IN RE: Pawnee County Grand Jury. (2012)

¶ 1 The three issues presented on certiorari are¹ whether the trial court: 1) properly allowed the State to prove two of the three factually alleged inappropriate acts in the grand jury's accusation for removal of an elected state official from office for wilful neglect of duty; 2) improperly modified the jury instructions regarding wilful neglect of duty; and 3) erred in denying the motion for a demurrer to the evidence/directed verdict.

¶ 2 We hold that:1) there was no error under the facts presented in allowing the State to prove only two of the three alleged acts of wilful conduct when seeking removal of the sheriff; 2) the trial court properly modified the proposed jury instructions to conform to the evidence presented; and 3) the trial court did not err in denying the motion for a demurrer to the evidence/directed verdict.

FACTS

¶ 3 The voters of Pawnee County, Oklahoma, elected the defendant/appellant, Roger Lee Price (Price/sheriff), Sheriff of Pawnee County. He first assumed office in January of 2005. By 2010, District Judge Jefferson Sellers requested a grand jury be convened regarding the sheriff's conduct. In September of 2010, the grand jury convened and, on September 29, 2010, it filed an “Accusation for Removal” in the District Court of Pawnee County.

¶ 4 The grand jury determined that Price knowingly, wilfully, and unlawfully committed misconduct in office through acts of wilful neglect of duty.² One act was alleged to have occurred on September 11, 2006. It involved a female prisoner whom the sheriff released from jail without any bond or judicial authorization in violation of 21 O.S.2011 § 532.³

¶ 5 Another act was alleged to have occurred on July 25, 2007, when a person who was being sought on an arrest warrant issued by the trial court attempted to surrender himself at the Pawnee County Jail. Under the sheriff's direction, the suspect was turned away and was not booked into the jail in violation of 21 O.S.2011 § 533.⁴ A third act was also alleged but this allegation was later dropped/not pursued by the State.

¶ 6 On September 29, 2010, the District Judge, pursuant to 22 O.S.2011 § 1195 suspended Price from office, pending a jury trial of the accusations.⁵ The trial was held on November 1–3, 2010. At the conclusion of the trial, a unanimous jury found the sheriff guilty of wilful neglect of duty for his conduct involving each of the alleged acts. Consequently, the trial court entered a final order and judgment on November 10, 2010, pursuant to 22 O.S.2011 § 1192,⁶ removing the sheriff from office effective immediately. Price filed a motion for new trial which the trial court denied in an order filed on December 7, 2010.

¶ 7 The sheriff appealed on December 27, 2010. We retained the cause on February 15, 2011, before the briefing cycle was complete. The briefing cycle was completed on September 27, 2011, but the trial court record delivered to the Court did not contain the trial transcripts of the November 2010 trial as designated by Price. The trial transcripts were finally received by this Court on March 29, 2012.⁷

¶ 8 I.

THERE WAS NO ERROR UNDER THE FACTS PRESENTED IN ALLOWING THE STATE TO PROVE ONLY TWO OF THE THREE ALLEGED ACTS OF WILFUL CONDUCT WHEN SEEKING REMOVAL OF THE SHERIFF.

¶ 9 The accusation for removal states three different acts or incidences/offenses which were the basis of the allegations of misconduct.⁸ Price argues that the grand jury intended that all three allegations be considered together as the basis for removal. He argues that all three acts taken together must support the wrongful conduct for removal from office, or there is no basis at all to support any wrongdoing. Consequently, Price insists that the trial court erred in allowing the State to sever and eliminate one of the allegations on the eve of trial. The State, relying on the civil nature of the indictment process and pleadings contends that the sheriff's argument is meritless. We agree.

