State ex rel. Murray v. Palmgren
| Citation | 646 P.2d 1091,231 Kan. 524 |
| Decision Date | 11 June 1982 |
| Docket Number | No. 53612,53612 |
| Parties | STATE of Kansas, ex rel., Perry MURRAY and Robert T. Stephan, Appellees, v. Harold R. PALMGREN, et al., Appellants. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Discriminatory prosecution is recognized as a valid defense to a criminal prosecution based on the Equal Protection Clause of the Fourteenth Amendment.
2. To be successful a defendant alleging discriminatory prosecution must show (a) others similarly situated to defendant are generally not prosecuted, and (b) the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion.
3. Before discovery is allowed in support of the defense of discriminatory prosecution, a defendant must prove a "colorable entitlement" to the defense.
4. The Kansas Open Meetings Act, K.S.A. 75-4317 et seq. was enacted for the public benefit and is therefore construed broadly in favor of the public to give effect to its specific purpose.
5. The constitutionality of a statute is presumed; all doubts must be resolved in favor of its validity; it must clearly appear there is a constitutional violation before a statute is stricken; the court's duty is to uphold the statute under attack if there is any reasonable way to so construe it.
6. Where a non-criminal statute is set out in terms the ordinary person exercising ordinary common sense can sufficiently understand and comply with, the statute is not unconstitutionally vague.
7. An overbroad statute is one where (a) the protected activity is a significant part of the law's target and (b) there exists no satisfactory method of severing the law's constitutional from its unconstitutional applications.
8. All prearranged gatherings by a majority of a quorum of legislative and administrative bodies, agencies of the state, political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public when the purpose of the gathering is to discuss, conduct or transact the business or affairs of the body or agency.
9. So long as the parent state or local body meets the public funding test, all subordinate groups are automatically covered by the Kansas Open Meetings Act regardless of the degree or existence of public funding.
10. To "knowingly" violate the act means to purposefully do the acts denounced by the Kansas Open Meetings Act and does not contemplate a specific intent to violate the law. K.S.A. 75-4320(a).
11. In an action for civil penalties for violation of the Kansas Open Meetings Act it is held: defendants, consisting of a majority of a quorum of two governmental groups, attended three prearranged meetings for the purpose of discussing, conducting and transacting the business and affairs of the groups, in violation of the act, and are subject to civil penalties therefor.
Allen Shelton of Clark & Shelton, Hill City, argued the cause and was on the brief for appellants.
Robert T. Stephan, Atty. Gen., argued the cause and Perry Murray, County Atty., Steven Carr and Dan Biles, Asst. Attys. Gen., were with him on the brief for appellees.
Louis M. Clothier, Asst. County Atty., Leavenworth, was on the brief amicus curiae for Kansas County and District Attys. Ass'n.
This is an action by the State of Kansas, ex rel., Perry Murray, Thomas County attorney and Robert T. Stephan, attorney general, to recover civil penalties under K.S.A. 75-4320(a) from the appellants, former county commissioners and hospital trustees in Thomas County, for violation of the Kansas Open Meetings Act (KOMA). K.S.A. 75-4317 et seq.
This case is the continuation of an intense and bitter controversy over the proposed construction of a new hospital in Thomas County. The dispute is familiar to this court. Decisions in Pratt v. Board of Thomas County Comm'rs, 226 Kan. 333, 597 P.2d 664 (1979), and Thomas County Taxpayers Ass'n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978), set aside two county bond elections for hospital construction because of legal irregularities and effectively halted construction of a tax-supported hospital in Thomas County. Following the last decision, a group of Thomas County residents gave up the quest for a tax-supported hospital and began searching for an alternate method of providing medical care for the county. They formed a non-profit corporation and launched a fund drive for the building of a private non-profit hospital. During this time Harold Palmgren, William Randall and John Renner made up the Board of County Commissioners. Samuel Friesen, Eugene Karlin, Woodrow Kemp, Marilyn Rall, Lloyd Theimer and Harold Upchurch sat on the county hospital board of trustees, members of which are appointed by the county commission. These public officials opposed the construction of a new hospital. They sought to frustrate the construction of the non-profit hospital by preparing a proposal for remodeling the existing county hospital.
