Foster v. Evert

ROBERTSON, Judge.

This is a direct appeal from the trial court’s dismissal of appellant’s petition for contest of a general election. Appellant attacks the constitutionality of Section 115.579, RSMo 1986. The dispositive issue, however, is whether the circuit court obtains jurisdiction over a general election contest when the circuit clerk issues a summons with a thirty-day return date in the face of Section 115.579, RSMo 1986 ¹, which requires that any answer filed by a contes-tee in a general election contest be filed within fifteen days of the filing of the general election contest petition. This is a matter of first impression with this Court under the Comprehensive Election Act of 1977, Section 115.001, et seq. We do not reach the constitutional questions, although they provide the basis for our jurisdiction. Mo. Const, art. V, § 3. The judgment of the trial court is reversed and the cause remanded for further proceedings.

I.

On April 7, 1987, appellant Charles Foster received 670 votes for the office of Mayor of Richmond, Missouri; Monroe Evert polled 713 votes. Two days later, on April 9, 1987, the election authority declared Evert the official winner. On April 27, 1987, Foster filed a petition in the Circuit Court of Ray County pursuant to Section 115.577, contesting the election. At the time appellant filed his petition, the circuit clerk issued a standard summons, Civil Procedure Form No. 1, which required a return within thirty days, despite a request that the clerk consider Section 115.-579 before doing so.

On May 12, 1987, fifteen days after the institution of the election contest, respondent entered a special appearance and filed a motion to dismiss. The motion claimed that because the summons provided a thirty-day return, and the fifteen days provided for answer by Section 115.579 had expired, the trial court was without jurisdiction to proceed. Following a hearing on May 15, 1987, the circuit court sustained the motion to dismiss.

II.

A.

Appellant argues that the trial court erred in holding that the thirty-day summons issued in this case failed to vest jurisdiction in the circuit court. Respondent contends that the thirty-day summons failed to provide the trial court with personal jurisdiction over him. In the absence of personal jurisdiction over the contes-tee/respondent, and the expiration of the fifteen days allowed by statute for respondent’s answer, respondent argues that the trial court could not proceed and properly dismissed appellant’s petition. Further, because the thirty-day period provided by Section 115.577 for filing election contests had also expired, respondent continues, this election contest is forever barred. Respondent relies on State ex rel. ■ Craig v. Grimm, 542 S.W.2d 335 (Mo.App.1976).² Respondent acknowledges that Grimm involves a primary election contest case, but cites Grimm for the proposition that service of the summons upon the contestee is jurisdictional and

is absolutely essential to the validity of the proceeding_ [A] summons commanding him to appear 30 days hence does not confer jurisdiction over his person. ... It was the duty of the trial court to ascertain jurisdiction over the person of the contestee before proceeding with the contest.... And as the five-day period within which the law provides [for primary elections] the summons must be made returnable has long since expired, the respondent and the Circuit Court of Scott County have forever lost jurisdiction in the cause.

Id. at 338.

B.

1.

A general election contest challenges the validity of the very process by which we govern ourselves; it alleges that through an irregularity in the conduct of an election, the officially announced winner did not receive the votes of a majority of the electorate. That the General Assembly need not permit election contests is beyond cavil. But by allowing election contests, the General Assembly has determined that the accuracy of election results is a matter of significant importance to our democratic process.

If as a result of election irregularities the wrong candidate is declared the winner, more is at stake than the losing candidate’s disappointment; the people have lost the ability to impose their will through the electoral process. Thus to claim that a general election contest is no more than an adversary proceeding between a losing candidate and the officially announced winner is to misunderstand the raison d’etre of election contests and to discount the importance the legislature has placed on accuracy in elections. An election contest, as we will later repeat, is an action by which the contestant challenges the conduct of the election itself. In bringing an election contest, the contestant speaks for the entire electorate, seeking to assure all that the democratic process has functioned properly and that the voters’ will is done.

2.

The election contest statutes provide special rules for issuance and service of summons; for the establishment of a return date; for a contestee’s answer; for expedited trial settings and for the contestant’s burden of proof. The statutory requirements are clear and unambiguous. “It is only by the invention of a tortuous reading that the election contest statutes can be made to be confusing, indefinite or uncertain. The statute clearly announces the parties and the procedures by which contests are to be conducted.” Beatty v. Metropolitan St. Louis Sewer District, 700 S.W.2d 831, 837 (Mo. banc 1985).

