Republican Committee files lawsuit against county clerk to keep Probst off the August ballot

By Neal A. Johnson, UD Editor
Posted 7/3/24

OSAGE COUNTY   — Osage County Republican Committee Chairman Mark Lieneke and Vice Chair Linda Rantz filed a civil suit on June 24 against County Clerk Nicci Kammerich regarding the …

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Republican Committee files lawsuit against county clerk to keep Probst off the August ballot


OSAGE COUNTY  — Osage County Republican Committee Chairman Mark Lieneke and Vice Chair Linda Rantz filed a civil suit on June 24 against County Clerk Nicci Kammerich regarding the exclusion of Coroner A.J. Probst from the August ballot.

Lieneke and Rantz pointed to a lawsuit, California Democratic Party v. Jones, 530 U.S. 567, 574(2000), in which the “Court has recognized that the First Amendment protects ‘the freedom to join together in furtherance of common political beliefs,’ ... which ‘necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.’”

The Committee elected to adopt a “vetting” process to be implemented in 2024 by which potential candidates who desire to run for county office as Republicans are assessed to determine if they meet the minimum requirements of the Committee to represent the party. “If potential candidates either do not pass the vetting process or refuse to be vetted, the Committee will not accept their candidacy,” the petition reads.

As outlined in a Feb. 21 article in this newspaper, the vetting process was developed by the Republican Association of Central Committees of Missouri (REPACCMO), a 501c4 organization consisting of seven Republican Committee chairs.

“Our purpose is to train, educate, and support,” said REPACCMO President Cyndia Haggard, a founding director of the group, noting that central committees are educated on many different issues because several are confused about what they can and can’t do. “One of the things we are doing is educating and providing vetting information and supporting that effort. So, we’ve developed a training manual with all the processes and procedures.”

Haggard noted that the 25-question survey is something every Republican candidate — regardless of the level of government — should undertake to confirm their commitment to the party’s values.

At that time, Presiding Commissioner Darryl Griffin and Eastern District Commissioner John Trenshaw said in the aforementioned story they disagree with the vetting process because they believe it denies voters the opportunity to vote for their candidate of choice.

“The citizens of Osage County vetted me and decided I was the right man for the job,” said Griffin. “It’s not right to take away the choice from voters. I’m a Republican in my heart and always will be. It’s not fair, and it’s not right that six or seven people can make the decision for everyone else. I’ve talked to commissioners in Cole, Dent, and Phelps counties, and they all think this is crazy, just like I do.”

Trenshaw added, “This small group of people is disenfranchising a lot of Osage County voters. Seven people should not decide for 13,000-plus people. We should have the right to run with whatever party we want and let the people research and vet candidates before making their decision. That’s how democracy is supposed to work.”

Lieneke said he finds the assertion that a small group controls the masses ludicrous. “It’s pretty much the pot calling the kettle black when it comes from the two or three people that control county government,” he said. “Committee positions are elected positions just as all other offices in the county. The adoption of vetting is well within the scope of the committee’s business.”

According to June 24 petition, Lieneke met with Kammerich on Dec. 19, 2023, to discuss the vetting process put in place to screen Republican candidates. He also provided an explanatory flyer to be distributed in candidate packets. Lieneke also noted in the petition that he sent a follow-up email to Kammerich the same day to clarify the topic of accepting filing fees and to reinforce that the Committee would reject filing fees from potential Republican candidates who did not comply with the vetting process.

Lieneke and Rantz argue that prior to Dec. 19, 2023, the Clerk’s policy required potential candidates to have a filing receipt from the Republican Committee treasurer “in hand” before the declaration of candidacy could be submitted to Kammerich’s office. Instead, she required the committee treasurer to accept fees and issue receipts.

“The Clerk refused to allow candidates to submit filing fees to her or her office, which then required that she forward the fees to the Committee,” Lieneke and Rantz noted in their petition. “The Clerk went so far as to suggest that the Committee use an online payment app for accepting fees to make it faster to issue receipts.”

According to the petition, “The day after the Dec. 19, 2023, meeting with Lieneke, the Clerk changed her policy. In a Dec. 20, 2023, email, the Clerk advised Lieneke that candidates ‘may submit’ (emphasis added) their filing fees to the Clerk, and then she would forward the fees to the committee treasurer.

“Upon receiving any filing fees from the Clerk, the Committee would decide, through its treasurer, whether to accept or reject the fees. Seeing no conflict with the Clerk’s new policy, Lieneke did not reply to the Clerk’s 12/20/2023 email,” the petition continues.

On Feb. 26, 2024, prior to the first day of the candidate filing period, Lieneke noted that he sent correspondence to the Clerk identifying potential candidates who desired to run as Republicans and who had already successfully completed vetting. Lieneke informed the Clerk that such potential candidates would be accepted as Republican candidates and that their filing fees would be accepted by the Committee.

In the Feb. 26 correspondence, Lieneke also provided the Clerk with a flyer to distribute to other potential candidates seeking to run as Republicans. The flyer explained the vetting process, how to make an appointment for vetting, including deadlines, and that the Committee would reject the filing fee of any candidate who did not complete and pass the vetting process.

Lieneke and Rantz noted that Kammerich did not object or rebut the information provided in that email.

After the close of the candidate filing period on March 27, from a list distributed by the Clerk, the Committee learned that unvetted potential candidate Coroner A.J. Probst had filed as a Republican. Despite conversations in January about vetting between Lieneke and Probst, apparently, Probst opted to refuse to be vetted.

