Curtis v. Mo. Democratic Party

• Decision Date: 25 June 2018
• Docket Number: No. SC 97244,SC 97244
• Citation: 548 S.W.3d 909
• Parties: Courtney CURTIS, Appellant, v. The MISSOURI DEMOCRATIC PARTY, et al., Respondents.
• Court: Missouri Supreme Court

548 S.W.3d 909

Courtney CURTIS, Appellant,

v.The MISSOURI DEMOCRATIC PARTY, et al., Respondents.

No. SC 97244

Supreme Court of Missouri, en banc.

Opinion issued June 25, 2018

Curtis was represented by Jay L. Kanzler Jr. of Witzel Kanzler & Dimmitt LLC in St. Louis, (314) 645-5367.

The state party and its chair were represented by Matthew B. Vianello of Jacobson Press PC in Clayton, (314) 899-9789.

The secretary of state was represented by Emily A. Dodge of the attorney general’s office in Jefferson City, (573) 751-3321.

The St. Louis County board of election commissioners, which filed a brief as a friend of the Court, was represented by Steven W. Garrett and Edward J. Sluys of Curtis, Heinz, Garrett & O’Keefe PC in St. Louis, (314) 725-8788.

Patricia Breckenridge, Judge

Representative Courtney Curtis¹ appeals from the circuit court’s judgment quashing its preliminary order in mandamus. Rep. Curtis asserts he is entitled to mandamus relief because the Missouri Democratic Party, its chair, Stephen Webber, and the Missouri Secretary of State John "Jay" Ashcroft had a ministerial duty to accept his $100 filing fee and declaration of candidacy for the 14^th senate district pursuant to section 115.357.²

Section 115.357 provides two methods by which a candidate can tender his or her required filing fee when seeking state office: (1) the candidate can "pay to the treasurer of the state or county committee of the political party upon whose ticket he [or she] seeks nomination"; or (2) the candidate can submit his or her payment "to the official accepting his [or her] declaration of candidacy." Section 115.357.1-.2.

Under the facts and circumstances of this case, Rep. Curtis fails to show he is entitled to mandamus relief pursuant to section 115.357.

First, for a writ of mandamus to issue, the petitioner must establish a public official failed to perform a ministerial duty. In this case, Rep. Curtis must allege and prove the Missouri Democratic Party or its chair is a public official. Although Rep. Curtis contends Missouri courts have long recognized that a non-public official can become a "quasi-public officer" against whom the remedy of mandamus is properly imposed, he cites a case with distinguishable facts and ignores contrary law. Accordingly, the circuit court did not abuse its discretion by quashing its preliminary order in mandamus against the Missouri Democratic Party and its chair.

Second, section 115.357.2 permits a candidate to pay his or her filing fee to the secretary of state, but the record does not reflect Rep. Curtis submitted or attempted to submit his filing fee to the secretary of state. In his petition, Rep. Curtis does not allege any facts establishing he offered payment of the filing fee to an employee of the secretary of state. Likewise, testimony at the hearing does not reflect any secretary of state employee refused to accept Rep. Curtis' filing fee. Consequently, the record does not demonstrate the secretary of state failed to perform the ministerial duty of accepting Rep. Curtis' filing fee in this case. The circuit court, therefore, did not abuse its discretion in quashing its preliminary order in mandamus.

Because Rep. Curtis failed to show grounds for a writ of mandamus against either the Missouri Democratic Party, its chair, or the secretary of state, this Court need not decide or address whether section 115.357 or the First Amendment right to freedom of association gives a political party the right to reject a candidate’s fee and thereby prevent that candidate from filing a declaration of candidacy for a primary election. The circuit court’s judgment is affirmed.

Factual and Procedural History

On March 27, 2018, Rep. Curtis went to the secretary of state’s office to file his declaration of candidacy for the 14^th senate district. The Missouri Democratic Party had set up a table in the lobby of the secretary of state’s office building. Rep. Curtis presented his $100 filing fee to Elizabeth Zerr, a representative of the Missouri Democratic Party, to meet the requirements of section 115.357, which requires candidates for state offices to pay a filing fee to the political party upon whose ticket they seek nomination. Along with his fee, Rep. Curtis also submitted a receipt form for Ms. Zerr to sign acknowledging payment of the filing fee.

