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Carter v. Frederickson

Court of Appeals of Missouri, Eastern District, Fifth Division

February 15, 2019

TOM CARTER, Appellant,
v.
KEN FREDERICKSON, Respondent, and GENE T.WEISS, Defendant, and ST. LOUIS COUNTY BOARD OF ELECTION COMMISSIONERS, Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable Ellen H. Ribaudo

          LAWRENCE E. MOONEY, JUDGE

         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.[1] 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 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 testified 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 Douglas's January 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. 2018), [2] 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. 5"/. Louis Police Leadership Org. v. St. Louis Bd. of Police Commissioners, 465 S.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. Id.

         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 less than eight weeks before the date of the election." Section 115.127.3. The parties agree that under section 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. ...


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