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Lefer v. Murry

United States District Court, D. Montana, Billings Division

October 15, 2013


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[Copyrighted Material Omitted]

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For Christian Lefer, Allison Lefer, Plaintiffs: Quentin M. Rhoades, Robert D. Erickson, LEAD ATTORNEYS, SULLIVAN TABARACCI & RHOADES, Missoula, MT.

For James Murry, Commissioner of Political Practices, State of Montana, Defendant: John L. Alke, LEAD ATTORNEY, HUGHES KELLNER SULLIVAN & ALKE, Helena, MT.

For State of Montana, Defendant: Cory J. Swanson, LEAD ATTORNEY, ANDERSON BAKER AND SWANSON, Helena, MT; Michael G. Black, LEAD ATTORNEY, MONTANA ATTORNEY GENERAL, Helena, MT.


Donald W. Molloy, District Judge.

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I. Background

On March 17, 2011 the Office of the Montana Commissioner of Political Practices[1]

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received three boxes from two individuals in Colorado. Officials in the Commissioner's office examined the contents of the boxes. They determined that the boxes held thousands of pages of documents (the Colorado Documents), including campaign materials for various candidates for state and local elective office in Montana and Colorado and materials related to political organizations like Western Tradition Partnership. The Colorado Documents did not belong to any single person or organization. Officials in the Commissioner's office believed, however, that the documents were evidence of violations of both federal and state laws governing elections and campaign finance. The Commissioner's office retained the Colorado Documents as public records, in accordance with state law. See Mont. Code Ann. § § 13-37-118; 13-37-119(1) (2013).[2]

Earlier, in 2010, the Commissioner adjudicated a complaint filed against Western Tradition Partnership. The Commissioner found Western Tradition Partnership's campaign activities in Montana in 2008 violated Montana campaign finance and disclosure laws. When the Colorado Documents were in the Commissioner's possession, Western Tradition Partnership was involved in litigation challenging the disclosure laws. See W. Tradition Partn. v. Atty. Gen., 2011 MT 328, 363 Mont. 220, 271 P.3d 1 (Mont. 2011). The Montana Supreme Court's decision, upholding Montana laws related to corporate expenditures on elections, was appealed to the United States Supreme Court and reversed. See Am. Tradition Partn. v. Bullock, __ U.S. __, 132 S.Ct. 2490, 183 L.Ed.2d 448 (2012).

Leading up to and in the wake of the United States Supreme Court's decision, national media focused on Montana's system of campaign finance regulation. See, e.g., Montana and the Supreme Court, N.Y. Times A24 (Feb. 14, 2012); Jess Bravin, Court Blocks Montana Campaign-Finance Ruling, Wall Street Journal (Feb. 18, 2012); Montana Defies Supreme Court's Citizens United Case, National Public Radio Morning Edition (Feb. 27, 2012); Robert Barnes & Dan Eggen, Justices Reject State Law, Uphold Citizens United Ruling, Wash. Post A7 (June 26, 2012). Officials in the Commissioner's office were contacted by journalists seeking to review public records and documents. In April and July of 2012, affiliates of the PBS program Frontline visited the Commissioner's office to review public files related to organizations like Western Tradition Partnership. The documents the PBS producers inspected included the Colorado Documents. Based in part on their review of public documents in the Commissioner's possession, a documentary entitled " Big Sky, Big Money" aired on PBS Frontline on October 30, 2012. On October 29, 2012, in anticipation of its release, the Frontline producers published related articles online.

The Commissioner's office received several communications related to the Colorado Documents in the days that followed. An organization called Montana Right to Work claimed ownership of the documents, as did one of the Plaintiffs in this action, Christian LeFer. October 29,

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2012, the day the articles were published online, counsel for the LeFers emailed the Commissioner demanding the Colorado Documents be handed over. After receiving competing claims of ownership, on November 1, 2012, the Commissioner ceased offering public access to the Colorado Documents until the ownership dispute was resolved in court. The Colorado Documents were deposited in a secure location off the premises of the Commissioner's office. Another organization, American Tradition Partnership,[3] asserted a claim of ownership of financial and bank records in the Colorado Documents in a December 20, 2012 posting on the organization's website.

In response to a federal grand jury subpoena in December 2012, the Commissioner's office delivered all of the Colorado Documents, as well as files related to complaints against American Tradition Partnership and Western Tradition Partnership, to a grand jury sitting in this district. Grand jury proceedings are secret, Fed. R. Crim. P. 6(e)(2), and records and subpoenas in connection with their activities are sealed, Fed. R. Crim. P. 6(e)(6). The nature of the proceedings is not publicly known at this time. The Colorado Documents remain in the possession of the grand jury to this day.

