IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 84,573, 84,974
STATE OF KANSAS ex rel.
CARLA J. STOVALL,
Appellee,
v.
DAVID R. MENELEY,
Appellant.
SYLLABUS BY THE COURT
1. The privilege against self-incrimination is personal as it adheres basically to the person, not to information that may incriminate him or her. An accused cannot assert a third-person privilege for a nonparty witness.
2. It is within the district court's discretion whether to grant a stay or continuance in a civil trial where there are criminal charges pending against a party arising from the same set of facts. The appellate court reviews the district court's refusal to stay civil proceedings pending criminal outcome on an abuse of discretion standard of review.
3. The Fifth Amendment to the United States Constitution does not mandate a stay of civil proceedings pending the outcome of similar or parallel criminal proceedings. There is no general federal constitutional, statutory, or common-law rule barring the government from prosecuting both a civil and criminal action at the same time against the same party even where both actions are the result of the same set of circumstances.
4. A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his or her Fifth Amendment privilege. Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but also it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.
5. The contention that being forced to choose between the compulsion to testify in a civil suit in order to avoid an adverse result on the merits undermines the right to remain silent in a criminal matter, while having surface appeal, will not stand analysis. While the choice between testifying or invoking the Fifth Amendment privilege may be difficult, it does not create the basis for a stay.
6. The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. This means the decisionmaker should consider the extent to which the defendant's Fifth Amendment rights are implicated. In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interest of persons not parties to the civil litigation; and (5) the interests of the public in the pending civil and criminal litigation.
7. The attorney-client privilege should be strictly confined within the narrowest possible limits.
8. The assertion of the privilege depends on the finding of an attorney-client relationship. An attorney-client relationship is not dependent on the payment of a fee, nor is there a requirement that the relationship be memorialized by contract. The relationship may be implied from the conduct of the parties. The relationship is sufficiently established when it is shown that the advice and assistance of the attorney is sought and received in matters pertinent to the profession. The party asserting the privilege bears the burden of proof for establishing all of the essential elements.
9. A client's disclosure to a third party of a communication made during a confidential consultation with his or her attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege.
10. When considering whether an attorney or firm should be disqualified in a given case, the appellate court decides whether the trial court's findings of fact are (1) supported by substantial competent evidence and (2) sufficient to support the conclusions of law.
11. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.
12. A panel of three judges has historically been used in ouster proceedings. There is nothing in the quo warranto statutes, however, which requires a three-judge panel. K.S.A. 60-1201. Likewise, there is nothing in Kansas case law which mandates the use of a three-judge panel.
13. The trial court's ruling on a motion for a continuance will not be disturbed on appeal absent an abuse of discretion.
14. K.S.A. 60-521, by negative implication, retains governmental immunity from the statute of limitations for causes of action arising out of a governmental function. Governmental functions are those performed for the general public with respect to the common welfare for which no compensation or particular benefit is received. Proprietary functions, on the other hand, are exercised when an enterprise is commercial in character or is usually carried on by private individuals or is for the profit, benefit, or advantage of the governmental unit conducting the activity.
15. When faced with an affidavit of prejudice filed pursuant to K.S.A. 20-311d, this court has unlimited review, and on appeal must decide the legal sufficiency of the affidavit and not the truth of the facts alleged. We examine whether the affidavit provides facts and reasons pertaining to the party or his or her attorney which, if true, give fair support for a well-grounded belief that he or she will not obtain a fair trial. We determine whether the charges are grounded in facts that would create reasonable doubt concerning the court's impartiality, not in the mind of the court itself, or even necessarily in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.
16. Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can be reasonably resolved. The appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.
17. We review a trial court's application or denial of the doctrine of laches under an abuse of discretion standard of review. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as the neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. Laches is the neglect or omission to assert a right that, taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party. In order to invoke the doctrine of laches, the moving party must show that it has been prejudiced or put at disadvantage by the delay.
18. The doctrine of laches does not apply when a cause of action is brought by the State seeking to protect the public.
19. The prior term rule is a common-law rule which generally prohibits a public officer from being removed from office for misconduct occurring during a previous term of the office.
20. The principal rationale of the prior term rule is that reelection or reappointment of the officer amounts to condonation of his or her prior misconduct. Condonation of an offense implies knowledge of the offense, and, if the officer's misconduct in the prior term was concealed or not known to the electorate or the appointing official at the time of reelection or reappointment, the rule should not be applied.
21. The prior term rule should not be applied where (1) the officer steadfastly denied any wrongdoing; (2) the officer had a continuing duty to make restitution; or (3) the officer has an important and vital societal role.
