Jermond L. Mosley v. Keith A. English

In the Missouri Court of Appeals
Eastern District
DIVISION SIX
JERMOND L. MOSLEY, ) ED104847
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
v. ) 16SL-CC03255
)
KEITH A. ENGLISH, ) Honorable Joseph S. Dueker
)
Respondent. ) Filed: October 14, 2016
This expedited appeal involves an election contest filed by Jermond Mosley ("Contestant
Mosley") challenging the qualifications of incumbent State Representative Keith English
("Contestee English") to appear as a candidate on the November 8, 2016 general election ballot.
Contestant Mosley appeals the trial court's judgment dismissing his election contest petition. For
reasons explained herein, we reverse and remand.
BACKGROUND
In January 2016, Contestant Mosley1 duly filed a declaration for nomination as the
Democratic candidate to the office of state representative for the 68th district, which is located in
St. Louis County. Thereafter, upon receiving the highest number of votes in the August 2, 2016
1
"Contestant" is defined as the "challenger." See Section 115.526.3.
Democratic primary, Contestant Mosley became the Democratic nominee for the office stated
above and whose name shall appear on November 8, 2016 general election ballot.
On July 26, 2016, Contestee English2 filed petitions and a declaration as an Independent
candidate for election to the office of state representative for the 68th district. Subsequently, the
Secretary of State for the State of Missouri ("Secretary") certified Contestee English as the
Independent nominee for the office stated above and ordered his name to appear on the
November 8, 2016 general election ballot.3
On Saturday, September 3, 2016, Contestant Mosley electronically filed, with the Circuit
Court of St. Louis County, his verified petition ("Petition") challenging the qualifications of
Contestee English to seek or hold the office of state representative for the 68th district. In his
three count Petition, Contestant Mosley challenged Contestee's qualifications to seek or hold
office as follows: (1) in Count I, Contestant Mosley contended Contestee English failed to meet
the durational residency mandate, pursuant to Article III, § 4 of the Missouri Constitution; (2) in
Count II, Contestant Mosley alleged Contestee English fraudulently attested to the circulation of
the nominating petition provided to the Secretary; and (3) in Count III, Contestant Mosley
claimed Contestee English provided insufficient signatures with his nominating petition to the
Secretary.
As the Circuit Court of St. Louis County remained closed Saturday September 3, 2016
through Monday, September 5, 2016 (in observation of Labor Day), the Circuit Clerk did not
issue a summons until Tuesday, September 6, 2016. On September 7, 2016, Contestee English
filed his Answer.
2
"Contestee" is defined as "the candidate whose declaration of candidacy or qualifications are challenged." See
Section 115.526.3.
3
In 2012, and again in 2014, Contestee English was elected as a Democrat to hold the office of state representative
for the 68th district.
2
Thereafter, the trial court issued an order to expedite the proceedings. On September 9,
2016, Contestee English filed a Motion to Dismiss alleging, inter alia: (1) all three counts of
Contestant Mosley's Petition were time-barred under Section 115.526.2; and (2) in the
alternative, Counts II and III of Contestant Mosley's Petition were time-barred under Section
115.333. In response thereto, Contestant Mosley filed Suggestions in Opposition, vowing, inter
alia, all three counts of his Petition were not time-barred because Section 115.401 governed.
On September 15, 2016, the trial court entered its written judgment dismissing Contestant
Mosley's Petition in its entirety ("Judgment"). In support of its Judgment, the trial court
reasoned:
[N]either party provided the Court with binding authority which specifically
defines the precise point at which he [Secretary] issues such "certification."
However, MO. REV. STAT. Section 115.333.1, which Contestee [English] offers
and which, among other things, relates to the Secretary of State's determination as
to whether or not an independent candidate had complied with certain statutory
requirements so as to qualify as a candidate at the general election, states the
Secretary of State "shall, not later than the eleventh Tuesday prior to the general
election, issue a statement setting forth such persons' determination." This Court
finds that the Secretary of State's statement of determination regarding
independent candidates under Section 115.333 is tantamount to the Secretary of
State's certification or "official announcement" of a primary election winner under
Sections 115.497 – 115.511. . . . Therefore, under Section 115.526.2, Contestant
[Mosley] was required to file his challenge "not later than five days after" August
23. Here, [Contestant Mosley's] Petition was not filed until September 3, 2016.
(emphasis in original).
