Mitchell County successful against Collins suit

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from the Mitchell County Attorney's Office
Jess W. Hoeme, County Attorney

On Friday, August 8, the Kansas Court of Appeals affirmed, in all parts, the dismissal of the civil suit filed by former county commissioner Terry Collins against the Recall Committee and Sponsors and County Attorney Jess Hoeme and Elections Officer Chris Treaster.

Prior to hearing the Recall Committee filed a motion for summary judgment claiming they were not a proper party to be sued. County Attorney Jess Hoeme, representing Mitchell County, also moved to dismiss the case for similar reasons. Collins responded that the case should not be dismissed claiming he was entitled to damages, attorneys fees and costs.

The Court of Appeals determined summary judgment was appropriate as a matter of law because there were no genuine issues as to any material facts. The Court also determined the Recall Committee was not a proper to have been sued.

Collins also claimed that Hoeme and Treaster had failed to exercise a discretionary function. The Court

of Appeals disagreed and determined that “discretion” involves the “exercise of judgment, wisdom and skill” and there is no indication that Jess Hoeme and Chris Treaster acted “needlessly, maliciously or wantonly” and Collins’ claims were without merit. Hoeme and Treaster were therefore immune from liability.

Collins further claimed he was entitled to monetary damages. The Court of Appeals determined that the Recall of Elected Officials Act merely authorizes the court to review decisions of the county attorney and elections officer, but does not allow monetary damages. “Collins is not entitled to damages under the Recall Act.”

Collins argued in the alternative that the action was a mandamus action which should have compelled the court’s intervention. The Court of Appeals ruled that “This remedy may not be invoked to control discretion, or to enforce a right which is in substantial dispute.” Mandamus could not be invoked in this action by Collins to control county attorney Hoeme or election officer Treaster’s actions or discretions.