Cass County Prosecutor Teresa Hensley filed a petition in the 17th Judicial Circuit to remove newly elected Cass County Presiding Commissioner Herschel Young (r) from office. The press release from the prosecutor’s office:

For immediate release upon receipt

Tuesday, January 04, 2011            

QUO WARRANTO FILED – PETITION SEEKS TO REMOVE

HERSCHEL YOUNG AS PRESIDING COMMISSIONER

AS A RESULT OF 1995 FELONY CONVICTION

Harrisonville, MO – – A Petition for Quo Warranto was filed on January 3rd with the Circuit Court of Cass County.  The Petition seeks to remove from office, Herschel L. Young as Presiding Commissioner .  A Petition for Quo Warranto is the proper remedy to determine title to an office.  A Quo Warranto can only be brought by the State of Missouri Attorney General’s Office or the County Prosecuting Attorney’s Office and only after an individual has actually taken office.  This Petition was filed by the Cass County Prosecutor Teresa Hensley pursuant to Missouri statutes requiring her to file a quo warranto where the primary issue is the qualifications to hold an office.  

The Petition alleges that Herschel L. Young, having been convicted of a felony in 1995 was not qualified as a candidate for elective, public office in the November 2010 general election and therefore does not qualify to hold the elected office of Cass County Presiding Commissioner.  Herschel L. Young was elected as Presiding Commissioner of Cass County in the general election held on November 2, 2010 but did not officially take office until the first day of January 2011.   Neither the Attorney General’s Office nor the Prosecuting Attorney’s Office may seek removal until the candidate has actually taken the office.

“I believe that once Mr. Young took office, Missouri law requires that the Prosecutor seek removal of an officeholder who does not qualify to hold that office,” Hensley said.  “Missouri case law has clearly stated that a quo warranto is an action to protect the public against usurpation of a public office and that the public is the real party in interest here.”

Herschel L. Young pled guilty on June 29, 1995 to a Class C Felony of Assault and received a suspended execution of sentence with three years supervised probation.   Mr. Young’s felony conviction has gone unnoticed on his criminal history due to a failure of the system in 1995 to insure that it was properly recorded with the Missouri State Highway Patrol who keeps such records.  The Petition includes as Exhibit A the certified copy of the Sentence and Judgment, whereby Herschel L. Young pled guilty to and received a conviction for a felony offense.  That Sentence and Judgment is part of the official Circuit Court file of Cass County.

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The petition filed by Cass County prosecutor Teresa Hensley [pdf]. The petition includes two exhibits: Herschel Young’s declaration of candidacy from 2010 and records of the felony conviction from 1995.

11CA-CV00001 – STATE O MO EX INF T HENSLEY V HERSCHEL L YOUNG

Displaying 1 thru 5 of 5 records for all dockets returned for case 11CA-CV00001.

01/03/2011 Docket Entry: Judge Assigned

Docket Entry: Petition Filed – No Fees

Text: Petition in Quo Warranto

Filing Party: HENSLEY , TERESA LYNN

Docket Entry: Suggestions in Support

Text: Suggestions in Support of Petition for Quo Warranto

Filing Party: HENSLEY , TERESA LYNN

Docket Entry: Judge/Clerk – Note

Text: Court takes up Petition for Quo Warranto. Upon review of pleadings and pursuant to Mo.R.Ct. 98.05 and Mo.Rev.Stat. 526.050 the Court enters preliminary order. Court finds that ruling in form of injuction pled by Prosecutor should be granted. Order entered separately. JAC/tl

Docket Entry: Order

Text: Document ID: 11-ORD-1, for YOUNG, HERSCHEL L. Preliminary Order in Quo Warranto

[emphasis added]

Missouri Revised Statutes

Chapter 526

Injunctions

Section 526.050

Temporary injunction, when granted.

526.050. When it shall appear by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists, in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, or when, during the litigation, it shall appear that the defendant is doing, or threatens or is about to do, some act in relation to the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.

[emphasis in original]

Judge Jacqueline Cook entered a preliminary order removing Herschel Young from office.

Long time incumbent Presiding Commisioner Gary Mallory (D) was upset by Herschel Young (r) in the 2010 general election:

Election Summary Report

CASS CO MO

GENERAL ELECTION

Summary For Jurisdiction Wide, All Counters, All Races

11/05/10

11:04:20

PRESIDING COMMISSIONER

Number of Precincts 48

Precincts Reporting 48 100.0 %

Total Votes 34304

GARY MALLORY DEM 15704 45.78%

HERSCHEL L. YOUNG REP 18554 54.09%

Write-in Votes 46 0.13%