The Colorado Documents are not available for review to test the LeFers' claims of ownership or the claims of ownership asserted by nonparties. The State has produced seven pages of the Colorado Documents in briefing their Motion for Summary Judgment, all of which were obtained in connection with two other federal lawsuits. These seven pages are the only pages the State has; they do not establish the owner or owners of the thousands of pages of documents in the boxes delivered to the Commissioner.

II. Procedural History

A. Montana First Judicial District Court

Three days after asserting ownership of the Colorado Documents and demanding they be handed over, and without having inspected the documents or even knowing what was contained in them or who owned them, the LeFers filed suit in Montana District Court in Lewis and Clark County. See LeFer v. Murry, Cause No. CDV-2012-946 (Mont. First Jud. Dist. Nov. 1, 2012). The LeFers voluntarily dismissed that action on December 11, 2012. The LeFers' Complaint before the Montana First Judicial District Court asserted claims to ownership of the Colorado Documents against Commissioner Murry in his individual and official capacities now at issue in this litigation. The State was not named as a defendant in the First Judicial District Court case.

B. Montana Sixth Judicial District Court

Shortly before abandoning their Lewis and Clark County action, where they made the same or similar ownership claims of the Colorado Documents, the LeFers re-filed their case in Park County. See LeFer v. Murry, Cause No. DV-2012-205 (Mont. Sixth Jud. Dist. Nov. 26, 2012). This suit originally named only Commissioner Murry in his official and individual capacities. It did not name the State as a defendant.

The second lawsuit does little to disguise the LeFers' purpose for pursuing this action. Instead of " a short and plain statement

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of the claim showing that the pleader is entitled to relief," Mont. R. Civ. P. 8(a)(1), the LeFers' Complaint presents fanciful screed replete with distorted accusations implying and attributing bias and nefarious motive on the part of the Commissioner. For example, the Complaint accuses the Commissioner of granting access to the Colorado Documents for improper political purposes and labels the Commissioner " a liberal Democrat political patronage appointee." (Doc. 5 at ¶ ¶ 8-9.) This politicized rhetoric has no place in proper pleading and appears to serve but one purpose: it grabbed headlines.

After filing the Complaint, the LeFers sought and obtained a Protective Order from the state court. The Protective Order ultimately confirmed the Commissioner's commitment to disallow public access to the documents while ownership was disputed.

Plaintiffs sought an ex parte Order directing the Commissioner to deposit the Colorado Documents with the state district court. The state court granted that order December 17, 2012. Before he could question the propriety of complying with the Order, on December 19, 2012, the Commissioner and his staff were served with a grand jury subpoena. The Commissioner complied with the federal grand jury subpoena, and then notified the state court of his inability to comply with the questionable Order of Deposit.

The LeFers' ex parte application to the state district court for an Order of Deposit was incomplete, rested on an unreasonable interpretation of legal authority, and presented misrepresentations of fact to the state judge. In seeking the ex parte Order of Deposit, the LeFers told the judge that they had provided notice of their application to the Commissioner. But the notice the LeFers provided to the Commissioner failed to provide the date and time at which the LeFers were going to make the application. The LeFers' request for the ex parte Order relied on Montana Rule of Civil Procedure 67. Their representations regarding the scope and application of that rule tried to fit a square peg in a round hole, attempting to compel an opposing party to deposit property based on a rule that simply allows a party to deposit property.[4] More troubling still, the LeFers misrepresented facts surrounding this case in seeking the Order of Deposit. The LeFers told the state judge that " Defendant Murry gave the national news media access to the Colorado Documents in late October, 2012, in an apparent effort to embarrass certain candidates on the eve of the 2012 election." (Doc. 4 at 68.) In fact, the LeFers made no reasonable inquiry into the truth of this allegation. They guessed, and represented this guess as fact to the state judge. It is now undisputed that the Commissioner last provided public access to the documents in July of 2012. And, its factual inaccuracy aside, the claim that the Commissioner provided public access to the documents for an improper political purpose echoes the implications of bias and nefarious motive present in the original Complaint. The pleadings evidence the Plaintiffs' belief that the end justifies the means, a principle that has no safe harbor in the rule of law.

The LeFers filed their First Amended Complaint on December 24, 2012, attempting to add the State of Montana as a Defendant to the case. Remarkably, two different versions of this pleading were

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circulated. One, filed with the state district court, named the State of Montana as a defendant and made claims for relief against the state. A different version, apparently an earlier draft of the document filed in the state district court, was served on Commissioner Murry. Thus, the state judge and the Defendants were not privy to identical pleadings. These complaints had substantial differences which were not cured until after the case was removed to federal court.

In January 2013, after obtaining an Order of Deposit from the Sixth Judicial District Court on the questionable pretenses stated above, and after the Commissioner indicated his inability to comply with the Order, the LeFers served the Commissioner with a Motion seeking to hold the Commissioner in contempt. This Motion was never filed with the state district court or with this Court ...

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