Tom Carter v. Ken Frederickson, and Gene T. Weiss, and St. Louis County Board of Election Commissioners

In the Missouri Court of Appeals
and
ST. LOUIS COUNTY BOARD OF ELECTION
COMMISSIONERS,
Castern District
DIVISION FIVE
TOM CARTER, J No. ED107582
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
VS. )
) Honorable Ellen H. Ribaudo
KEN FREDERICKSON, )
)
Respondent, )
)
and )
)
GENE T. WEISS, )
)
Defendant, )
)
)
)
)
)
)
)
Respondent.
Filed: February 15, 2019
The appellant, Tom Carter, appeals the judgment entered by the Circuit Court of St.
Louis County denying his petition to disqualify the respondent, Ken Frederickson, from the April
2, 2019 election for director of the Maryland Heights Fire Protection District. Because Carter
did not establish grounds to disqualify Frederickson, we affirm the trial court’s judgment.
Factual and Procedural Background
The Maryland Heights Fire Protection District has three members on its board of
directors who each serve a six-year term. The members are elected on a rotating basis so that
one board seat is filled via election every two years. Voters will elect one board member in the
April 2, 2019 general election. Tom Carter is a current director, and seeks to serve another six-
year term.
Ken Frederickson retired from the District in 2018 as its Deputy Chief Emergency
Medical Services Officer, and now seeks election as a member of the District’s board of
directors.! On December 11, 2018, the day the candidate filing period began, Frederickson and
Carter each appeared in person and submitted a declaration of candidacy and supporting forms to
the District. The supporting forms included Department of Revenue Form 5120, a “tax
affidavit,” wherein a candidate swears that he is not aware of any delinquent taxes he owes in
Missouri. Frederickson’s tax affidavit was not notarized. Frederickson testified at trial that he
completed and signed his forms, including the tax affidavit, in the presence of the District's
office manager and election official, Brandy Douglas. Douglas testified that “when
[Frederickson] said he was done filling out the paperwork, I came over, reviewed that it was
complete, and signed as the election official.” Frederickson testified that he thought Douglas,
who is a notary public, would notarize the tax affidavit for him as she had routinely notarized his
signature on forms he completed during his employment with the District.
Douglas, in her capacity as the District’s election official, completed the jurat on
Frederickson’s declaration of candidacy, yet she accepted his original signed tax affidavit
without executing its notarial jurat or otherwise acknowledging his oath. Douglas retained the
original tax affidavit—which was to have been submitted to the Department of Revenue—along
1 Gene T. Weiss also sought to register as a candidate, but the trial court ordered his name removed from the ballot
because Weiss neither filed an answer nor appeared in the proceedings below. Weiss does not appeal.
2
with Frederickson’s other original candidate forms, and gave Frederickson a photocopy of his
forms. According to Frederickson, when he asked Douglas if there was anything more he
needed to do, Douglas told him there was not. Douglas denied that Frederickson asked her such
a question, Douglas did not notarize Frederickson’s tax affidavit although she testifted that she
would have notarized it had Frederickson asked her to do so.
Douglas testified that on January 10th, five days before the candidate filing period closed,
she reviewed the candidates’ forms, and noticed that Frederickson’s tax affidavit was not
notarized. Douglas did not notarize the tax affidavit although Frederickson had signed it in her
presence. She did not notify Frederickson that his tax affidavit was not notarized although she
had his phone number, address, and email address. She did not contact the District’s legal
counsel for guidance. Instead, Douglas contacted an employee of the St. Louis County Board of
Election Commissioners for guidance, a person whose position and authority with that agency
were not established at trial. Douglas testified that the only reason Frederickson was not placed
on the ballot was because his tax affidavit was not notarized.
The candidate filing period closed on January 15, 2019. On January 22nd, Douglas wrote
to the St. Louis County Board of Election Commissioners, stating that only Carter had submitted
a completed candidate packet. Consequently, Douglas’s letter opined, no election was required
because Carter was the only candidate for the District’s single open board seat. Frederickson
first learned of the alleged deficiency in his candidate filing when he received a copy of
Dougias’s Januaty 22nd letter to the county election authority.
In a separate action, the Circuit Court of St. Louis County granted the District’s petition
to provide a late notice of election to the St. Louis County Board of Election Commissioners.
On January 30th, the court ordered that the St. Louis County Board of Election Commissioners
place on the April ballot the election for the District’s director position, The following day,
Carter filed a verified petition pursuant to Section 115.526 RSMo. (2016) challenging
Frederickson’s qualifications. Carter averred that Frederickson had failed to submit a notarized
tax affidavit as required by section 115.306 RSMo. (Supp. 201 8),” and sought the court’s order
disqualifying Frederickson from the elected position of director of the Maryland Heights Fire
Protection District.
