State v. Galkowski

Decision Date29 April 2014
Docket NumberNo. ED 99832.,ED 99832.
Citation426 S.W.3d 633
PartiesSTATE of Missouri ex. rel., Arnie C. DIENOFF, Respondent, v. Patricia GALKOWSKI, St. Charles County Ambulance District, Appellants, and Rich A. Chrismer and St. Charles County, Missouri, Defendants.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Michael E. Kaemmerer, Chesterfield, MO, for appellants.

Harold A. Ellis, St. Charles, MO, for defendant.

Arnie C. Dienoff, O'Fallon, MO, for respondent pro se.

Before LISA S. VAN AMBURG, P.J., PATRICIA L. COHEN, J., and GARY M. GAERTNER, JR., J.

PER CURIAM.

Introduction

The St. Charles County Ambulance District (Ambulance District) and Patricia Galkowski, the recording secretary of the Ambulance District's Board of Directors, appeal the trial court's judgment granting in part Count X of Arnie Dienoff's ten-count petition for writ of mandamus, declaratory judgment, injunctive relief and judicial review” on the grounds that the trial court exceeded its authority when it renamed and rewrote ballot language for a tax increase to benefit the Ambulance District.1 The Ambulance District urges this court to exercise its discretion to review the case under the public interest exceptionto the mootness doctrine. We reverse.2

Factual and Procedural Background

On January 16, 2013, the Ambulance District Board of Directors (Board) voted on ballot language proposing a tax increase for the benefit of the Ambulance District. The Board approved the ballot initiative, entitled Proposition Lifesavers,” in a vote of five to one. Proposition Lifesavers provided:

St. Charles County Ambulance District serves all of the municipalities and unincorporated areas of St. Charles County by providing paramedic-staffed ambulances that respond to the emergency medical needs of a growing and aging population. In order to prevent significant reductions in staff, a decrease in the number of available ambulances, and delays in response times to 911 calls, shall the Board of Directors of St. Charles County Ambulance District be authorized to levy an additional general tax, for the first time since the District's inception over 38 years ago, of not more than eleven cents per one hundred dollars assessed valuation, the revenues from which shall be deposited into the general fund?

On January 18, 2013, the Board submitted the ballot question to the St. Charles County Election Authority for inclusion on the April 2, 2013 ballot.

On February 8, 2013, Mr. Dienoff, a resident of St. Charles County, acting pro se, filed a petition for writ of mandamus, declaratory judgment, injunctive relief and judicial review” (Petition) challenging various actions taken by the Board and the St. Charles County Election Authority (Election Authority). 3 In Count X of the Petition, Mr. Dienoff alleged, among other things, that the language of Proposition Lifesavers” was “slanted, tainted, misleading and confusing to the average voter.” 4 Mr. Dienoff requested that the trial court “rewrite the ballot Question so as not to be unfair and taint the voter in information that is not relevant to the question before the voter.” The Ambulance District and Patricia Galkowski, the Board's recording secretary, filed an answer denying Mr. Dienoff's allegations that the ballot question was improperly worded.

On February 13, 2013, the trial court held a hearing on Mr. Dienoff's Petition.5 At the hearing, Mr. Dienoff, appearing pro se, argued that the language of Proposition Lifesavers was “unfair and clouded.” Mr. Dienoff further contended that the ballot question violated Chapter 116's fiscal note requirement and word limit. Counsel for the Ambulance District countered that Chapter 116 “only applies to elections on statewide ballot measures.” Counsel also asserted that because Chapter 190, which governs ambulance districts, did not provide specific language for ballot initiatives proposing tax increases, “that was within the sound discretion of [the Board] to make the decision as long as it can be phrased as a yes or no question.”

After hearing evidence and arguments, the trial court expressed its concern that Proposition Lifesavers “reads like a campaign brochure....” The court explained:

It's argumentative, the ballot language in my view—I'm just throwing this out there, okay. I'm calling for your reply.... I've seen a lot of tax increases on a lot of ballots over the years, and I can't remember any of them ever saying when the last tax increase was. This language for the first time—to levy an additional general tax for the first time since the district's inception 38 years ago, it's a great line for a flyer that lands in your mailbox, okay, but should it be on the ballot? Is it not just an argument in favor of the ballot initiative?

.... Same thing with the language in order to prevent significant reduction in staff, a decrease in the number of available ambulances, delays in response times to 911 calls, calling it Proposition Lifesaver.... Who would vote against that?

The trial court asked counsel for the Ambulance District, “Does the Court have authority to rewrite the ballot language?,” and counsel answered, “I think—without clear either precedential or statutory support, I think not.”