Appeal from Shawnee district court; RICHARD D. ANDERSON and MATTHEW J. DOWD, judges, and TRACY D. KLINGINSMITH, district judge assigned. Opinion filed April 27, 2001. Affirmed.
Margie J. Phelps, of Topeka, argued the cause, and Jonathan B. Phelps, of Phelps- Chartered, of Topeka, was with her on the brief for appellant.
M. J. Willoughby, assistant attorney general, argued the cause, and John R. Dowell, assistant attorney general, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a quo warranto action to oust the defendant, David R. Meneley, from the office of Sheriff of Shawnee County, Kansas. The case was heard by two trial judges who found the State had sustained its burden of proof on 3 of 13 counts and entered an order of ouster from office. This court has jurisdiction pursuant to Supreme Court Rule 8.02 (2000 Kan. Ct. R. Annot. 55) (transferred to Supreme Court on motion) and K.S.A. 20-3016(a)(2), (3), and (4). Meneley raises 14 issues on appeal.
The trial judges unanimously found, by clear and convincing evidence, that Meneley committed willful misconduct, as contemplated in K.S.A. 60-1205(1), in that he knowingly and willfully concealed evidence of Deputy Timothy Oblander's theft of drug evidence from the sheriff's office, he willfully gave false testimony under oath at an Attorney General's inquisition by denying his knowledge of Oblander's illegal drug use and treatment for drug addiction, and he willfully gave false testimony under oath in the Shawnee County District Court by denying that he had any knowledge regarding Oblander's illegal drug use and treatment for drug addiction.
In November 1992, Meneley was elected Sheriff of Shawnee County, Kansas. Meneley was elected a second time in November 1996, and continued in office until the ouster order at issue here.
In 1993, Meneley created a special services unit, which, in addition to investigating burglaries, provided manpower for surveillance support for the narcotics unit. Oblander and Scott Baker were original members assigned to the special services unit that included a K-9 program, which was Oblander's original assignment in the unit. Between January 1993 and May 1994, the Shawnee County Sheriff's office narcotics unit included Detective Daniel Jaramillo, Detective Scott Holladay, and Deputy Phil Blume. Captain Roger Lovelace was the division commander of both the special services unit and narcotics unit.
In late 1993 or early 1994, Oblander started consuming small amounts of cocaine and methamphetamine, taking the drugs from the evidence packets used to train his dog. Drug evidence was checked out to Oblander, as a K-9 officer, for months at a time. He carried the drugs with him daily. The drugs were weighed when they were checked in or out. On two occasions, there was a weight discrepancy in the drugs. These discrepancies were supposed to be noted on reports signed by the property room officer and Oblander, but nothing was ever done to resolve the discrepancies.
In late 1994 or early 1995, Oblander began making drug buys on the street. Oblander occasionally consumed some of the drugs that he purchased on the street. Oblander testified that he never used the drugs in the presence of anyone else, not even his partner, Frank Good, nor did he tell anyone about his drug use.
In May or June 1994, Jaramillo and Blume were assigned to the FBI Federal Drug Task Force, a multi-jurisdictional task force engaged in undercover narcotics operations. During their time with the task force, Jaramillo and Blume would report back to the sheriff's office to provide information and update Meneley regarding their activities. Jaramillo and Blume met with Meneley in November 1994, February 1995, and July 1995.
In late July 1994, Officer J.D. Sparkman retrieved a bag of evidence from the drug evidence locker located at the sheriff's office in the basement of the Shawnee County Courthouse. The evidence was from the Caldwell case which involved state and federal drug charges. After weighing the evidence, Sparkman determined that some of the cocaine evidence was missing. The officer assigned to the Caldwell case was Holladay. Holladay had checked out the evidence on June 22, 1994, for use in federal court proceedings which ended in a judgment of acquittal for Caldwell. After returning from federal court on July 5, 1994, Holladay held the Caldwell cocaine evidence in his desk until July 15, 1994, and eventually put the drugs in the evidence locker. An earlier related state court proceeding had ended in a plea in January 1992. Thus, by the time Sparkman retrieved the drugs from the evidence locker, all litigation concerning the drug evidence had been concluded. The Caldwell drugs were slated for use in the K-9 program or destruction. Upon discovering the missing cocaine, Sparkman contacted Holladay. The missing cocaine was reported to Meneley, who ordered an internal investigation. The investigation was assigned to Detective Mike Ramirez.
During the investigation, Holladay told Ramirez that he had checked the drugs before putting them in the locker. They were all in the bag and the bag was intact.
