City of Roeland Park v. Cross, 51430

• Decision Date: 28 February 1981
• Docket Number: No. 51430,51430
• Citation: 229 Kan. 269,623 P.2d 1332
• Parties: CITY OF ROELAND PARK, Kansas, and Jack M. Carpenter, Mayor, Appellees, v. Frederick K. CROSS, Appellant.
• Court: Kansas Supreme Court

Page 1332

623 P.2d 1332

229 Kan. 269

CITY OF ROELAND PARK, Kansas, and Jack M. Carpenter, Mayor, Appellees, v. Frederick K. CROSS, Appellant.

No. 51430.

Supreme Court of Kansas.

Feb. 28, 1981.

Syllabus by the Court

In an appeal from a declaratory judgment which determined the right of plaintiff city to remove defendant city attorney from office wherein it is shown (1) defendant was not removed from office, and (2) defendant served his full term of appointment with pay, it is held: The appeal is moot and should be dismissed.

Kris L. Arnold, Roeland Park, argued the cause and was on the brief for appellant.

Ronald S. Reuter, Shawnee Mission, argued the cause, and Major C. Slough, Shawnee Mission, was with him on the brief for appellees.

McFARLAND, Justice:

This is a declaratory judgment action wherein the City of Roeland Park and its mayor sought adjudication of the city's right to remove defendant Frederick K. Cross from the position of city attorney. Mr. Cross appeals from the trial court's decision herein.

In the early part of 1979 defendant, in his official capacity as city attorney of Roeland Park, directed a memorandum to the city's municipal judge concerning implementation of a proposed diversionary program. Subsequently, the memorandum was brought to the attention of the news media. The memorandum, and particularly defendant's public utterances in respect thereto, were offensive to Mexican-American area residents. The resulting volatile controversy led the city council to ask defendant to resign. This request was refused. On May 25, 1979, the declaratory judgment action herein was commenced by the city to determine its right to remove the defendant from office. On August 6, 1979, the trial court held inter alia that the city could remove defendant for cause and that cause had been shown. Defendant's term of appointment was due to expire on August 15, 1979. On August 8, 1979, the city council met at a special meeting and decided to let defendant serve out his term rather than attempt to remove him. Defendant did so serve out his term and has received all compensation due him for his term of office.

In his appeal defendant challenges the propriety of the legal conclusions reached by the trial court, as well as certain underlying findings of fact. The plaintiffs-appellees seek dismissal of the appeal on the ground of mootness. We shall first consider the mootness issue.

The action was brought by the city and its mayor to determine the plaintiffs' right to remove the city attorney in mid-term. The trial court made the requested determination; however, the plaintiffs neither implemented nor proceeded under the trial court's determination. Defendant city attorney was never removed from office. The city simply allowed defendant's term of appointment to expire naturally and then appointed a new city attorney.

We have frequently stated it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. Randall v. Seemann, 228 Kan. 395, 398, 613 P.2d 1376 (1980); Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928 (1976).

This rule relative to mootness was well stated in Moyer v. Board of County Commissioners, 197 Kan. 23, 25, 415 P.2d 261 (1966), as follows:

"This court adheres to the rule that it will not consider and decide questions which if decided would not be applicable to any actual controversy and where the judgment itself would be unavailing. ...