Lp v. Morris County Bd. Of County Comm'rs

• Citation: 291 Kan. 132,238 P.3d 731
• Decision Date: 10 September 2010
• Docket Number: No. 98,342.,98,342.
• Parties: DAVENPORT PASTURES, LP, Appellant, v. MORRIS COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
• Court: United States State Supreme Court of Kansas

291 Kan. 132

238 P.3d 731

DAVENPORT PASTURES, LP, Appellant,

v.MORRIS COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.

No. 98,342.

Supreme Court of Kansas.

Sept. 10, 2010.

Syllabus by the Court

1. The denial of due process of law by a Board of County Commissioners renders its resulting decision void.

2. Whether a right to due process has been violated is a question of law over which an appellate court exercises unlimited review.

3. While proof of actual bias is not required for a due process violation, the mere appearance of impropriety is insufficient.

4. Under the facts of this case, the multiple roles played by the attorney for the Board of Morris County Commissioners created a probability of actual bias that rose to an unconstitutional level. As a result, the other party's rights to due process of law were violated and the Board's decision is void.

Greer S. Lang, of Lawrence, argued the cause, and Charles R. Rayl and Douglas P. Jones, of Rayl & Jones, LLC, of Cottonwood Falls, were with her on the briefs for appellant.

William A. Kassebaum, county counselor, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by NUSS, J.:

This is an appeal of damages awarded to Davenport Pastures, LP (Davenport), by the Morris County Board of County Commissioners (Board). Davenport claims it was denied due process by the county counselor's dual roles as the Board's legal advisor and as the Board's advocate during and after the damages hearing process. After the district court and the Court of Appeals affirmed the Board, we granted in part Davenport's petition for review under K.S.A. 20-3018(b).

We hold Davenport's due process rights were violated. Accordingly, we reverse the decisions of the Court of Appeals, the district court, and the Board and remand to the Board for further damages proceedings.

Facts

On February 9, 2000, Davenport Pastures, LP, filed a written application for damages with the Morris County Board of County Commissioners. Davenport sought damages arising from the Board's decision to vacate two roads that provided access to Mulvane Ranch, which Davenport leased. Without conducting a hearing, the Board directed Assistant County Attorney William Kassebaum to draft a letter on its behalf rejecting Davenport's application. All three commissioners signed the letter.

Davenport appealed to the district court, where Kassebaum represented the Board. The court conducted an evidentiary damages hearing, where Kassebaum called witnesses for the Board, cross-examined Davenport's expert witnesses, and made arguments to the court. The district court ultimately awarded Davenport $30,000.

The Board appealed, and Kassebaum made its arguments to the Court of Appeals. That court determined that the district court's decision to conduct an evidentiary hearing exceeded the scope of its judicial review under K.S.A. 60-2101(d) because the Board had never conducted a hearing or found that any damages should be awarded. The panel remanded to the district court with instructions to return the case to the Board for further compensation proceedings. Davenport Pasture, LP v. Board of Morris County Comm'rs, 31 Kan.App.2d 217, 225, 62 P.3d 699, rev. denied 276 Kan. 967 (2003) ( Davenport I ).

On remand, Kassebaum met with the Board's three commissioners and advised them of the need for a damages hearing and the accompanying procedural requirements. At oral arguments before this court, he represented that nothing was discussed regarding standards or how to evaluate the evidence. Kassebaum also separately took two commissioners to view the two roads. One of these two commissioners, Jerry Britt, also twice reviewed the roads independently. He later testified in his deposition that these unaccompanied viewings “helped me agree with some of the testimony that I had heard.”

Commissioner F.J. Revere testified in his deposition that “we needed to hire” an appraiser because Davenport had one. Kassebaum recommended the Board hire David Sundgren as its appraiser and expert witness. Commissioner Darrell Miller testified in his deposition that Sundgren was hired after Kassebaum described Sundgren as “credible.”

During the Board's damages hearing, Davenport's two attorneys presented evidence through two appraisers and sought $382,965 in damages. Kassebaum was the only other legal counsel present. He cross-examined Davenport's two expert witnesses, conducting voir dire on one. He also directly examined the Board's appraiser Sundgren, who opined total damages of only $4,050. Kassebaum also made oral arguments to the Board, including comments on the evidence. Commissioner Revere later testified in his deposition that he viewed Davenport as an adversary and that both Kassebaum and Sundgren represented the Board at this hearing.

