The opinion of the court was delivered by ROSEN, J.:
The State of Kansas brought a quo warranto action pursuant to K.S.A. 60-1205 to remove David Scott Morrison from his position on the Prairie Village City Council. After conducting a hearing, the district court concluded that the evidence was sufficient to show that Morrison willfully engaged in misconduct while in office and willfully neglected to perform a duty enjoined upon him by law. Consequently, the district court entered an order removing Morrison from office pursuant to K.S.A. 60-1205(1) and (2).
Morrison appealed, and the Court of Appeals concluded that the undisputed facts did not, as a matter of law, satisfy the criteria for judicial ouster established by caselaw applying K.S.A. 60-1205. The Court of Appeals reversed the district court and remanded the case with directions that judgment be entered in Morrison's favor, thus reinstating him to his public office. We granted review and conclude that, based on the applicable statutory language and caselaw, both the district court and the Court of Appeals misapplied the standard required for ouster under K.S.A. 60-1205(1) and (2). As a result, we reverse both the district court and the Court of Appeals and remand the case to the district court for further proceedings consistent with this opinion.
The parties do not dispute the facts of this case. The Court of Appeals' recitation of the facts is quoted below.
On January 17, 2013, the State filed a quo warranto petition requesting that Morrison be removed from office pursuant to K.S.A. 60-1205. The State contended that Morrison's actions in giving his security code to Malone and allowing him to spend several nights in city hall violated sections of Prairie Village's City Code and, in addition, constituted the crimes of official misconduct, trespass, and theft. The State alleged that Morrison should be ousted from office based on him (1) willfully engaging in misconduct while in office; (2) willfully neglecting to perform any duty enjoined upon him by law; and (3) committing criminal acts involving moral turpitude. See K.S.A. 60-1205(1), (2), and (4).
The case proceeded to trial, where an advisory jury concluded that Morrison did not commit any criminal acts involving moral turpitude. The jury did conclude, however, that Morrison, based on his acts of giving Malone his access code and allowing him to stay at city hall, intentionally or purposefully engaged in misconduct and neglected to perform a duty mandated by law. The district court adopted the findings of the advisory jury and concluded that Morrison's actions violated 1-212(e)(6)(b) and (g) of the Prairie Village City Code. Those two provisions precluded a council member from granting "in the discharge of his or her duties any improper favor, service, or thing of value" and from permitting the use of city property "for personal convenience ... except when such services are available to the public generally." Code of the City of Prairie Village 1-212(e)(6)(b) and (g). The district court reasoned:
The court not only found that Morrison's actions violated the city code but that his testimony at trial explaining that he thought his actions were justified because of the lack of "restrictions or policy on how he could use his code, or even whether it could restrict any `guests' he might bring into the city portion of the complex" was not believable. The court recounted the evidence presented at trial regarding when Morrison first brought Malone to city hall on the evening of Saturday, October 27, 2012:
In addition to finding that Morrison had lied to the dispatcher about the reason for Malone's presence inside city hall outside of regular business hours, the court noted that Morrison had "neglected to mention any of the circumstances attendant on Mr. Malone's stay to either the city administrator or city attorney, who could have directed Mr. Morrison to the city's conflict of interests policy."
Based on its findings that Morrison's actions violated two separate provisions of the city code, that his actions could not be explained by an honest but mistaken belief that they were legal or justified, and that Malone's presence inside city hall created unnecessary
Before the Court of Appeals, Morrison did not contest any of the factual findings made by the district court but raised several purely legal arguments that could be distilled into one overarching contention: the district court applied a "watered-down" legal standard for determining that ouster was justified under K.S.A. 60-1205(1) and (2). Morrison contended that caselaw established that, in order for a public official's ouster to be justified under either K.S.A. 60-1205(1) or (2), the evidence must show that (1) the official's misconduct or neglect was so habitual or grave that it endangered the public welfare and (2) the official's conduct must have an evil motive of personal gain behind it.
