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Larson v. State

Supreme Court of Montana

January 30, 2019

JAMES LARSON, DONALD JUDGE, and JEAN PRICE, individual electors, and MONTANA DEMOCRATIC PARTY, Plaintiffs and Appellees,
STATE OF MONTANA, by and through its SECRETARY OF STATE, COREY STAPLETON, Defendant and Appellant.

          Submitted on Briefs: August 22, 2018

          District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV 2018-295 Honorable James P. Reynolds, Presiding Judge

          For Appellant: Emily Jones, Talia G. Damrow, Jones Law Firm, PLLC, Billings, Montana

          For Appellees: Peter Michael Meloy, Meloy Law Firm, Helena, Montana Kevin J. Hamilton, Perkins Coie, LLP, Seattle, Washington

          For Amicus Curiae: Austin Knudsen, Knudsen Law, PLLC, Culberston, Montana Edward D. Greim, Graves Garrett LLC, Kansas City, Missouri


         ¶1 Plaintiffs James Larson, Donald Judge, Jean Price, and the Montana Democratic Party filed a complaint in the Montana First Judicial District Court, Lewis and Clark County, seeking declaratory judgment that the act of Secretary of State Corey Stapleton (Secretary) certifying the eligibility of the Montana Green Party (Green Party) to nominate candidates for election to public offices in Montana was invalid due to noncompliance with § 13-10-601(2), MCA. Plaintiffs also sought related injunctive relief enjoining the Secretary from giving any effect to the petition. Following an evidentiary hearing that took place in three installments over a two-month period, the District Court issued detailed findings of fact, conclusions of law, and judgment invalidating the Secretary's Green Party certification and enjoining him from giving any effect to the petition. The Secretary timely appealed. Upon consideration and due to the imminent approach of the 2018 general election and related preceding statutory deadlines for preparation and distribution of statewide ballots, we issued a summary decision affirming the District Court's judgment, with a formal decision to follow in the ordinary course. In follow-up to our summary decision, we find the following restated issues dispositive:

1. Whether Plaintiffs' claim challenging the legal sufficiency of the Secretary's certification of the Green Party's ballot eligibility due to noncompliance with § 13-10-601(2), MCA, failed to state a cognizable private claim for relief?
2. Whether Plaintiffs' claim challenging the legal sufficiency of the Secretary's certification of the Green Party's ballot eligibility due to noncompliance with § 13-10-601(2), MCA, involved a non-justiciable political question?
3. Whether Plaintiffs lacked standing to challenge the legal sufficiency of the Secretary's certification of the Green Party's ballot eligibility?
4. Whether the District Court erroneously invalidated 87 signatures due to noncompliance with § 13-10-601(2), MCA?
5. Whether the District Court abused its discretion in admitting Kevin J. Hamilton to represent Plaintiffs pro hac vice?

         ¶2 We affirm.


         ¶3 To be eligible to nominate candidates for election to public offices on the ballot in Montana, political parties must qualify as specified by § 13-10-601, MCA. In the case of a political party that did not have a candidate in either of the last two general elections who received 5% or more of the total votes cast for the last-elected governor, a party may qualify to nominate candidates for public offices by timely submitting a qualified petition to the appropriate county election administrators "signed by a number of registered voters equal to 5% or more of the total votes cast" for the last-elected governor, or 5, 000 registered voters, whichever is less. Section 13-10-601(2)(a)-(c), MCA. The number must include signatures of registered voters in more than one-third of Montana's legislative districts with the number for each of those districts equal to the lesser of 150 electors or at least 5% of the total votes cast in that district for the last-elected governor. Section 13-10-601(2)(b), MCA. The petition must be timely submitted with accompanying petition circulation affidavits to the appropriate county election administrators no later than 92 days before the date of the primary election. Section 13-10-601(2)(c), (d), MCA ("1 week before the [85-day] deadline" for forwarding to secretary of state). Upon receipt of the required signature sheets and accompanying affidavits, local county election administrators must "verif[y]" the submitted signatures as provided by §§ 13-27-303 to -306, MCA. Section 13-10-601(2)(c), MCA. The county administrators must then timely forward the "verified petition" sheets and attached circulation affidavits to the secretary of state with certification of the number of "valid" signatures, corresponding to referenced legislative districts, included on the attached petition sheets. Sections 13-10-601(2)(d), 13-27-306, -307, MCA.[1] Upon receipt of the forwarded petition sheets, affidavits, and county certifications, the secretary of state must "consider and tabulate" the verified petition signatures and then, upon determining that the petition includes the requisite numbers of verified signatures, certify the subject political party as eligible to nominate candidates for public office on the upcoming primary election ballot. See §§ 13-10-601(2)(d), 13-27-306, -307, MCA. Based on the current number of Montana legislative districts (100), political party qualification petitions must include the requisite numbers of signatures from at least 34 districts. Section 13-10-601(2)(b), MCA. For the 2018 primary and general elections, the petition submittal deadline was March 5, 2018. See § 13-10-601(2)(c), (d), MCA.