The Board took the matter under advisement. In the following weeks, Davenport's possible damages award was discussed at a minimum of five open Board meetings. It is undisputed that Kassebaum was present at some of these meetings. Commissioner Miller acknowledged in his deposition that Kassebaum sometimes “was present when we discussed the damages” and clarified Kassebaum's involvement during the following colloquy:

“Q: Do you recall discussing any of the evidence with Mr. Kassebaum?

“A: Well, he being our attorney I'm sure we discussed some things with him.

“Q: What kinds of things did you discuss?

“A: I don't recall the specifics.

“Q: Did you talk with him about how you ought to view the evidence?

“A: No.

“Q: Did you talk with him about which witnesses were credible and which witnesses weren't credible?

“A: No, no.

“Q: Did you talk with him about what you ought to award as far as a damage amount?

“A: Not to Mr. Kassebaum.”

Kassebaum advised the commissioners to individually review the evidence. During a later Board meeting, he instructed the Board members to “[w]rite down on a piece of paper wh[at] you think the damages are.” Each commissioner then individually provided his damages figure to Kassebaum, who in turn, presented the results to the Board at the next open meeting. Because all three commissioners had calculated different damages figures, Kassebaum instructed the Board to discuss the matter and arrive at a final damages award. Commissioner Miller testified in his deposition about these events:

“Q: Now, you indicated that during this public meeting where Mr. Kassebaum came back and reported to you on what each of you had voted on, that there was some discussion amongst the three of you-

“A: Uh-huh.

“Q: -to resolve-to come to a final number, correct?

“A: Correct.

“Q: And was Mr. Kassebaum present at the time you had that conversation?

“A: I don't recall if he was there or not. I assume he probably was when we were discussing it, since he's our counselor.”

Commissioner Britt similarly testified in his deposition:

“Q: You communicated the [damages] number to him [Kassebaum], you think you may have discussed some of the evidence in front of him, correct?

“A: That's the way I remember it.”

Ultimately, the Board decided to award $4,050 in damages: the amount opined by the Board's hired appraiser Sundgren. However, this decision was not immediately communicated to Davenport. Instead, the Board directed Kassebaum-without Davenport's knowledge-to write the Board's formal decision, subject to Board review.

The record is unclear on whether Kassebaum was merely a scrivener for the Board, i.e., he only recorded the Board's specific findings, or whether he independently made some findings and included them in the Board's report as its own. The following deposition colloquies between Commissioner Miller and Davenport's counsel illustrate the mix:

“Q: You resolved-came to an agreement on a number for the damages?

“A: Yes.

“Q: What happened next?

“A: Once we agreed upon a number then the-we directed Mr. Kassebaum to come up with-or prepare the damage assessed and he prepared that and give to use for review.

“Q: Did you tell Mr. Kassebaum what he should say in that document or award, or you just told him ‘This is the number we agreed on’?

“A: Well, that's the number agreed on, and he went and prepared it and brought it back for our review, and then there were changes made. I think we had three or four different drafts that was made before the final draft was approved.

“Q: Did you direct Mr. Kassebaum that he needed to write a decision, that you needed-

“A: We didn't-I think that's part of the hearing process, but I do not know that. That was just something that we had to have a damage done in response, I assume.

“Q: Okay. And the Board members told Mr. Kassebaum ‘This is the number we agreed on’?

“A: Yes, and then he prepared it.

“Q: Did you rely on him to prepare the decision?

“A: Oh, no. You mean as far as the damage discussion.

“Q: No, not the dollar amount. I understand the Commissioners voted on that dollar amount and they told Mr. Kassebaum what the dollar amount was. My question is whether or not the Board relied on Mr. Kassebaum to write the written decision that was ultimately issued that incorporated the damage amounts the Board voted?

“A: Yes, we relied on him.

“Q: Okay. Did you tell him what that decision needed to say?

“A: I don't think we did, because I don't think we knew what was supposed to be in it as far as the specifics as far as the request of the Court, because I-we don't know how to write legal documents, so we relied on him to do that.

....

“Q: Or did you rely on him to say the things that needed to be said?

“A: We instructed him on the substance and then he prepared as far as putting it down in writing.

....

“Q: ... But what I want to know is, were those things that you openly discussed during those regular open public meetings of the Board, and Mr. Kassebaum was there taking notes and taking it up and regurgitated it in a document, or did you do as you previously said, told Mr. Kassebaum ‘This is the number we agreed on, go write-whatever we have to...