Court of Appeals of Missouri, Eastern District, Sixth Division
JERMOND L. MOSLEY, Appellant,
KEITH A. ENGLISH, Respondent.
from the Circuit Court of St. Louis County 16SL-CC03255
Honorable Joseph S. Dueker.
P. PAGE, JUDGE.
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.
January 2016, Contestant Mosley 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 Democratic primary, Contestant
Mosley became the Democratic nominee for the office stated
above and whose name shall appear on November 8, 2016 general
26, 2016, Contestee English 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
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.
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.
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.
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).
Mosley now appeals.
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 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
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
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. ...