Officials consider using court to oust Ludwig

The Cape Girardeau County Commission failed in forcing Auditor David Ludwig to resign. Now officials are seeking another option.

A little-used Missouri law allows the state attorney general or a county's prosecuting attorney the option of filing a quo warranto action. Quo warranto is a Latin phrase meaning "by what warrant" and is used in the court system to make an official prove he or she has a valid right to stay in office.

The county commissioners tried to get Ludwig to resign from office April 17 after finding evidence that he broke the county's computer-use policy. Ludwig, confronted last year about similar conduct, signed a letter promising to change or resign.

County officials have expressed concern that Ludwig's repeated violation of the county's computer-use policy puts the county at risk for a sexual harassment lawsuit. Records from his county computer reflect persistent visits to Web sites featuring scantily clad women and free sex videos. Ludwig shares an office with two female employees; his computer screen can be seen from their desks.

Ludwig has refused to resign. He is scheduled to return to the office this week after a month's sick leave.

Cape Girardeau County Prosecuting Attorney Morley Swingle confirmed Monday he is researching quo warranto actions for the county commissioners. Though he would not comment specifically on Ludwig's case, Swingle spoke about quo warranto actions in general terms.

"The way the law has developed, a judge has to put his finger on the specific statute violated," Swingle said. "It's not enough that you're a child molester or robbed a bank or even let your dogs run loose. The person has to have neglected the duties of his office."

Section 531.010 of state law allows quo warranto to be filed against "any person who has usurped, intruded into or is unlawfully holding" an office.

Swingle said he has filed one quo warranto brief since taking office 20 years ago.

In 1988, a Southeast Missouri State University professor, Bill Ettling, received eight write-in votes for county surveyor -- one more than any other candidate. County surveyors were required to have either a four-year college degree and four years' experience surveying or a high school diploma and eight years' experience.

"I filed the quo warranto action and the judge issued the order that he was not allowed to take office," Swingle said.

In 1976, another surveyor-elect, Charles L. Williams, was also challenged over his qualifications for the job. Cape Girardeau County no longer has an elected surveyor.

Quo warranto lawsuits in other Missouri counties have resulted in the ouster of elected officials. In 1954, Phelps County Assessor Martin Burgess lost his office after being found to have solicited a donation for his re-election campaign in exchange for a promise not to raise a company's taxes. The deal constituted malfeasance -- an act resulting in damage -- according to the court.

In one case, two court clerks had each appointed his wife as deputy, Swingle said; in another, Cole County's prosecuting attorney, Carl Wymore, refused to prosecute cases.

Not all quo warranto actions are successful, Swingle said, adding that prosecutors must be confident of winning before filing such lawsuits.

A 1951 quo warranto before Missouri's Supreme Court against Bates County's collector Marvin Cumpton failed. Cumpton landed in court after getting elected, then taking on a full-time job for a local oil company. He was able to prove that, by visiting the office daily and working Saturdays, he was able to supervise the work being done.

pmcnichol@hotmail.com

335-6611, extension 127

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