Ramirez was unable to determine who took the cocaine from the Caldwell evidence. On August 15, 1994, he closed the investigation and placed it on "inactive" status.
Oblander was never questioned or investigated because there was nothing linking him to the evidence locker. On November 22, 1999, Oblander gave a detailed statement to the Shawnee County District Attorney as part of a diversion agreement to resolve perjury charges filed against him earlier in 1999. During the interview, Oblander was asked several times if he took the Caldwell drugs. Each time he stated that he did not.
On November 23, 1999, Oblander returned to the district attorney's office on his own volition, bringing his wife and a minister. He advised the district attorney that he had to "get something off his chest" and make peace with God. Oblander then told the district attorney that he had, in fact, taken the Caldwell drugs. Oblander told the district attorney that he took the drugs from Holladay's unlocked desk drawer. He tore open the brown paper bag containing all the evidence, tore a KBI seal off an inner plastic bag holding small bags of cocaine, and took three or four of the small bags. Oblander admitted that he took the cocaine before the evidence was placed in the evidence locker on July 15, 1994.
On May 12, 1995, Oblander was reported missing by his partner, Good. Good advised Meneley that he had not seen Oblander since the night before and did not know where he was. A search was made and Oblander was found that afternoon in his truck in Silver Lake, Kansas. Oblander told officers that he had had a fight with his wife and had stayed out all night. Oblander smelled like alcohol, was quiet, red-eyed, and disheveled.
Meneley directed a local health care provider to examine Oblander. Oblander was not permitted to return to work until the mental health care provider cleared him.
On May 24, 1995, the mental health care provider released Oblander back to work. In a letter, Dr. Stephen H. Blum said he had treated Oblander for "mild depression" since May 15, 1995. The letter further said: "Tim has not reported any symptoms over the past two weeks and I feel that he is ready to return to work. I have recommended that he see me on a weekly basis for now, and that he begin taking the medication as soon as possible." Based on the letter from Dr. Blum, Oblander returned to work.
On or about June 27, 1995, Oblander entered Valley Hope Treatment Center in Atchison, Kansas. Meneley, Baker, and Mickey Brokaw went to visit him at the treatment center for 45 minutes. Oblander testified that Meneley did not bring up the subject of drugs, so he did not bring it up.
When Oblander finished treatment, he returned to work at the sheriff's office. By a mutual agreement among him, his treatment counselor, and Meneley, he was reassigned from narcotics to warrants.
In January or February 1996, Jaramillo and Blume told Assistant District Attorney Tony Rues that drug evidence had been taken from the evidence locker at the sheriff's office and that Meneley was covering up the evidence misuse.
Rues reported this information to District Attorney Joan Hamilton and asked her, on behalf of Jaramillo and Blume, to notify the Attorney General's office that drugs had been taken from the evidence locker in 1994 so that an investigation could be conducted.
On February 13, 1996, Hamilton wrote a letter to Attorney General Carla Stovall asking her to investigate missing drugs in a federal case concluded in 1994.
As a result of Hamilton's letter, Stovall asked the Kansas Bureau of Investigation (KBI) to conduct an investigation. On March 25, 1996, KBI Director Larry Welch met with Meneley in his office to advise him the investigation would take place. Meneley pledged full cooperation. On or about March 26, 1996, Meneley met with KBI investigators in his office, again agreeing to cooperate in the investigation. At the conclusion of this meeting, Meneley arranged for KBI investigators to meet with Jaramillo and Blume to schedule an interview. During the interviews, Jaramillo and Blume told investigators that Meneley had told them in July 1995 that he knew Oblander was using drugs and had stolen drugs. Eventually, the investigation turned into an inquisition conducted by Assistant Attorney General David Debenham.
During the period this investigation was occurring, additional drugs were found missing from the evidence locker at the sheriff's office. Meneley directed his staff to notify the KBI so it could include this in its investigation. Meneley also directed that an internal investigation begin.
During the inquisition, Oblander took the Fifth Amendment. Meneley testified at the inquisition on April 11, 1996. Meneley stated that he had never told Jaramillo and Blume that Oblander was using drugs. Meneley told investigators that Oblander had never told him that he had taken drugs from the evidence locker. Meneley also told investigators that Oblander had never indicated to him that he had a substance abuse problem.
On August 22, 1996, Stovall wrote a letter to Hamilton stating that the KBI's investigation had been completed and that they were unable to establish who had taken the drugs from the evidence locker in 1994. The letter did not mention any of the other drug evidence missing from the sheriff's office.
