Roger Kohrs; Galen Neill; Defendants, Jay Lawson; Appellant, v. Ed Quick; Clay County Board of Election Commissioners and Individual Election Commissioners, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Roger Kohrs; Galen Neill; Defendants, Jay Lawson; Appellant, v. Ed Quick; Clay County Board of Election Commissioners and Individual Election Commissioners, Respondents. Case Number: WD68773 and WD68774 Handdown Date: 07/01/2008 Appeal From: Circuit Court of Clay County, Hon. Sanford Francis Conley, IV Counsel for Appellant: Thomas K. Thompson Counsel for Respondent: Michael T. White, Jon M. Kreebs and Steven B. Salmon Opinion Summary: Jay Lawson appeals the dismissal of his petition challenging Ed Quick's qualifications for candidacy. A day before the general election, Mr. Lawson filed a petition directly challenging Mr. Quick's qualification to be a candidate. He alleged that Mr. Quick was disqualified under section 115.348, which states a person with a federal conviction cannot qualify for elective office. After Mr. Quick won the general election, Mr. Lawson filed another petition indirectly challenging Mr. Quick's qualifications by arguing that an irregularity occurred in the election because Mr. Quick's candidacy violated section 115.348. Mr. Quick filed two separate motions to dismiss, which the trial court granted. In a single judgment, the trial court dismissed the petitions because they were untimely and because the Missouri Supreme Court had determined that section 115.348 was unconstitutional. We affirm. AFFIRMED. Division Two holds: The trial court properly dismissed his first petition because it was untimely under the election statute that allows a candidate to challenge the opposing candidate's eligibility for office before the general election. Section 115.348 was declared unconstitutional on April 25, 2006, so this section was no longer effective at the time Mr. Lawson filed his second petition on December 19, 2006. Because the alleged violation of the statute was

the basis for the irregularity, the second petition did not state a claim upon which relief could be granted. Moreover, the second petition was an impermissible attempt to circumvent the deadline to challenge a candidate's qualifications under the election statute. Thus, the trial court properly dismissed it. Affirmed. Citation: Opinion Author: Thomas H. Newton, Judge Opinion Vote: AFFIRMED. Smart, P.J., and Holliger, J. concur. Opinion: Jay Lawson appeals the judgment dismissing his petitions contesting Ed Quick's qualifications for candidacy. We affirm. Factual and Procedural Background Mr. Quick won the primary election to represent the Democratic Party in the election for the Presiding Commissioner of Clay County. The Verification Board of the Board of Election Commissioners of Clay County certified those results on August 9, 2006. A day before the general election, Mr. Lawson, the Republican candidate for the same position, filed a verified petition contesting Mr. Quick's qualifications to be a candidate. Mr. Lawson argued that Mr. Quick was not qualified pursuant to section 115.348(FN1) because he was confined in the United States Military Prison after receiving a court martial conviction for being absent without leave (A.W.O.L.). Section 115.348 states that a person who has been convicted of a federal felony or misdemeanor cannot qualify as a candidate for elective public office in Missouri. Mr. Quick won the general election against Mr. Lawson on November 7, 2006. The Verification Board certified the

results on November 8, 2006, and then sent a Certification of the General Election to the Secretary of State on November 20, 2006. Mr. Quick filed a motion to dismiss for failure to state a claim upon which relief can be granted and for lack of jurisdiction. On December 19, 2006, Mr. Lawson filed a verified petition alleging irregularities occurred in the general election because Mr. Quick's candidacy violates section 115.348. Mr. Quick filed another motion to dismiss. Mr. Lawson also filed a Motion for Order to Release Personal Information to obtain Mr. Quick's records from the Navy. A hearing was held on the motions to dismiss and all other outstanding motions. In a single judgment, the circuit court dismissed both petitions because they were untimely and because the Missouri Supreme Court declared that section 115.348, the basis for the allegation, was unconstitutional. The circuit court cited Rizzo v. State, 189 S.W.3d 576 (Mo. banc 2006), for support. Mr. Lawson appeals, raising three points. Standard of Review We review the granting of a motion to dismiss de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. E.D. 2002). We deem all factual allegations to be true and liberally construe the petition. Gerrard v. Bd. of Election Comm'rs, 913 S.W.2d 88, 89 (Mo. App. E.D. 1995). If any of the factual allegations "invokes principles of substantive law and informs defendant of what plaintiff will attempt to establish at trial," we will reverse the dismissal. Id. Legal Analysis The circuit court properly dismissed Mr. Lawson's first petition for being untimely. Mr. Lawson's first petition challenges Mr. Quick's qualifications and asks the circuit court to disqualify Mr. Quick from the general election ballot. Mr. Lawson did not cite section 115.526 in his petition, but that is the section that allows a candidate to contest

another candidate's qualifications for the same office. Section 115.526.1. Applying this statute, the circuit court determined that the petition was untimely because it was filed more than five days after the latest date for certification. A candidate must file a verified petition challenging another candidate of a general election with the circuit court no "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. The Verification Board certified Mr. Quick on August 9, 2006. Mr. Lawson filed his first petition to challenge Mr. Quick's qualification on November 6, 2006. Clearly, this petition was untimely to challenge Mr. Quick's qualifications for general election candidacy under section 115.526 and was properly dismissed. Mr. Lawson's second petition challenges the validity of the general election results because Mr. Quick's candidacy violates section 115.348, constituting an "irregularity sufficient to cast doubt upon the validity of th[e] election." Section 115.553 grants the opportunity for any candidate to challenge the returns for the office, charging in the verified petition that irregularities occurred in the election. In Gerrard, this court interpreted an irregularity to include a violation of an election statute such that it deviates from "the legislature's dictates." 913 S.W.2d at 90. Gerrard is inapposite to this case; section 115.348 was no longer "the legislature's dictate" when Mr. Lawson filed his verified petition on December 19, 2006, because the Rizzo court declared that section unconstitutionally invalid on April 25,

1. See 189 S.W.3d at 581. Thus, Mr. Lawson failed to state a claim upon which relief could be granted.

Moreover, the second petition is time-barred because in essence it is a challenge to Mr. Quick's qualifications to be a candidate. "[N]o election may be contested except as specifically authorized and provided by statute[.]" Clark v. City of Trenton, 591 S.W.2d 257, 259 (Mo. App. W.D. 1979). Section 115.526 provides the procedure for challenging the qualifications of a candidate. A contestant should not be allowed to circumvent the deadline of section 115.526.2 by alleging a violation of a qualification statute constitutes an irregularity in the election. Mr. Lawson failed to challenge Mr. Quick's qualifications within the time requirements of section 115.526, and, thus, the action became time-barred. Therefore, the circuit court properly dismissed his second petition.

Conclusion Mr. Lawson's first petition was properly dismissed because it was untimely under section 115.526.2. Mr. Lawson's second petition was properly dismissed because the petition's basis for stating there was an irregularity "sufficient to cast doubt upon the validity of the election" did not state a claim upon which relief could be granted. Additionally, the second petition was essentially a challenge to Mr. Quick's qualifications, and, therefore, the time requirements of section 115.526.2 applied. Thus, Mr. Lawson's second petition is time-barred. The circuit court's decision to dismiss the petition is affirmed. Footnotes: FN1. All statutory references are to RSMo 2000 and the Cumulative Supplement 2006. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.