Cedar County Clerk Peggy Kenney, through her attorney, filed her responses on Friday, June 15, with Cedar County Circuit Clerk Melinda Gumm to the suit Sue Rice filed Wednesday, June 6, asking Circuit Judge James Bickel to stop the scheduled Aug. 7 recall election. In a closer examination of Kenney’s responses, it appears her attorney may have overlooked the second half of the suit and failed to respond.
Editor’s note: To cut down on confusion, the Sun will print Ms. Rice’s suit in regular type and Ms. Kenney’s responses in italic type. While this is time consuming for us, we feel it is necessary because other people have tried to mislead you, the public, about what is contained in the petition and about the Sun report of that suit. You deserve better. In the interest of brevity, we will not show the Exhibits and will leave out some of the state references. We all know this is Missouri.
Clara Sue Rice (“Rice”) for her cause of action against Peggy Kenney, in her official capacity as County Clerk and Election Authority of Cedar County (“Kenney”), alleges and states as follows:
General Allegations – 1. Rice is a resident of El Dorado Springs. Rice is a duly elected member of the Board of Director of the Cedar County Ambulance District. Rice was elected in 2011 to represent the citizens of District One of the Ambulance District for a term ending in April 2014.
2. Kenny is a resident of Cedar County, is the duly elected County Clerk and serves as the Election Authority of Cedar County.
3. On April 23, 2012, a Petition for Recall was submitted to Kenney seeking the recall and removal of (Rice) from the Board of Directors of the (Ambulance District) the (“Petition”). A true and correct copy of the Petition is attached here as Exhibit “A.”
4. On May 21, 2012, Kenney provided “official notice” that she had determined that the Petition contained “at least twenty-five percent of the number of voters who voted in the most recent gubernatorial election” in District One of the Ambulance District (the “Notice”). A true and correct copy of the Notice is attached here as Exhibit ‘B”.
5. Kenney has since given public notice that a special election will be held on August 7, 2012 to elect an Ambulance District director to represent the citizens of District One, the position held by Rice (the “Special Election”) A true and correct copy of one form of public notice of Special Election given by Kenney is attached here as Exhibit “C”.
Count I (Declaratory Judgement)
6. Rice restates and realleges the allegations of paragraphs 1-5 as though fully set forth herein.
7. The recall of ambulance district boards of directors is governed by RSMo 190.056.
Kenney 1 – 7 Comes now Peggy Kenney, defendant in this matter, by and through her counsels Ivan L. Schraeder and Matthew J. Aplington and files this Verified Answer to the Verified Petition by stating as follows: Defendant admits the allegations in paragraphs 1-7 of the Verified Petition.
Rice 8. Rice is entitled to a declaration concerning whether the Petition is sufficient and complies with the requirements set forth in RSMo 190.056 and as such whether the proposed Special Election may proceed.
Kenney 8. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the Verified Petition, and therefore denies the same. Paragraph 8 of the Verified Petition also states legal conclusions to which no response is required. To the extent any response is required, Defendant denies the allegations contained in paragraph 8 of the Verified Petition.
Rice 9. The Petition is insufficient and fails to comply with RSMo 190.056 in the following aspects:
A. The petition does not contain “a request that an election be called to elect a successor to the board member,” as required by 190.056.1;
B. No section of the Petition contains “an affidavit signed by the person circulating such section,” as required by 190.056.6;
C. Sections 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 36, 37, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84, and 85 of the Petition do not contain statements containing substantive requirement of 190.056 (1) (6) and
D. No “Declaration of Person Circulating Section of Recall Petition” contained in sections 1, 3, 5, 7, 9, 10, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 38, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 67, 69, 71, 73, 75, 77, 79, 81, 83, and 86 of the Petition states that the signer thereto “is a registered voter of the election district of the board member sought to be recalled as required by 190.056.6(5).
Kenney 9. Defendant states that the Recall Petition speaks for itself and is the best evidence of its contents. Defendant further states that paragraph 9 of the Verified Petition states legal conclusions to which no response is required. To the extent any response is required, Defendant denies the allegations contained in paragraph 9 of the Verified Petition.
