A decision came down this morning in the case to remove recently elected Cass County Presiding Commissioner Herschel Young (r) from office:
11CA-CV00001 – STATE O MO EX INF T HENSLEY V HERSCHEL L YOUNG
02/18/2011 Docket Entry: Judgment Entered
Judge Jacqueline Cook’s order:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Quo Warranto is granted.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Respondent is ousted from the office of Presiding Commissioner, Cass County, Missouri.
2-18-11 s/Jacqueline Cook
Date Hon. Jacqueline Cook, Judge, Div. I
New Cass County Presiding Commissioner Herschel Young (r) removed from office by court order (January 4, 2011)
Cass County: whether you vote or don’t even bother to try you get the government you deserve (February 3, 2011)
11CA-CV00001 State of Mo Ex Inf T Hensley v. Herschel L Young (February 4, 2011)
The conclusion of Judge Cook’s twenty-two page decision:
…Contested elections enhance the responsiveness and robustness of our political system. The right of the people to elect individuals to public office should be carefully guarded and protected. However, we are a republic, governed by our elected officials, whom we elect, and by the laws that are passed by our elected officials in the public’s interest. The General Assembly passed Mo. Rev. Stat. § 115.530 which prohibited a person, such as Respondent Young, to stand as a candidate for public office due to his felony conviction. It is not for this Court to substitute its policy judgment. The General Assembly has spoken and found that those who have pled guilty, been found guilty or have been convicted of a felony in the State of Missouri should not be qualified to be a candidate for public office. It is for the General Assembly or the people of the State of Missouri who elect those who passed such laws, to determine whether such laws should continue to exist. But, as for this Court, it must enforce the law as it has been passed by the General Assembly.
This Court notes that should Respondent seek to appeal this Court’s decision, he is entitled to seek a stay pending appeal pursuant to State ex inf. Atty. Gen. v. Shull, 887 S.W. 2d 397, 403 (Mo. 1994).
Judge Cook’s decision addresses four issues – an equal protection argument, a retrospective law argument, the application of Criminal Code to RSMo § 115.530, and the standing of the Cass County Prosecutor to bring the case.
In reference to the equal protection argument, Judge Cook wrote:
…Respondent Young may challenge whether § 115.530 is applied to a Missouri felon in a manner consistent with the Equal Protection Clause as he is a Missouri felon….The Court notes that notwithstanding the argument of Respondent’s counsel in their motion to dismiss, Missouri does restrict the right of a person who has been convicted of, pled guilty to a misdemeanor or felony under the federal laws of the United States to qualify as a candidate for elected public office in the State of Missouri. See Mo. Rev. Stat. § 115.348. While Respondent did plea guilty to a felony in the State of Texas, he received a “deferred adjudication” which is not a finding or verdict of guilt. Donovan v. State, 68 S.W. 3d 633, 636 (Tex. Crim. App. 2002). As such he is not a convicted felon in Texas and has no standing to raise the application of § 115.530 to felons from other states….
….In making his equal protection challenge, it is the Respondent’s burden to demonstrate a discrimination against him of some substance….Classification is the essence of legislation…In this case, Respondent has failed to make his case that the classification was invidious, arbitrary or irrational, thereby offending the Equal Protection Clauses of either the United States or Missouri Constitutions. He has failed to meet his burden that § 115.530 unfairly classifies individuals who have been convicted of, found guilty of, or pled guilty to a felony under the laws of this State….
On the “Motion to Dismiss for Retrospective Laws”:
….The Missouri Supreme Court has held that a law is retrospective in operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties or disabilities with respect to past transactions.
Missouri has long held that the right to public office is not a vested right or contractual right…There is no fundamental right to run for office…Similarly, an incumbent of public office does not have a vested right…. based upon the aforementioned case law, no one has a vested or substantial right to run for office or hold office in the State of Missouri. Therefore § 115.530 does not satisfy the first disjunctive definition of a retrospective law….
….the Court finds that § 115.530 does not impose any new obligation, duty or disability. Mr. Young is not obligated or required under duty to run for office. There is no prohibition of the General Assembly to created new eligibility or qualification requirements….
….As applied to Respondent Young Mo. Rev. Stat. § 115.350 is not unconstitutionally retrospective….
On the application of the Criminal Code to § 115.350:
…The purpose of the revision of the Criminal Code regarding legal disqualifications was to reduce the number of statutes providing for collateral consequences of criminal convictions, and to promote rehabilitation.
This Court believes that reading the statutes in harmony provides that disqualification or disability may occur to one having a felony conviction if it is provided by Constitution, Code, or by statute. While in 1977, when the statutes in the Criminal Code were passed modifying the civil legal disqualifications that occurred due to a felony conviction, the General Assembly focused on rehabilitation, it chose, in 2005 through H.B. 1900, to focus on ethics and the public’s confidence in their office holders. Thus the general Assembly chose, in 2005 to pass pass legislation prohibiting a person having pled to, found guilty, or been convicted of a felony under the laws of the State of Missouri to qualify as a candidate for public office. It is presumed the General Assembly knew and understood the import of § 561.021.2 That it chose to limit candidacy of public office to felons must be given deference. Alternatively, the specific statute as to candidacy qualifications would govern over the general statute of § 561.021.2.
Therefore, this Court finds, notwithstanding the provisions of § 561.021.2, that § 115.350 prohibits a person convicted of a felony conviction, as respondent is in in this case, from being a candidate for public office….
On the standing of the Cass County Prosecutor to bring the case:
….Respondent contends that Relator Teresa Hensley lacks standing due to the Comprehensive Election Reform Act of 1977 and specifically § 115.526. However, this argument is not persuasive. Missouri courts have long held that equity has no jurisdiction to try election contests…However, the right to title is different from an election contest and should be settled by a quo warranto…The present case presents a right to title, not an election contest, and therefore Relator hensley has standing to bring the action, and this Court has jurisdiction.
The court also not
es that respondent has already stipulated to the jurisdiction of the relator in open court.
In the present case, there is no dispute that Respondent Young has a felony conviction in the State of Missouri. There is further, no dispute, that § 115.350, which prohibited individuals convicted of felonies in the State of Missouri from being a candidate for public office, was effective prior to the 2010 general election. This Court finds that Respondent Young was not qualified or eligible to hold the elected office of Presiding Commissioner of Cass County. Whereas he was not eligible or qualified for office, Respondent Young had no legal right to the office. Therefore the Court grants the Petition Quo Warranto and orders his ouster from office….
We shall see if there’s an appeal. Judge Cook’s decision appears to be measured and thorough – it addresses all of the elements of the oral arguments in the February 3rd hearing.