Mosley v. English

• Citation: 501 S.W.3d 497
• Decision Date: 14 October 2016
• Docket Number: ED 104847
• Parties: Jermond L. Mosley, Appellant, v. Keith A. English, Respondent.
• Court: Court of Appeal of Missouri (US)

501 S.W.3d 497

Jermond L. Mosley, Appellant,
v.
Keith A. English, Respondent.

ED 104847

Missouri Court of Appeals, Eastern District, Division Six.

Filed: October 14, 2016
Application for Transfer to Supreme Court Denied October 24, 2016

Elbert A. Walton, Jr., Walton Law Firm, LLC, St. Louis, MO, for appellant.

Lowell D. Pearson, R. Ryan Harding, Husch Blackwell LLP, Jefferson City, MO, for respondent.

Lisa P. Page, Judge

This expedited appeal involves an election contest filed by Jermond Mosley ("Contestant Mosley") challenging the qualifications of incumbent State Representative Keith English ("Contestee English") to appear as a candidate on the November 8, 2016 general election ballot. Contestant Mosley appeals the trial court's judgment dismissing his election contest petition. For reasons explained herein, we reverse and remand.

BACKGROUND

In January 2016, Contestant Mosley¹ duly filed a declaration for nomination as the Democratic candidate to the office of state representative for the 68th district, which is located in St. Louis County. Thereafter, upon receiving the highest number of votes in the August 2, 2016 Democratic primary, Contestant Mosley became the Democratic nominee for the office stated above and whose name shall appear on November 8, 2016 general election ballot.

On July 26, 2016, Contestee English² filed petitions and a declaration as an Independent candidate for election to the office of state representative for the 68th district. Subsequently, the Secretary of State for the State of Missouri ("Secretary") certified Contestee English as the Independent nominee for the office stated above and ordered his name to appear on the November 8, 2016 general election ballot.³

On Saturday, September 3, 2016, Contestant Mosley electronically filed, with the Circuit Court of St. Louis County, his verified

501 S.W.3d 500

petition ("Petition") challenging the qualifications of Contestee English to seek or hold the office of state representative for the 68^thdistrict. In his three count Petition, Contestant Mosley challenged Contestee's qualifications to seek or hold office as follows: (1) in Count I, Contestant Mosley contended Contestee English failed to meet the durational residency mandate, pursuant to Article III, § 4 of the Missouri Constitution ; (2) in Count II, Contestant Mosley alleged Contestee English fraudulently attested to the circulation of the nominating petition provided to the Secretary; and (3) in Count III, Contestant Mosley claimed Contestee English provided insufficient signatures with his nominating petition to the Secretary.

As the Circuit Court of St. Louis County remained closed Saturday September 3, 2016 through Monday, September 5, 2016 (in observation of Labor Day), the Circuit Clerk did not issue a summons until Tuesday, September 6, 2016. On September 7, 2016, Contestee English filed his Answer.

Thereafter, the trial court issued an order to expedite the proceedings. On September 9, 2016, Contestee English filed a Motion to Dismiss alleging, inter alia : (1) all three counts of Contestant Mosley's Petition were time-barred under Section 115.526.2; and (2) in the alternative, Counts II and III of Contestant Mosley's Petition were time-barred under Section 115.333. In response thereto, Contestant Mosley filed Suggestions in Opposition, vowing, inter alia , all three counts of his Petition were not time-barred because Section 115.401 governed.

On September 15, 2016, the trial court entered its written judgment dismissing Contestant Mosley's Petition in its entirety ("Judgment"). In support of its Judgment, the trial court reasoned:

[N]either party provided the Court with binding authority which specifically defines the precise point at which he [Secretary] issues such "certification ." However, MO. REV. STAT. Section 115.333.1, which Contestee [English] offers and which, among other things, relates to the Secretary of State's determination as to whether or not an independent candidate had complied with certain statutory requirements so as to qualify as a candidate at the general election, states the Secretary of State "shall, not later than the eleventh Tuesday prior to the general election, issue a statement setting forth such persons' determination ." This Court finds that the Secretary of State's statement of determination regarding independent candidates under Section 115.333 is tantamount to the Secretary of State's certification or "official announcement" of a primary election winner under Sections 115.497 – 115.511.... Therefore, under Section 115.526.2, Contestant [Mosley] was required to file his challenge "not later than five days after" August 23. Here, [Contestant Mosley's] Petition was not filed until September 3, 2016.