The Court of Appeals was persuaded by Morrison's argument, stating that its
The Court of Appeals reviewed the evidence and concluded that it was not sufficient to satisfy the legal standard that it had gleaned from its review of prior cases:
The Court of Appeals accordingly reversed the district court's decision and remanded the case with directions that judgment be entered in Morrison's favor, reinstating him to his position on the city council. 50 Kan. App.2d at 1011, 335 P.3d 1204. Knowing that the State was likely to file a petition for review with this court, thus staying the issuance of the Court of Appeals' mandate, see Supreme Court Rule 8.03(j) (2014 Kan. Ct. Rule Annot. 77), Morrison filed a motion with the Court of Appeals pursuant to K.S.A. 2014 Supp. 60-262(f), asking the court to stay the district court's ouster order. The Court of Appeals granted the motion, reasoning that Morrison would be irreparably harmed by being deprived of his elected office during the pendency of the State's appeal before this court.
The State filed a petition for review, which this court granted. After oral arguments were heard by this court and nearly 7 months after the Court of Appeals' order staying Morrison's ouster and 4 months after the petition for review was granted, the State filed a motion requesting that we set aside the Court of Appeals' order staying Morrison's ouster. The State argued that, based on Rule 8.03(j), the stay was rendered ineffective once this court granted review of the Court of Appeals' decision. See Supreme Court Rule 8.03(j) (if petition for review is granted, Court of Appeals decision has no
On review, the State argues that the legal standard the Court of Appeals applied to determine whether ouster was appropriate under the facts of this case is not supported by the language of K.S.A. 60-1205 or by cases applying earlier versions of the statute. The State contends that the district court applied the correct legal standard and, in turn, properly determined that Morrison's ouster was justified under the facts of this case.
K.S.A. 60-1201 states: "Relief in the form of quo warranto shall be obtained under the same procedure as relief in other civil actions." K.S.A. 60-1202(2) states that quo warranto actions may be brought "[w]henever any public officer shall have done or suffered any act which by the provisions of law shall work a forfeiture of his or her office."
This case meets the statutory prerequisite for quo warranto relief. In State ex rel. Tomasic v. Cahill, 222 Kan. 570, 576, 567 P.2d 1329 (1977), this court recognized that "ouster is a drastic action" and that
See also Barnes v. Board of Cowley County Comm'rs, 293 Kan. 11, 17, 259 P.3d 725 (2011) (quo warranto is an equitable remedy); State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 53, 687 P.2d 622 (1984) (quo warranto and mandamus relief are discretionary). Accordingly, ouster "should be invoked only where the evidence is clear and convincing, and the misdeeds [are] flagrant." Cahill, 222 Kan. at 576, 567 P.2d 1329.
The district court's decision reflects that court's awareness that it had the discretion to grant or deny the State's request for Morrison's removal. The district court stated:
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). As mentioned above, Morrison did not challenge any of the factual findings of the district court, nor did he challenge the court's conclusion that his actions violated the Code of the City of Prairie Village 1-212(e)(6)(b) and (g). His argument on appeal, which the Court of Appeals accepted, was that his actions, despite violating the city code, were not legally sufficient to justify ouster under K.S.A. 60-1205(1) or (2). Thus, the issue before this court is whether the district court's decision to remove Morrison from office constituted an abuse of discretion because the decision was based on an error of law or was arbitrary, fanciful, or unreasonable.
In order to determine whether the court's decision was erroneous as a matter of law, we must look to the language of the ouster statute, K.S.A. 60-1205. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009).
K.S.A. 60-1205 states:
As is readily apparent from the statutory language, misconduct and neglect to perform duties required by law are grounds for ouster. In the context of an ouster action, official misconduct has been described as "`[a]n act done by a public officer in direct violation of a statute regulating his official duties is official misconduct within the terms of his bond.'" State ex rel. Ferguson v. Robinson, 193 Kan. 480, 488, 394 P.2d 48 (1964) (quoting Farmer v. Rutherford, 136 Kan. 298, 305, 15 P.2d 474 [1932]). In describing the type of neglect that can warrant removing a person from office, the court in The State v. Kennedy, 82 Kan. 373, Syl. ¶ 10, 108 P. 837 (1910), stated: "[T]he neglect contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of the public interests is threatened."
