Reeves v. Bockman

• Court: Missouri Court of Appeals
• Writing for the Court: Phillip R. Garrison
• Citation: Reeves v. Bockman, 101 S.W.3d 280 (Mo. App. 2002)
• Decision Date: 15 October 2002
• Docket Number: No. 25167.,25167.
• Parties: Kathy Brown REEVES, Plaintiff-Appellant, v. Mae Ruth BOCKMAN and Robert M. Heller, Defendants-Respondents.

Page 280

101 S.W.3d 280

Kathy Brown REEVES, Plaintiff-Appellant, v. Mae Ruth BOCKMAN and Robert M. Heller, Defendants-Respondents.

No. 25167.

Missouri Court of Appeals, Southern District, Division One.

October 15, 2002.

Motion for Rehearing or Transfer Denied October 25, 2002.

Application to Transfer Denied November 5, 2002.

R. David Ray and George C. Fisher, West Plains, for Appellant.

Daniel T. Moore, John M. Albright, Poplar Bluff, and Robert Z. Oberzalek, Eminence, for Respondents.

PHILLIP R. GARRISON, Judge.

This case involves the interpretation of two Missouri statutes to determine whether the circuit court of Texas County ("trial court") has subject matter jurisdiction of a suit to contest the results of a Shannon County primary election for associate circuit judge. The trial court ruled that, while it was a court in an adjoining circuit¹ as described in § 115.575.1,² that statute did not apply to this primary election contest. Accordingly, it dismissed the case for lack of subject matter jurisdiction. We affirm.

In the August 6, 2002 primary election for the Democratic nomination for associate circuit judge of Shannon County, candidate Robert M. Heller ("Contestee") received 1,301 votes and candidate Kathy Brown Reeves ("Contestant") received 1,295 votes — a difference of less than one percent of the total number of ballots cast. On August 12, 2002, Contestant filed a two-count petition in the circuit court of Texas County contesting the results of the primary election, in which she alleged that the trial court had jurisdiction pursuant to § 115.575.1, and that she was entitled to relief pursuant to §§ 115.601.1-.2.³ In that petition, Contestant sought a recount of the vote, and requested that certain disqualified absentee ballots be included in that recount. Contestee filed an answer and a motion to dismiss Contestant's petition for lack of subject matter jurisdiction.⁴ On September 3, 2002, the trial court held that a contest of the results of a primary election such as this is governed by § 115.531 and not § 115.575.1. The trial court dismissed the case for lack of subject matter jurisdiction because this suit was filed in Texas County, which is not located in the circuit in which part of this primary election was held as required by § 115.531.

In her sole point on appeal, Contestant contends that, contrary to the ruling of the trial court, § 115.575 is applicable to this case because that statute specifically refers to contested elections for the office of circuit or associate circuit judge. That statute directs that "[a]ll contested elections for the office of ... associate circuit judge ... shall be filed in and heard and determined by an adjoining circuit court selected by the contestant." Contestant thus argues that the circuit court of Texas County, as a court in an adjoining circuit, has subject matter jurisdiction. Conversely, Contestee contends that § 115.531 applies, since the contested election is a primary election, and requires that it be filed in any circuit in which part of the election was held and in which any alleged irregularity occurred. We agree with Contestee.

Because the issue raised here involves purely a matter of law, and does not involve questions of fact, our review is essentially de novo. Bans v. Layton, 43 S.W.3d 390, 397 (Mo.App. E.D.2001). Accordingly, we give no deference to the trial court's judgment in such matters. Id.

"The right to contest an election exists by virtue of statute; it is not a common law or equitable right." Board of Election Comm'rs of St. Louis County v. Knipp, 784 S.W.2d 797, 798 (Mo. banc 1990); State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W.2d 272, 275 (1936). See also State ex rel. Wilson v. Hart, 583 S.W.2d 550, 551 (Mo.App. E.D. 1979) ("The right to contest an election exists only as defined by statute, and the jurisdiction of the circuit court is confined strictly to those statutory provisions governing election contests."). The Missouri Supreme Court has held that "election contest statutes are a code unto themselves. The procedures there established are `exclusive and must be strictly followed as substantive law.'" Foster v. Evert, 751 S.W.2d 42, 44 (Mo. banc 1988) (quoting Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. banc 1982)). "[C]ourts are without jurisdiction to entertain a petition for relief where none is specifically granted by statute." Hockemeier at 68.

