Opinion
NO. 2015-CA-000431-MR
03-18-2016
GEOFFREY M. YOUNG APPELLANT v. ALISON LUNDERGAN GRIMES AND THE KENTUCKY BOARD OF ELECTIONS APPELLEES
BRIEF FOR APPELLANT: Geoffrey M. Young, Pro Se Lexington, Kentucky BRIEF FOR APPELLEES: Lindsay Hughes Thurston Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-01508 OPINION
AFFIRMING BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Geoffrey M. Young, pro se, appeals three orders of the Franklin Circuit Court. The first order entered on February 18, 2015, granted the appellees Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted pursuant to Kentucky Rules of Civil Procedure (CR) 12.02. The second order entered on February 26, 2015, denied Young's Re-notice of Hearing. The court considered this to be a motion to alter, amend, or vacate. The third order entered on March 17, 2015, denied both Young's Motion for a New Trial pursuant to CR 59.01(a) (b), and (c) and the amended complaint. The court also treated the Motion for a New Trial as a motion to alter, amend or vacate. Upon review of the record and in consideration of the arguments presented, we affirm all three orders of the Franklin Circuit Court.
Standard of Review
The standard of dismissing a claim for failure to state a claim is set forth in CR 12.02(f). It is explained in James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002)(internal quotation marks and footnotes omitted):
The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making his decision, the circuit court is not required to make any factual determination; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?Accordingly, dismissals under CR 12.02(f) are reviewed de novo, accepting as true the plaintiff's factual allegations and drawing reasonable inferences in the plaintiff's favor. Gall v. Scroggy, 725 S.W.2d 867, 868-69 (Ky. App. 1987); Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968); Carruthers v. Edwards, 395 S.W.3d 448, 491 (Ky. App. 2012).
The grounds of a motion for a new trial which Young made pursuant to CR 59.01 (a) (b), and (c) are:
(a) Irregularity in the proceedings of the court, jury or prevailing party, or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial.In reviewing a decision of the trial court under this rule, "[t]he trial court must first determine if the grounds for a new trial under CR 59.01 exist, which will be reviewed for clear error. CertainTeed Corp . v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010). If such circumstances exist, the decision whether to grant a new trial lies within the sound discretion of the trial court." Gibson v. Fuel Transport, Inc., 410 S.W.3d 56 (Ky. 2013).
(b) Misconduct of the jury, of the prevailing party, or of his attorney.
(c) Accident or surprise which ordinary prudence could not have guarded against.
We review the motion to alter, amend, or vacate for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles." Hall v. Rose, 439 S.W.3d 183, 186 (Ky. App. 2014). Similarly, we review the decision regarding the Re-notice of Hearing for an abuse of discretion.
Background
Young filed a document styled "Complaint Re: KRS 118.405" against the Kentucky Board of Elections and Alison Lundergan Grimes, acting in her official capacity as Secretary of State. Attorney General Jack Conway was named as a defendant but Young stated that he named the attorney general because of the requirement that service upon the Commonwealth or any agency is made by serving the attorney general or the assistant attorney general.
The complaint sought declaratory and injunctive relief relating to "whether the voters of the Commonwealth of Kentucky, including Plaintiff, shall be allowed to cast two votes on the same ballot for a candidate who is running for more than one elected office if at least one of the offices is an elected federal office." Kentucky Revised Statutes (KRS) 118.405, allows a candidate to only seek election to one office in either the primary or general election. There are two exceptions to this restriction which are inapplicable in this action. Young argued that Articles I and II of the U.S. Constitution preempts the state law as applied to federal elected offices.
Young was anticipating that there would be candidates in Kentucky who would file for two offices on the same ballot. He argued that Kentucky voters would be denied the opportunity that citizens of other states have to vote for candidates who run for two offices simultaneously. Young cited U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). He argued that KRS 118.405 was unconstitutional. Young also requested that the appellees be required to amend their official state websites and publicize that candidates could have their names on the ballot for two offices beginning with 2016 primary elections.
Secretary of State Grimes and the Board on Elections filed a Motion to Dismiss, arguing that the court lacked subject matter jurisdiction because Young's claims were not ripe; Young does not have standing; the Secretary of State and the Board of Elections have immunity; and, the Board of Elections was not a proper defendant. The trial court entered an order holding the matter in abeyance until the briefing was completed. Young responded to the Motion to Dismiss and also requested to amend his complaint. However, the amended complaint was not tendered at that time. He requested that a hearing be held on February 18, 2015.
Young's arguments to the Motion to Dismiss were that the motion contained misstatements; there was a justiciable controversy; and, the controversy was certain because of Secretary Grimes' public statements that she would pursue legal action if Senator Rand Paul attempted to file as a candidate for both U.S. Senator and President. Young also disagreed that the trial court did not have jurisdiction or that the Board of Elections was not a proper party. He asserted that he was a person who had a stake in the outcome because he would be treated differently from citizens in other states. Further, since he had previously run for office and might run again, he would suffer an injury if citizens were not allowed to vote for a candidate running for two offices.
On February 18, 2015, without a hearing or oral arguments, the Franklin Circuit Court granted the Motion to Dismiss. Young did not appear on February 18th. The trial court found that Young did not have standing because he had no "injury in fact" and did not demonstrate that he either had sustained an injury or was in immediate danger of sustaining a direct injury as the result of the enforcement of KRS 118.405. The trial court also determined that the controversy was not ripe for adjudication stating that this action was not brought by a candidate who was currently seeking to file for two offices. Thereafter on February 23, 2015, Young filed a Re-notice of Hearing stating that he was unable to appear on February 18th due to weather and road conditions.