This Court has said that election contest statutes are a code unto themselves. The procedures there established are “exclusive and must be strictly followed as substantive law.” Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. banc 1982). From this conclusion it also follows that technical requirements which relate to the service of summons in ordinary civil actions do not apply when election contest statutes provide a contrary procedure. To the extent that it relies on rules of procedure which normally control civil actions to address election contest issues, respondent’s argument is flawed; that flaw is shared by Grimm. For the reasons which follow, Grimm and cases which require personal service on the contestee as a basis for jurisdiction in election contests should no longer be followed.

3.

When an election contest petition is filed, Section 115.579.1 imposes a duty on the clerk of the circuit court to issue a summons returnable “by the day designated by the circuit court.” If after two days, the sheriff cannot obtain personal service on the contestee, service is sufficient if a copy of the petition is left at the address listed by the contestee on his declaration of candidacy and a copy of the summons is posted “in a conspicuous place in the office of the clerk of the circuit court.” Section 115.579.1. Personal service on the contes-tee is thus not a condition precedent to the trial court obtaining jurisdiction over an election contest.

The time for the contestee’s answer runs from the day of the filing of the petition, not service on the contestee. Section 115.579.3. No answer is required of the contestee. “The contestee may file an answer to the petition....” [Emphasis added]. Id. This is because an election contest is not simply a legal action pitting a losing candidate against the officially declared winner of the election. An election contest challenges the conduct of the election itself. Section 115.579.2 recognizes this by requiring the circuit clerk to serve the election authority with a copy of the petition. Further, by not requiring an answer of the contestee, the statutes do not permit the entry of a default judgment upon failure to answer. Section 115.579.3; Section 115.581.

The contestee’s answer, if filed, serves two limited purposes: to allow the contestee to indicate specific reasons “why his nomination should not be contested” and to permit the contestee to set out “the votes he wishes to contest and the facts he wishes to set forth in support of such contest”. Section 115.579.3. Section 115.581, states: “Immediately upon the filing of a petition and answer, if there is any, the court shall proceed to try the case....” [Emphasis added]. On the merits, the trial court is required to order an election recount on a mere prima facie showing of election irregularities sufficient to cast doubt on the results announced. A prima facie case is made “if the validity of a number of votes equal to or greater than the margin of defeat is placed in doubt_” Section 115.583. Any recount focuses only on the votes “brought in question by the petition or its answer....” Id. Only after the recount has shown that a candidate other than the officially declared winner received a majority of votes may the court order the contestee to relinquish his office. Section 115.595.1.

From the clear language of the election contest statutes, we conclude that an election contest is procedurally analogous to an in rem action. The res is the election itself. The trial court acquires jurisdiction over the res when the election contest petition is filed in conformity with the requirements of Chapter 115. The contestee has the option to participate in the interest of expanding any issue relating to the contested election. Section 115.583.

C.

In this case, the contestee did not file an answer. This was not for want of notice; the sheriff served respondent on April 28,1987, one day after appellant filed his petition. Moreover, the petition clearly described the statutory basis for the contest. Respondent chose not to file an answer despite the clear language of Section 115.579.3, which notified him that his answer was due within fifteen days. Instead, he waited until the expiration of the fifteen days, assuming at his peril that the summons issued was insufficient to vest jurisdiction in the court after the expiration of that time. When respondent failed to file his answer, Section 115.581 required the circuit court to set the case for trial “immediately.” No further action was required of the contestant. Under the facts of this case, the thirty-day summons, though erroneous, did not divest the trial court of jurisdiction over this election contest. In failing to set the contest for trial immediately and in dismissing the case, the trial court erred.

The trial court’s judgment is reversed and the cause remanded for trial.

BILLINGS, C.J., and BLACKMAR, RENDLEN and HIGGINS, JJ., concur.

DONNELLY, J., dissents m separate opinion filed.

WELLIVER, J., dissents in separate opinion filed and concurs in separate dissenting opinion of DONNELLY, J.

1 . All statutory references are to RSMo 1986 unless otherwise indicated.

2 . See also Mitchell v. Carrington, 610 S.W.2d 412 (Mo.App.1980), which reaches a similar result in a primary election contest.