In the Matter of The Contest of The Primary Election Candidacy of Michael Fletcher For the Office of City Council For the City of Kan. v. Fletcher

• Decision Date: 08 March 2011
• Docket Number: No. WD 73609.,WD 73609.
• Citation: 337 S.W.3d 137
• Parties: In the Matter of the CONTEST OF the PRIMARY ELECTION CANDIDACY OF Michael FLETCHER for the Office of City Council for the City of Kansas, City District No. 3, Sharon Sanders Brooks, Respondent,v.Michael Robert Fletcher, Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 137

In the Matter of the CONTEST OF the PRIMARY ELECTION CANDIDACY OF Michael FLETCHER for the Office of City Council for the City of Kansas, City District No. 3, Sharon Sanders Brooks, Respondent,

v.Michael Robert Fletcher, Appellant.

No. WD 73609.

Missouri Court of Appeals, Western District.

March 8, 2011.Application for Transfer Denied

March 19, 2011.

Michael T. Yonke, Hans H. van Zanten and Thomas R. Onik, Kansas City, MO, for appellant.Philip O. Willoughby, Jr., Arnold Robert Day, Jr., and Clinton Adams, Jr., Kansas City, MO, for respondent.Before Special Division: JAMES E. WELSH, Presiding Judge, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.GARY D. WITT, Judge.

This is an election contest that arises out of the 2011 Election for the Office of City Council for the City of Kansas City, District Number Three (the “Office”). Sharon Sanders Brooks (“Brooks”), a candidate for the Office, sued Michael Robert Fletcher (“Fletcher”), who is also a candidate for the Office, claiming that Fletcher failed to meet the residency requirements for this Office. After a trial on the merits of Brooks's claims, the trial court granted the requested relief of disqualifying Fletcher “from the Election for the office of the 3rd District, City Council of Kansas City, Missouri.”

Fletcher now appeals. For the reasons set forth herein, we affirm and further order that Fletcher is to be removed from the General Election Ballot pursuant to Missouri law. Rule 84.14.¹

Factual Background

On February 10, 2011, Brooks filed her “Verified Petition to Contest Candidacy Of Michael Fletcher Pursuant To Section 115.526, et al” in the Jackson County Circuit Court. As amended on February 16, 2011, Brooks alleged that Fletcher failed to meet the residency requirements for the City Council of Kansas City, Missouri.

Count One alleged that Fletcher failed to meet the “one-year Missouri residency requirement, pursuant to Art. VII, Section Eight of the Missouri Constitution.” Count Two further alleged that Fletcher failed “to meet the two-year City residency requirement, pursuant to Section 204(d)(2) of the City Charter of Kansas City, Missouri.” Count Three alleged that Fletcher failed “to meet the sixth-month Council District residency requirement, pursuant to Section 204(d)(2) of the City Charter of Kansas City, Missouri.”

A bench trial was held in this matter on February 17–18, 2011. The trial court issued its Judgment disqualifying Fletcher “from the Election for the office of the 3rd District, City Council of Kansas City, Missouri.” Notwithstanding this order, the trial court further ruled that Fletcher's name “shall remain on the primary ballots” for the February 22, 2011 primary election for the Office “in accordance with Section 115.379.2.”

On February 19, 2011, Fletcher filed his Petition of Relator for Writ of Prohibition or in the Alternative Mandamus in this Court styled Michael Robert Fletcher v. The Honorable Ann Mesle, Judge, 16th Judicial Court Jackson County, Missouri, WD73571. Relator's petition was denied on February 21, 2011.

The Missouri Supreme Court entered a “Supervisory Order” providing that the trial court in this litigation “is directed to modify the order and judgment entered on February 18, 2011 ... so that [Fletcher] shall remain eligible to appear on the General Election Ballot until March 3, 2011.” Presumably, the Supreme Court entered its Order so that this Court would have an opportunity to hear the instant appeal prior to Fletcher being removed from the General Election Ballot for the Office, with voting scheduled to take place on March 22, 2011. On February 28, 2011, the trial court issued its Amended Order and Judgment to comport with the Supreme Court's “Supervisory Order.”

Fletcher now brings a direct appeal from that Judgment. Because in her Petition Brooks also sued the Kansas City Board of Election Commissioners and the City Clerk of Kansas City, Missouri, these parties are also litigants in the instant appeal, but did not file briefs or participate in argument before this Court. Further factual details will be outlined as pertinent in the analysis section below.