¶ 10 The Oklahoma Criminal Code, 22 O.S.2011 ch. 23, provides the procedure to remove an elected official from office. The proceedings are governed pursuant to 22 O.S.2011 §§ 1181–97,⁹ and removal proceedings are jury trials conducted as a misdemeanor criminal trial.¹⁰ Nevertheless, this Court has recognized that removal proceedings are not to be judged as strictly as a criminal indictment.¹¹

¶ 11 Historically grand jury accusations have been divided into separate counts much like a criminal indictment. For example, in Bowles v. State, 1923 OK 226, 215 P. 934, the State sought removal of the mayor of the city of Durant pursuant to a grand jury accusation of wilful neglect of duty. The accusation contained five separate counts of various offenses. During the trial, the trial court ruled in favor of a demurrer to the evidence concerning two counts, leaving three remaining counts for the jury to decide. The jury found the mayor guilty of one of the alleged counts. The mayor was removed from office for failing to file statutorily required monthly reports detaining fines and costs collected by the City.

¶ 12 In Hutchison v. State, 1957 OK 300, 318 P.2d 885, four separate counts were alleged against the county attorney which included: 1) habitual and wilful neglect of duty; 2) gross partiality in office; 3) corruption in office; and 4) wilful maladministration. Under each count various “charges” or “acts” of misconduct were alleged. The jury found the attorney guilty of gross partiality in office.

¶ 13 However, in State v. Scarth, 1931 OK 561, 3 P.2d 446, in the attempted removal of a board of county commissioner, the Court, relying on examples from California and North Dakota and noting support from other jurisdictions as well, explained in ¶¶ 8–9 that:

1) an accusation of a public officer for offenses brought for the purpose of removal was not an indictment and was not objectionable on the grounds that it contained more than one offense;

2) such an action is neither civil nor criminal, but a special practice to protect the public from corrupt officials;

3) the purpose is not to punish the offender as the case would be in a criminal prosecution for a crime;

4) due process is provided within the statutes governing the proceeding;

5) a defendant cannot stand on the technicalities which have been or may be devised in the testing and trial of a criminal indictment; and

6) unlike a criminal charge, there is no arrest, bail, fine or imprisonment, merely a speedy, accessible relief, on behalf of the people who have elected the official who is charged.

The Court concluded that a proceeding to remove an official from office is a special proceeding.¹² It also noted that the statutes for removal specify the procedure leading up to trial and where the procedure is not fully explicit, the civil procedure used by the courts is invoked. These cases predate the rules of pleading at the trial and appellate level which have been liberalized to allow courts to focus on the substantive merits of the dispute, rather than the procedural niceties.¹³

¶ 14 The statutory framework for cases brought under 22 O.S.2011 § 1181 has remained essentially the same since statehood. In this cause, the sheriff was accused of wilful neglect of duty.¹⁴ The grand jury's accusation may include either a single act or multiple acts on which the removal proceedings are based.¹⁵ There is no statutorily required form or format for an accusation of removal that must be used. Rather, the only guidelines are that the accusation must be written in ordinary, plain, non-repetitive, understandable language.¹⁶ The accused may deny the truth of the allegations¹⁷ or may object to their legal sufficiency,¹⁸ and/or answer to the allegations.¹⁹

¶ 15 The Court thoroughly re-visited the accusation process nearly 50 years after State v. Scarth, supra, in Russell v. Henderson, 1979 OK 164, 603 P.2d 1132 when the grand jury of Wagoner County returned an accusation against the District Attorney alleging habitual or wilful neglect in office and gross partiality. Under the allegations of habitual or wilful neglect were seven instances/acts of neglect which were listed in addition to the one allegation of gross partiality in office. After a motion to dismiss was treated as a demurrer, the trial court sustained the motion but struck one paragraph of the accusation. The attorney appealed.

¶ 16 The Russell Court again reiterated: 1) the civil nature of the proceedings: and 2) the lack of strictly applied requirements of criminal indictments. However, the Court issued a writ of prohibition against the trial court proceeding because the underlying eight counts merely alleged conclusions and not, as required by the statutes, facts from which conclusions could be drawn by the jury. This is clearly not the case here.