The circuit court conducted a trial on February 4th. Frederickson testified that he had
submitted that morning a notarized tax affidavit to the Department of Revenue. Finding
Frederickson’s testimony credible in that regard, the trial court entered its judgment the same day
ordering that Frederickson remain on the ballot. The trial court found that Frederickson’s
submission of a notarized tax affidavit complied with the requirements of section 115.306.
Carter appeals.
Mootness of the Controversy
A threshold question in any appellate review is whether the controversy is moot. St.
Louis Police Leadership Org. v. St. Louis Bd. of Police Commissioners, 465 8.W.3d 501, 506
(Mo. App. E.D. 2015). When an event occurs that makes a court's decision unnecessary or
makes granting effectual relief impossible, the case is moot, and generally the Court should
dismiss it. fd.
Whenever a candidate for election is disqualified prior to the election, the candidate’s
name shall not appear on the official ballot. Section 115.526.4 RSMo. (2016). “[B]ut in no
event shall a candidate or issue be stricken or removed from the ballot fess than eight weeks
before the date of the election.” Section 115,127.3. The parties agree that under section
2 All statutory references are to RSMo. (Supp. 2018) except as otherwise indicated.
4
115,127.3 the deadline to remove Frederickson from the April 2nd ballot expired February 5,
2019, Frederickson contends that the controversy in this case, therefore, is moot. Carter
counters that we should not dismiss for mootness because relief is not limited to removal of
Frederickson’s name from the ballot.
We hold the controversy is moot. Nonetheless, an exception to the mootness rule applies
when a case presents an issue that: (1) is of general public interest and importance, (2) will recur,
and (3) will evade appellate review in future live controversies, Grzybinski v. Dir. of Revenue,
479 S.W.3d 742, 745 (Mo. App. E.D. 2016). If the exception applies, then our dismissal of the
case is discretionary. Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo. App. E.D. 2003). Although
the controversy here is moot, we conclude that the public-interest exception applies, and we
proceed to the merits of Carter’s appeal.?
Standard of Review
The standard set forth in Murphy v. Carron’ governs our review. Wright-Jones v.
Johnson, 256 $.W.3d 177, 180 (Mo. App. E.D. 2008). We will affirm the trial court's judgment
unless it is not supported by substantial evidence, it is against the weight of the evidence, or it
erroneously declares or applies the law. /d. We review questions of law de novo, including
those of statutory and constitutional interpretation. Fay v. Stephenson, 552 8.W.3d 753, 756
(Mo. App. W.D. 2018). We defer to the trial court’s findings of facts because of its superior
ability to assess witnesses’ credibility. Wright-Jones, 256 S.W.3d at 180,
Discussion
“TA ny 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
3 We deny Frederickson’s motion to dismiss.
4536 S.W.2d 30, 32 (Mo. banc 1976),
office to seek or hold such office or to have his name printed on the ballot.” Section 115.526.1
RSMo. (2016). Carter sought to prevent Frederickson from appearing on the April 2, 2019 ballot
because Frederickson failed to: (1) have his tax affidavit notarized, and (2) submit the notarized
tax affidavit to the Department of Revenue. Carter contends the trial court erred when it found
that Frederickson’s submission of a notarized tax affidavit to the Department of Revenue on the
morning of trial complied with the statute’s requirements. We disagree.
Section 115.306 identifies two bases on which a candidate for elective public office
might be disqualified. Section 115.306.1 states that “[nJo person shall qualify as a candidate for
elective public office in the state of Missouri who has been found guilty of or pled guilty to” a
disqualifying felony. Section 115.306.2(1) provides that any person who files as a candidate for
election to public office shall be disqualified if the person is delinquent in the payment of state
income taxes, personal property taxes, certain residential real-estate taxes, or municipal taxes.
