United Labor Committee, Inc. v. Ashcroft

BARDGETT, Judge,

dissenting.

I respectfully dissent. There are many statutes governing special actions which do not, in so many words, specify that an appeal to an appellate court is allowed or prohibits such an appeal. Some of these special actions are mandamus, quo warran-to and replevin.

Sec. 512.020 provides that a right of appeal exists from a judgment of any trial court, in “any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, . . .” (Emphasis supplied.) As pointed out in the principal opinion, the legislature knows how to “clearly” limit the right of appeal as they have done so in the prior law with respect to primary election contests. Former sec. 124.050, RSMo 1969, stated, “the judgment of the court in the cause shall be final and conclusive, from which there shall be no appeal.”

Chapter 125, under which this action is brought, does not explicitly nor “clearly” limit or prohibit an appeal. The fact of the matter is that the only words which could even possibly be construed to have that effect was the provision contained in chapter 125 prior to 1977, to wit: “The decision of the circuit court shall be final.” This sentence was removed by Senate Bill 97 in 1977. Therefore, at this time there is simply nothing in this statute which clearly limits the right of appeal or prohibits it. The majority opinion simply arrives at that conclusion because the legislature saw fit to say what the effect of the court action would be by declaring that the Secretary of State shall obey the court order.

The principal opinion suggests that there is no appeal because the statute does not specifically so provide for an appeal. Sec. 512.020 does not require that a statute affirmatively provide for an appeal in order for there to be one. It grants the right of appeal generally unless the appeal is prohibited by the constitution or clearly limited. It is quite difficult to understand how an appeal could be “clearly limited” when the statute under consideration does not even mention the matter.

It may well be in the time constraints attending this type of action that the legislature may appropriately limit the right to appeal as they have previously done in primary election contests. But the fact of the matter is that they have not done so here.

Because the principal opinion does not undertake to uphold the ballot title prescribed by the Attorney General, I will not deal with the matter further in this dissent.

In my opinion, Chapter 125 does not clearly limit or prohibit the right of appeal by an aggrieved party and consequently the appellant had that right under sec. 512.020. I therefore dissent.