¶ 17 While this accusation may not have been as artfully drawn as historical accusations have been, no particular form is required. The accusation was written clearly, and it avoided repetition by refraining from restating the allegation of wilful neglect of duty before each act alleged. Like the allegations in Russell, one count of wilful neglect of duty was alleged supported by three incidences/acts or occurrences. The allegations specifically included clearly described facts which, if proven, a jury could have drawn the conclusion from any one of them that wilful misconduct had occurred.

¶ 18 Accordingly, we hold that the grand jury's accusation for removal from office which included multiple factually alleged inappropriate acts, did not require the State to pursue and prove every stated inappropriate act in order to prove the accusation of wilful misconduct of duty. There is no error in the trial court striking a particular factually alleged act if, on the eve of trial, the accused denied any of the alleged acts and the State determined that it lacked evidentiary support to prove one of them.

¶ 19 II.

THE TRIAL COURT PROPERLY MODIFIED THE PROPOSED JURY INSTRUCTIONS TO CONFORM TO THE EVIDENCE PRESENTED.

¶ 20 The grand jury's accusal included two specific incidents: 1) the release of a female prisoner to the custody of her mother without prior court approval and bail bond; and 2) neglecting to take custody of a suspect who, pursuant to an arrest warrant, presented himself at the jail. The accusation was made pursuant to 22 O.S.2011 § 1181 which does not specifically define habitual or wilful neglect of duty.²⁰

¶ 21 Oklahoma Uniform Jury Instruction 3–27 Removal of Public Officer provides that a public officer may be removed from office for habitual or wilful neglect of duty.²¹ Although neither this Court nor the statutes have provided a general or uniform definition of wilful neglect of duty,²² the uniform instruction defines it as the failure to act with a bad or evil purpose or deliberately act contrary to a known duty.²³ The instruction also notes that mere thoughtless acts, with no bad or evil purpose, in which there is no excusable carelessness or recklessness on the part of the officer do not justify removal from office.

¶ 22 Because the State presented no evidence at trial that Price acted with a “bad or evil purpose” the trial court modified the instruction which was given to delete references to a “bad or evil purpose.”²⁴ The sheriff argues that the trial court erred in altering the uniform instruction and that a “bad or evil purpose” is required. The State disagrees and insists that the trial court was required to alter the instructions to conform to the evidence presented.

¶ 23 Our definition of wilful neglect of duty has varied depending on the statutes in question.²⁵ Nevertheless, we must look at a statute's underlying intent and purpose to define it.²⁶ For example, recently in Estes v. ConocoPhillips Co., 2008 OK 21, 184 P.3d 518, we re-examined the meaning of “wilful” in the context of several acts. We said:

¶ 17 The term willful does not have a uniform meaning throughout our statutes. As the Court stated in Wick v. Gunn, 1917 OK 607, ¶ 3, 169 P. 1087, there are “numerous definitions of the word [willful] by both lexicographers and jurists.” In the context of a willful violation of the Alcoholic Beverage Control Act, this Court held: “The word ‘willfully’ is of similar import or the equivalent of ‘knowingly’ [and] requires that the licensee at least have some knowledge of the commission of the prohibited acts.” The Court held that a willful violation of the Open Meetings Act, “does not require a showing of bad faith, malice, or wantonness, but rather, encompasses both conscious, purposeful violations of the law and blatant or deliberate disregard of the law by those who know, or should know, the requirements of the [Open Meetings] Act.”

¶ 18 When used to determine whether a Workers' Compensation claimant willfully fails to use safety equipment, this Court held that the term signifies “more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing.” Willful neglect of a teacher's duties is defined as “a knowingly and purposeful violation of a teacher's duties.” Construing willful maladministration by a public officer, the Court held:

Every voluntary act of a human being is intentional; but, generally speaking, a voluntary act becomes willful in law only when it involves some degree of conscious wrong or evil purpose upon the part of the actor, or at least an inexcusable carelessness on his part, whether the act be right or wrong.

Because the term willful does not have a singular meaning, it must be construed within the confines of the Act in which it appears. (Footnotes omitted.)

