State ex inf. Atty. Gen. v. Shull

• Decision Date: 22 November 1994
• Docket Number: No. 76723,76723
• Citation: 887 S.W.2d 397
• Parties: STATE ex inf. ATTORNEY GENERAL of the State of Missouri, Respondent, v. Peggy SHULL, Presiding Commissioner of Clay County, Missouri, Appellant.
• Court: Missouri Supreme Court

Page 397

887 S.W.2d 397

STATE ex inf. ATTORNEY GENERAL of the State of Missouri, Respondent, v. Peggy SHULL, Presiding Commissioner of Clay County, Missouri, Appellant.

No. 76723.

Supreme Court of Missouri,

En Banc.

Nov. 22, 1994.

Reggie C. Giffin, Zoe K. Holmes, Tristan L. Duncan, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Sue A. Sperry, Judith Popper, Asst. Attys. Gen., Kansas City, for respondent.

ROBERTSON, Judge.

This is an appeal from a judgment of ouster entered in the circuit court following the filing of an information in the nature quo warranto by the Attorney General of Missouri charging a public officer with violating the anti-nepotism provision of article VII, section 6 of the Missouri Constitution. This Court has jurisdiction. Mo. Const. art. V, § 3. The judgment is affirmed.

I.

The essential facts are undisputed though their meaning is strenuously contested. The people of Clay County, Missouri, elected Peggy Shull their presiding commissioner in November, 1990. A Republican, Shull assumed office in January, 1991. The Clay County Commission is composed of three persons elected by the voters of Clay County, Mo. Const. art. VI, § 7, two of whom are elected by the voters of each of the county's two districts and one of whom, the presiding commissioner, is elected at large. §§ 49.010 and 49.020, RSMo 1986.

On July 11, 1991, the commissioners decided to fill Clay County vacancies on the Board of Trustees of the Clay-Platte-Ray Mental Health Tax Levy Board. The western district commissioner, Rick Moore, moved to appoint two individuals to the Board of Trustees, one of whom, Norma Thomas, was Shull's sister-in-law. Moore and the eastern district commissioner, Jay Larson, voted in favor of the appointments. Shull cast the last vote, making the appointments unanimous. The parties agree that a sister-in-law is a relative within the fourth degree of affinity.

On March 16, 1993, the Attorney General filed his information in the nature of quo warranto in the Circuit Court of Clay County. The circuit court entered summary judgment in favor of the Attorney General on January 24, 1994, finding that Shull "technically" violated the anti-nepotism provisions of the constitution and ordered Shull ousted from office on January 31, 1994. That same date, the trial court sustained Shull's motion to fix supersedeas bond, setting it at $5,000, and stayed the execution of the ouster order. Shull filed the bond and appealed to this Court.

The Attorney General applied to the Court of Appeals, Western District, for a writ of prohibition against the trial court, urging that the judgment in quo warranto is self-executing and that neither a supersedeas bond nor a stay could allow Shull to remain in office pending appeal. The court of appeals issued a preliminary writ of prohibition on February 16, 1994, and made it absolute on February 24. Shull was removed from office and the Governor immediately appointed a Democratic male replacement.

II.

This is summary judgment. The standards announced in ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371 (Mo. banc 1993), apply. The reviewing court essentially reviews de novo. Id. at 376. Summary judgment is appropriate when the movant establishes that there is no genuine dispute as to material facts and that the movant is entitled to judgment as a matter of law. Rule 74.04(c)(3); ITT, 854 S.W.2d at 376.

A.

Article VII, section 6, provides:

Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.

Shull first argues that she did not violate article VII, section 6, because the two other commissioners had already cast a sufficient number of votes to assure the appointment of Thomas prior to Shull casting her vote. Thus, Shull's argument proceeds, she did not "appoint" Thomas and could not have violated the anti-nepotism provisions of the constitution. She relies on State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (1933), and State ex rel. McKittrick v. Becker, 336 Mo. 815, 81 S.W.2d 948 (1935), to support her position that unless her vote is the deciding one, she does not violate the constitution.

In the former case, Otto Whittle served as one member of a three-member board of education in Miller County. The board considered whether to appoint Whittle's first cousin as a teacher in the district. Whittle and another director cast votes in favor of the appointment; a third director voted against it. The Attorney General filed a quo warranto in this Court, seeking to oust Whittle for violating the anti-nepotism law.