Rice 10. There is an actual controversy between Rice and Kenney regarding whether the Petition of sufficient and complies with the requirements set forth in RSMo 190.056, and as such whether the proposed Special Election may proceed.
Kenney 10. Defendant admits the allegations in paragraph 10 of the Verified Petition.
Rice 11. By reason of said controversy, the Petition must be construed and the rights of the parties herein must be declared and determined and adjudicated in this matter.
Kenney 11. Defendant states that paragraph 11 of the Verified Petition states legal conclusions to which no response is required. To the extent any response is required, Defendant denies the allegations contained in paragraph 11 of the Verified Petition.
Rice 12. Rice has no adequate remedy at law.
(WHEREFORE, plaintiff Rice prays for judgment in her favor and against defendant Kenney declaring that the Petition is insufficient and fails to comply with requirements set forth in RSMo 190.056, such that the proposed Special Election may not proceed and must be removed from the August 7, 2012 ballot; awarding plaintiff her costs incurred in bringing this action; and for such other and further relief as the Court deems just.
Kenney 12. Defendant denies the allegations contained in paragraph 12 of the Verified Petition.
AFFIRMATIVE DEFENSES Defendant asserts the following affirmative defenses: A. Plaintiff’s Verified Petition fails to state an actionable claim upon which relief can be granted. B. Plaintiff has failed to exhaust administrative remedies because the recall election has not yet been conducted resulting in the removal of Plaintiff from her office as director of the Cedar County Ambulance District, which election will be conducted on August 7, 2012. C. The matter is not ripe for judicial review because the recall election has not been conducted and it is not scheduled to be conducted until August 7,2012; and Plaintiff continues to serve as director and Plaintiff has not been removed from her office as director of the Cedar County Ambulance District as of the filing date of the Verified Petition in this matter. D. The statutes upon which Plaintiff relies do not provide for a right of action for Plaintiff. E. The statutes upon which Plaintiff relies to provide relief do not mandate attorney fees and thus the American Rule relating to award of attorney fees applies.
F. Defendant reserves the right to amend its verified answers and add additional affirmative defenses as Plaintiffs claims are more fully disclosed in the course of this litigation.
WHEREFORE, Defendant, having fully answered the Verified Petition and having provided the specified affirmative defenses and legal principles showing that the Plaintiff’s action is not ripe for decision and that Plaintiff did not exhaust her administrative remedies, thus leaving this Court without jurisdiction to hear the matter, respectfully requests this Court to dismiss the action with prejudice, to deny all relief requested by Plaintiff, to grant Defendant judgment, and to grant Defendant reasonable attorney fees and costs in the defense of the matter.
Count II (Preliminary and Permanent Injunction)
Rice 13. Rice restates and realleges the allegations of paragraphs 1-12 as though fully set forth herein.
Rice 14. As described in paragraph 9 above, the Petition is insufficient and fails to comply with RSMo 190.056, the requirements of which are prerequisites to a special election being held.
Rice 15. Rice has no adequate remedy at law.
Rice 16. Unless enjoined, Kenney will proceed with holding the Special Election on August 7, 2012, resulting in immediate and irreparable injury, loss and damage to Rice.
Rice 17. If preliminary injunctive relief is granted, Kenney will suffer no injury so Rice requests wavier of any bond requirement.
WHEREFORE, plaintiff Rice prays for judgment in her favor and against defendant Kenney preliminarily and permanently enjoining defendant from taking any action to proceed with a special election to be held on August 7, 2012 to elect a member of the Board of Directors of the Cedar County Ambulance District to represent the citizens of District One; removing the proposed Special Election from the August 7, 2012 ballot; awarding plaintiff her costs incurred in bringing this action; and for such other and further relief as the Court deems just.
Kenney responses – Apparently none. It may be that Kenney’s attorney overlooked or forgot the second half of the Rice lawsuit.
Editor’s note: At 3:13 p.m. on Tuesday, June 19, the Sun checked with Circuit Clerk Melinda Gumm’s office to see if Peggy Kenney’s attorney had filed any amendment to her responses. We were told he had not.