¶ 24 Estes involved the meaning of “wilful” as it applies to a civil remedy for violations of the Standards for Workplace Drug and Alcohol Testing Act (the Act). It was urged that a wilful violation of the Act contemplated only conscious, purposeful violations of the Act, but not deliberate disregard of the laws by those who know or should have known of the Act's requirements.

¶ 25 The noted purpose of the Act was to provide standardized testing to assure due process. Although violators were subjected to criminal penalties of fines and imprisonment for wilful and knowing violations, civil remedies were provided as well. We determined that the meaning of wilful should not be treated synonymously in both the civil and criminal context because it would render the differing penalties meaningless. In the context of a civil remedy, the term wilful violation contemplated not only conscious, purposeful violations of the Act, but also deliberate disregard of the laws by those who know, or should have known, of the requirements of the Act.

¶ 26 This civil/criminal dichotomy is also present in removal proceedings. Public officers may face criminal prosecution for violations of their statutory duties, but the civil remedy of removal from office is also available.²⁷ The purpose of the grand jury proceeding is the same as providing drug testing standards—assurance of due process.

¶ 27 In some of our prior decisions involving removal of public officers, the term “wilful” has been equated with requiring some sort of “bad or evil intent” to prove wilful conduct sufficient for removal.²⁸ However, in other cases, public officers have also been removed for deliberately disregarding the laws that the officer either knew or should have known were required to be followed.²⁹ In others, their actions were determined to be merely thoughtless, but not sufficient for removal from office.³⁰

¶ 28 These prior cases, taken collectively, illustrate precisely what we concluded in Estes, supra,—that the term “wilful” involved a showing of acts which were done either with a bad or evil intent or were contrary to a known duty, or the inexcusably reckless performance an official duty, but not necessarily both. Clearly, something more than a reckless error of judgment is required, but a “bad or evil intent” is not required when the conduct is shown to be a deliberate disregard of the laws by those who know, or should have known of their statutory duties.³¹

¶ 29 The uniform jury instruction relating to removal takes this construction into account by referencing either a bad or evil purpose, or that a deliberate act or failure to act contrary to a known duty. A sheriff who discharges a prisoner without proper authority flagrantly violates a sheriffs' duties.³² The release of a person on personal recognizance is a judicial function.³³

¶ 30 Here, it is agreed by the parties that the State did not present any evidence of bad or evil intent. Jury instructions are required to state the law applicable to the evidence.³⁴ The Oklahoma statutes recognized that the uniform instructions may need to be modified to accurately state the law.³⁵ When reviewing jury instructions, the standard of review considers the accuracy of the statement of the law and the applicability of the instructions to the issues when the instructions are considered as a whole.³⁶ A jury instruction materially deviating from the dispositive legal issue is considered prejudicial.³⁷ Under the evidence presented, and the facts alleged, the trial court properly modified the proposed jury instruction to conform to the evidence presented.³⁸

¶ 31 III.

THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR A DEMURRER TO THE EVIDENCE/DIRECTED VERDICT.

¶ 32 The sheriff argues that because the State did not present any specific, direct evidence that the sheriff knew that he was violating the law by his actions, it should have granted the motion to demur to the evidence and given a directed verdict in his favor. The State contends that it presented ample circumstantial and direct evidence proving that the sheriff wilfully neglected his known duty.

¶ 33 The test of a demurrer to the plaintiff's evidence requires both the trial court and the reviewing court to accept as true all of the plaintiff's evidence and its reasonable inferences, and to disregard conflicting evidence favorable to the defendant.³⁹ A demurrer to the plaintiff's evidence should be sustained only when there is an entire absence of proof.⁴⁰

¶ 34 This cause is similar to Bowles v. State, 1923 OK 226, 215 P. 934. In Bowles, the Mayor of the City of Durant neglected to file statutorily required monthly reports for several months and removal from office was sought. The court stated in ¶ 15 that:

The defendant was bound to know that it was his duty to file these reports, and the facts disclosed by the record show that his failure to do so was a clear violation of his duties as a public officer, and that he could not have failed in his duty otherwise than knowingly and willfully. Such failure, in our opinion, constituted both “habitual and willful neglect of duty” and “willful maladministration,” and the trial court acted properly in overruling the demurrer to the evidence, and in refusing to give the peremptory instruction requested.

