Advisory jurors told a federal judge in a note that they were divided Wednesday over who should prevail in former Kansas Highway Patrol superintendent Mark Bruce’s lawsuit against Gov. Laura Kelly and current KHP superintendent Erik Smith.

U.S. District Court Judge Daniel Crabtree replied by urging jurors to keep deliberating.

“If you don’t agree on a verdict, the case is left open and must be tried again,” he said.

Members of the eight-person jury had deliberated about four hours when they informed Crabtree just before 6 p.m. that they were unable to reach a verdict. Jurors soon afterward recessed for the night, then resumed deliberations at Crabtree’s request about 9 a.m. Thursday.

What are the facts of the case?

Wednesday was the third day of the trial in Bruce’s civil suit against Kelly and Smith, whom he is suing in their official capacities.

The suit alleges Bruce’s right to due process was violated when he resigned as superintendent in 2019.

Crabtree impaneled an “advisory jury” to hear the case, but he has final say about the verdict.

He directed advisory jurors Monday to decide if Bruce resigned voluntarily or was coerced into resigning, therefore effectively being terminated.

If Bruce was coerced, he is entitled to be restored to the major’s rank he held before becoming superintendent.

If Bruce resigned voluntarily, Kelly didn’t violate his due process rights, Crabtree wrote in a court order issued Jan. 5.

Bruce was among witnesses who testified at this week’s trial. He attempted to have Kelly subpoenaed, but Crabtree issued an order quashing that.

Kelly’s testimony wasn’t absolutely needed to resolve any of the questions involved, Crabtree said.

What got us to this point?

Bruce, who had been with the KHP since 1989, resigned March 28, 2019, amid allegations he mishandled KHP sexual misconduct and domestic violence scandals.

Bruce filed a three-count lawsuit in January 2020 against Kelly; Kelly’s chief of staff, Will Lawrence; and Herman Jones, who replaced Bruce as superintendent of the KHP.

Crabtree in December dismissed two of those claims. They alleged Lawrence violated Bruce’s constitutional right to due process and engaged in tortious interference with a prospective business relationship.

The remaining count claims Bruce’s constitutional right to due process was violated because he was not given an option of being terminated as superintendent and returning to his prior rank as a major.

Why was an ‘advisory jury’ impaneled?

Bruce asked for a jury trial, but federal law requires the consent of all parties for that to happen with claims that seek “prospective equitable relief” — which Bruce’s does — and the state didn’t consent to a jury trial, Crabtree said in a Jan. 5 court order.

He said he consequently exercised his option of impaneling an “advisory jury” to advise him as to whether members think Bruce resigned voluntarily or was coerced.

That matter is an “ideal jury question” because it asks how a “reasonable person” would answer that query, given the circumstances involved, Crabtree’s order said.

Contact Tim Hrenchir at threnchir@gannett.com or 785-213-5934.

This article originally appeared on Topeka Capital-Journal: Jurors divided on former Kansas Highway Patrol leader’s lawsuit