State ex inf. Nixon v. Russell

45 S.W.3d 487, 2001 Mo. App. LEXIS 595, 2001 WL 342939
CourtMissouri Court of Appeals
DecidedApril 10, 2001
DocketNo. WD 58980
StatusPublished
Cited by6 cases

This text of 45 S.W.3d 487 (State ex inf. Nixon v. Russell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex inf. Nixon v. Russell, 45 S.W.3d 487, 2001 Mo. App. LEXIS 595, 2001 WL 342939 (Mo. Ct. App. 2001).

Opinion

BRECKENRIDGE, Judge.

Thomas Russell appeals from the judgment of the trial court sustaining the State’s petition in quo warranto ousting him from the office of sheriff of Miller County. The trial court based its decision on numerous acts of misconduct committed either by Mr. Russell personally or by those for whom he was responsible. On appeal, Mr. Russell claims that the trial court erred in entering the judgment of ouster based upon the conduct of jailers and inmates. With respect to this point, he argues that sheriffs should be held hable for the acts of deputies only when those acts are performed in the line of the deputy’s official duties and under color of office. He also contends that he cannot be held hable for the actions of third parties unless the violations of law have been open and notorious and he refused to act on known violations. The second basis for his appeal is his allegation that a willful violation or neglect of a known duty is required to support the ouster of an elected sheriff and the evidence showed that he had a good faith behef that he was acting within the scope of his authority. Finally, Mr. RusseU contends that the judgment of ouster was not supported by the evidence because the personal gain realized by him was minimal when offset by his expenditures of personal funds and the use of his personal vehicle that benefited the county. Because this court finds that the evidence at trial was sufficient to support the trial [490]*490court’s finding of a “willful ... neglect of any official duty” under § 106.220, RSMo 1994,1 the judgment of the trial court is affirmed.

Factual and Procedural Background

The judgment contains written findings of fact and conclusions of law on only some of the fact issues in this case. The record on appeal does not include transcripts of the pretrial conferences at which Mr. Russell apparently requested findings of fact and conclusions of law. From the record that was filed on appeal, however, it does not appear that Mr. Russell requested findings on specific issues of fact and, instead, made only a blanket request for findings of fact. This request was not sufficient to require the trial court to make findings of fact on every issue in the case. Jefferson v. Bide, 872 S.W.2d 115, 121 (Mo.App.1994). Therefore, this court may consider all evidence in the light most favorable to the judgment even if there is not a specific finding of fact on the issue. Rule 73.01(c). The facts set forth by this court have been limited, however, to the evidence supporting the specific instances of misconduct found by the trial court.

On December 24, 1996, Thomas Russell took the oath of office and became the sheriff of Miller County, Missouri. When Mr. Russell took office, he employed five jailers. At that time, the jail could hold no more than twelve inmates except in emergency situations. Female inmates were housed on the upper level and male inmates were housed on the lower level. In June 1998, the sheriffs department moved into a new jail and the number of inmates and employees increased.

Prior to the move into a new jail facility, Mr. Russell conducted a sheriffs auction to dispose of seized and unclaimed stolen property. Although he claims to have discussed the auction with several county officials, Mr. Russell did not obtain a court order to dispose of the property. At the sale, Mr. Russell’s father purchased several guns, but was not required to pay the five-dollar-per-gun fee for gun permits. From the proceeds of the sheriffs auction, Mr. Russell paid himself and three employees fifty dollars each for work performed at the auction and also paid for his and the other employees’ dinner that evening.2

At both the old and new jail, certain inmates were selected as trustees to perform tasks in the jail and on the jail grounds. As part of this privilege, trustees received their own cell and nearly unlimited freedoms, including free access to most all areas of the jail and the jail premises. The trustees were allowed to leave the confines of the jail without an escort. One such trustee, David Birdsong, was under few, if any, restrictions. He was permitted to leave the jail facility without reporting his whereabouts to anyone and was granted free access to the jail grounds. He also had visitation with his girlfriend on the grounds surrounding the jail without supervision.

In 1998, some inmates were allowed to leave the jail to attend the sheriffs barbecue at a local park. Mr. Birdsong attended the sheriffs barbecue and ran the [491]*491dunking booth. Following the barbecue, Mr. Russell allowed Mr. Birdsong to leave the barbecue with a deputy sheriff, who was intoxicated, and spend the night at the apartment of the deputy’s girlfriend instead of returning to jail. Mr. Birdsong returned to jail with the deputy the following morning. On one other occasion, Mr. Russell allowed Mr. Birdsong to leave the jail to attend his child’s birthday party. On none of these occasions was there a court order or authorization for Mr. Birdsong’s release.

As part of his duties as trustee, Mr. Birdsong washed the department vehicles and was allowed to drive the police vehicles, even though he had no valid driver’s license. Mr. Birdsong was also found to have knives in his cell, but was not reprimanded except that the knives were confiscated. He was not relieved of his position as trustee.

During Mr. Birdsong’s confinement, Mr. Birdsong also performed tasks at Mr. Russell’s home and restaurant. During the summer of 1998, Mr. Birdsong mowed Mr. Russell’s yard on numerous occasions. Mr. Birdsong helped Mr. Russell’s office manager’s husband lay carpet in a rental house on Mr. Russell’s property. He also performed some work on Mr. Russell’s car during the summer. In October 1998, Mr. Birdsong painted and waxed floors at Mr. Russell’s restaurant.

At one point during the summer of 1998, Mr. Birdsong was released from custody by order of the court. Mr. Birdsong’s release came on a Monday, and Mr. Russell hired him as a jailer to begin work on Friday. He was hired even though Mr. Russell knew that Mr. Birdsong was a convicted felon who had served time in the Department of Corrections before being transferred to the Miller County jail. Mr. Russell also knew that Mr. Birdsong had been incarcerated in the Miller County jail on two class A felonies for the sale of cocaine and that he pled guilty, pursuant to a plea bargain, to one count of sale and one count of possession. Under the plea bargain, Mr. Russell received a ten-year prison sentence that was suspended and a one-year sentence in the Miller County jail. At the time Mr. Russell hired Mr. Birdsong as a jailer, Mr. Birdsong had just been released from serving the full one-year sentence pursuant to a judicial parole. At this time, Mr. Russell also knew that Mr. Birdsong had outstanding warrants from the City of Eldon for driving while suspended and assault. Mr. Birdsong worked as a jailer for only twenty-two days before his parole was vacated because the visiting judge who entered it did not have jurisdiction over Mr. Birdsong’s case. When his parole was vacated, Mr. Birdsong was re-incarcerated.

During Mr. Russell’s term as sheriff, numerous instances of improper activity occurred in and around the jail. One such area of misconduct concerned sexual relations among jailers, inmates and visitors. Mr. Birdsong had sex with another inmate while incarcerated.

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Cite This Page — Counsel Stack

Bluebook (online)
45 S.W.3d 487, 2001 Mo. App. LEXIS 595, 2001 WL 342939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-inf-nixon-v-russell-moctapp-2001.