¶ 35 Here, it is unnecessary to regurgitate all of the State's evidence. We have reviewed the record and the evidence was ample, both circumstantial and direct, that the sheriff knew his duties regarding the jail as well as the procedures for releasing and booking inmates. Like the mayor in Bowles, the sheriff could not have failed in his duty otherwise than knowingly and wilfully. The trial court did not err in denying the sheriff's motion for demurrer to the evidence/directed verdict.

CONCLUSION

¶ 36 Accusations for removal are not required to be in any particular form or format. Nor are they subject to the same strictures of a criminal indictment.⁴¹ There was no error under the facts presented in allowing the State to pursue only two of the three alleged acts of wilful conduct when seeking removal of the sheriff.

¶ 37 Jury instructions are required to conform to the evidence presented.⁴² Because no evidence of bad or evil intent existed, the trial court properly modified the proposed jury instructions to conform to the evidence. The circumstantial and direct evidence presented, was clearly sufficient to withstand a motion for demurrer and/or directed verdict for the sheriff. The trial court's removal of the sheriff of Pawnee County is affirmed.

MOTION TO RETAIN PREVIOUSLY GRANTED; TRIAL COURT AFFIRMED.

APPENDIX

¶ 1 I respectfully dissent.

¶ 2 I would reverse the judgment removing Sheriff Price from office, because the jury was given an erroneous instruction on the issue of willful neglect of duty. Such error was fundamental because “willful neglect of duty” was the only ground for removal alleged against Sheriff Price.

¶ 3 The jury was erroneously instructed that a willful neglect of duty would occur if “the Sheriff deliberately acted or failed to act contrary to a known duty.” This definition permitted the jury to find the Sheriff acted in a willful manner if he did nothing more than act in a voluntary or intentional manner. Such a construction of “willful” was rejected long ago in Phillips v. State, 1919 OK 168, 181 P. 713.

¶ 4 In Phillips, this Court cited approvingly from an Iowa case that observed:

Every voluntary act of a human being is intentional; but, generally speaking, a voluntary act becomes willful in law only when it involves some degree of conscious wrong or evil purpose upon the part of the actor․

Id. at ¶ 7, 181 P. at 714 (citing State v. Meek, 148 Iowa 671, 127 N.W. 1023, 1024 (Iowa 1910)). In Phillips, this Court determined that the act of a sheriff in betting on an election, and failing to arrest the person with whom the sheriff had bet, was “wrong, and to be condemned,” but was not a willful neglect of duty.¹ That is, there was an absence of conscious wrong or evil purpose on the part of the sheriff in relation to the duties of his office.

¶ 5 Interpreting a “willful neglect of duty” as one involving a “conscious wrong or evil purpose” is also consistent with the context in which “willful neglect of duty” is used.² The term “willful neglect of duty” is one of eight enumerated causes for the removal of an office holder who is not subject to removal by impeachment. The other seven causes are:

— Gross partiality in office

— Oppression in office

— Corruption in office

— Extortion or willful overcharge of fees

— Willful maladministration

— Habitual drunkenness

— Failure to produce and account for all public funds and property in his hands at any settlement or inspection authorized or required by law.

See 22 O.S.2011 § 1181. With the exception of “Habitual drunkenness” and “Failure to produce and account,” all of these causes involve “conscious wrong or evil purpose.”

¶ 6 Finally, removal from office is a penalty for wrongdoing, regardless of how it is procedurally achieved (i.e. special proceeding vs. civil action). The end result is a forfeiture authorized by statutory law. Penal and forfeitures statutes are to be strictly construed. Allowing a penalty or forfeiture of the magnitude of removal from office without an attendant finding of “conscious wrong or evil purpose” as an element of willfulness, places all public officials at peril whenever they simply decline to act, regardless of their reason for declining to act.

KAUGER, J.:

TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur. REIF, J, dissents. WINCHESTER, J., not participating.