhood .... Surely he wouldn’t let that guy stay the night over there would he? I don’t know of any meeting . . . not that that matters.’
“At some point, Morrison and Malone left city hall to get dinner, returning at about 9 p.m. Pamela Huskey was working at the dispatch window when they returned and Morrison told her that he and Malone would be working in city hall that night. Twenty minutes later, Morrison left while Malone stayed to spend the night. Before leaving, Morrison gave Malone his security code after realizing that without it, Malone would not have restroom access.
“The following morning, the janitor saw Malone in the city hall employee lounge. Just after noon, Morrison picked Malone up and the two attended a football game that evening. They returned to city hall just after midnight on Monday morning, October 29, 2012. Morrison told the dispatcher on duty, Cory Parker, that he and Malone were going to do paperwork in city hall. Morrison left a few minutes later. Malone again spent the night in city hall, leaving mid-morning on Monday and not returning for the rest of that day. He spent Monday night sleeping in the back of another friend’s car.
“That same day, Morrison called Police Chief Wes Jordan to discuss Malone’s situation. Morrison described Malone’s current drug addiction and told Chief Jordan that Malone had information about drug transactions and human trafficking operations. Chief Jordan instructed Morrisonto have Malone contact him so lie could meet with the Special Investigations Unit, a police unit primarily focusing on drug crimes. Neither Malone nor Morrison contacted Chief Jordan to arrange a meeting time.
“The following evening, Tuesday, October 30, 2012, Malone again called Morrison and asked to stay the night at city hall. Morrison told Malone that he did not think it would be a good idea, however, Malone ignored Morrison’s plea. Malone arrived at city hall just after midnight on Wednesday, October 31, 2012. Malone told Huskey, who was again working the dispatch window, that he and Morrison were going to be working again in city hall and that Morrison would be arriving soon. Malone then entered city hall. Morrison never arrived.
“That morning, multiple city hah employees encountered Malone. Bettinajam-erson, tire court administrator, encountered Malone at 7:30 a.m. as he was sitting in the employee bréale room. She reported Malone’s presence to Officer Kyle Shipps. Officer Shipps confronted Malone and asked him why he was in the employee break room. Malone replied that he was there to meet with Morrison and Chief Jordan. Penny Mann, another employee, saw Malone in the break room around 8 that morning. She asked if she could help Malone, and he told her that he was waiting for Morrison to arrive with an attorney. Likewise, employee Sheila Hopkins saw Malone around 8:30 that morning when she entered the break room and saw Malone talking on a cell phone. Unsure of whether he was supposed to be there, Hopkins asked Malone if there was anything she could do for him. Malone responded by giving Hopkins ‘a really dirty look.’ Malone noisily gathered his diings, left the bréale room, and went to the locker room.
“When Chief Jordan arrived at work, Officer Shipps told him that Malone was waiting to meet with him. Chief Jordan found Malone in the locker room and escorted him back to the police station. Malone told Chief Jordan that he was dropped off by Morrison around 7 a.m. that morning. Chief Jordan attempted to call Morrison but was unable to reach him. Chief Jordan deactivated Morrison’s security code and initiated an investigation to determine when Malone had actually been in city hall.
“Following the investigation, the Prairie Village City Council voted to oust Morrison from his position.” State v. Morrison,50 Kan. App. 2d 1001 , 1002-05,335 P.3d 1204 (2014).
On January 17, 2013, the State filed a quo warranto petition requesting that Morrison be removed from office pursuant to
The case proceeded to trial, where an advisory jury concluded that Morrison did not commit any criminal acts involving moral turpitude. The jury did conclude, however, that Morrison, based on his acts of giving Malone his access code and allowing him to stay at city hall, intentionally or purposefully engaged in misconduct and neglected to perform a duty mandated by law. The district court adopted the findings of the advisory jury and concluded that Morrison’s actions violated 1-212(e)(6)(b) and (g) of the Prairie Village City Code. Those two provisions precluded a council member from granting “in the discharge of his or her duties any improper favor, service, or thing of value” and from permitting the use of city property “for personal convenience . . . except when such services are available to the public generally.” Code of the City of Prairie Village 1-212(e)(6)(b) and (g). The district court reasoned:
“Arguably, allowing Mr. Malone to stay in City Hall for four nights was an improper favor of value The evidence is unrebutted from the city administrator, Quinn Bennion, that City Hall was not available for overnight residency to the public in general. . . . Mr. Morrison, the evidence shows, used city property for his own convenience to meet his need to demonstrate to his friend that he was important enough to allow him access unavailable to the public in general. This was a personal benefit to Mr. Morrison.”
