State ex rel. Thomas v. Neeley
| Decision Date | 23 March 2004 |
| Docket Number | No. 26108.,26108. |
| Citation | 128 S.W.3d 920 |
| Parties | STATE of Missouri ex rel. James A. THOMAS, Relator/Respondent, v. Donna NEELEY, Taney County Clerk, Respondent, and Sandra Williams, in her capacity of City Clerk of Branson, Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Daniel R. Wichmer, Branson, for appellant.
Stephen Bradford, Styron Law Firm, Branson, for relator-respondent.
Sandra Williams ("City Clerk"), in her capacity as the City Clerk of the City of Branson, Missouri, appeals from an amended peremptory writ of mandamus and final judgment that ordered her "to immediately certify the name of Jim Thomas as a candidate for Alderman-Ward I of the City of Branson, Missouri at the election to be held on April 6, 2004." In that same judgment, Donna Neeley ("County Clerk"), in her capacity as Taney County Clerk, was ordered to place Thomas' name on the ballot as a candidate for alderman for the same election.
City Clerk challenges the trial court's judgment with two points on appeal, asserting that the trial court erred as a matter of law in entering the peremptory writ of mandamus in Thomas' favor because there was no unequivocal ministerial or statutory duty for City Clerk to certify Thomas as a candidate and because Thomas failed to present evidence that he met the residency requirement stated within § 79.070, RSMo 2000.
On October 7, 2003, Thomas registered to vote in Taney County. A few days earlier, he had contacted the Stone County clerk's office to disenroll from Stone County's voter rolls. When personnel in County Clerk's office attempted to identify Thomas' proper polling place in Taney County, it was determined that the address Thomas listed on his voter registration form, 3431 West Highway 76, in Branson, Missouri, was a business. Thomas had already been registered as a voter in Taney County when that determination was made.
Although County Clerk never rejected Thomas' voter registration, she visited the property, which is a hotel called Lodge of the Ozarks, Inc., owned by a corporation of which Thomas owns seventy-one percent. Based on information from Thomas that he used room 465 of the hotel as his residence, County Clerk checked the room and found no personal effects—toothbrush, razor, clothes, etc. County Clerk did not look elsewhere on the property, such as Thomas' office. According to Thomas, on the three or four nights a week he stays there, he uses room 465, and has a "standing order" for that room, although he was not opposed to the hotel management renting the room if he was not staying there on a particular night. Thomas indicated that he showered and kept clothing "somewhere besides that room."
On January 16, 2004, Thomas completed a "Declaration of Candidate for Nomination" form, in which he "announced" himself as a candidate for the office of Alderman-Ward I for the general election to be held April 6, 2004. Within this form, Thomas designated himself as a resident and registered voter of Taney County, residing at 3431 West Highway 76 in Branson, Missouri. The notarized form included an affidavit in which Thomas affirmed that the information contained therein was true. City Clerk signed the form twice, once as the "election official or other officer authorized to administer oaths" and a second time within the affidavit portion of the form as the "officer accepting declaration."
According to City Clerk, she was aware that the address Thomas used on the form was a business, which made her question whether Thomas met the residency requirement of § 79.070, RSMo 2000, which provides:
No person shall be an alderman unless he or she is at least twenty-one years of age, a citizen of the United States, and an inhabitant and resident of the city for one year next preceding his or her election, and a resident, at the time he or she files and during the time he or she serves, of the ward from which he or she is elected.
City Clerk proceeded to investigate the matter. She "talked to the County" and was informed that Thomas had registered to vote in Taney County on October 7, 2003; she spoke with County Clerk, and they discussed County Clerk's own investigation of Thomas' alleged residence described above; she contacted the Secretary of State's Office, and someone there told her that she was "the election authority as far as certifying"; and she contacted the clerk's office in Stone County and verified that Thomas notified Stone County officials that he was changing his address "and was going to register in ... Taney County." Additional information from Stone County showed that Thomas had last voted in Stone County in November, 2002.
City Clerk spoke with Thomas on January 27, 2004, about her concern and asked him how long he had resided at the hotel; Thomas' initial response was that he had resided there since October, 2003. Upon further questioning, however, Thomas stated that he meant that he had registered to vote in October, 2003, but had "resided [at the hotel] for 12 years."
