State ex rel. Shawn C. Brown, Relator v. Rhonda F. Shaw, City Clerk, and Rich Chrismer, Director of Elections, Respondents. (Consolidated with) Shawn C. Brown, Appellant v. Rhonda F. Shaw, et al., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Shawn C. Brown, Relator v. Rhonda F. Shaw, City Clerk, and Rich Chrismer, Director of Elections, Respondents. (Consolidated with) Shawn C. Brown, Appellant v. Rhonda F. Shaw, et al., Respondents. Case Number: SC85845 and SC85846 Handdown Date: 03/31/2004 Appeal From: Circuit Court of St. Charles County, Hon. Lucy Rauch Counsel for Appellant: James D. Deutsch, Thomas W. Rynard and Christopher O. Bauman Counsel for Respondent: Karen P. Hess, G. Alex Bartlett, W. Randy Weber, V. Scott Williams, Joann M. Leykam Opinion Summary: In December 2003, Shawn Brown filed his notice of his intention to run for the office of mayor of St. Peters, Missouri, during the April 2004 election. Approximately 10 minutes before the close of business on the last day to file, the city clerk told Brown that he would not be on the ballot. She concluded that he had not paid his real estate taxes as required by section 115.346, RSMo 2000. Brown sued in the circuit court and sought a writ of mandamus in this Court. In February 2004, this Court ordered that Brown's name be placed on the April 2004 ballot until further order of this Court. The circuit court denied Brown relief, and he appeals. AS TO SC85845 -- WRIT MADE PEREMPTORY. AS TO SC85846 -- REVERSED. Court en banc holds: (1) By its terms, section 115.346 applies to a person seeking to be a candidate who is "in arrears" for unpaid city taxes or fees. Statutes that regulate access to the ballot are to be construed, if possible, to prevent disqualification of candidates. Brown should not be considered "in arrears" for the purposes of section 115.346. Each month, he pays money into an escrow account held by his mortgage company, which is required by section 443.453, RSMo 2000, to pay property tax obligations by the last day of the year for which the tax is levied. Accordingly, it is the mortgage company -- not Brown -- that is in arrears for the property taxes. (2) This Court had the authority to require the city clerk, six weeks before the election, to place Brown's name on the April ballot. After the city clerk disqualified Brown, judicial relief such as that Brown seeks here is the only means to

redress the city clerk's refusal to place Brown on the ballot. To the extent Young v. Godfrey, 966 S.W.2d 331 (Mo. App. 1998), suggests otherwise, it should not be followed. Citation: Opinion Author: PER CURIAM Opinion Vote: AS TO SC85845 -- WRIT MADE PEREMPTORY. AS TO SC85846 -- REVERSED. All concur. Opinion: Shawn Brown filed on December 16, 2003, his notice of his intention to run for the office of mayor of St. Peters in the election of April 6, 2004. On the last day to file, January 20, 2004, at approximately ten minutes before the close of filings, the city clerk informed Brown that he would not be listed as a candidate on the ballot. The clerk concluded Brown was disqualified for failing to pay his real estate taxes as required by section 115.346. (FN1) Section 115.346 provides that "no person shall be certified as a candidate for a municipal office, nor shall such person's name appear on the ballot as a candidate for such office, who shall be in arrears for any unpaid city taxes or municipal user fees on the last day to file a declaration of candidacy for the office." Brown filed suit in the circuit court. He also sought relief by petition for writ of mandamus in this Court. This Court, on February 24, 2004, ordered that Shawn Brown's name be placed on the ballot for the April 6, 2004, election until further order of the Court. Brown's action in the circuit court for relief was denied, and judgment was entered. This Court has jurisdiction of the writ proceeding. In the appeal, as well as in the writ proceeding, Brown challenges the constitutional validity of section 115.346. This Court has jurisdiction of the writ proceeding pursuant to article V, sec. 4, and has exclusive appellate jurisdiction in the appeal under article V, sec. 3. This Court resolves the issues in these proceedings in Brown's favor by statutory interpretation and does not reach the constitutional issue. The statute applies by its terms to a person seeking to be a candidate who is "in arrears" for unpaid city taxes or fees. Brown pays money each month to his mortgage company for an escrow account to pay real estate taxes that are due on the last day of each year. Section 443.453 requires financial institutions that are "mortgage servicers" to "pay property tax obligations which they service from escrow accounts . . . in one annual payment before the first day of

January of the year following the year for which the tax is levied." Thus, Brown's mortgage company had a statutory duty to pay the taxes from Brown's escrow account. In these circumstances, it is the mortgage company that is "in arrears," not Brown. Although Brown's city taxes were in fact unpaid on the last day of filing, he had fulfilled his contractual obligation to the mortgage company and could not be considered "in arrears" for the purposes of section 115.346 where the mortgage company failed to obey its statutory obligation. While section 115.346 appears to impose absolute liability on the taxpayer seeking public office, statutes imposing qualifications for filing for office have previously been interpreted to allow for an exception. See, e.g., State ex rel. Haller v. Arnold, 210 S.W. 374 (Mo. banc 1919), and State ex rel. Neu v. Waechter, 58 S.W.2d 971 (Mo. banc 1933). Statutes that regulate access to the ballot are to be construed, if possible, to prevent disqualification of candidates. State ex inf. Mitchell v Heath, 132 S.W.2d 1001, 1004 (Mo. 1939). Shawn Brown's name has been on the ballot for mayor of St. Peters since this Court's order of February 24, 2004. The city clerk, however, challenges the authority of the Court to grant such relief. The relief was granted six weeks prior to the election pursuant to timely petitions filed in the circuit court and this Court by Brown. After the city clerk disqualified Brown from the ballot, judicial relief, such as the proceedings Brown has initiated, is the only means to redress the city clerk's refusal to place him on the ballot. (FN2) This Court's alternative writ is made peremptory. The judgment of the circuit court denying relief is reversed. Footnotes: FN1. All references are to RSMo 2000 unless otherwise indicated. FN2. To the extent that Young v. Godfrey, 966 S.W.2d 331 (Mo. App. 1998), suggests otherwise, it should not be followed. After the six-week deadline of section 115.125.2, judicial relief is limited to an election contest. That section does not prohibit the relief granted here. See generally, State ex rel. Referendum Petitioners Committee Regarding Ordinance #4639 v. Laskey, 932 S.W.2d 392 (Mo. banc 1996). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.