The court not only found that Morrison’s actions violated the city code but that his testimony at trial explaining that he thought his actions were justified because of the lack of “restrictions or policy on how he could use his code, or even whether it could restrict any ‘guests’ he might bring into the city portion of the complex” was not believable. The court recounted the evidence presented at trial regarding when Morrison first brought Malone to city hall on the evening of Saturday, October 27, 2012:
“[Morrison] picked up Mr. Malone and brought him to the dispatcher window where Ms. Johnson was still on duty. According to Ms. Johnson’s testimony, Mr. Morrison made it sound as though he had a neighborhood meeting and that Mr. Malone would be there for that. This conversation is somewhat disputed. On direct, Mr. Morrison testified: ‘And as I recall it, I think I said I was going to be meeting with Kelley and that I had to pick up some stuff for a homes association meeting .... Yeah, I had to pick up some material or some stuff for a homes association meeting, which I did while I toas there.’
“While Mr. Morrison attempted to recharacterize this conversation as a ‘mis-communication,’ the Court finds that his testimony was not credible. It attempted to undermine Ms. Johnson’s clear i-ecollection that Mr. Morrison told her there was a neighborhood meeting and Mr. Malone was there in conjunction with tire same. Ms. Johnson had her suspicions because this was the same individual Mr. Morrison had called about earlier. That Mr. Morrison had lied about the reason for Mr. Malone’s presence and then sought to spin this same conversation in court, is particularly disturbing. Lies revealed themselves such as when the State challenged the homes association ‘packet’ that Mr. Morrison suggested he was there to pick up. When the State was poised to play a surveillance video from that first evening, after Mr. Morrison stated on direct that he had picked up the packet, Mr. Morrison acted as though his direct testimony had only indicated he intended to look for a packet. On cross examination, he testified that he did not pick up the packet because he ‘remembered’ he already had gotten the same earlier. This was a significant line of testimony because the intent to lie and misrepresent is reflective of the fact that Mr. Morrison knew that what he was doing was wrong.
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“. . . What is more serious is why Mr. Morrison felt compelled to misrepresent the reason for Mr. Malone’s presence if he were secure in his belief, as he testified, that he could bring whoever he wanted into City Hall. This bit of bravado, however, is negated by tire actual cover used to slip Mr. Malone into City Hall, which depended on a subordinate employee not questioning a city council member. In other words, Mr. Morrison depended, to a certain extent, on not being questioned. At trial, however, he was questioned, and he was willing to misrepresent to the Court the truth of what happened.” (Emphasis added.)
In addition to finding that Morrison had lied to the dispatcher about the reason for Malone’s presence inside city hall outside of regular business hours, the court noted that Morrison had “neglected to mention any of the circumstances attendant on Mr. Malone’s stay to either the city administrator or city attorney, who could have directed Mr. Morrison to the city’s conflict of interests policy.”
Based on its findings that Morrison’s actions violated two separate provisions of the city code, that his actions could not be explained by an honest but mistaken belief that they were legal or justified, and that Malone’s presence inside city hall created un-necessaiy
Before the Court of Appeals, Morrison did not contest any of the factual findings made by the district court but raised several purely legal arguments that could be distilled into one overarching contention: the district court applied a “watered-down” legal standard for determining that ouster was justified under
The Court of Appeals was persuaded by Morrison’s argument, stating that its
“review of prior judicial ousters of public officials in Kansas makes it clear that this remedy is available only in circumstances that show a corrupt purpose or an evil design by virtue of either (1) a persistent and habitual disregard for the law or for the official’s public duty or (2) acts so egregious that they pose a grave threat either to public safety or to the public fisc.” Morrison,50 Kan. App. 2d at 1009 .
The Court of Appeals reviewed the evidence and concluded that it was not sufficient to satisfy the legal standard that it had gleaned from its review of prior cases:
“David Morrison proved to be a clumsy benefactor. Worse, Morrison added casuistry to clumsiness when he fabricated a cover story to explain Malone’s presence in city hall. But after considering tire entire record and the underlying facts as determined by tire district court, we are unable to find any indication that Morrison’s actions arose out of an evil or corrupt motive; out of a habitual disregard for his public duty; out of a quest for selfish gain; or resulted in a serious threat to public safety.