After making a phone call, Ms. Zerr informed Rep. Curtis that she could not take his filing fee because he owed outstanding fees totaling $114,050 to the Missouri Ethics Commission and the Missouri Democratic Party had decided, prior to the opening date for candidate filing, that it did not want any potential candidates who currently owed money to the Missouri Ethics Commission. Rep. Curtis told Ms. Zerr he was in the process of appealing the fees. Ms. Zerr refused to accept the filing fee and took the receipt form without signing it. Rep. Curtis then filled out another receipt form, which was not signed by any representative of the Missouri Democratic Party. Mr. Curtis left his filing fee on the table. Ms. Zerr informed him she would not accept the filing fee and intended to leave the money on a nearby bench.

Mr. Curtis then went into the secretary of state’s office to file his declaration of candidacy. Mr. Curtis presented the unsigned copy of the receipt form he filled out and explained the Missouri Democratic Party refused to accept his filing fee. An employee of the secretary of state’s office informed Rep. Curtis his declaration of candidacy could not be processed without a signed receipt. Rep. Curtis left the secretary of state’s office without attempting to pay his filing fee to any employee in the office.

Mr. Curtis returned to the Missouri Democratic Party’s table. He again told Ms. Zerr the fees owed to the Missouri Ethics Commission were under appeal and requested she sign the receipt form. Ms. Zerr again refused to sign the receipt. The secretary of state’s office closed at 5 p.m. The Missouri Democratic Party never accepted Rep. Curtis' filing fee, and the secretary of state’s office never processed Rep. Curtis' declaration of candidacy.

On April 3, 2018, Rep. Curtis filed a petition for a writ of mandamus against the Missouri Democratic Party, the chair of the Missouri Democratic Party, and the secretary of state. In his petition, Rep. Curtis alleged the acceptance of the filing fee is a ministerial act by the Missouri Democratic Party. In the alternative, he alleged the secretary of state had a ministerial duty to accept the filing fee and tender it to the treasurer of the party under section 115.357. He requested the circuit court issue a writ of mandamus ordering the secretary of state and the chair of the Missouri Democratic Party to accept his declaration of candidacy and filing fee as timely filed.

The circuit court subsequently issued a preliminary order in mandamus. In his answer, the secretary of state denied Rep. Curtis was entitled to mandamus relief because he did not pay the filing fee required under section 115.357.1 before attempting to file his declaration of candidacy. Similarly, the chair and the Missouri Democratic Party denied Rep. Curtis was entitled to mandamus relief and asserted several affirmative defenses, including that the chair was not a "public official" subject to a writ of mandamus and that granting the relief requested by Rep. Curtis would infringe on the Missouri Democratic Party’s First Amendment right to freedom of association.

The circuit court conducted a hearing on the matter. Rep. Curtis testified the Missouri Democratic Party would not accept his filing fee and the employees of the secretary of state’s office never informed him he could tender the filing fee to that office. Instead, the employees of the secretary of state said the office could not process his declaration of candidacy without a signed receipt. On cross-examination, Rep. Curtis admitted he never attempted to tender any payment—cash or check—to the employees of the secretary of state’s office. Likewise, employees from the secretary of state’s office testified Rep. Curtis never attempted to tender payment to them.

Following the hearing, the circuit court issued a judgment quashing the preliminary order in mandamus. Relying on California Democratic Party v. Jones , 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), the circuit court held the Missouri Democratic Party’s right to reject Rep. Curtis' filing fee was protected by the First Amendment because the freedom to associate "would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being." The circuit court further found it was irrelevant whether Rep. Curtis paid or attempted to pay his filing fee to the secretary of state because the fee would ultimately be submitted to the Missouri Democratic Party.

Rep. Curtis appeals the circuit court’s judgment quashing the preliminary order of mandamus. Because the appeal raises the issue of the constitutional validity of section 115.357 as applied, this Court has jurisdiction pursuant to article V, section 3 of the Missouri Constitution.

Standard of Review

When a circuit court "issues a preliminary order and a permanent writ later is denied, the proper remedy is an appeal." State ex rel. Ashby Rd. Partners, LLC v. State Tax Comm'n , 297 S.W.3d 80, 83 (Mo. banc 2009). In such situations, this Court "reviews the denial of a petition for a writ of mandamus for an abuse of discretion." U.S. Dep't of Veterans Affairs v. Boresi , 396 S.W.3d 356, 359 (Mo. banc 2013). An abuse of discretion "occurs when the circuit court misapplies the applicable statutes." Id.

A writ of mandamus is discretionary, "and there is no right to have the writ issued." State ex rel. Mo. Growth Ass'n v. State Tax Comm'n , 998 S.W.2d 786, 788 (Mo. banc 1999). A writ of mandamus should issue only when a petitioner "allege[s] and prove[s] that he has a clear, unequivocal, specific...