We would like to begin by acknowledging the extremely tight time constraints under which the parties and their counsel have perfected this appeal and the excellent legal briefs that have been filed with this Court under difficult circumstances.²

Analysis

In Point One, Fletcher argues that the trial court erred in disqualifying him from the election for the Office based on the doctrine of judicial estoppel.

Section 115.551 vests this Court with the authority to hear the instant appeal. The parties agree that our applicable standard of review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and that, therefore, the judgment of the trial court should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law.

In disqualifying Fletcher from the instant election, the trial court found that the evidence from Fletcher's witnesses at trial “was consistent and very persuasive” that Fletcher “has maintained his residence in Kansas City, Missouri, continuously, including in the period from 2006 through the present.” ³ The trial court concluded that, pursuant to Missouri law, we must “focus on the intent of the individual whose domicile is challenged and give significant weight to the testimony of the contestee as to his/her intent,” and it “would have felt compelled to determine that Mr. Fletcher is, in fact, a resident of Kansas City, Missouri” but for the doctrine of judicial estoppel.

The trial court predicated its judgment of disqualification solely on the doctrine of judicial estoppel, and thus this Court must determine whether the trial court erred in concluding that Fletcher was disqualified from the election on this basis alone. “Judicial estoppel will lie to prevent litigants from taking a position, under oath, ‘in one judicial proceeding, thereby obtaining benefits from that position in that instance and later, in a second proceeding, taking a contrary position in order to obtain benefits ... at that time.’ ” State Bd. of Accountancy v. Integrated Fin. Solutions, L.L.C., 256 S.W.3d 48, 54 (Mo. banc 2008) (quoting Shockley v. Dir., Div. of Child Support Enforcement, 980 S.W.2d 173, 175 (Mo.App. E.D.1998)). The Eastern District in Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo.App. E.D.2007), outlined the following principles that pertain to the doctrine of judicial estoppel:

While judicial estoppel cannot be reduced to a precise formula, the United States Supreme Court has indicated that whether judicial estoppel applies requires the consideration of three factors:

First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Id. (quoting Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (quoting New Hampshire v. Maine, 532 U.S. 742, 750–51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citations and internal quotation marks omitted))). While acknowledging that under United States Supreme Court precedent these factors are not fixed or inflexible prerequisites, we will analyze each factor in turn.

We take issue with Fletcher's argument on appeal that “[t]here was no evidence before the trial court to support the argument that Mr. Fletcher's position as it relates to his residency in Missouri is ‘clearly inconsistent’ with the earlier position he took in his pleadings before the California courts.” The gravamen of Brooks's allegations and evidence was that Fletcher was disqualified as a candidate for the Office because Fletcher made several representations in two distinct federal lawsuits, wherein he “appeared pro se and in each of the cases Mr. Fletcher signed pleadings in which, for purposes of obtaining diversity jurisdiction, he repeatedly stated that he is domiciled in California.”

The most troubling of these pleadings is the First Amended Complaint in Michael Fletcher v. State of Missouri et al., Case No. 2:10–CV–02268–DDP–FFMX, wherein Fletcher brought, inter alia, a 42 U.S.C. section 1983 claim against the State of Missouri and other state and federal actors ⁴ as it pertained to disciplinary and disbarment proceedings that were brought against him as an attorney. Fletcher filed and litigated this lawsuit in California based on his express assertions to the court that he “was at all times relevant to this action domiciled in California where he has worked and lived with his wife and young family since June of 2006, and where his license and ability to practice law was unconstitutionally interfered with, denied and ultimately taken by defendants.”

In the context of “venue and jurisdiction,” Fletcher averred “defendants knew plaintiff had relocated with his wife and young family so as to obtain employment to support himself, his wife and young family.” Fletcher went on to attest that he “ relocated with his wife and family to Los Angeles, California in June of 2006 in hopes of starting his professional life over.” ⁵

These representations by Fletcher were “clearly inconsistent” with the position he now takes in arguing that he is domiciled in Missouri and, therefore, qualified to run for the Office. The legal test of domicile for purposes of diversity jurisdiction in federal courts is, not surprisingly, similar to the test we employ in determining whether a candidate is domiciled in the State of Missouri pursuant to article IV, section 3 of the Missouri Constitution. See Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990) (internal...