Royster v. Rizzo
| Decision Date | 07 December 2010 |
| Docket Number | No. WD 72947.,WD 72947. |
| Citation | 326 S.W.3d 104 |
| Parties | Will ROYSTER, Appellant, v. John J. RIZZO, et al., Respondents. |
| Court | Missouri Court of Appeals |
Philip O. Willoughby, Jr. and Arnold R. Day, Jr., Kansas City, MO, for appellant.
Michael J. Gunter, Kansas City, MO, for respondent John J. Rizzo.
David B. Raymond, Charles G. Renner and Hannah K. Hemry, Kansas City, MO, for respondent Kansas City Board of Election Commissioners.
Edwin R. Frownfelter, Kansas City, MO, for respondent Secretary of State of Missouri.
Before Special Division: JAMES M. SMART, JR., Presiding Judge, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.
This is an election contest that arises out of the August 3, 2010 Primary Election to determine the Democratic candidate for the office of State Representative. Will Royster, a Democratic candidate for office of the State Representative for the 40th Legislative District, sued John J. Rizzo, also a Democratic candidate for the office, the Kansas City Election Board, and the Missouri Secretary of State.1 This lawsuitwas filed after Rizzo was certified as the winner of the contest, eventually by a vote of 664 to 663.
After a trial on the merits of Royster's claims, the trial court denied all requested relief. For all of the reasons set forth herein, we affirm.
It is not disputed that the result in this election was very close. On August 16, 2010, the Kansas City Election Board ("Board") certified the results of the election to be 667 votes for Rizzo and 664 votes for Royster. Thereafter, the Missouri Secretary of State ("Secretary") announced the Official Election Returns by the Board of State Canvassers for the Primary Election, which included the tally of the votes for the instant office that was identical to the Board's vote count.
On August 24, 2010, Royster filed an election contest, and also requested the Secretary to conduct an automatic recount pursuant to Section 115.601. 2 This recount took place on September 8, 2010. The results of the election were certified, following the recount, to be 664 votes for Rizzo and 663 votes for Royster.
On August 24, 2010, Royster filed his Verified Petition to Contest Election in the Jackson County Circuit Court, and the First Amended Petition was filed on September 7, 2010. In his Amended Petition, Royster alleged a variety of voting irregularities that he claimed were in violation of Missouri state law. Specifically, Royster alleged, inter alia, that non-English speaking voters were improperly assisted or instructed on how to vote at two polling locations, that improper electioneering occurred at one polling location, that certain precincts were improperly consolidated into a single polling place, and that other voting formalities required by state law were not followed during the election. Furthermore, the Petition contained the following three counts seeking relief: Count I (Request For Recount Due To Irregularities); Count II (New Election); Count III (Request For Recount Because Of Less Than One Percent Difference In Vote).
On August 30, 2010, the trial court issued its Order To Unseal Ballots and Protective Order, which permitted "the parties to review and inspect confidential information related to the Election Contest." Royster also engaged in discovery in preparation for the trial on the claims contained in his Petition.
On September 7, 2010, a bench trial was held. Upon conclusion of the evidence, the trial court announced from the bench that it was not going to order a new primary election and took the matter under advisement for preparation of a judgment.
On September 14, 2010, the trial court granted Royster's motion to reopen the evidence prior to entering a final judgment, and Royster was allowed to present additional evidence. Thereafter, the trial court issued its Judgment, denying all of Royster's claims and requested relief.
The trial court on September 15, 2010, then issued its Amended Judgment, which clarified "that this judgment is final for all purposes and ripe for immediate appeal without a thirty day waiting period." Royster now appeals.
Royster focuses most of his arguments on alleged irregularities at two polling places, namely Garfield Elementary Schooland the Kansas City Museum. Further facts pertaining to this election will be outlined as relevant in the analysis section.
Section 115.551 vests this Court with the authority to hear the instant appeal. The parties do not dispute 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.
Royster raises four Points Relied On in this appeal, but the thrust of each one "is whether or not the trial court erred when it found that the irregularities that developed during the August 3, 2010, primary election were not of sufficient magnitude under Missouri law to warrant a new election under Section 115 RSMo., or even a recount under Section 115.539, RSMo."
The right to vote is protected by the Equal Protection Clause of the Fourteenth Amendment and " 'is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.' " Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (quoting Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959)).