Contestant Mosley now appeals.
DISCUSSION
In his sole point on appeal, Contestant Mosley asserts the trial court erred as a matter of
law in sustaining Contestee English's motion to dismiss, concluding Contestant Mosley filed his
Petition outside the applicable statute of limitations. Specifically, Contestant Mosley avers
Section 115.333, as a matter of law, does not govern the "certification" timeframe for purposes
3
of filing an election contest petition, under Section 115.526. Rather, Contestant Mosley
contends Section 115.410, as a matter of law, governs the "certification" timeframe. But for the
trial court's misapplication of the law, Contestant Mosley maintains his Petition would have been
deemed timely filed.
Jurisdiction
At the outset, we are confronted with Contestee English's challenge to the jurisdiction of
both the trial court and this court to entertain Contestant Mosley's Petition and this subsequent
appeal. Hart v. Bd. of Adjustment of City of Marshall, 616 S.W.2d 111, 113 (Mo. App. W.D.
1981) ("Regardless of the manner in which it is stated, it is a well-settled principle of law that
where the trial court did not have jurisdiction to determine the issues presented on the merits, the
court of appeals jurisdiction does not extend to a determination of the appeal on the merits.").
Election contests in the State of Missouri are governed by Sections 115.526 through
115.601. Wright-Jones v. Johnson, 256 S.W.3d 117, 180 (Mo. App. E.D. 2008); see also Section
115.526, et seq. The right to contest an election is not a common law or equitable right, but,
rather, the right to contest an election is only conferred by virtue of statute. Wright-Jones, 256
S.W.3d at 180; see also Harter v. Kehm, 733 S.W.2d 775, 777 (Mo. App. E.D. 1987) ("[W]e are
without jurisdiction to entertain a petition for relief in an election contest where none is
specifically granted by statute.") "Election contest statutes 'are a code unto themselves,' and
election contest procedures are 'exclusive and must be strictly followed as substantive law.'"
Chastain v. James, 463 S.W.3d 811, 819 (Mo. App. W.D. 2015) (quoting in part Foster v. Evert,
751 S.W.2d 42, 44 (Mo. banc 1988)); see also Vowell v. Kander, 451 S.W.3d 267, 272 (Mo.
App. W.D. 2014) (official candidacy for public office is a protectable, legal interest,
4
necessitating the need for official, statutory procedures for challenging and terminating such
candidacy).
The party requesting relief via one of the election contest statutes must bring himself or
herself within its terms. Wright-Jones, 256 S.W.3d at 180; see also State ex rel. Wilson v. Hart,
583 S.W.2d 550, 551 (Mo. App. E.D. 1979) ("The right to contest any election exists only as
defined by statute, and the jurisdiction of the circuit court is confined strictly to those statutory
provisions governing elections contests."). "Strict compliance with the election contest statutes
is necessary to confer subject matter jurisdiction upon the trial court." Wright-Jones, 256
S.W.3d at 180.
Pursuant to Section 115.533, "[i]mmediately after a petition is filed [pursuant to Section
115.526] the clerk of the circuit court shall issue a summons upon the petition to the contestee,
returnable by the day designated by the circuit court." Section 115.533.1 (emphasis added).
More than thirty years ago, this court undertook the interpretation of the term
"immediately" as employed in Section 115.533.1. See Hart, 583 S.W.2d at 552. This court
concluded the construction of the term "immediately," as used in Section 115.533.1, required the
circuit clerk to issue the summons "the same day on which the petition is filed." Id. Such a
construction was essential, we maintained, because of the dire consequences any alternative
interpretation would yield:
Were it construed otherwise, such construction would disrupt the specific time
requirements established in other statutory provisions governing election contests,
thereby undermining the statute's purpose of assuring an early resolution of
election disputes. This construction of "immediately" is supported by the terms of
[Section] 115.533[.], which state that "(n)ot later than four days after the petition
is filed, the contestee may file an answer to the petition . . . ."
Id. (internal citations omitted). Our holding and reasoning set forth in Hart is still sound.