Hamilton subsequently released a letter to the local defense bar advising them of the investigation and potentially exculpatory evidence regarding the non-Caldwell missing drug evidence.
In February and March 1998, a Shawnee County District Court hearing was conducted in State v. Hernandez, on a motion to dismiss filed by Hernandez. The Hernandez case was based on the discovery of marijuana in Hernandez' home when an arrest warrant was served. The principal officer working the case was Holladay. During the hearing, Jaramillo and Blume testified that Meneley told them in July 1995 that he knew of Oblander's cocaine use and that Oblander was in treatment for cocaine addiction. They also testified that Oblander had admitted to Meneley that he took the Caldwell drugs.
Oblander also testified at the Hernandez hearing. At the hearing, he specifically denied that he had used cocaine or that he had been treated at Valley Hope for cocaine use. On March 1, 1999, however, Oblander admitted in a public statement that he had been in treatment for cocaine addiction.
On March 9, 1998, Meneley testified for a second time in the Hernandez case. Meneley was asked: "What knowledge did you have on March the 1st of Exhibit 17 to whom it may concern that Deputy Oblander was using cocaine during the time he was in your agency?" Meneley responded: "None." Exhibit 17 was Oblander's public statement about cocaine use issued on March 1, 1999.
Meneley was also asked: "Before March the 1st, 1999, has anyone reported to you that Deputy Oblander was using drugs, controlled drugs during the time that he was a sheriff's deputy?" Meneley responded: "No, the first time I knew of it was his written statement or written whatever you would call it."
After the hearing, Judge Eric Rosen issued an order dismissing Hernandez because of the mishandling of drug evidence at the sheriff's office. Based on the Hernandez order, seven additional cases were reversed.
On May 24, 1999, a petition in quo warranto for the ouster of Meneley was filed pursuant to K.S.A. 60-1201 et. seq. on behalf of the State by the Attorney General. The ouster petition alleged that Meneley was the Sheriff of Shawnee County, Kansas, and that he should forfeit his office because of willful misconduct in office. The ouster trial commenced on January 18, 2000.
At the ouster trial, Jaramillo and Blume testified that Meneley told them in July 1995 that Oblander told him he was using cocaine, had stolen evidence from the Caldwell case, was backfilling evidence with foreign substances, and had tampered with evidence in cases.
Jaramillo and Blume testified that in July 1995, Meneley again met with Jaramillo and Blume regarding their drug activities with the task force. During the meeting, Meneley stated that he had confidential information that he wanted to discuss with them. Meneley asked Jaramillo and Blume if they had any drug evidence missing from any of their drug cases, to which they responded that they were unaware of any evidence missing from their cases. Meneley told Jaramillo and Blume that Oblander had been using drugs during the time he was in special services, including methamphetamine and cocaine. Meneley told Jaramillo and Blume that Oblander had become addicted to cocaine and was currently in drug rehabilitation.
Jaramillo and Blume testified that Meneley had told them that Oblander had taken the cocaine evidence missing from the year before, that Meneley told them that Oblander had said that he first started using drugs in 1993 when he was first assigned to special services, and that Meneley stated that he believed Oblander's drug use started or intensified after Jaramillo and Blume went to the task force.
Jaramillo and Blume further testified that Meneley told them that Oblander had been taking drug evidence from the drugs he purchased as a narcotics officer and that Oblander had tampered with drug evidence by removing some of the drugs and replacing those drugs with other substances.
Jaramillo testified that in October 1995, he had a conversation with Holladay regarding Oblander's drug use. Jaramillo told Holiday the information he had received from Meneley during the July 1995 conversation. Between October 1995 and December 1995, Jaramillo, Blume, and Holladay discussed the information they had learned regarding Oblander's drug use, Oblander's use of drug evidence, and Oblander's drug treatment for addiction to cocaine. Jaramillo, Blume, and Holladay discussed how they should proceed in disclosing to outside agencies the information they had learned.
Assistant District Attorney Jim Welch testified that in May or June 1995, he received two phone calls from Meneley. In the first call, Meneley told Welch that Oblander had used drugs during his undercover duties and was now addicted. Meneley stated that he was trying to reach a consensus about how to handle the situation. Welch told Meneley that he should go look up the Woodworth case, which involved an undercover narcotics officer using drugs. A few days later, Meneley called Welch a second time and told Welch that he did not want to handle the Oblander situation that way and that he wanted to handle it as a worker's compensation issue.