“As the district court acknowledged, Morrison was primarily—if not wholly— motivated by his sincerely held view of his humanitarian duty to his fellow man. There is no evidence that this incident is anything other than an isolated and singular occurrence. Morrison gained no financial benefit and his actions did not threaten the public fisc. The district court expressly noted that Malone’s presence at city hall did no actual harm.As such, we find that the district court erred in its application ofK.S.A. 60-1205 to tire facts of this case.” Morrison,50 Kan. App. 2d at 1010 .
The Court of Appeals accordingly reversed the district court’s decision and remanded the case with directions that judgment be entered in Morrison’s favor, reinstating him to his position on the city council.
The State filed a petition for review, which this court granted. After oral arguments were heard by this court and nearly 7 months after the Court of Appeals’ order staying Morrison’s ouster and 4 months after the petition for review was granted, the State filed a motion requesting that we set aside the Court of Appeals’ order staying Morrison’s ouster. The State argued that, based on Rule 8.03(j), the stay was rendered ineffective once this court granted review of the Court of Appeals’ decision. See Supreme Court Rule 8.03(j) (if petition for review is granted, Court of Appeals decision has no
Was Ouster Appropriate?
On review, the State argues that the legal standard the Court of Appeals applied to determine whether ouster was appropriate under the facts of this case is not supported by the language of
This case meets the statutory prerequisite for quo warranto relief. In State, ex rel., v. Cahill,
“actions in the nature of quo warranto are now generally held to invoke the discretionary powers of the trial court and thus the grant or denial of relief rests within its sound discretion. [Citations omitted.] This is proper and just, since minor infractions should not malee such drastic relief mandatory.”
See also Barnes v. Board of Cowley County Comm’rs,
The district court’s decision reflects that court’s awareness that it had the discretion to grant or deny tire State’s request for Morrison’s removal. The district .court stated:
“In a quo warranto action, ‘the court may, in the exercise1 of its discretion, take into consideration the position and motives of the relator, the interest or policy of granting tire remedy, the public interest, convenience, or detriment, the prospect of strife, confusion, and litigation, and unreasonable delay or acquiescence of the complaining party.’ The State, ex rel., v. Wyandotte County,117 Kan. 151 ,230 P. 531 , 535 (1924).”
A judicial action constitutes an abuse of discretion if the action (1) is arbitraiy, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co.,
In order to determine whether the court’s decision was erroneous as a matter of law, we must look to the language of the ouster statute,
“Every person holding any office of trust or profit, under and by virtue of any of thelaws of the state of Kansas, either state, district, county, township or city office, except those subject to removal from office only by impeachment, who shall (1) willfully engage in misconduct while in office, (2) willfully neglect to perform, any duty enjoined upon such person by lato, (3) demonstrate mental impairment such that the person lacks the capacity to manage die office held, or (4) who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such person’s office and shall be ousted from such office in tlie manner hereinafter provided.” (Emphasis added.)
As is readily apparent from the statutory language, misconduct and neglect to perform duties required by law are grounds for ouster. In the context of an ouster action, official misconduct has been described as “ £[a]n act done by a public officer in direct violation of a statute regulating his official duties is official misconduct within the terms of his bond.’ ” State, ex rel., v. Robinson,
In addition to proving misconduct or neglect to perform a duty required by law, the language of
Confusion about the proper standard has arisen because certain prior cases suggest that a bad or corrupt purpose must be shown. See, e.g., The State, ex rel., v. Corwine,
Another line of cases has looked not at the public official’s motive but at the legal justification for the conduct. See, e.g., State, ex rel., v. Duncan,
Confronted with this analytic dichotomy, die Court of Appeals in our case crafted a new legal standard for determining when ouster under
“It is not every oversight or omission within the strict letter of the law which will entail forfeiture of office. The purpose ofthe statute is to prevent persons from continuing to hold office whose inattention to duty, either because of its habitualness or its graoity, endangers the public welfare; and the neglect contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of the public interests is threatened." (Emphasis added.) 82 Kan. 373 , Syl. ¶ 10.
