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

Previously:

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….

Further:

….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.

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

Chapter 115

Election Authorities and Conduct of Elections

Section 115.350

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)

Effective 1-01-07

Previously:

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

Chapter 115

Election Authorities and Conduct of Elections

Section 115.631

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.”