Oblander also testified at the ouster trial. Oblander testified that he did not tell Meneley about his drug use in July 1995 or any other time. Oblander further testified that he did not tamper with any of the evidence in the evidence room. Oblander stated that he did not admit to anyone that he took the Caldwell drugs before November 23, 1999. Oblander further testified he never told Meneley that he had taken drugs from the K-9 drug packets or from the buys on the street.
Oblander testified that he wanted Meneley to believe his treatment at Valley Hope was for alcohol and not for drugs. He testified that he went to considerable effort to portray to everyone at the sheriff's office that his substance abuse problem involved alcohol only and that he had been treated for alcohol abuse. He stated that he was worried that Meneley would find out about his drug use and fire him.
Baker testified that when Meneley talked to Oblander at Valley Hope, the conversation was all about alcohol and nothing was ever said about drugs.
Neither Meneley nor Good testified at the ouster trial.
After the ouster trial concluded, the panel of judges rendered an order granting in part and denying in part the relief sought in the petition. The judges found that Meneley had knowingly and willfully concealed his knowledge of Oblander's drug thefts from the sheriff's office during the 1996 Attorney General's inquisition The court found that Meneley provided sworn testimony on April 11, 1996, that he knew nothing about Oblander's drug problems. The court also found that Meneley's testimony in the Hernandez case was willful and false.
In granting a part of the relief sought by the State, Meneley was ousted from his position as Shawnee County Sheriff.
I. REFUSING TO STAY PROCEEDINGS
Meneley argues that the district court erred when it: (1) refused to stay the civil proceedings against him or grant a continuance while there were criminal perjury charges pending against him and Good; and (2) refused to provide him with immunity from subsequent criminal prosecution in the event he was to testify during his ouster trial. Meneley asserts that the district court's error violated his Fifth Amendment right to remain silent because neither he nor Good could testify in his defense in the ouster trial without risk of incriminating themselves in the subsequent criminal trials.
As an initial matter, we note that Meneley cannot claim that the ouster trial should have been stayed because Good's Fifth Amendment rights may have been implicated. The privilege against self-incrimination is personal as it "adheres basically to the person, not to information that may incriminate him." Couch v. United States, 409 U.S. 322, 328, 34 L. Ed. 2d 548, 93 S. Ct. 611 (1973). Meneley could not assert Good's privilege for him.
We also pause to note that a stay in a civil case is an extraordinary remedy. See In re Par Pharmaceutical Inc. Securities Litigation, 133 F.R.D. 12, 13 (S.D.N.Y. 1990); Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 432, 500 N.W. 2d 529 (1993).
Meneley argues that because this issue implicates the Fifth Amendment, our review should be de novo.
It is within the district court's discretion whether to grant a stay or continuance in a civil trial where there are criminal charges pending against a party arising from the same set of facts. See Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (reviewing trial court's refusal to stay civil proceedings while parallel criminal action pending under abuse of discretion standard of review); Jackson v. Johnson, 985 F. Supp. 422, 424 (S.D.N.Y. 1997) (noting that court had discretion to determine whether to stay civil litigation while similar criminal proceedings were pending);S.E.C. v. Incendy, 936 F. Supp. 952, 955 (S.D. Fla. 1996) (it is permissible for simultaneous or successive prosecution of civil and criminal actions and it is within the trial court's discretion to stay the civil proceedings); Ex parte Pegram, 646 So.2d 644, 645-46 (Ala. 1994) (it is within the trial court's discretion whether to grant a stay of civil proceedings when parallel criminal proceedings are pending); Avant! Corp. v. Superior Court, 79 Cal. App. 4th 876, 886, 94 Cal. Rptr. 2d 505 (2000) (appellate court reviews district court's refusal to stay civil proceedings pending criminal outcome on an abuse of discretion standard of review); Schuessler, 243 Neb. at 429 (determination of granting stay for civil case when there is a similar criminal matter pending against the same party within the discretion of the trial court).
Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999). The party seeking the stay bears the burden of proof to establish that the stay is necessary. Midlands Utility, Inc. v. S.C.D.H.E.C., 287 S.C. 483, 486, 339 S.E. 2d 862 (1986).
Prior to the start of the ouster trial, Meneley moved the court for a stay of the civil proceedings. The district court denied the motion, stating:
"In these circumstances, Sheriff Meneley is not deprived of free choice to admit, to deny, or to refuse to answer any question that may incriminate him. The Fifth Amendment protects citizens from being compelled to offer proof against themselves in a criminal prosecution. The privilege clearly is available to Sheriff Meneley in this civil proceeding.
"The Fifth Amendment privilege does not preclude prosecution of the ouster. It does not require that this Court grant full immunity, dismissal or enter a stay. Sheriff Meneley may remain silent in all crimi