Kansas Court of Appeals says Prairie Village must reseat ousted City Councilor David Morrison

Jay Senter - October 10, 2014 12:03 pm
The Kansas Court of Appeals ruled that ousted Prairie Village city councilor David Morrison should be reseated.
The Kansas Court of Appeals ruled that ousted Prairie Village city councilor David Morrison should be reseated.

David Morrison, the Prairie Village City Councilor who was ousted from office after it came to light that he had granted access to restricted areas of the Prairie Village municipal offices and police department to a homeless man with a criminal drug history, should retake his position on the governing body, the Kansas Court of Appeals ruled Friday.

The Kansas Court of Appeals ruling found that the District Court had improperly applied the state statute as it pertains to ousting public officials, noting that Kelley Malone’s presence in the Prairie Village facilities had caused no actual harm:

There is no evidence that this incident is anything other than an isolated and singular occurrence. Morrison gained no financial benefit and his actions did not threaten the public fisc. The district court expressly noted that Malone’s presence at city hall did no actual harm. The court justified its ouster order with its conclusion that Morrison had subjected city employees to a potential threat to their health and safety. To the contrary, however, we conclude that dripping noses and dirty looks are not the kinds of dangers to public safety that warrant judicial ouster.

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Morrison was represented by Prairie Village attorney Rex Sharp of Gunderson Sharp LLP in the appeal process.

Prairie Village City Administrator Quinn Bennion said his office and the city attorney were consulting with the Johnson County District Attorney’s office and the District Court about what the ruling required of them. Because the District Attorney, and not the city, was the entity to seek Morrison’s ouster in court, the city will not play a role in determining whether or not to file for a review of the Court of Appeals decision with the Kansas Supreme Court. At this point, it’s not clear whether the city will be required to reseat Morrison at its next council meeting, scheduled for Monday, Oct. 20.

Morrison was elected to his second term in office after running unopposed in April 2012. In October 2012, Prairie Village police found Malone unattended in restricted city facilities, setting of the chain of events that led to Morrison’s ouster in October 2013. Prairie Village Mayor Ron Shaffer appointed Ward 5 resident Courtney McFadden to take Morrison’s seat on the council in December 2013. If reseated, Morrison would be in office through the end of his original term, April 2016.

UPDATED 2:04 p.m.: Reached for comment Friday afternoon, Morrison said he was excited to be able to “get back to work for the people of Ward 5” and that he believed he would be seated at the Oct. 20 meeting.

“A judge has overturned the ouster. It’s like it never happened,” he said. “There is nothing for the council to do.”

Morrison said he’d already been in touch with city officials to get back up to speed.

Morrison declined to comment on how much he had spent on legal fees for the defense and appeals process, or whether he had paid the fees himself. Three attorneys were involved in the case on his behalf. Morrison, who works at a china shop, lives with his parents. His father is a retired physician.

UPDATED 2:15 p.m.: Prairie Village City Attorney Catherine Logan sent us the following note on the process for submitting a petition for review of the Court of Appeals decision. (She noted that the city of Prairie Village is not a party to the case):

Under the Kansas rules of civil procedure, the District Attorney has 30 days to petition the Kansas Supreme Court for discretionary review of the decision of the Kansas Court of Appeals. During that 30 day period, the decision of the Court of Appeals is not binding on the parties or on the District Court. If a petition for review is filed, pending the determination of the Supreme Court on the petition for review, the opinion of the Court of Appeals is not binding on the parties or on the District Court. Supreme Court Rule 8.03.

District Attorney Stephen M. Howe confirmed to me today that his office will petition the Kansas Supreme Court to review the decision of the Court of Appeals.

Based upon the above procedural rules, the earliest date that Mr. Morrison could be reinstated would be after the final determination of the Kansas Supreme Court on the petition for review.

It is not uncommon for the Kansas Supreme Court to take more than 12 months to grant or deny a petition for review. If a petition for review is granted, it is not uncommon for the Kansas Supreme Court to take more than 12 months to issue an opinion.

The Court of Appeals ruling is embedded below.

https://s3.amazonaws.com/pvpost.cdn/shared/content/uploads/2014/10/Opinion-Reversing-Dist-Ct.-20141010.pdf

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