Moreover, the Missouri Constitution establishes "with unmistakable clarity that the right to vote is fundamental to Missouri citizens." Weinschenk v. State, 203 S.W.3d 201, 211 (Mo. banc 2006). Indeed, "[d]ue to the more expansive and concrete protections of the right to vote under the Missouri Constitution, voting rights are an area where our state constitution provides greater protection than its federal counterpart." Id. at 212.
At the outset, we must reject the contention by the Board that the issues involved in this appeal are moot. " 'With regard to justiciability, a case is moot if a judgment rendered has no practical effect upon an existent controversy.' " State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998) (quoting Gilroy-Sims & Assocs. v. City of St. Louis, 697 S.W.2d 567, 569 (Mo.App. E.D.1985)). " 'The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.' " Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App. W.D.1999) (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)). "Because mootness implicates the justiciability of a case, the court may dismiss a case for mootness sua sponte." Chastain, 968 S.W.2d at 237. "We do not decide questions of law disconnected from the granting of actual relief." Id.
Were this Court to order a new primary election pursuant to Section 115.549 contemporaneously with this order, there would be sufficient time for this election to occur prior to the general election on November 2, 2010. "There is no doubt the legislature in the comprehensive Election Act intended primary election contests to be fully decided prior to the general election." Black v. Bockenkamp, 607 S.W.2d 176, 177-78 (Mo.App. E.D.1980). All that is required in ordering a new election pursuant to Section 115.549 is that the election take place not less than fourteen days or more than thirty days after ordered, and sometime prior to the general election.Because we are within that timeframe there is also time to ensure that the new primary election is certified prior to the November 2 general election. For this reason, we believe this controversy is not moot; because were we to order a new election pursuant to Section 115.549, there can be no doubt that it would have a "practical effect upon an existent controversy." Jackson Cnty. Bd. of Election Comm'rs ex rel. Brown v. City of Lee's Summit, 277 S.W.3d 740, 743-44 (Mo.App. W.D.2008).
We understand the Board's arguments that ordering a new primary election would have collateral consequences pertaining to certain individuals' right to vote, for example, in an absentee fashion. But these arguments go not to the core of whether there is an issue in controversy but, rather, to how the appropriate relief would be effectuated. Thus, this has no bearing on our analysis of the mootness issue. Ultimately, because we conclude that the trial court did not err in refusing to order a new election in this matter, we need not reach these various issues regarding what rights might be implicated were a new election to be ordered in this matter.
In rejecting Royster's requested relief of a second recount of the election, the trial court made the following findings of fact and conclusions of law:
Because Contestant Royster requested the Secretary conduct an automatic recount under [Section] 115.601, which was scheduled for Wednesday, September 8, 2010 at 9:00 am at the office of the Kansas City Election Board, was completed on that date, and the results have been certified by the Missouri Secretary of State, the relief requested in Count III is moot. Contestant Royster had already received a recount based upon less than one percent difference in the vote, and he is entitled to only one (1) recount under this statute.
Royster does not challenge any of the above findings or conclusions, yet he still persists in arguing that a recount is currently a viable basis for relief and that the trial court somehow erred in denying such a recount. Royster argues that "[t]he only practical remedies are a new election or a hand recount with directions to eliminate...
To continue reading
Request your trial
-
Fish v. Kobach
...because it was not disclosed in a supplemental report before trial.96 Id. at 1151:10–16; see also Ex. 865 at 3.97 Ex. 865 at 5.98 326 S.W.3d 104, 114 (Mo. Ct. App. 2010) ("Royster has failed to demonstrate that the trial court erred in concluding that all of these voters were registered and......
-
Franks v. Hubbard, ED 104797
...election errors.Hubbard's argument that the holding of Royster v. Rizzo, demonstrates the vote should not be overturned is unpersuasive. 326 S.W.3d 104 (Mo.App.W.D.2010). Royster is distinguishable from the present case because the irregularities at issue were not absentee voting requiremen......
-
Chadd v. City of Lake Ozark
...in the first action but was based on the same operative facts as his claim for reinstatement. His claim for lost wages was, therefore,326 S.W.3d 104precluded. The trial court properly entered summary judgment for the City on count I of Mr. Chadd's petition. The point is denied.Employment-At......
-
T.C.T. v. Shafinia
...We generally dismiss cases that are moot because appellate jurisdiction depends on the existence of a live controversy. Royster v. Rizzo, 326 S.W.3d 104, 108 (Mo.App. W.D.2010); Sw. Bell, 18 S.W.3d at 577. When a full order of protection has expired, any appeal of that order is moot, becaus......