In addition to proving misconduct or neglect to perform a duty required by law, the language of K.S.A. 60-1205(1) and (2) indicates that there must be evidence showing the officeholder behaved "willfully." We recognize that two lines of cases appear to have evolved in the context of the standard by which "willful" conduct is evaluated. One standard requires a threshold that includes a bad or corrupt purpose, and one requires only establishing that the action or inaction was illegal and not justified under the circumstances. These two standards are not synonymous, and we clarify today that such "willful" conduct requires both.
Confusion about the proper standard has arisen because certain prior cases suggest that a bad or corrupt purpose must be shown. See, e.g., The State ex rel. Hopkins v. Corwine, 113 Kan. 192, 198, 213 P. 658 (1923) (word "willfully" in older statute requires showing that the officeholder's actions or inactions were based on actual or imputable bad faith); The State ex rel. Hopkins v. Wilson, 108 Kan. 641, Syl. ¶ 7, 651, 196 P. 758 (1921) (construing older version of ouster statute, court concluded "willfully" implies wrongful motive, i.e., "a bad or a corrupt purpose, an evil intent without reasonable grounds to believe the action is lawful"); The State ex rel. Hopkins v. Foley, 107 Kan. 608, Syl. ¶ 2, 614, 193 P. 361 (1920) (ouster statute not designed as pitfall for honest and sincere public officials who unintentionally err; paramount consideration is whether actions bear distinguishing characteristics of genuine good faith); Kennedy, 82 Kan. at 381, 108 P. 837 (under older statute, in order to oust county official for "corruptly or oppressively" performing duty required by law, plaintiff must show officer intentionally disregarded law for improper motives).
Another line of cases has looked not at the public official's motive but at the legal justification for the conduct. See, e.g., State ex rel. Smith v. Duncan, 134 Kan. 85, 95, 4 P.2d 443 (1931) (motive is difficult to determine; courts must look to words, acts, and consequences); The State ex rel. McCormick v. Fishback, 102 Kan. 178, 171 P. 348 (1917) (honest misunderstanding of statutory duties did not prevent ouster of court clerk for willful neglect to perform legal duty despite lack of bad or corrupt purpose); The State ex rel. Coleman v. Trinkle, 70 Kan. 396, 402, 78 P. 854 (1904) (law presumes public official's acts were motivated by good faith).
Confronted with this analytic dichotomy, the Court of Appeals in our case crafted a new legal standard for determining when ouster under K.S.A. 60-1205(1) and (2) is appropriate. It appears that the court blended two statements of law. The first one derives from Kennedy, discussing the type of willful neglect that will justify an officeholder's removal:
The second statement of law comes from Duncan, discussing the type of willful misconduct that may warrant removal from office:
Blending these two statements of law, the Court of Appeals crafted the following standards for determining whether ouster is justified under K.S.A. 60-1205(1) or (2): Ouster "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." Morrison, 50 Kan.App.2d at 1009, 335 P.3d 1204. The first standard appears to apply to willful neglect and the second standard appears to apply to willful misconduct.
The problem with the first standard is that it is not consistent with the cases cited for assessing willful neglect. That standard applies to both single and repeated instances of neglect. See Kennedy, 82 Kan. 373, Syl. ¶ 10, 108 P. 837 (purpose of statute is to prevent persons from continuing to hold office when inattention to duty endangers public welfare, either because of its habitualness or its gravity; "neglect" must disclose either willfulness or indifference to duty that is persistent or involves affairs of great importance to safety of public interests). A single instance of neglecting to perform an important duty can thus be the basis for removing a person from office. See State ex rel. v. McKnaught, 152 Kan. 689, 696-97, 107 P.2d 693 (1940) (police chief witnessed fellow law enforcement officers consuming liquor in violation of state's prohibition law; court concluded police chief's ouster was appropriate based on this single instance of failing to enforce the law).
