In the Missouri Court of Appeals

Western District 

RYAN A. SILVEY,

Appellant,

v.

J. RANEN BECHTHOLD; CLAY 

COUNTY BOARD OF ELECTION 

COMMISSIONERS,

Respondents.

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WD80042

FILED: September 20, 2016

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.
2

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 

115.4Foster 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.
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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 
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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 115.533.3,6the 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.
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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.
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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.