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State v. Morrison

Court of Appeals of Kansas

October 10, 2014

STATE OF KANSAS, Appellee,
v.
DAVID SCOTT MORRISON, WARD 5 COUNCILMAN, CITY OF PRAIRIE VILLAGE, JOHNSON COUNTY, KANSAS, Appellant

Page 1205

Appeal from Johnson District Court; DAVID W. HAUBER, judge.

SYLLABUS

BY THE COURT

1. There is no right to a jury in ouster proceedings and use of an advisory jury is within the discretion of the district court. Findings of an advisory jury have no binding effect on a district court and the court remains obliged to determine the disputed facts, reaching its own independent conclusions. On review, the appellate court will consider only the findings of fact as determined by the district court itself.

2. When an issue involves a legal determination based on undisputed facts, our review must, considering those facts, be made without deference to the district court's legal conclusion.

3. Ouster of a public official pursuant to K.S.A. 60-1205(1) and (2) is an extraordinary judicial remedy that should only be invoked where the evidence is clear and convincing and the misdeeds flagrant.

4. Judicial ouster pursuant to K.S.A. 60-1205(1) and (2) 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.

5. Our longstanding view of judicial ouster as a drastic remedy, available only on a showing of serious wrongdoing, is deeply rooted in judicial respect for the separation of powers and judicial restraint in the face of political questions.

6. On the undisputed facts of this case, the actions of the public official in question did not demonstrate, pursuant to K.S.A. 60-1205(1) and (2), either willful misconduct or a willful neglect to perform a duty as those terms have been interpreted. Therefore, judicial ouster was not proper.

Rex A. Sharp and Barbara C. Frankland, of Gunderson Sharp, LLP, of Prairie Village, J. Brett Milbourn, of Walters Bender Strohbehn & Vaughan, PC of Kansas City, Missouri, and Thomas J. Bath, Jr., of Bath & Edmonds, PA, of Overland Park, for appellant.

Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.

Before LEBEN, P.J., PIERRON and STEGALL, JJ.

OPINION

Page 1206

Stegall, J.:

After a full trial, David Scott Morrison was ousted from public office. Because we find that the undisputed facts of this case do not, as a matter of law, satisfy the criteria for judicial ouster contained in K.S.A. 60-1205, we reverse the decision of the lower court and remand with directions that judgment be entered in Morrison's favor, thus reinstating him to his public office.

Facts

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 seeking 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 circumstances improved 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 ...


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