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Miller v. Frank

Court of Appeals of Missouri, Eastern District, Fourth Division

March 14, 2017

DONI MILLER & BRUCE COHEN, Appellants,
v.
GENEVIEVE FRANK, Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Michael T. Jamison

          KURT S. ODENWALD, Judge.

         Introduction

         Doni Miller and Bruce Cohen ("Appellants") appeal the trial court's dismissal of their petition contesting the November 2014 general election ("the Election") for St. Louis County Executive and County Prosecutor. On appeal, Appellants assert that the St. Louis County Clerk is the sole lawful election authority for St. Louis County. Appellants filed their required declarations of candidacy with the St. Louis County Clerk and were the only candidates for St. Louis County Executive and County Prosecutor to do so. Because Appellants were the only candidates for office to file their declarations of candidacy with the St. Louis County Clerk, they claim victory in the Election for St. Louis County Executive (Miller) and County Prosecutor (Cohen). Appellants also assert on appeal that their petition contesting the results of the Election was timely filed. Because Appellants have failed to comply strictly with the statutory provisions of Section 115.526, [1] we affirm the judgment of the trial court.

         Factual and Procedural History

         Doni Miller was a write-in candidate for St. Louis County Executive. Bruce Cohen was a write-in candidate for St. Louis County Prosecutor. Appellants filed their declarations of candidacy with the St. Louis County Clerk and sent courtesy copies of their declarations to the St. Louis County Board of Election Commissioners ("SLCBEC"). Appellants also filed the necessary financial interest statements with the Missouri Department of Revenue and the St. Louis County Clerk.

         The Election was held on November 4, 2014. In the Election, Miller received at least two votes, and Cohen received at least 343 votes. After the Election, the SLCBEC certified Steve Stenger and Robert McCulloch as St. Louis County Executive and County Prosecutor, respectively. Both Stenger and McCulloch filed their declarations of candidacy with the SLCBEC, not the St. Louis County Clerk.

         On November 24, 2014, Appellants filed a petition contesting the Election with the Supreme Court of Missouri. The Supreme Court dismissed Appellants' petition without prejudice on January 28, 2015. On January 27, 2016, Appellants filed an election-contest petition with the Circuit Court of St. Louis County. Appellants challenged the Election under Section 115.553.1 and Section 115.553.2. In their petition, Appellants alleged that the SLCBEC was not a constitutionally valid election authority because it had not been assigned to an executive-branch department as required by Mo. Const. Art. IV, Sec. 12. Under Section 115.015, the county clerk is designated the default election authority for counties not having a board of election commissioners. Thus, Appellants claimed that the St. Louis County Clerk was the lawful election authority for St. Louis County and that all candidates for county offices were required to file their declarations of candidacy with the St. Louis County Clerk pursuant to Section 115.353. Appellants maintained that the purported winners, Stenger and McCulloch, did not file the required declarations with the St. Louis County Clerk and therefore were not valid candidates for elected office in St. Louis County. As the only valid candidates to receive votes, Appellants reasoned that they won the Election for St. Louis County Executive and County Prosecutor, respectively. Appellants further maintained that because the St. Louis County Clerk had yet to certify the results of the Election, the thirty-day period for contesting elections under Sections 115.553 and 115.577 has not yet run.

         Contestee Frank moved to dismiss Appellants' petition, alleging that the SLCBEC was the proper election authority for St. Louis County, that the SLCBEC was a necessary party, that Appellants' petition was untimely filed under Section 115.577, and that Appellants' failure to comply strictly with the election-contest laws deprived the trial court of jurisdiction[2] over the claim. The trial court dismissed Appellants' petition without specifying the grounds for the dismissal. This appeal follows.

         Points on Appeal

         Appellants present two points on appeal. Appellants first contend that the trial court erred in dismissing their election-contest petition because the St. Louis County Clerk, rather than the SLCBEC, was the lawful election authority for St. Louis County. Candidates who did not file their declarations of candidacy with the St. Louis County Clerk were ineligible to receive votes. Appellants argue that because they are the only candidates to file their declarations of candidacy with the lawful election authority for St. Louis County, they won the Election for St. Louis County Executive and County Prosecutor, respectively. Appellants next contend that because the St. Louis County Clerk, as the County's lawful election authority, has not officially certified the results of the Election, the thirty-day window to contest the Election has not yet run, and therefore, their petition to contest the Election was timely filed.

         Standard of Review

         We review de novo a trial court's grant of a motion to dismiss. Mosley v. English, 501 S.W.3d 497, 503 (Mo. App. E.D. 2016). We will examine de novo issues of law, including questions of statutory and constitutional interpretation. Silvey v. Bechthold, 499 S.W.3d 760, 762 (Mo. App. W.D. 2016). But in reviewing the plaintiffs' petition, we will assume that all of the factual averments are true and will make all reasonable inferences in the plaintiffs' favor. Gardner v. Bank of Am., N.A., 466 S.W.3d 642, 646 (Mo. App. E.D. 2015). Because the trial court failed to state a basis for its dismissal of the petition, "we ...


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