5
In the case in bar, Contestant Mosley filed his Petition, pursuant to Section 115.526.1, on
Saturday, September 3, 2016, via electronic filing. See Rule 103. As discussed in significant
detail, infra, Contestant Mosley's Petition was timely filed as required by Section 115.526.2. See
Section 115.526.2 (". . . not later than five days after the latest date for certification of a
candidate by the officer responsible for issuing such certification."). However, as the filing
transpired on a Saturday, the Circuit Clerk of St. Louis County was not available to issue a
summons "immediately," or on the same day as the filing of Contestant Mosley's Petition. See
Mo. 21 Cir. R. 2.1(2) ("The following hours are established for the Office of the Circuit Clerk:
8:00 A.M. to 5:00 P.M. Monday through Friday and on Saturday or after hours for adult abuse as
directed by the Circuit Clerk."). Rather, the summons was issued on Tuesday, September 6,
2016, the next day the Circuit Clerk's office was open for business.4
Insomuch as a summons was not issued on the same day as the filing of Contestant
Mosley's Petition, Contestee English contends the trial court was never accorded jurisdiction
because Contestant Mosley did not strictly comply with the election contest statutes, specifically
Section 115.533.1. Wright-Jones, 256 S.W.3d at 180. We are unconvinced.
As set forth herein, this court finds Section 115.401 governs and dictates "the latest date
for certification" for purposes of a general election—and not Section 115.333, as advocated by
Contestee English. Nevertheless, within the confines of a general election contest, whether we
were to apply the timeframe set forth in Section 115.401 (tenth Tuesday before a general
election) or Section 115.333 (eleventh Tuesday in general election), "the latest date for
certification" will always fall on a Tuesday. Consequently, the fourth and fifth days of the five
day limitation time period in which to file a verified petition to challenge a general election
4
The intervening Monday, September 5, 2016, was Labor Day and the Circuit Clerk's office was closed. See
Section 9.010 (public holidays).
6
contest, as prescribed by Section 115.526.2, will always fall on a Saturday and Sunday,
respectively. Under the auspices of the election contest statutes, it is unambiguously envisioned
that a contestant may file a petition on the Saturday or Sunday following the last date of
certification.5
Accordingly, regardless of the statute this court applies (Section 115.401 or Section
115.333), the timeframe limitations in which to file a petition to dispute a general election
contest generates an anomalous and perplexing quagmire—one in which a contestant can file a
petition on a Saturday and Sunday and a summons must be issued contemporaneously therewith
by the circuit clerk, lest jurisdiction be negated.
Resolution of this quagmire is left unanswered by the election contest statutes. "To the
extent that the statutes governing election contests are silent as to the procedural rules to apply in
the conduct of such contests, the relevant procedural statutes and rules that apply in all civil
actions also apply in governing procedure in election contests." Moore v. Morehead, 666
S.W.2d 460, 461 (Mo. App. W.D. 1984).
As such, turning to Rule 44.01 of the Missouri Rules of Civil Procedure, we find
clarification. In computing any period of time prescribed by an applicable statute, Rule 44.01(a)
advises "[t]he last day of the period so computed is to be included, unless it is a Saturday,
Sunday or a legal holiday, in which event the period runs until the end of the next day which is
neither a Saturday, Sunday nor a legal holiday." Rule 44.01(a). Under Rule 44.01(a), the five
day time limitation a contestant has to file a petition to impugn a general election contest,
5
Certainly, we need not apprise our fellow branch of government of our circuit clerks' business hours, as the
Legislature operates on similar hours. The propriety of the Legislature in enacting such a statutory construct is not
this court's purview, but the idiosyncratic paradigm merits acknowledgement.
7
pursuant to Section 115.526, is extended to the "next day which is neither a Saturday, Sunday
nor legal holiday." Rule 44.01(a).
Hence, herein, Contestant Mosley had until Tuesday, September 6, 2016 in which to file
his Petition. Without dispute, Contestant Mosley filed his Petition, via electronic filing, on
September 3, 2016. Although filed on September 3, 2016, Contestant Mosley's Petition was to
be deemed filed on September 6, 2016. See Rule 43.02(d)(4) ("Electronic filings received at the
court before 4:00 p.m. of a regular workday are deemed filed as of that day. Filings received
after 4:00 p.m. are deemed filed on the next regular Court workday.") (emphasis added).6 As
such, the summons was to be issued "immediately," or on September 6, 2016. See Hart, 583
S.W.2d at 552. The summons was, indeed and indisputably, issued on September 6, 2016, in
strict compliance with Section 115.533.1.
