State ex rel. Campbell v. Svetanics

• Decision Date: 02 March 1977
• Docket Number: No. 38993,38993
• Citation: 548 S.W.2d 293
• Parties: STATE of Missouri ex rel. Jerry T. CAMPBELL, Relator, v. Judy SVETANICS et al., Respondents, and James C. Brandenburg, Intervenor. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 293

548 S.W.2d 293

STATE of Missouri ex rel. Jerry T. CAMPBELL, Relator, v. Judy SVETANICS et al., Respondents, and James C. Brandenburg, Intervenor.

No. 38993.

Missouri Court of Appeals, St. Louis District, Division Two.

March 2, 1977.

Daniel R. Sokol, Kenneth J. Rothman, Clayton, for relator.

Timothy G. Noble, St. Louis, for respondents.

McMILLIAN, Chief Judge.

This is a proceeding for a writ of prohibition to prohibit the respondents, the members of the Board of Election Commissioners for the City of St. Louis, from retaining the name of James C. Brandenburg on the ballot as a candidate for the office of alderman of the Thirteenth Ward in the City of St. Louis in the primary election on March 8, 1977. In his petition Relator alleges that James Brandenburg, Intervenor in this action, has not met the residency requirements prescribed by Art. IV, § 2 of the Charter of the City of St. Louis, Missouri, which provides:

"No person shall become an Alderman except he . . . shall have been next before the election . . . three years a resident of the city, two years an assessed taxpayer of the city, and one year a resident of the ward from which elected . . . (As amended, pursuant to Ord. 44822)."

This petition was filed with the court on February 28, 1977, after the Circuit Court denied the writ of prohibition.

In his return Brandenburg admits that he has not met the residency requirements but answers that the writ should not be issued because (1) on January 10, 1977, he filed suit in the United States District Court of the Eastern District of Missouri seeking a declaratory judgment that the quoted provisions of Art. IV, § 2 of the St. Louis Charter are unconstitutional in that they violate the equal protection clause of the Fourteenth Amendment, the right of assembly, the right to travel and the right of suffrage guaranteed by the Constitution of the United States; and therefore this court, as a court of coordinate jurisdiction, should dismiss or stay relator's action until the federal court enters its order; (2) the quoted provisions of Art. IV, § 2 of the City Charter are unconstitutional and should not be a bar to his candidacy; and (3) a writ of prohibition is not the proper remedy in this case.

This court has long recognized the policy of coordinate jurisdictions, see State v. Moss, 392 S.W.2d 260 (Mo.1965); Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784 (1945); Julian v. Commercial Assur. Co., 220 Mo.App. 115, 279 S.W. 740 (1926), but we do not find it applicable in this case. From the arguments presented to us we can perceive no ground for federal jurisdiction in that there appears to be no justiciable case or controversy between Brandenburg, the plaintiff in the federal suit, and the defendant Board of Election Commissioners. The Board has placed Brandenburg's name on the ballot and has not threatened to remove it. Nevertheless, we will assume an actual case or controversy presently exists between the parties in the federal court. The declaratory judgment...