               In the Missouri Court of Appeals
                                 Western District

 RYAN A. SILVEY,                    )
                         Appellant, )
 v.                                 )                WD80042
                                    )
 J. RANEN BECHTHOLD; CLAY           )
 COUNTY BOARD OF ELECTION           )                FILED: September 20, 2016
 COMMISSIONERS,                     )
                      Respondents. )

         APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
                THE HONORABLE JANET L. SUTTON, JUDGE

       BEFORE SPECIAL DIVISION: VICTOR C. HOWARD, PRESIDING JUDGE,
            JAMES E. WELSH AND LISA WHITE HARDWICK, JUDGES

      Ryan A. Silvey appeals the judgment denying his petition to challenge the

qualifications of J. Ranen Bechthold to run for the position of state senator in

Missouri Senate District 17. Silvey contends the circuit court had no authority to

extend the deadline for Bechthold to file an answer to Silvey’s election contest

petition and that Bechthold’s failure to file an answer within the statutory time

required a default judgment or judgment on the pleadings in Silvey’s favor. For

reasons explained herein, we affirm.
                                 Factual and Procedural History

        On August 15, 2016, Silvey, the Republican nominee for election to Missouri

Senate District 17, filed a petition seeking to have Bechthold, the Democratic

nominee for the same senate seat, disqualified on the basis of residency.1 Three

days later, on August 18, Silvey filed an amended petition that added additional

facts regarding Bechthold’s alleged residency.

        On August 22, the court held a preliminary hearing. Counsel for Silvey and

the Clay County Board of Election Commissioners appeared.2 Bechthold appeared

without counsel. No transcript of this preliminary hearing appears in the record on

appeal. The court set the case for trial on August 29.

        On August 23, counsel for Bechthold entered his appearance. On August

24, Silvey and Bechthold were each deposed. Also on that day, Silvey filed a

motion for default judgment or, in the alternative, judgment on the pleadings. In

the motion, Silvey argued that, during the August 22 preliminary hearing, the court

informed Bechthold that he would be in default if he did not file an answer by

August 23. Because Bechthold did not file an answer by August 23, Silvey

asserted that Bechthold was in default and that Silvey was entitled to either a

default judgment or a judgment on the pleadings.



1
  Article III, section 6 of the Missouri Constitution provides that a state senator shall have been a
resident of the district that he is chosen to represent for one year. Silvey alleged that Bechthold
had not been a resident of District 17 for one year prior to either the primary or general election.

2
  Section 115.533.2, RSMo 2000, provides that, after an election contest petition is filed, the
circuit clerk is to send a certified copy of the petition to the election authority responsible for
conducting the election.

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        Bechthold filed an answer on August 26. In his answer, Bechthold

responded to the allegations in the amended petition and set forth several facts

supporting his defense that he satisfied the residency requirements.3 Bechthold

also filed a motion to file his answer out of time.

        On August 29, before the trial on Silvey’s amended petition to disqualify

Bechthold, the court heard arguments on Bechthold’s motion to file his answer out

of time and Silvey’s motion for default judgment or, in the alternative, for judgment

on the pleadings. The court granted Bechthold’s motion to file his answer out of

time. The court denied Silvey’s motion for default judgment or judgment on the

pleadings after finding that the filing of an answer in response to an election

contest petition is permissive and not mandatory.

        A bench trial was held on Silvey’s amended petition to disqualify Bechthold.

The court subsequently entered a judgment in favor of Bechthold. The court found

that the “overwhelming majority of the evidence demonstrates that Bechthold has

always intended to be, has always maintained, and but for his service as a soldier

in the US Army, has always been physically a resident within Missouri Senate

District 17.” Silvey appeals.




3
  Bechthold erroneously referred to these facts as "affirmative defenses." An affirmative defense is
"'[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's . . . claim,
even if all the allegations in the complaint are true.'" Ressler v. Clay County, 375 S.W.3d 132, 140
(Mo. App. 2012) (quoting BLACK’S LAW DICTIONARY 482 (9th ed. 2009)). Bechthold’s facts did not
assume that Silvey’s allegations about his residency were true; instead, they challenged the veracity
of Silvey’s allegations. Bechthold’s facts constituted simply a defense to Silvey’s disqualification
claim, not affirmative defenses.


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                                     STANDARD OF REVIEW

       Appellate review of an election contest petition is under the standard of

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Contest of Primary

Election Candidacy of Fletcher, 337 S.W.3d 137, 139 (Mo. App. 2011).

Therefore, we will affirm the circuit court’s judgment unless there is no substantial

evidence to support it, it is against the weight of the evidence, or it erroneously

declares or applies the law. Id. at 139-140. We review issues of law, including

questions of statutory interpretation, de novo. Chastain v. Kansas City Missouri

City Clerk, 337 S.W.3d 149, 154 (Mo. App. 2011).

                                            ANALYSIS

       Silvey's points on appeal challenge the circuit court's handling of Bechthold's

failure to file his answer within the time frame provided by statute. In Point I,

Silvey contends the court erred in allowing Bechthold to file his answer out of time

and in allowing him to submit evidence relating to the defense set forth in his

answer. In Point II, Silvey asserts the court erred in denying his motion for default

judgment or judgment on the pleadings based on Bechthold's failure to file a timely

answer.

       The legislature established specific rules for election contests in Chapter

115.4 Foster v. Evert, 751 S.W.2d 42, 44 (Mo. banc 1988). These “statutory

requirements are clear and unambiguous.” Id. The election contest procedures set



4
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.