On March 27, Lieneke informed Kammerich that Probst’s candidate filing fee would be rejected and that his name could not be included on the Republican ballot.

Lieneke and Rantz noted that Kammerich did not object or rebut the aforementioned correspondence.

“Lieneke and the Committee took the Clerk’s lack of response as affirmation that the fee was rejected, and the individual would not appear on the Republican ballot,” the petition notes. “The Committee found additional reassurance of what they deemed to be the Clerk’s affirmation and cooperation in a response from the Clerk to Lieneke on April 11, 2024, wherein Lieneke inquired whether the ‘rejected’ filing fee had been reclaimed by the individual, and the Clerk’s response was that it had not been picked up. There was no objection by the Clerk to the use of the term ‘rejected.’ There was no other comment from the Clerk about the rejected filing fee.”

Nonetheless, in the June 5, 2024, edition of the Unterrified Democrat newspaper, the Clerk placed a full-page ad titled “Certificate of Candidates for Nominations …” in which the rejected individual, A.J. Probst, was listed in the Republican section “For Coroner.”

On June 6, Lieneke emailed Kammerich again, noting that the committee “has rejected the filing fee of A.J. Probst” and, further, that the individual’s name cannot appear on the Republican primary ballot for the Aug. 6, 2024, election. Again, there was no reply from the Clerk,” the petition notes. “The Committee has repeatedly informed the Clerk, as noted in the foregoing paragraphs, that the potential candidate’s filing fee has been rejected by the Committee. The filing fee was returned to the Clerk, and that the potential candidate has been so informed.”

According to court documents, the issue comes down to statutory interpretation. “Quite simply, what is required by RSMo. 115.357, and what is meant by the terms ‘pay’ and ‘paid’ as used in the statute?” Lieneke and Rantz’s petition reads. “As the Missouri Supreme Court has stated, “[T]he primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.”

The petition cited State ex rel. Nothum v. Walsh, 380 S.W.3d 557, 565 (Mo. banc 2012) noted, “The corollary to this rule is that a court should not interpret a statute so as to render some phrases mere surplusage [language contained in a pleading that is unnecessary or irrelevant]. Middleton v. Missouri Dept. of Corr., 278 S.W.3d 193, 196 (Mo. banc 2009).”

Lieneke and Rantz argue that the relevant language is unambiguous. RSMo. 115.357.1 states, “Each candidate for federal, state or county office shall, before filing his or her declaration of candidacy, pay to the treasurer of the state or county committee of the political party upon whose ticket he or she seeks nomination a certain sum of money as follows…”

In contrast, RSMo. 115.357.2 uses entirely different language, to wit, “The required sum may be submitted by the candidate to the official accepting his or her declaration of candidacy ... All sums submitted to the official accepting the candidate’s declaration of candidacy shall be forwarded promptly by the official to the treasurer of the appropriate party committee.” — RSMo. 115.357.5

“The unambiguous intent of the legislature is that there is a material difference between the mandate that the candidate shall pay the party treasurer prior to filing his or her declaration of candidacy and the mandate that no candidate’s name shall be printed on the ballot until the fee has been paid on the one hand, and the option that the fee may be submitted to the official accepting his or her declaration of candidacy on the other hand,” the petition reads. “If the legislature intended that submission of the filing fee to the ‘official accepting his or her candidacy’ would be the same as paying the party treasurer, then the statute would so state.

“The statute doesn’t say that the candidate shall pay either the party treasurer or the official accepting his or her candidacy,” court documents note. “The statute unambiguously distinguishes payment of the filing fee from submission of the filing fee. The statute unambiguously makes the payment of the filing fee a condition precedent to both the filing of a declaration of candidacy and the printing of a candidate’s name on the official ballot.”

According to Lieneke and Rantz, Probst has not paid his filing fee to the treasurer of the county committee and, therefore, the Clerk cannot accept his declaration of candidacy or print his name on any official ballot.

“The Clerk’s ministerial duty is to comply with the terms of the statute, and Respondent must be prohibited from accepting the declaration of candidacy of such purported candidate and from printing such name on the ballot or must be mandated to reject such declaration if already accepted and mandated to remove such name from the official ballot if already so printed,” the petition notes. “Consequently, the Osage County Clerk has exceeded her authority in accepting the declaration of candidacy from the above-referenced individual,” the petition continues. “The Osage County Clerk must be prohibited from printing on any official Republican ballot the names of the potential candidate identified above. Such individual is free to file under any other party’s ticket, or as an independent, but cannot be included on the Republican ballot.”

Lieneke and Rantz have asked the court to enter a Writ of Prohibition and/or Mandamus, “prohibiting the Clerk of Osage County or anyone acting on her behalf or under her authority, from accepting the candidacy of or including on any official printed ballot theme of A.J. Probst as a Republican candidate for Osage County elective office and/or to the extent that the Clerk has already accepted such candidacy and/or printed such ballots, she must be mandated to reject such candidacy and remove such name from the ballot.”

When asked for a comment, Kammerich said, “I have an attorney following through with the civil summons, and I had proceeded with my ministerial duties as stated in the Missouri revised statutes.”

Editor’s Note: Missouri’s Western Court of Appeals on Tuesday dismissed the Vernon County Clerk’s appeal requesting a reversal of Vernon County Judge Gayle L. Crane’s decision to grant the Vernon County Republican Committee’s (“VCRC”) request for a permanent writ of mandamus ordering that eight candidates not be placed on the ballot as Republican candidates in the August 2024 primary election. A look at the case and how it will impact the lawsuit filed June 24 in Osage County will appear next week.