The second statement of law comes from Duncan, discussing the type of willful misconduct that may warrant removal from office:
“[T]he writ of ouster cannot issue unless there has been a willful violation of official duty prompted by a bad or corrupt purpose, and without any reasonable grounds to believe that the action is lawful. Mere departure from tire letter of the law will not warrant a judgment of ouster, unless it is prompted by an evil design. (State ex rel., v. Trinkle,70 Kan. 396 ,78 P. 854 ; State, ex rel., v. Foley,107 Kan. 608 ,193 P. 361 .) The county commissioners are vested with the general control and supervision of the affairs of the county. They are vested with discretionary powers, and must necessarily be guided by their judgment. An error in judgment does not come within the purview of the statute, but unlawful acts prompted by a corrupt purpose and bad faith warrant a judgment of ouster.” (Emphasis added.)134 Kan. at 94-95 .
Blending these two statements of law, the Court of Appeals crafted the following standards for determining whether ouster is justified under
The problem with tire first standard is that it is not consistent with the cases cited for assessing willful neglect. That standard applies to both single and repeated instances of neglect. See Kennedy,
But the Court of Appeals’ standard for judging willful neglect (i.e., a persistent and habitual disregard) requires a showing of repeated instances of neglect in order for ouster to be justified under
The Court of Appeals’ second standard for judging willful misconduct (i.e., acts so egregious that they pose a grave threat either to public safety or to the public fisc) is not supported by the language of
The Court of Appeals set a standard that mandates a level of sustained malfeasance not required in our prior cases. It requires
While the Court of Appeals set a standard that was too high, the district court, on the other hand, failed to consider whether the proven violations under tire Code of the City of Prairie Village were prompted by a bad or corrupt purpose. The district court found Morrison violated Sections 1-212(e)(6)(b) and 1-212(g) of the Prairie Village City Code by intentionally giving Malone his access code and allowing him to stay at city hall for several nights. Consequently, Morrison s conduct in secreting Malone into city hall under false pretenses showed that Morrison did not act with a good faith belief that his actions were legal or justified under the circumstances.
We are mindful that, under our Constitution, tire people elect their state office holders and representatives and city and county commissioners in order to have such officials serve out their terms for which they were elected. As the Court of Appeals aptly noted: “Our courts’ long history of considering judicial ouster a drastic remedy, available only on a showing of serious wrongdoing, is deeply rooted in judicial respéct for the separation of powers and judicial restraint in the face of political questions.” Morrison,
It is only in exceptional circumstances that publicly elected officials should be removed prior to the completion of their terms. A careful review of our cases shows that, while they are at times inconsistent, they generally recognize an exceptional circumstance by requiring a bad or corrupt purpose when applying the question of willful neglect and willful misconduct under
Here, while the district court found that Morrison’s conduct showed that he did not act .with a good faith belief that his actions were legal or justified under tire circumstances, more is required under our standard. A finding of a bad or corrupt purpose is also necessary to satisfy ouster under
Conclusion
We therefore find that the district court abused its discretion by failing to determine whether Morrison’s conduct was the product of a bad or corrupt purpose. See State v. Gonzalez,
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Concurrence Opinion
dissenting in part: I cannot agree with the majority’s holding that the district court failed to determine that Morrison’s conduct was the product of a bad or corrupt purpose. Accordingly, I would simply reverse the Court of Appeals, including its unauthorized order to stay the district court’s ouster order, and I would affirm the district court’s Judgment of Ouster.
First, the verdict form presented to the advisory juiy asked the questions of whether it was highly probable that Morrison, “while
Likewise, the district court specifically found that the evidence showed that Morrison “used city property for his own convenience,” which was “a personal benefit to [Morrison].” The district court also made determinations about Morrison’s lack of credibility in his excuses, which bolsters those findings. In my view, a public official who knowingly appropriates the public’s property for the official’s own personal benefit has acted for a corrupt purpose. Granted, as Morrison argued before us, there are instances of misappropriation of public property that are so de minimis that they should not support an ouster, e.g., making a single personal photocopy on the city’s machine. But that is where the district court’s exercise of discretion comes into play; it does not negate the bad or corrupt purpose of the action. Here, Morrison’s actions went way past de minimis, and the district court’s findings were sufficient to support its judgment. I would affirm.