                                                4
forth in Chapter 115 “’are exclusive and must be strictly followed as substantive

law.’” Id. (quoting Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. banc 1982)).

      Silvey filed his amended petition to disqualify Bechthold on the basis of

residency under Section 115.526. This statute allows any candidate for election to

an office at a general election to challenge the qualifications of any other candidate

for election to the same office to seek or hold such office or to have his name

printed on the ballot. § 115.526.1. Section 115.526.2 states that "[a]nswers to

the petition may be filed at the time and as provided in sections 115.527 to

115.601, specifying the qualifications of the candidate for holding the office for

which he is a candidate for election or for nomination." Section 115.533.3

provides that, “[n]ot later than four days after the petition is filed, the contestee

may file an answer to the petition, specifying reasons why his nomination should

not be contested.” Silvey argues that this provision required Bechthold to file an

answer to the election contest petition within four days. He contends the court

had no authority to extend this deadline and was required to enter a default

judgment or judgment on the pleadings in his favor.

      Silvey’s argument ignores the statutes' plain language. "The primary rule of

statutory interpretation is to give effect to legislative intent as reflected in the plain

language of the statute at issue." Crawford v. Div. of Emp't Sec., 376 S.W.3d

658, 664 (Mo. banc 2012). Section 115.526.2 provides that "[a]nswers to the

petition may be filed at the time and as provided in sections 115.527 to 115.601,"

while Section 115.533.3 provides that “the contestee may file an answer” within

                                            5
four days. (Emphasis added.) “’It is the general rule that in statutes the word

"may" is permissive only, and the word "shall" is mandatory.’” Wolf v. Midwest

Nephrology Consultants, PC., 487 S.W.3d 78, 83 (Mo. App. 2016) (quoting State

ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 944 (1938)). “We

have no authority to read ‘shall’ into [Section 115.533.3] unless its insertion is

plainly indicated.” Id. (internal quotation marks and citation omitted). Section

115.526.2's and Section 115.533.3’s use of the word “may” clearly and

unambiguously indicates that the legislature intended for the contestee’s filing of

an answer to be permissive rather than mandatory.5

       In interpreting similar language in Section 115.579.3, which is virtually

identical to Section 115.533.3,6 the Supreme Court in Foster found that “[n]o

answer is required of the contestee.” 751 S.W.2d at 44. The Court explained that

the reason no answer is required is because an election contest is not merely an

adversarial legal proceeding pitting one candidate against another candidate; rather,

“[a]n election contest challenges the conduct of the election itself.” Id. "If as a

result of election irregularities the wrong candidate is declared the winner, more is




5
  Section 115.533.3 indicates that a contestee is required to file an answer only if, in response to
an election contest petition seeking a recount, the contestee affirmatively challenges the validity of
any votes given to the contestant: "If the contestee wishes to contest the validity of any votes
given to the contestant, he shall set forth in his answer the votes he wishes to contest, and the
facts he will prove in support of such contest and shall pray leave to produce his proof." (Emphasis
added.)

6
 Section 115.579.3 applies to contested elections for circuit and associate circuit judges and for
offices other than statewide offices, state senators, and state representatives. See § 115.575.
The only difference between Section 115.579.3 and Section 115.533.3 is that Section 115.579.3
provides that the contestee may file an answer within 15 days instead of four days.

                                                  6
at stake than the losing candidate's disappointment; the people have lost the ability

to impose their will through the electoral process." Id. at 43. “In bringing an

election contest, the contestant speaks for the entire electorate, seeking to assure

all that the democratic process has functioned properly and that the voters’ will is

done.” Id. at 44. The legislature recognizes this by requiring the circuit clerk to

serve a copy of the petition on the election authority responsible for conducting the

election where the alleged irregularity occurred. Id. (citing § 115.579.2);

§ 115.533.2. The election contest petition in Foster sought to assure that the

democratic process had functioned properly with regard to the votes counted. Id.

at 43. In this case, Silvey's election contest petition seeks to assure that the

democratic process is functioning properly with regard to the constitutional

residency requirement.

      By not requiring a contestee to file an answer, the election contest statutes

"do not permit the entry of a default judgment upon failure to answer." Id. at 44.

In other words, the court must try the case on its merits. Indeed, the statute

requiring that an election contest be tried expressly provides for the possibility that

an answer will not be filed. Section 115.581 states, in pertinent part,

"Immediately upon the filing of a petition and answer, if there is any, the court

shall proceed to try the case." (Emphasis added.) Nothing in Sections 115.526,

115.533, or 115.581 prohibits the contestee from presenting his defense to the

election contest at trial if he does not file an answer.




                                           7
      Because no answer was required and no default judgment or judgment on

the pleadings was permitted, the court's allowing Bechthold to file an answer out

of time was inconsequential. Regardless of whether Bechthold filed an answer out

of time or at all, Section 115.526.1 still required Silvey to "produce his proof" to

support his challenge to Bechthold's qualifications during the required trial.

Likewise, regardless of whether Bechthold filed an answer out of time or at all, he

was permitted to present a defense to Silvey's challenge to his qualifications during

the required trial. Therefore, the circuit court did not err in allowing Bechthold to

file his answer out of time, and it did not err in denying Silvey's motion for default

judgment or judgment on the pleadings. Points I and II are denied.

                                     CONCLUSION

      The judgment is affirmed.


                                               ____________________________________
                                               LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




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