As the conversation between City Clerk and Thomas continued, she told him that she needed something to show that he met the residency requirement, such as a change of address form, utility bill, or cable bill. Thomas informed City Clerk that he would speak with his attorney and bring her an affidavit. City Clerk insisted that she needed more than that, but Thomas said, "[City Clerk], I'll get an affidavit to you." Thomas did provide an affidavit that afternoon, attesting that he had been an inhabitant and resident of Branson "for more than one year continuously next preceding April 6, 2004," and a resident of the appropriate ward currently and at the time of filing for the office of alderman. Within the affidavit, Thomas listed 3431 West Highway 76 as his mailing address and residency.
City Clerk determined that although Thomas was "not in arrears for any unpaid monies or fees to the City of Branson[,]" there was "no way that [she] could certify that [Thomas] had met the one-year residency requirement." City Clerk informed Thomas that she "had no ability to certify a document to the County Clerk saying that he was qualified." Thomas was told of City Clerk's determination that he was ineligible for the April 6, 2004, election on January 27, 2004.
Thomas filed a petition in mandamus on February 10, 2004, and the circuit court issued a preliminary order in mandamus that same day. On February 17, 2004, the court granted a motion adding City Clerk as a respondent; accepted Thomas' filing of a first amended petition, and executed a preliminary order in mandamus, directing County Clerk, City Clerk, and the City of Branson, to file pleadings to Thomas' petition in mandamus.
A hearing was held on the matter on February 20, 2004, and a peremptory writ of mandamus filed that same day. Although City Clerk filed a notice of appeal on February 23, 2004, the trial court filed an amended peremptory writ of mandamus and final judgment on February 26, 2004, which reflected the court's intention for the peremptory writ of mandamus to be final for the purposes of appeal by adding the sentence, "This order is a final judgment under Rule 74.01 for purposes of appeal."
Within the amended peremptory writ of mandamus, the court found that Thomas had "timely filed his written, signed, and sworn declaration of candidacy for Alderman-Ward I of the City of Branson, Missouri[,]" and that his name "was not certified to the Taney County Clerk as a candidate" for the alderman office for the April 6, 2004, election. City Clerk was "ordered to immediately certify the name of Jim Thomas as a candidate for Alderman-Ward I of the City of Branson, Missouri, at the election to be held on April 6, 2004." County Clerk was "ordered to immediately place the name of Jim Thomas on the ballot as a candidate for Alderman-Ward I of the City of Branson, Missouri, at the election to be held on April 6, 2004[.]" Only City Clerk has appealed, County Clerk has not, but has communicated to this Court that she agrees with City Clerk's brief.
An order awarding a peremptory writ of mandamus is appealable. State ex rel. Selsor v. Grimshaw, 762 S.W.2d 868, 869 (Mo.App.1989). On appeal, we review the grant of a writ of mandamus under an abuse of discretion standard. Bergman v Mills, 988 S.W.2d 84, 88 (Mo.App.1999). Under that standard, we will reverse the trial court's ruling only if it is so arbitrary and unreasonable as to shock the sense of justice and indicates a lack of careful consideration. Id.
Mandamus is the appropriate action when seeking to require the performance of an official of a ministerial act. Hunter v. County of Morgan, 12 S.W.3d 749, 764 (Mo.App.2000). A writ of mandamus will lie to compel a public official to do that which he or she is obligated by law to do and undo that which he or she was prohibited by law from doing. See State ex rel. Burns v. Gillis, 102 S.W.3d 66, 68 (Mo.App.2003). Therefore, a writ of mandamus cannot compel the performance of a discretionary act. Id.
A ministerial act is one that law directs the public official to perform upon a given set of facts, independent of how the official may regard the propriety or impropriety of performing the act in any particular case. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App.1998). A discretionary act is one that requires the exercise of reason in determining how or whether the act should be performed. Id. A writ of mandamus will only issue when there is an unequivocal showing that the public office failed to perform a ministerial duty imposed by law. Id.
The party seeking a writ of mandamus, the relator, must show a clear and specific right to the relief sought. Selsor, 762 S.W.2d at 869. The relator must prove that he has a clear, unequivocal, specific, and positive right to have the official perform the act demanded, and the remedy will not lie if the right is...
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