But the Court of Appeals' standard for judging willful neglect (i.e., a persistent and habitual disregard) requires a showing of repeated instances of neglect in order for ouster to be justified under K.S.A. 60-1205(2). Such a standard is at odds with our precedent. Furthermore, the language of K.S.A. 60-1205(2) indicates that a single instance of neglect can result in an officeholder's removal. K.S.A. 60-1205(2) (willful neglect to perform "any duty" results in forfeiture of office); see K.S.A. 60-1202(2) (quo warranto action appropriate whenever public officer performs or suffers "any act" that works forfeiture of office).
The Court of Appeals' second standard for judging willful misconduct (i.e., acts so egregious that they pose a grave threat either to public safety or to the public fisc) is not supported by the language of K.S.A. 60-1205(1) (ouster appropriate when officeholder "willfully engage[s] in misconduct while in office") or the caselaw cited above, indicating that any illegal act done intentionally and without any reasonable basis for believing that it was legal or justified can warrant an officeholder's removal.
The Court of Appeals set a standard that mandates a level of sustained malfeasance not required in our prior cases. It requires
While the Court of Appeals set a standard that was too high, the district court, on the other hand, failed to consider whether the proven violations under the Code of the City of Prairie Village were prompted by a bad or corrupt purpose. The district court found Morrison violated Sections 1-212(e)(6)(b) and 1-212(g) of the Prairie Village City Code by intentionally giving Malone his access code and allowing him to stay at city hall for several nights. Consequently, Morrison's conduct in secreting Malone into city hall under false pretenses showed that Morrison did not act with a good faith belief that his actions were legal or justified under the circumstances.
We are mindful that, under our Constitution, the people elect their state office holders and representatives and city and county commissioners in order to have such officials serve out their terms for which they were elected. As the Court of Appeals aptly noted: "Our courts' long history of considering judicial ouster 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." Morrison, 50 Kan.App.2d at 1011, 335 P.3d 1204.
It is only in exceptional circumstances that publicly elected officials should be removed prior to the completion of their terms. A careful review of our cases shows that, while they are at times inconsistent, they generally recognize an exceptional circumstance by requiring a bad or corrupt purpose when applying the question of willful neglect and willful misconduct under K.S.A. 60-1205(1) and (2).
Here, while the district court found that Morrison's conduct showed that he did not act with a good faith belief that his actions were legal or justified under the circumstances, more is required under our standard. A finding of a bad or corrupt purpose is also necessary to satisfy ouster under K.S.A. 60-1205(1) and (2).
We therefore find that the district court abused its discretion by failing to determine whether Morrison's conduct was the product of a bad or corrupt purpose. See State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) (district court by definition abuses its discretion when making an error of law; abuse of discretion standard includes review to ensure that discretion not guided by erroneous legal conclusions). The decision of the Court of Appeals is reversed. The district court's decision ordering Morrison's removal from the Prairie Village City Council is reversed, and the case is remanded for application of the standard consistent with this decision. Based on this outcome, the State's belated motion to set aside the Court of Appeals' stay of the district court's ouster order is rendered moot.
STEGALL, J., not participating.
EVELYN Z. WILSON, District Judge, assigned.
JOHNSON, J., dissenting in part:
I cannot agree with the majority's holding that the district court failed to determine that Morrison's conduct was the product of a bad or corrupt purpose. Accordingly, I would simply reverse the Court of Appeals, including its unauthorized order to stay the district court's ouster order, and I would affirm the district court's Judgment of Ouster.
First, the verdict form presented to the advisory jury asked the questions of whether it was highly probable that Morrison, "while
Likewise, the district court specifically found that the evidence showed that Morrison "used city property for his own convenience," which was "a personal benefit to [Morrison]." The district court also made determinations about Morrison's lack of credibility in his excuses, which bolsters those findings. In my view, a public official who knowingly appropriates the public's property for the official's own personal benefit has acted for a corrupt purpose. Granted, as Morrison argued before us, there are instances of misappropriation of public property that are so de minimis that they should not support an ouster, e.g., making a single personal photocopy on the city's machine. But that is where the district court's exercise of discretion comes into play; it does not negate the bad or corrupt purpose of the action. Here, Morrison's actions went way past de minimis, and the district court's findings were sufficient to support its judgment. I would affirm.
BILES, J., joins in the foregoing dissent.