Each potential candidate for election to public office shall file an affidavit with the Department
of Revenue and include a copy of the affidavit with the declaration of candidacy. Section
115.306.2(2). The Department of Revenue tax affidavit form contains virtually identical
language to that set forth in the statute, and requires that the potential candidate’s signature be
notarized. The statute provides no penalty for failure to submit a notarized tax affidavit. Section
115.306.2(3) then provides:
Upon receipt of a complaint alleging a delinquency of the candidate in the filing or
payment of any state income taxes, personal property taxes, municipal taxes, real
property taxes on the place of residence, as stated on the declaration of candidacy, or if
the person is a past or present corporate officer of any fee office that owes any taxes to
the state, the department of revenue shall investigate such potential candidate to verify
the claim contained in the complaint. If the department of revenue finds a positive
affirmation to be false, the department shall contact the secretary of state, or the election
official who accepted such candidate’s declaration of candidacy, and the potential
candidate. The department shall notify the candidate of the outstanding tax owed and give
the candidate thirty days to remit any such outstanding taxes awed which are not the
subject of dispute between the department and the candidate. If the candidate fails to
remit such amounts in full within thirty days, the candidate shall be disqualified from
participating in the current election and barred from refiling for an entire election cycle
even if the individual pays ail of the outstanding taxes that were the subject of the
complaint.
(Emphases added).
Section 115.306 provides two instances when a candidate shall be disqualified from
elective public office: (1) when the candidate has been found guilty of or pled guilty to a
disqualifying felony; and (2) when the candidate is delinquent in the payment of specified state
or local taxes. Critically, nowhere does section 115.306 provide that failure to submit a
notarized tax affidavit in itself constitutes a ground to disqualify a candidate.
In addition, the statute states that if the qualification of a candidate is challenged based on
a tax delinquency, the Department of Revenue will investigate. If the Department of Revenue
finds a delinquency, it will give the candidate thirty days to pay the outstanding taxes. A
candidate will be disqualified only if he fails to timely rectify the delinquency. Thus, section
115,306.2 allows a candidate to correct an actual tax delinquency within thirty days and thereby
maintain candidacy for public office.
The primary rule of statutory construction is to determine the legislature’s intent from the
language used, and to give effect to that intent. Wright-Jones, 256 S.W.3d at 181. We give the
words used their plain and ordinary meaning. /d¢. We construe statutes so as to avoid
unreasonable, oppressive, or absurd results. id.
From the plain language of section 115.306.2, it is clear that the legislature wants to sce
delinquent taxes paid, and wants to prevent the election of tax debtors to public office. But it is
also clear that the legislature wants to allow potential candidates to run for public office if they
timely rectify any delinquency. Thus, the statute includes provisions for an investigation
followed by a thirty-day period during which a candidate can correct a delinquency. Again, we
observe that section 115.306 provides no penalty for failure to submit a notarized tax affidavit,
nor does the statute provide that failure to submit a notarized tax affidavit alone can disqualify a
candidate.
Here, we have no suggestion of any tax delinquency. Carter seeks Frederickson’s
disqualification simply because Frederickson failed to have his tax affidavit notarized and
submitted to the Department of Revenue before the candidate filing period closed. Frederickson
testified that he submitted a notarized tax affidavit to the Department of Revenue on February
4th—the morning of the trial—by faxing a copy and placing the original in the U.S. mail.
Finding Frederickson’s testimony in this regard credible, the trial court concluded that
Frederickson had thus complied with the requirements of section 115.306. Ruling from the
bench, the trial court elaborated:
But the Court notes that there was a request filed for a late filing. And based upon the
testimony that in fact such form was mailed to the Department of Revenue today, the
Court does find that it is sufficient for purposes of meeting the criteria under Section
115.306 with regards to that. Because the evidence the Court has is that there is a filing
with the Department of Revenue with regards to Mr. Frederickson. With the Department
of Revenue as of today.
To disqualify Frederickson under the circumstances present here simply because the jurat
on his tax affidavit was not completed—without giving him a chance to correct it and when no
actual tax delinquency is suggested—would be to absurdly exalt form over substance. It would
be absurd to hold that a taxpayer who is not delinquent cannot correct a technical deficiency in
his paperwork while allowing a candidate who could be substantively disqualified for tax
delinquency thirty days to rectify the delinquency and run in the election.
Conclusion
Failure to submit a notarized tax affidavit alone does not disqualify a candidate under
section 115.306. Furthermore, to construe the statute to disqualify a candidate simply for failing
to have the tax affidavit notarized would lead to an absurd result, especially when the candidate
receives no chance to correct the oversight while a candidate with an actual tax delinquency
receives ample opportunity to correct the delinquency.° For these reasons, we affirm the trial
Vrarn & Yeryy
LAWRENCE E. MOONEY, JUDGE
court’s judgment.
LISA P. PAGE, C.J. and
COLLEEN DOLAN, J., concur.
° We need not address Frederickson’s argument that he did all he needed to do to file as a candidate because we
affirm the trial court’s judgment for other reasons. Thus, we need not determine whether Douglas fulfilled her
solemn duty to perform her responsibilities as an election official in an even-handed manner,
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