"A primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words in the statute in their plain and ordinary meaning." Day v. Wright County, 69 S.W.3d 485, 490 (Mo.App. S.D.2000); "Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction. If construction is necessary, we will construe a statute, or a provision thereof, in context. In order to shed light on a statute's meaning, appellate courts may consider other statutes that involve similar or related subject matter." Cantwell v. Douglas County Clerk, 988 S.W.2d 51, 55 (Mo.App. S.D.1999) (citations omitted). Further, statutes that relate to the same subject "are to be considered together and harmonized if possible so as to give meaning to all provisions of each." Id. (quoting State ex rel. Lebeau v. Kelly; 697 S.W.2d 312, 315 (Mo.App. E.D.1985).)

Section 115.531 states:

Not later than five days after the official announcement of the results of a primary election is issued by the election authority or the secretary of state, as the case may be, any candidate desiring to contest the primary election shall file a verified petition in the office of the clerk of the circuit court of any circuit in which part of the election was held and in which any alleged irregularity occurred. The contestant shall only be required to file one petition with the circuit court for each election contest regardless of the number of counties within the court's jurisdiction. The petition shall set forth the points on which the contestant wishes to contest the election and the facts the contestant will prove in support of such points, and shall pray leave to produce such proof. The judge of the court shall immediately note on the petition the date it was filed and shall immediately set a date, not later than five days after the petition is filed, for a preliminary hearing. If the petition is filed in vacation, the judge of the circuit court shall immediately convene the court in special session for the purpose of hearing the contest. If no regular judge of the court is available the supreme court shall immediately assign another judge. The circuit court in which the petition is filed shall have exclusive jurisdiction over all matters relating to the contest and may issue appropriate orders to all election authorities in the area in which the contested election was held.

(emphasis added.)

The other statute at issue here, § 115.575, states 1. All contested elections for the office of circuit or associate circuit judge not subject to the provisions of article V, section 25 of the state constitution shall be filed in and heard and determined by an adjoining circuit court selected by the contestant.

2. All contested elections on any office or question other than those provided for in sections 115.555, 115.563 and subsection 1 of this section shall be heard and determined by the circuit court of any circuit, selected by the contestant, in which all or any part of the election was held and in which any alleged irregularity occurred. The contestant shall only be required to file one petition with the circuit court for each election contest regardless of the number of counties within the court's jurisdiction.

The plain language of § 115.601.2, upon which Contestant relied in filing her petition in this case, makes it clear that § 115.531 applies here. Section 115.601.2 directs that a "recount shall be requested in accordance with the provisions of section 115.531 or 115.577.... " Section 115.531 specifically refers to primary elections, and specifies that the petition be filed in "the circuit court of any circuit in which part of the election was held and in which any alleged irregularity occurred." As § 115.531 relates to this case, Texas County would not have subject matter jurisdiction here because it is not a part of the circuit in which this primary election took place and in which any alleged irregularity occurred.

Section 115.577, also referred to in § 115.601.2, provides, in pertinent part, that "[n]ot later than thirty days after the official announcement of the election result by the election authority" an authorized person "who wishes to contest the election for any office or on any question provided in section 115.575 shall file a verified petition in the office of the clerk of the appropriate circuit court." Note that § 115.575 refers to an "election." Our supreme court has said that the term "election" in the constitution "is used in the sense of choosing a person or persons for office by vote, and nowhere in the sense of nominating a candidate for office by a political party." State ex rel. Von Stade v. Taylor, 220 Mo. 618, 119 S.W. 373, 375 (1909). Taylor was cited by the supreme court in State ex rel. Feinstein v. Hartmann, 231 S.W. 982, 985 (Mo. banc 1921), when it said that "[t]he term `elections,' as used in the Constitution of the state, does not include within its meaning elections held merely to nominate candidates for office," and "[a]s a necessary consequence the provisions of the Constitution which govern elections do not, of their own force, and by virtue of their presence in the Constitution, have any application to primary elections, or any questions concerning them." Later, the western district of this court cited both Taylor and Hartmann in saying that "the word `elections' as used in the Mo....