The trial court then urged Mr. Dienoff to “show me my authority” to “either take this off the ballot or rewrite that language.” Mr. Dienoff replied, “I don't think it's ever been tested. And I've searched and I asked.” When the trial court stated, “You're asking me to rewrite this language, and I don't know that I have the authority to do it,” Mr. Dienoff argued that Proposition Lifesavers “go[es] beyond the scope” of Section 190.040, which provides for the organization of an ambulance district.6 The trial court asked, “Do you agree that 190.040 applies to the formation of the District?,” and Mr. Dienoff answered, “And the first tax increase. And I think it should apply to all tax increases thereafter....”

Following additional arguments and a fifteen-minute recess, the trial court announced its decision:

Now, with regard to the ballot language, I believe there is inherent in the law the necessity that ballot proposals be fair and neutral, unbiased. This ballot proposal is not fair and it is not neutral and it is not unbiased. It just invites and compels the voter to vote for this. And I don't think a ballot proposal should do that. I've thought quite a bit about the Court's authority to change this language, but there has to be a provision to address unfair, inappropriate ballot language. And I think that this Petition filed by Mr. Dienoff raises—properly raises that issue. So the relator prevails....

On February 25, 2013, the trial court issued its amended judgment 7 granting in part and denying in part Count X of the Petition. The trial court found that “the title and ballot language for Proposition Lifesavers' submitted by the [Board] to be submitted to the voters of St. Charles County at the April 2, 2013 election ... are impermissibly biased.” The court explained:

The language as submitted is not a fair, impartial and neutral summary, but instead makes arguments in favor of the proposal. Such prejudicial arguments in the ballot language include statements that the population of St. Charles County is growing and aging, that the tax increase will prevent delays in response times to 911 calls and that this would be the first tax increase since the district's inception over 38 years ago.

The trial court renamed the initiative Proposition E” and modified it to read as follows:

The St. Charles County Ambulance District serves all of the municipalities and unincorporated areas of St. Charles County by providing paramedic-staffed ambulances that respond to emergency medical needs. Shall the Board of Directors of the St. Charles County Ambulance District be authorized to levy an additional general tax of not more than eleven cents per one hundred dollars assessed valuation, the revenues from which shall be deposited in the general fund?

The trial court did not identify any rule, statute, or case supporting a trial court's authority to review a Board-approved ballot question proposing a tax increase. The trial court found that “no fiscal note requirement applies to this ballot and that there is no word limit,” and it denied Count X “in all other respects.”

The modified ballot question appeared on the April 2, 2013 ballot, and the proposition failed. On April 15, 2013, the Ambulance District appealed the portion of the trial court's judgment renaming and rewriting Proposition Lifesavers.8

This court issued the Ambulance District an order to show cause “why this appeal should not be dismissed because it is moot.” 9 The Ambulance District filed an answer denying that the issue was moot but asserting that, even if it is moot, the court may exercise its discretion to review the issue because it “falls squarely within an exception allowing the Court to review legal issues of public importance and of public interest of a recurring nature that would otherwise escape review.” Mr. Dienoff failed to file a timely response to the Ambulance District's answer to the court's order to show cause. This court entered an order concluding that the appeal is moot but taking with the case the issue of whether to review the appeal under the public interest exception to the mootness doctrine.

Standard of Review

We review the grant of a writ of mandamus for an abuse of discretion. State ex rel. Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863, 865 (Mo.App.W.D.2011). A trial court abuses its discretion when its ruling is “so arbitrary and unreasonable as to shock the sense of justice and indicates a lack of careful consideration.” Burnett v. Kansas City Sch. Bd., 237 S.W.3d 237, 239 (Mo.App.W.D.2007) (quotation omitted). “Where, however, the foundation of the writ is based upon interpretation of a...

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3 cases
  • Bernhardt v. Nancy McCarthy for Bd. of Prob. & Parole
    • United States
    • Missouri Court of Appeals
    • May 12, 2015
    ... ... The circuit court granted the State's Motion for Judgment on the Pleadings, and Bernhardt appeals. Because Bernhardt has completed his parole, we conclude that the issues raised in ... State ex rel. Dienoff v. Galkowski, 426 S.W.3d 633, 639 (Mo.App.E.D.2014). Even if we assume that the questions raised in this case are issues of general public interest which will ... ...
  • Smith v. McAdams
    • United States
    • Missouri Court of Appeals
    • February 17, 2015
    ... ... City of Florissant, 419 S.W.3d 76, 97 (Mo.App.E.D.2013). We must enforce statutes as they are written, not as they might have been written. State ex rel. Dienoff v. Galkowski, 426 S.W.3d 633, 641 (Mo.App.E.D.2014) (internal quotation omitted). [P]rovisions not plainly written in the law, or ... ...
  • Smith v. McAdams
    • United States
    • Missouri Court of Appeals
    • May 11, 2015
    ... ... App. E.D. 2013). We must enforce "statutes as they are written, not as they might have been written." State ex rel. Dienoff v. Galkowski, 426 S.W.3d 633, 641 (Mo. App. E.D. 2014) (internal quotation omitted). "[P]rovisions not plainly written in the law, or ... ...

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