State ex rel. Holland v. Moran

• Decision Date: 28 October 1993
• Docket Number: No. WD,WD
• Parties: STATE ex rel. Linda HOLLAND and Michael C. Cierpiot, Relators, v. The Honorable John I. MORAN, Respondent. 48461.
• Court: Missouri Court of Appeals

Page 827

865 S.W.2d 827

STATE ex rel. Linda HOLLAND and Michael C. Cierpiot, Relators, v. The Honorable John I. MORAN, Respondent.

No. WD 48461.

Missouri Court of Appeals,

Western District.

Oct. 28, 1993.

Michael S. Ketchmark, Thomas A. Sheehan, Kansas City, for relators.

Buford L. Farrington, James M. Ziegler, Humphrey, Farrington & McClain, Independence, for respondent.

Before SPINDEN, P.J., and LOWENSTEIN and HANNA, JJ.

LOWENSTEIN, Judge.

This is an action for a writ of prohibition under Rule 97.01 arising out of a lawsuit before Judge Moran to declare the law and enforce an injunction regarding which of two people should be the Republican candidate in a special election to fill a vacancy in a redistricted senatorial district located in Lee's Summit and Southeastern Jackson County. This controversy involves a nomination contest, as opposed to an election contest, specifically covered by state law in §§ 115.526-.601, RSMo 1986, involving questions regarding less defined statutory procedures relating to a political party's selection of a candidate for a special election to fill a vacancy created when a state senator resigns from office after redistricting occurs. See e.g. §§ 115.363-.375. (All statutory references are to the Revised Statutes of Missouri of 1986 unless otherwise indicated.)

To their credit, the attorneys have presented a concise stipulation of the facts which, for the benefit of the reader, will be arranged chronologically.

On July 30, 1993, Senator Robert Johnson sent a letter to the governor resigning as State Senator from the Eighth District. He had last been elected in the general election of 1990 for a four year term. Linda Holland (Holland), chairman of the Republican Eighth District Nominating Committee, became aware of the vacancy. She sent notices to the members of the "old" nominating committee (1990 district lines), as well as to the "new" or redistricted Eighth District members (post-1991 district lines), for separate meetings of each committee to be held on August 5th. In 1991, pursuant to Article III of the Missouri Constitution the district lines were redrawn as part of the decennial effort to equalize population within the districts. The boundaries for this senate district had been slightly altered by the redistricting but the differences in the makeup of the new and old committees were considered important.

August 5--Both the "old" and "new" committees met and nominated Derek Holland, the chairman's husband, to be the Republican candidate. A Rules and Credentials Committee was established for each committee meeting.

September 2--A writ of election calling for a special election on November 2, 1993 was issued by the governor calling for a special election to fill the vacancy.

September 3--The secretary of state sent out a notice of the Eighth District vacancy. Holland executed a "certificate of nomination" naming Derek as the Republican candidate and mailed it to the secretary of state.

September 9--Holland sent a notice to all committee members informing them Derek was the nominee. Don Redding, a committee member, contacted Holland and Michael Cierpiot (Cierpiot), the vice-chairman, and asked if they were going to call another meeting of the "old" committee. It was controverted whether Holland denied the request for a meeting of the "old" committee even though statutes permit a committee member under certain circumstances, to convene a meeting to nominate a candidate.

September 10--Redding sent out a notice of another meeting of the Eighth District Committee, based on the "old" district lines.

September 12--Redding presided at a meeting of the "old" committee and Robert "Bud" Hertzog was nominated as the party's candidate. A certificate of nomination was sent to the secretary of state who refused to accept the Hertzog nomination on the basis the party had already filed a certificate of nomination naming its candidate.

September 14--Pursuant to notice already given, Holland convened a meeting of both the "new" and "old" committees and both again nominated Derek.

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On these facts, Redding and Hertzog filed suit against Holland and Cierpiot for a declaratory judgment and injunction for the purpose of voiding the actions which led to Derek's nomination. The defendants filed a motion to dismiss including the grounds of lack of jurisdiction for the courts to hear such matters. On September 29th, the trial judge indicated rulings, discussed infra, which would have granted relief to the plaintiffs Redding and Hertzog. Holland and Cierpiot filed this writ. This court issued a preliminary order, and because of the proximity of the November 2nd election, expedited the briefing schedule and heard oral arguments on October 13th at which time counsel was advised a decision would be announced the next day. On October 14, the court made the writ absolute with the announcement that this opinion of the court would follow.

