The Cass County Justice Center in Harrisonville, Missouri.
On Thursday afternoon there was a hearing for oral arguments on motions to dismiss in a 17th Circuit courtroom at the Cass County Justice Center in Harrisonville in the case to remove elected Cass County presiding commissioner Herschel Young, Judge Jacqueline Cook, presiding.
The applicable statute in Missouri:
Missouri Revised Statutes
Election Authorities and Conduct of Elections
Conviction or plea under state laws, disqualification for elective public office.
115.350. No person shall qualify as a candidate for elective public office in the state of Missouri who has been convicted of or found guilty of or pled guilty to a felony under the laws of this state.
(L. 2006 H.B. 1900)
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)
The Cass County Courthouse on the square in Harrisonville, Missouri is the seat of county government. “A Public Office Is A Public Trust” is emblazoned over the south entrance.
After looking up the 17th Circuit Court rules and applicable Supreme Court rules for media coverage I inquired of the circuit court clerk’s office when I arrived at the justice center if it would be possible to make an audio recording of the proceedings. They made a phone call to check and then informed me that I would not be allowed to do so.
I found a seat in the courtroom about fifteen minutes before the scheduled start of the hearing. A few minutes later the bailiff informed everyone that all cameras, recording devices and cell phones needed to be removed from the courtroom. I took everything back to the car and returned to the courtroom with a small notebook, a pen, and a pencil.
The hearing was quite interesting. This case is probably going to the Supreme Court. It screams for it. And the attorneys appear to know that.
Judge Cook took up the motions to dismiss and Herschel Young’s attorney’s proceeded with their argument on the retrospective nature of the statute. That is, since the law was passed in 2007 (prohibiting individuals convicted of or pleading to a felony in Missouri from holding office) and since his conviction was in 1995 his attorneys argued that the application to him is an additional punishment after the fact. They cited Missouri case law and precedents in felony cases and statutes having to do with restrictions on Halloween and for prohibitions on certain persons living within one thousand feet of a school. Further, they argued, Herschel Young could face a criminal penalty for filing for office because of his 1995 conviction. That is retrospective and that would violate his constitutional rights. They asked the judge to strike down RSMo 115.350.
The State argued in rebuttal that a retrospective law imposes a new duty, obligation, or disability. RSMo 115.350 operates prospectively. It was enacted in 2007 and applied in 2010. There is no affirmative duty on Hershel Young. He had a choice to file or not file for office and he had a choice to fill out his application for candidacy.
The State continued that under the respondent’s argument all laws are retrospective. It is a slippery slope – no new law could apply to anyone already born. Eligibility requirements are not a new duty. Young was forbidden from running for office. The criminal consequences of RSMo 115.631 is for lying on an affidavit, not because of Herschel Young’s previous conviction. Further, it is an obligation for everyone – if you want to run for office you have to meet the qualifications. A legal disability would require Herschel Young to take affirmative action – if the defendant had done nothing there would be no legal consequences.
Missouri Revised Statutes
Election Authorities and Conduct of Elections
Class one election offenses.
115.631. The following offenses, and any others specifically so described by law, shall be class one election offenses and are deemed felonies connected with the exercise of the right of suffrage. Conviction for any of these offenses shall be punished by imprisonment of not more than five years or by fine of not less than two thousand five hundred dollars but not more than ten thousand dollars or by both such imprisonment and fine:
(1) Willfully and falsely making any certificate, affidavit, or statement required to be made pursuant to any provision of sections 115.001 to 115.641 and sections 51.450* and 51.460, including but not limited to statements specifically required to be made “under penalty of perjury”; or in any other manner knowingly furnishing false information to an election authority or election official engaged in any lawful duty or action in such a way as to hinder or mislead the authority or official in the performance of official duties. If an individual willfully and falsely makes any certificate, affidavit, or statement required to be made under section 115.155, including but not limited to statements specifically required to be made “under penalty of perjury”, such individual shall be guilty of a class C felony….
The State added that the obligation is on the state to remove an office holder who does not qualify for office. RSMo 115. 530 is prospective, not retrospective.
Judge Cook offered the attorneys for Herschel Young an opportunity for rebuttal with, “…if you’d like one more bite at that apple…” The respondent’s attorney’s restated, “Our case is directly online with the [Missouri] Supreme Court.” As they continued Judge Cook stated, “Under your argument the legislature could never amend candidate qualifications.” Under the State’s theory he could not run again for [local] alderman. Later, the respondent’s attorneys added, “The state can amend the law, but they can’t apply it to antecedent criminal conviction.”
The State was offered an opportunity to respond. They added that the new event is running for office.
The court then took up the 14th Amendment argument, that a convicted felon in another state could still run for office in Missouri once they established residency and met the other requirements.
The State argued that Missouri can only be concerned with Missouri felonies because we do not know the law (and felonies) or the circumstances in other states. Each state is free to define its felonies.
[So, a convicted felon in another state could have possibly committed and been punished for a crime which was not a felony in Missouri (they didn’t get that far into it, but you see the point). Another state’s business is not Missouri’s.]
Then, the State had made late reference to a prior record of Herschel Young in Texas. There was some discussion of the disposition, but the state pointed out in the Texas record that he plead guilty. The state then pointed out his 14th Amendment argument that someone convicted from another state can run for office in Missouri was moot [my term] because the state wasn’t arguing that Herschel Young was disqualified because he’d been convicted in Texas, they were arguing that he couldn’t hold office because he had been convicte
d in Missouri. The state said, “He can’t have it both ways.” [That is, arguing that it’s unfair that someone convicted in another state isn’t disqualified from holding office in Missouri, even though he’d been convicted in another state and wasn’t disqualified because of that].
Judge Cook gave both sides twenty-four hours to file briefs on the disposition of the Texas case.
The State continued that in the Texas matter the respondent also paid a fine, stating, “A fine in the State of Missouri is a conviction.” Later adding that in the case of extradition the state [of Missouri] has to make a case to extradite.
These arguments by the State were to address the equal protection theory of the respondent’s attorneys that the lack of applicability in the Missouri statute for those convicted in other states was unfair and unconstitutional.
The court took a half hour recess so that all parties could stipulate on the facts in the case not in dispute.
After the recess the court took up the State’s Quo Warranto petition to remove Herschel Young from office. The State asked the judge to enter the order. The respondent’s attorneys ended with, “The prosecution is asking you to upset the will of the voters. It’s monumental.”
Herschel Young seems like an amiable guy. He wants to serve. At an earlier point in the hearing he stated to the court that in 1995 he asked the judge what the disposition of his case meant and that he left that conversation assured in his mind that it wouldn’t go on his record. Judge Cook responded, “The record is the record.”