Therefore, as Contestant Mosley strictly complied with the election contests statutes, the
trial court was conferred jurisdiction. Corollary, this court too has jurisdiction to entertain this
appeal. City of St. Peters v. Dept. of Nat. Res. of State of Mo., 797 S.W.2d 514, 517 (Mo. App.
W.D. 1990) ("This court's jurisdiction derives from that of the circuit court.").
Point I: Contestant Mosley's Petition was Timely Filed.
Contestant Mosley's sole point on appeal claims the trial court erred as a matter of law in
granting Contestee English's motion to dismiss. As indicated by this only point, the
determinative issue on appeal is whether Contestant Mosley timely filed his Petition challenging
the qualifications of Contestee English to appear on the November 8, 2016 general election
6
The advent of electronic filing is of no consequence in these circumstances. Electronic filing only provides
contestants the opportunity and the ability to file their petitions on Saturday, Sunday, or a legal holiday, instead of
having to await the opening of the courthouse doors. However, if a contestant were to file his petition on Saturday,
Sunday, or legal holiday said filing will be deemed filed on the "next regular Court workday." Rule 43.02(d)(4).
8
ballot. Contestant Mosley insists Section 115.401 controls, whereas, Contestee English argues
Section 115.333 governs.
Standard of Review
Upon appeal from a trial court's grant of a motion to dismiss, the standard of review by
an appellate court is de novo. Progress Mo., Inc. v. Mo. Senate, 494 S.W.3d 1, 4 (Mo. App.
W.D. 2016). De novo review compels this court to consider the merits of the motion to dismiss
under the same standard applied by the trial court when considering the issue. Bugg v. Rutter,
330 S.W.3d 148, 152 (Mo. App. W.D. 2010).
Analysis
"Section 115.526 'provides the statutory mechanism for candidates to challenge the
qualifications of any other candidate to the same office.'" Chastain, 462 S.W.3d at 819 (quoting
State v. Young, 362 S.W.3d 386, 394 (Mo. banc 2012)). Specifically, Section 115.526 fashions
a statutory cause of action, authorizing a candidate "to challenge the qualifications of any other
candidate to the same office[.]" Young, 362 S.W.3d at 394; see also Chastain, 426 S.W.3d at
819 ("Section 115.526 thus describes the exclusive process by which one candidate for office
can challenge the qualifications of another for the same office.") (emphasis added).
Subsection 1 of Section 115.526 establishes the exclusive procedure for candidates in a
primary, general, or special elections to challenge declarations of candidacy and qualifications of
their opponents. Chastain, 462 S.W.3d at 819. In operable part, Section 115.526.1 states "any
candidate for election to an office at a general or special election may challenge the declaration
of candidacy or qualifications of any other candidate for election to the same office to seek or
hold such office or to have his name printed on the ballot." Section 115.526.1.
9
Subsection 2 of Section 115.526 sets forth the relevant timeframe within which a
candidate must challenge the qualifications of another candidate for the same office. Chastain,
462 S.W.3d at 819. In pertinent part, Section 115.526.2 mandates a candidate file a verified
petition challenging his or her opponent of a general election with the circuit court "not later
than five days after the latest date for certification of a candidate by the officer responsible for
issuing such certification." Section 115.526.2 (emphasis added).7
Here, Contestant Mosley and Contestee English do not dispute the Secretary is the
"officer responsible for issuing such certification." Section 115.526.2. However, Contestant
Mosley and Contestee English do dispute the consequent statute fixing "the latest date for
certification of a candidate[.]" Id. (emphasis added). Resolution of this dispositive issue hinges
upon this court's interpretation thereof.
Contestant Mosley contends his Petition challenging the qualifications of Contestee
English was timely, in that it was filed within five days of the Secretary's certification. In
support thereof, Contestant Mosley directs this court's attention to Section 115.401. Pursuant to
Section 115.401, "[n]ot later than the tenth Tuesday prior to each general election, the secretary
of state shall send to each election authority a certified list containing the name and address of
each person who has filed a declaration of candidacy in the secretary of state's office and is
entitled to be voted for at the general election . . . ." Section 115.401 (emphasis added). Under
Contestant Mosley's proposed interpretation, Contestant Mosley's Petition would, indeed, be
timely, because said Petition was filed within five days of the tenth Tuesday (August 30, 2016)
before the November 8, 2016 general election.
