Hinesly v. Todd

• Decision Date: 28 April 2014
• Docket Number: Nos. SD 32467,SD 32495,SD 32586.,s. SD 32467
• Citation: 430 S.W.3d 291
• Court: Missouri Court of Appeals
• Parties: Carol HINESLY, Dunklin County Clerk, Plaintiff/Appellant/Respondent, v. Tom TODD and Kent Hampton, Defendants/Respondents/Cross–Appellants.

430 S.W.3d 291

Carol HINESLY, Dunklin County Clerk, Plaintiff/Appellant/Respondent,
v.
Tom TODD and Kent Hampton, Defendants/Respondents/Cross–Appellants.

Nos. SD 32467, SD 32495, SD 32586.

Missouri Court of Appeals,
Southern District,
Division Two.

April 28, 2014.

[430 S.W.3d 292]

Stephen P. Sokoloff, Dunklin Co. Prosecuting Attorney, Kennett, MO, for appellant.

Russell D. Oliver, Bloomfield, MO, for respondent Hampton.

GARY W. LYNCH, J.

These cross-appeals challenge the trial court's judgment ordering a special election in three of the voting precincts of the 150th legislative district for the position of state representative. The trial court's order was based upon a finding of voting irregularities in those precincts that occurred in the November 6, 2012 general election, which were significant enough to cast doubt on the election's outcome. Because this Court finds that the statutory authority to consider and grant relief in this election contest is vested solely in the Missouri House of Representatives and the trial court lacked statutory authority to consider this matter or grant any relief, we reverse and remand with instructions to dismiss the petition.

Factual and Procedural Background

Based upon total votes cast in the November 6, 2012 general election, Kent Hampton defeated rival Tom Todd for the office of state representative in the 150th legislative district of Missouri. Hampton's margin of victory, however, was narrow—only 116 votes—and was called into question shortly after the election.

Carol Hinesly, the County Clerk for Dunklin County and an election official within the 150th District, performed a canvass of the election results. She concluded that several voters from the 152nd district

[430 S.W.3d 293]

were given ballots for the 150th district and vice versa. Initially, Hinesly's identification of discrepancies was confined to the Campbell Ward 2 and Campbell Rural precincts.

Campbell Ward 2 Precinct is in the 150th legislative district. Campbell Rural Precinct lies partly in the 150th legislative district and partly in the 152nd legislative district. Both precincts use the same polling place. On election day, 253 voters from Campbell Ward 2 Precinct signed the election roster; however, 316 ballots were cast in the district's election. Likewise, in the portion of Campbell Rural Precinct that is located in the 150th legislative district, there were 119 registered voters who voted that day; yet, there were 327 ballots cast in the district's election.

Thus, these discrepancies revealed that in addition to the ballots cast by registered voters in the district, 63 extra ballots were cast in Campbell Ward 2 Precinct and 208 extra ballots were cast in Campbell Rural Precinct. Therefore, in an election where the margin of victory was 116 votes, at least 271 extra ballots had been cast.

Purporting to act under section 115.600,¹ Hinesly filed a petition in the trial court, which named Hampton and Todd as defendants. Hampton filed a motion to dismiss on the basis that the trial court lacked subject matter jurisdiction to hear Hinesly's petition, which the trial court denied. Hinesly's first amended petition alleged in pertinent part:

[Hinesly] is convinced that sufficient errors of omission or commission ... have occurred in the conduct of the November 6, 2012, General Election to elect the Representative for the 150th Missouri State Representative District and that a new election is required to rectify said errors and to determine the properly elected Representative.

Following a bench trial on the first amended petition, the trial court issued its judgment finding that there were voting irregularities during the November 6, 2012 election for state representative of the 150th legislative district. It further found the irregularities were of “sufficient magnitude” to cast doubt on the result of the election. Ultimately, the trial court ordered a new election in Campbell Ward 2 Precinct and in Campbell Rural Precinct.

A few days later, Hinesly filed a motion for rehearing based on newly discovered evidence. In the motion, Hinesly alleged that she had discovered five voters in the Cotton Hill Rural Precinct who had voted in the wrong district. The trial court set aside its previous judgment and scheduled a new hearing. After that hearing, the trial court entered a new judgment that was substantially the same as the previous judgment except that it included the Cotton Hill Rural Precinct in the order for a new election.

The parties have cross-appealed the judgment. See Rules 81.04(c) and 84.04(i).² Hampton's appeal was assigned number SD32467, Todd's was assigned number SD32495, and Hinesly's was assigned number SD32586.

Standard of Review

As this was a court-tried matter, “the decision of the trial court must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.” Marre v. Reed, 775 S.W.2d 951, 952 (Mo. banc 1989). This Court gives the trial court deference

[430 S.W.3d 294]

regarding factual findings but reviews legal determinations de novo. See Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).

Discussion

Todd has failed to file a brief in support of his appeal, as mandated by Rule 84.05(a), or otherwise join in any other party's brief. Todd, therefore, has abandoned his appeal, No. SD32495, and it is dismissed. SeeCowden v. Sun Oil Co. of Pennsylvania, 583 S.W.2d 547, 549 (Mo.App.1979). We now turn to consideration of Hinesly's and Hampton's appeals.

We limit our discussion to the dispositive issue.³ In his first point, Hampton contends that the trial court had no authority ⁴ to hear Hinesly's petition, let alone grant relief in the form of a new election of any type. Section 115.563.1, Hampton argues, vests exclusive authority “over election contests regarding a house seat with the house of representatives and not with the judicial branch.” We agree.⁵

Section 115.563.1 provides, in pertinent part, that “[a]ll contested elections for the office of state representative shall be...