The disposition of this writ is made against the backdrop of the trial court's legal conclusions: I) the August 5th meeting was premature because it preceded issuance of a writ of election; II) members of the Eighth Senate District Republican nominating committee for this newly redistricted area should be comprised of those committee members in the "old" 1990 district (prior to the 1991 redistricting); III) decisions of a party nominating committee on rules and credentials are subject to judicial review; IV) a member of such a nominating committee may call a meeting when the chairman or vice-chairman refuse or fail to call a meeting to fill a vacancy; and V) only committee members, "elected at polling places, are eligible to be on this district committee." The trial court conclusions will be examined on the basis of the arguments made by relators Holland and Cierpiot in this writ before the court: 1) the courts have no jurisdiction over the subject matter of a political party nominating committee; and 2) if there is jurisdiction, the trial court's rulings that a) the August 5th meeting was void as premature, and b) the "old" district nominating committee should pick the nominee as opposed to the "new" committee, were incorrect and would cause irreparable harm due to the proximity of the election.

Certain facts and applicable laws must be kept in mind:

1) Although much of the controversy centers on credentials and eligibility of committee members who voted at the meetings, the central issue revolves around conclusion II--do the new or old districts apply.

2) Derek Holland's name is still listed by the secretary of state for the November 2 special election.

3) Under Art. III, Sec. 10, Mo. Const., senatorial districts are "redistricted" based on the last decennial census. The Eighth District elected Johnson in November, 1990 for a four year term. Redistricting occurred in 1991, and the district's lines differ from the "old" 1990 version.

4) State statutes set up a scheme for nomination in lieu of the traditional primary election, when a vacancy is created in a senatorial district which has been redistricted. Section 115.363 allows a party's nominating committee to select candidates for an election to fill an unexpired term. Section 115.365.1. (3) describes a senatorial district committee of each party to select a candidate. In § 115.365.2 the legislature has said, "After any decennial redistricting, the nominating committee shall be composed from the new districts, and the new district lines shall be used in the selection of the candidate." Section 115.367 contains language when the boundaries of a district have been altered, "the members of the nominating committees for that office," are to be those "who reside within the new or altered district." Section 115.369 provides upon notice of a vacancy, the secretary of state is to within twenty-four hours give notification to the appropriate party chairman of the vacancy. Furthermore, § 115.369 states the chairman "... shall, as soon as possible, but in no case later than two weeks ... call a meeting ... for the purpose of selecting a candidate ..." and, if the chairman does not call a meeting in the specified time, ... "any member of the nominating committee may do so." Section 115.371 states a majority of the committee must be present in order to nominate a candidate.

I. Jurisdiction and Prohibition

Jurisdiction

The first issue which must be addressed is whether the circuit court has jurisdiction over any portion of the underlying suit. Relators' argue that respondent Judge Moran exceeded his jurisdiction because the "circuit court lacks subject matter jurisdiction in this case in that plaintiffs have no statutory right to obtain judicial review of actions taken by the nominating committee in selecting a nominee for the upcoming special election." It appears that Relators' argument is based on the fact § 115.529 gives circuit courts jurisdiction to "hear and determine primary election contests." Therefore, Relators conclude the courts only have subject matter jurisdiction in primary and general election contests.

Article 5, section 14(a) of the Missouri Constitution provides that the "circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial writs and shall sit at times and places within the circuit as determined by the circuit court." The Constitution gives the circuit court broad jurisdiction to decide cases. However, statutes limit circuit courts' jurisdiction. It is true, as Relators argue, that election contests are statutory actions. State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357, 362 (Mo.App.1974). Therefore, the jurisdiction of the circuit court for election contests is defined by the election statutes and "the letter of the law is the limit of [its] power." State ex rel. Phillips v. Barton, 300 Mo. 76, 254 S.W. 85, 89 (banc 1923). Again, it is noted this is not an election contest. The...