There were no legal arguments contained in the Re-notice of Hearing. Young only requested that the trial court hold a hearing on the Motion to Dismiss on February 25, 2015. He also did not appear on February 25th to address his motion. The trial court in its order entered February 26, 2015, wrote that it recognized that weather conditions may have prevented Young from appearing on February 18th and therefore had taken the matter under submission.
The trial court explained that because Young was proceeding pro se it treated the Re-Notice of Hearing as a motion to alter, amend or vacate. The trial court denied the motion and dismissed the action. On March 9, 2015, Young filed a Motion for a New Trial pursuant to CR 59.01 (a) (b), and (c). Young argued that the trial court did not rule upon any of his amendments to the complaint which were listed in his answer to the motion; that the matter was ripe for adjudication; and, there was "culpable misconduct by the prevailing party and her attorney." On March 9, 2015, Young filed his amended complaint.
The trial court entered an order on March 17, 2015, which denied both the Motion for a New Trial and the Motion to Amend the Complaint. The trial court noted that Young already had filed one motion to alter, amend, or vacate and was not entitled to file a second motion. The trial court dismissed the action with prejudice. This appeal followed.
Analysis
The trial court in its order of February 18, 2015 stated two reasons as a basis for its decision. The trial court determined that Young failed to allege any particularized injury and therefore did not have standing to bring the action; and the controversy was not ripe for adjudication (justiciability). We agree with the trial court that standing is a legal issue which is reviewed de novo. Interactive Gaming Council v. Commonwealth of Kentucky, ex rel. Brown, 425 S.W.3d 107,111 (Ky. App. 2014).
The U.S. Supreme Court discussed the elements of standing:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an 'injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized, see Id., at 756, 104 S.Ct., at 3327; Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636 (1972); and (b) "actual or imminent, not 'conjectural' or 'hypothetical,' " Whitmore, supra, 495 U.S., at 155, 110 S.Ct., at 1723 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Simon v . Eastern Ky. Welfare *561 Rights Organization, 426 U.S. 26, 41-42,
96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43, 96 S.Ct., at 1924, 1926.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136 (1992).
The trial court also cited Lujan, however, Young argued it was cited incorrectly because the Supreme Court did not use the word "unique". We are not persuaded by this reasoning. Mr. Young suffered no injury-in-fact; no causal connection existed between the alleged injury and Appellee's action; and, any action by a court will not alleviate the alleged injury.
Instead, Young argued that Thornton was applicable. In Thornton, the U.S. Supreme Court held that the states cannot change the uniformity of qualifications for representatives to congress. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783, 115 S.Ct. 1842, 1845, 131 L.Ed. 2d 881 (1995).
In Thornton, the state of Arkansas sought to impose term limits on members of the United States Congress elected from that state. Id. at 784, 115 S.Ct. at 845. The Court viewed this as imposing a substantive qualification which is not allowed. The Qualifications Clause in Article I, Section 2 of the U.S. Constitution establishes the age, citizenship, and residency requirements to hold a federal office. States cannot add to those requirements. The Court noted however, that states may adopt restrictions that protect the integrity and reliability of the electoral process. The time, manner and place of the elections are controlled by the states. However, in the case at hand, we do not reach the constitutional issue raised by Young because he lacks standing.
Young was not a candidate for office himself and he did not have a particularized injury. The injury that he alleged, being denied an opportunity to vote for one person seeking two different offices, was an injury common to other citizens. Young alleged a generalized harm, but courts should refrain from exercising jurisdiction "when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens." Warth v . Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 220545 L.Ed.2d 343 (1975) (citations omitted).
The injury was not traceable to Young but to a third party who was not before the court. Any injury was speculative. Additionally, there was no justiciable controversy. "[Q]uestions which may never arise or which are merely advisory, academic, hypothetical, incidental or remote, or which will not be decisive of a present controversy[]" do not present justiciable controversies. Hughes v . Welch, 664 S.W.2d 205, 208 (Ky. App. 1984). There was no present controversy to be decided regarding either Senator Paul or any other candidate. The injury that Young raised was hypothetical. There was no case in controversy.
During pendency of this appeal the Republican Party of Kentucky approved a rule change to conduct a caucus in 2016 instead of participating in the presidential primary. Senator Paul was therefore not subject to the restrictions of KRS 118.405. --------
If we accept Young's argument that his February 25, 2015 motion was not a motion to alter, amend, or vacate, then his Re-notice for Hearing did not stay the enforcement of the February 18th judgment. See CR 62.01. Further, it was in the trial court's discretion whether to grant a hearing on the motion to dismiss. "In ruling on a motion to dismiss on jurisdictional grounds, the trial court, in addition to considering the material allegations in the complaint and construing them as true, is free to hear evidence regarding jurisdiction and to rule on that issue before trial, resolving factual disputes when necessary." Berthelsen v. Kane, 759 S.W.2d 831, 832 (Ky. App. 1988). The trial court had previously determined on January 21, 2015, that there was no factual dispute and that the issue was a matter of law. The parties had already submitted their written legal arguments to the trial court. The trial court was available to hold a hearing on both February 18th and the 25th, and could have held a hearing even in Young's absence. However, it was not required to do so.
The March 9, 2015 motion for a new trial (treated as a motion to alter, amend or vacate) was untimely since that motion is to be served within ten days from the date of the judgment as does a motion to alter, amend, or vacate. See CR 59.02 and CR 59.05. Since the action was dismissed, the amended complaint was not proper. There was no abuse of discretion by the trial court. Therefore, we affirm the decision of the Franklin Circuit Court's dismissal of this action.
ALL CONCUR. BRIEF FOR APPELLANT: Geoffrey M. Young, Pro Se
Lexington, Kentucky BRIEF FOR APPELLEES: Lindsay Hughes Thurston
Frankfort, Kentucky