(emphasis in original).

Contestant Mosley now appeals.

DISCUSSION

In his sole point on appeal, Contestant Mosley asserts the trial court erred as a matter of law in sustaining Contestee English's motion to dismiss, concluding Contestant Mosley filed his Petition outside the applicable statute of limitations. Specifically, Contestant Mosley avers Section 115.333, as a matter of law, does not govern the "certification" timeframe for purposes of filing an election contest petition, under Section 115.526. Rather, Contestant Mosley contends Section 115.410, as a matter of law, governs the "certification" timeframe. But for the trial court's misapplication

501 S.W.3d 501

of the law, Contestant Mosley maintains his Petition would have been deemed timely filed.

Jurisdiction

At the outset, we are confronted with Contestee English's challenge to the jurisdiction of both the trial court and this court to entertain Contestant Mosley's Petition and this subsequent appeal. Hart v. Bd. of Adjustment of City of Marshall, 616 S.W.2d 111, 113 (Mo. App. W.D. 1981) ("Regardless of the manner in which it is stated, it is a well-settled principle of law that where the trial court did not have jurisdiction to determine the issues presented on the merits, the court of appeals jurisdiction does not extend to a determination of the appeal on the merits.").

Election contests in the State of Missouri are governed by Sections 115.526 through 115.601. Wright – Jones v. Johnson, 256 S.W.3d 177, 180 (Mo. App. E.D. 2008) ; see also Section 115.526, et seq . The right to contest an election is not a common law or equitable right, but, rather, the right to contest an election is only conferred by virtue of statute. Wright – Jones, 256 S.W.3d at 180 ; see alsoHarter v. Kehm, 733 S.W.2d 775, 777 (Mo. App. E.D. 1987) ("[W]e are without jurisdiction to entertain a petition for relief in an election contest where none is specifically granted by statute.") "Election contest statutes 'are a code unto themselves,' and election contest procedures are 'exclusive and must be strictly followed as substantive law."' Chastain v. James, 463 S.W.3d 811, 819 (Mo. App. W.D. 2015) (quoting in part Foster v. Evert, 751 S.W.2d 42, 44 (Mo. banc 1988) ); see alsoVowell v. Kander, 451 S.W.3d 267, 272 (Mo. App. W.D. 2014) (official candidacy for public office is a protectable, legal interest, necessitating the need for official, statutory procedures for challenging and terminating such candidacy).

The party requesting relief via one of the election contest statutes must bring himself or herself within its terms. Wright – Jones, 256 S.W.3d at 180 ; see alsoState ex rel. Wilson v. Hart, 583 S.W.2d 550, 551 (Mo. App. E.D. 1979) ("The right to contest any election exists only as defined by statute, and the jurisdiction of the circuit court is confined strictly to those statutory provisions governing elections contests."). "Strict compliance with the election contest statutes is necessary to confer subject matter jurisdiction upon the trial court." Wright – Jones, 256 S.W.3d at 180.

Pursuant to Section 115.533, "[i]mmediately after a petition is filed [pursuant to Section 115.526] the clerk of the circuit court shall issue a summons upon the petition to the contestee, returnable by the day designated by the circuit court." Section 115.533.1 (emphasis added).

More than thirty years ago, this court undertook the interpretation of the term "immediately" as employed in Section 115.533.1. SeeHart, 583 S.W.2d at 552. This court concluded the construction of the term "immediately," as used in Section 115.533.1, required the circuit clerk to issue the summons "the same day on which the petition is filed." Id. Such a construction was essential, we maintained, because of the dire consequences any alternative interpretation would yield:

Were it construed otherwise, such construction would disrupt the specific time requirements established in other statutory provisions governing election contests, thereby undermining the statute's purpose of assuring an early resolution of election disputes. This construction of "immediately" is supported by the terms of [Section] 115.533[.], which state that "(n)ot later than four days after the

501 S.W.3d 502

petition is filed, the contestee may file an answer to the petition ...."

Id.(internal citations omitted). Our...