7
The election contest statutes omit a definition for "certification."
10
To the contrary, Contestee English maintains Contestant Mosley's Petition challenging
the qualifications of Contestee English was untimely, in that it was filed more than five days
after the Secretary's certification. In support thereof, Contestee English directs this court's
attention to Section 115.333. Pursuant to Section 115.333, [w]hen any petition is filed with the
secretary of state or an election authority under this provision of this subchapter, the secretary of
state or the election authority shall, not later than the eleventh Tuesday prior to the general
election, issue a statement setting forth such person's determination." Section 115.333.1
(emphasis added). Under Contestee English's proposed interpretation, Contestant Mosley's
Petition would, indeed, be untimely, because said Petition would have been filed more than five
days after the eleventh Tuesday (August 23, 2016) before the November 8, 2016 general
election.
In resolving this conflict, we revert to our canons of statutory interpretation. "This
Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in
the plain language of the statute at issue." Parktown Imp., Inc. v. Audi of Am., Inc., 278 S.W.3d
670, 672 (Mo. banc 2009). The words used are to be given their plain and ordinary meaning.
Mo. ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123 (Mo. App. E.D. 2002). We are instructed to
construe statutes in a manner so as to avoid unreasonable, oppressive, or absurd results. Id.
"The entire legislative act must be construed together, and if reasonably possible, all provisions
must be harmonized." Id.
As noted, supra, and as confessed in the trial court's Judgment, "certification" is never
defined by the election contest statutes. This court, nonetheless, is not without principles needed
to ascertain and effectuate the legislative intent. State v. Sistrunk, 414 S.W.3d 592, 601 (Mo.
App. E.D. 2013). Generally, in such a scenario, we call upon the assistance of the dictionary in
11
determining the ordinary meaning of statutory language; we concede, however, "dictionary
definitions are often not the final source of guidance as the plain and ordinary meaning of a word
does not necessarily equate to its dictionary definition." Lutes v. Schaefer, 431 S.W.3d 550, 556
(Mo. App. E.D. 2014).
The dictionary definition of "certification" reads: "1: the act of certifying: the state of
being certified[;] 2: a certified statement." MERRIAM–WEBSTER ONLINE DICTIONARY. 2016.
http:// merriamwebster.com (12 October 2016).8 Here, the dictionary definition of certification
offers significant guidance favoring Contestant Mosley's proposed interpretation, in that Section
115.401 speaks in terms of "a certified list." On the contrary, Section 115.333 speaks in terms of
a "statement setting forth such person's determination."
In order to accede to Contestee English's proposed interpretation, this Court would be
required to equate the term "certification" with "determination." That, this Court cannot do,
because "[w]hen different terms are used in different subsections of a statute, presumably, the
legislature intended the terms to have different meaning and effect." Cook v. Newman, 142
S.W.3d 880, 892 (Mo. App. W.D. 2004) (en banc).
Accordingly, we adopt Contestant Mosley's interpretation and hold Section 115.401
dictates the timeframe for a contestant to file a petition challenging a general election contest
under Section 115.526.2.
Therefore, this court finds that under Section 115.401, the deadline, or "latest date" for
the Secretary to issue his or her statement of "certification" that Contestee English qualified as a
candidate is ten weeks prior to the general election, or August 30, 2016. Thus, under Section
8
We recognize Contestee English directs this court to the same source we cite, herein. Curiously, though, Contestee
English cites to the "simple definition" rather than the "full definition." Regardless, neither definition substantiates
Contestee English's proposed interpretation.
12
115.526.2, Contestant Mosley was required to file his Petition "not later than five days after"
August 30, 2016. Here, Contestant Mosley's Petition was timely filed, and the trial court erred in
dismissing the Petition as untimely.9
CONCLUSION
For the foregoing reasons, the Judgment of the trial court is, hereby, reversed and
remanded for further proceedings consistent with this opinion.
___________________________________
Lisa P. Page, Judge
Roy L. Richter, P.J. and
James M. Dowd, J., concur.
9
Insomuch as the Judgment of the trial court did not adjudicate Contestee English's alternative theories lodged in
support of his Motion to Dismiss, we need not dispose of those issues in this appeal. Whether Counts II and III of
Contestant Mosley's Petition survive, we leave for the trial court's determination on remand.
13