In furtherance of their plan, on November 3, 1979, the three commissioners, along with trustees Theimer, Upchurch and Karlin, met with an architect, John Shaver of Salina, to discuss Shaver's work on a preliminary energy audit and the possibility of obtaining federal funds for energy related improvements to Thomas County Hospital. The meeting was requested by the architect. Upchurch took the lead in notifying the commissioners and trustees. The time was set for 10:00 a. m., November 3, 1979. The meeting was held according to plan and resulted in a letter from Shaver to the commissioners notifying them he had informed the Kansas Energy Office they were interested in obtaining federal energy funds for the hospital. The application was completed awaiting official approval prior to filing.
There are two other meetings complained of in the State's petition. They occurred on November 23 and November 30, 1979, and were the result of the trustees' dissatisfaction with the hospital management under Hospital Affiliates International (HAI). Coincidentally, HAI supported the building of the non-profit hospital.
On November 23 four of the hospital trustees journeyed to Goodland in Karlin's car and met with Bill Wilson, administrator of the Northwest Kansas Medical Center. During the meeting attended by Wilson on the one hand and Karlin, Theimer, Upchurch and Friesen on the other, they discussed their plans to terminate HAI. They also inquired of Wilson's management policies, philosophy and experience as a hospital administrator and asked if he would be interested in administering their hospital.
Wilson expressed interest but advised the trustees he would not offer them a contract while HAI was providing management services. In spite of his statement the next day Wilson discussed the trustees' proposal with Northwest's attorney and requested him to draft a contract accordingly. Wilson also discussed the Thomas County proposal with his board which authorized him to enter into a ninety-day contract.
On November 27, the appellant trustees met in an open meeting and voted unanimously to terminate the HAI contract. There was no discussion. On November 29 the attorney for Northwest submitted the proposed contract to Wilson.
The next meeting complained of occurred on November 30, 1979. It also took place in Goodland where trustees Karlin, Theimer and Upchurch met with Wilson. Once again the topic for discussion was the possibility of contracting with Wilson to manage Thomas County Hospital now that the HAI was terminated. Wilson was asked to present his contract proposal to the full board of trustees. Appellant Karlin, chairman of the trustees, testified the Goodland meetings were prearranged and were for the purpose of "looking for an administrator" for the hospital.
The trial court found all the meetings were prearranged, not open to the public, held for the purpose of discussing the business or affairs of the body and attended by a majority of a quorum, thus violating KOMA. The county commissioners and trustee Friesen were fined $10 each for attending one meeting. Karlin, Upchurch and Theimer were fined $30 each for attending all three meetings. Rall and Kemp who attended none of the meetings were absolved. Costs were taxed to appellants. They appeal.
Appellants first complain the trial court erred in refusing to permit discovery in support of their defense of discriminatory prosecution. They filed a Request for Production of Documents asking for all files, reports, documents, tapes, transcripts, field notes, and all other documents in the office of the attorney general or county attorney of Thomas County which in any way relate to any investigation or complaint of alleged violations of the KOMA from 1972-80. They also requested all documents relating to investigations of alleged violations of the KOMA by the Kansas Corporation Commission (KCC) and officials in Galena and Wichita. Finally, they requested all tapes, video or audio, transcripts, press releases, position statements or similar items disseminated to any newspaper, magazine, radio or television station in Kansas in which the attorney general discussed KOMA or any investigation of violations thereof and all tapes, statements and transcripts of a TV program from Wichita titled "Access."
The trial court denied the motion.
In January 1981 appellants served appellees with the following interrogatories:
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