The constitution then in effect provided:

Any public officer or employee of this state or of any political subdivision thereof who shall, by virtue of said office or employment, have the right to name or appoint any person to render service to the State or to any political subdivision thereof, and who shall name or appoint to such service any relative within the fourth degree ... shall thereby forfeit his or her office or employment.

[Emphasis added.] Mo. Const. art. XIV, § 13 (1875) (as amended 1924). Whittle argued that only the school board had the "right to name or appoint" a teacher and that that power did not reside in Whittle as an individual member of the board. This Court rejected Whittle's argument, stating:

If at the time of the selection a member has the right (power), either by casting a deciding vote or otherwise, to name or appoint a person to office, and exercises said right (power) in favor of a relative within the prohibited degree, he violates the amendment.

[Emphasis added.] Whittle, 63 S.W.2d at 101-102.

In Becker, the judges of the Court of Appeals, Eastern District, wished to reappoint a court of appeals commissioner whose term had expired. One of the judges, Judge Hostetter, was related to the commissioner and declared that he would not vote in the appointment. The two remaining judges of the court of appeals declared that they would vote to reappoint the commissioner and would do so "free from any connivance, agreement, or conspiracy with ... Judge Hostetter or with each other, or with anyone else." Becker, 81 S.W.2d at 949.

The Attorney General sought a writ of prohibition to prevent the reappointment, urging that the anti-nepotism provision of the constitution prevented it. This Court denied the writ, stating:

[T]he essence of the [anti-nepotism] provision and likewise [the Whittle ] decision is the power of appointment vested in one and the successful exercise thereof by him in accomplishing the appointment of his relative. Action, direct or indirect, not inaction is prohibited.

[Emphasis added.] Id. 81 S.W.2d at 950.

Reading these cases together, Shull concludes that unless she cast "a deciding vote" (Whittle ) or successfully "exercised" the power of appointment (Becker ), she did not violate article VII, section 6. We disagree. First, the voters amended the constitution in 1945 to its present form. Second, the new constitutional language is more broad in its scope. State ex inf. Graham v. Hurley, 540 S.W.2d 20 (Mo. banc 1976).

In Hurley, the members of the county court (now called the commission) wished to appoint an ambulance service director. Judge (now called a commissioner) Adkisson nominated William Woods, Judge Hurley's son-in-law, to serve as the ambulance service director. Despite the initial objection of a third member of the county court, Judge Hurley's son-in-law received the appointment on an unanimous vote in which Judge Hurley participated.

Before this Court, Hurley argued that his vote was not the deciding vote and that he did not have the power to name or appoint his son-in-law, relying on Whittle. The Court found:

[T]he nepotism provision interpreted in Whittle is different than our existing Art. VII, § 6.... In contrast to our present nepotism provision, the earlier provision required both that the officer or employee have the right to name or appoint and have exercised that right by naming or appointing.... [N]owhere in Art. VII, § 6 does it require that a deciding or necessary vote be cast. All that is required is that the naming be "by virtue of" appellant's office.

Id. at 25-26. The Court ruled that Hurley had forfeited his office by casting a vote in favor of his son-in-law's appointment as an ambulance service director.

Shull argues that Hurley is distinguishable from her case and, to the extent that it is not, urges that it be overruled. Although the precise facts of Hurley can be distinguished, the rule upon which Hurley relies cannot be. The constitution does not predicate the forfeiture of office on whether the public officer cast a deciding or necessary vote. Instead, a public officer violates the constitution when he or she appoints, by participating in the appointing process, a relative who is within the forbidden degree of relationship to public office. Shull participated in the appointment of her sister-in-law by virtue of her office. In doing so, she violated article VII, section 6.

B.

Next, Shull argues that the policy behind the constitution's anti-nepotism provision does not support her ouster in that her sister-in-law was both competent and qualified to hold the position and did not receive any compensation for her work on the board. We disagree.

The language of article VII, section 6, is clear and unambiguous. The text does not support Shull's policy argument. The constitution's words make no exception for public officials who appoint competent and qualified relatives to serve in public office without pay. Instead, the constitution makes the appointment of any relative within the prohibited relationship the basis for a forfeiture of office. That Norma Thomas was competent to hold her public office...