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Davis v. Jefferson County Election Office

Supreme Court of Montana

February 27, 2018

DALE J. DAVIS, VINCENT G. KEOGH, GARY HOUSMAN, TOM E. JENKIN, JOE E. ADAMS, Petitioners and Appellants,
v.
THE JEFFERSON COUNTY ELECTION OFFICE, BONNIE RAMEY, in her official capacity as Jefferson County Election Administrator, and LYNN NEMETH, Respondents and Appellees.

          Submitted on Briefs: January 10, 2018

         APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DV 2016-53 Honorable Katherine Bidegaray, Presiding Judge

          For Appellants: Edward J. Guza, E.J. Guza & Associates, PLC, Bozeman, Montana

          For Appellees: David L. Vicevich, Vicevich Law, Butte, Montana (Attorney for Lynn Nemeth)

          Steven C. Haddon, Jefferson County Attorney, Boulder, Montana (Attorney for Bonnie Ramey)

          OPINION

          LAURIE MCKINNON JUSTICE.

         ¶1 Dale J. Davis, Vincent G. Keogh, Gary Housman, Tom E. Jenkin, and Joe E. Adams appeal from orders of the Fifth Judicial District Court, Jefferson County, denying them attorney fees, costs, and disbursements. We affirm and restate the issues on appeal as:

1. Did the District Court err in concluding that the Elected Officers were not entitled to attorney fees from either Jefferson County or Nemeth under the Uniform Declaratory Judgments Act, § 27-8-313, MCA?
2. Did the District Court abuse its discretion in concluding that the Elected Officers were not entitled to attorney fees or costs from Jefferson County under § 25-10-711(1)(b), MCA?
3. Did the District Court err in concluding that the Elected Officers were not entitled to their costs from Nemeth under § 25-10-101(8), MCA?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 In April 2016, Davis was the mayor of Whitehall, Montana, and the Town Council consisted of six members, including Keogh, Housman, Jenkin, and Adams. The Town Council held a public meeting at which it discussed and voted on a matter relating to the town's ambulance service. The matter was not listed on the meeting's previously published agenda. The impromptu discussion and vote troubled Lynn Nemeth, a Whitehall resident and qualified elector, and she sought a recall election to determine whether Davis, Keogh, Housman, Jenkin, and Adams (together, the Elected Officers) should be recalled from their respective positions before the end of their terms. In Montana, the Montana Recall Act, §§ 2-16-601 to -635, MCA, governs recall elections and requires an elector seeking a recall election to produce a recall petition and a circulation sheet for each elected officer she wishes to recall. To effectuate her desired recall election, Nemeth prepared five sets of documents seeking recall of the Elected Officers. Sections 2-16-616 and -617, MCA, provide suggested forms for recall petitions, which must contain a general statement of the reasons for seeking recall, and circulation sheets. The suggested forms are not mandatory and the documents are considered sufficient if they substantially follow the forms. Section 2-16-618, MCA.

         ¶3 Nemeth provided a sample of her recall petitions and circulation sheets to Bonnie Ramey, Jefferson County Election Administrator, for approval as is required by § 2-16-617(3), MCA. Ramey consulted a deputy county attorney from Lewis and Clark County who aided in determining that Nemeth's documents were sufficient. As Nemeth collected the requisite number of signatures from other qualified electors, she brought with her and distributed a "fact sheet." The fact sheet mentioned other matters, additional to those contained in the petitions, as reasons Nemeth sought to recall the Elected Officers. Jefferson County verified the signatures and subsequently notified the Elected Officers that a recall election would occur.

         ¶4 The Elected Officers objected to the recall election based, in part, on their observations that Nemeth's recall petitions and circulation sheets did not substantially conform to the statutory forms. The Elected Officers discussed the alleged deficiencies with Jefferson County in an attempt to resolve the problem prior to litigation. Dialogue between the parties was unsuccessful, however, and the Elected Officers filed an application for injunctive relief in District Court, naming Jefferson County as the only respondent and asking the court to enjoin the recall election pursuant to § 2-16-615, MCA. Section 2-16-615(2), MCA, provides that a court may enjoin certification, printing, or recall election based on a showing that a filed petition is statutorily insufficient. As the case proceeded, the Elected Officers amended their original application for injunctive relief twice, adding Nemeth as a party to the proceeding and including a petition for declaratory judgment pursuant to the Uniform Declaratory Judgments Act (UDJA). In the amended ...


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