         ¶4 In 2017, two Montana Green Party leaders (Danielle and Thomas Breck) began gathering signatures to qualify the Green Party for the 2018 elections. As of the March 2018 deadline, the Brecks had only gathered and submitted approximately 700 signatures, far short of the number required to qualify the Green Party to nominate candidates for election in 2018. However, to their surprise, in the final three weeks before the March 5th deadline, Advanced Micro Targeting, a Nevada political consulting firm operating through 13 paid signature gatherers, many from out of state, independently collected an additional 9, 461 signatures from four counties (Cascade, Lewis and Clark, Missoula, and Yellowstone) in support of the Green Party petition.[2] The Advanced Micro Targeting signature gatherers timely submitted their signature sheets and accompanying certification affidavits to the respective county election administrators just before expiration of the deadline.

         ¶5 Upon examination of the 10, 160 signatures submitted, local county election administrators timely certified 7, 386 signatures, including signatures from 38 legislative districts, to the Secretary as verified pursuant to §§ 13-10-601(2)(c) and 13-27-303 to -306, MCA. On March 12, 2018, based on 7, 386 signatures certified from 38 legislative districts, the Secretary certified the Green Party as qualified to nominate candidates for public office pursuant to § 13-10-601(2), MCA. As certified by the Secretary, the Green Party qualified by a narrow four-district margin with eight districts meeting the minimum threshold by 11 signatures or less.

         ¶6 On April 2, 2018, Plaintiffs filed a district court complaint against the Secretary and the Green Party[3] seeking declaratory judgment that the Secretary's Green Party certification was invalid due to the lack of a sufficient number of valid signatures in at least 34 legislative districts as required by § 13-10-601(2), MCA. Plaintiffs' first amended complaint alleged that 210 signatures from nine districts were invalid based on various alleged defects including signatures: (1) submitted under a signature gatherer affidavit falsely attesting to personal collection; (2) not signed in substantially the same manner as the corresponding voter registration form signatures; (3) with incorrect or improperly altered signature dates; (4) not accompanied by a printed name; and (5) not matched to a registered voter in the corresponding county. With the statewide ballot printing deadline and primary election fast approaching, the District Court set an expedited evidentiary hearing (show cause hearing) for April 24, 2018.

         ¶7 Prior to the hearing, Plaintiffs petitioned the District Court pursuant to Rule VI(C) of the Rules for Admission to the Bar of Montana, for admission of Kevin J. Hamilton of Perkins Coie LLP in Seattle, Washington, to assist in their representation pro hac vice. Plaintiffs asserted that he had specialized experience in ballot qualification and election law compliance litigation not commonly available in Montana. The Secretary objected, contrarily asserting that Plaintiffs already had highly competent and experienced Montana counsel and that out-of-state counsel was unnecessary because this litigation merely involved relatively non-complex issues of Montana election law. Summarily finding "good cause" shown, the District Court granted Plaintiffs' motion without elaboration.

         ¶8 Prior to the scheduled evidentiary hearing, the Secretary filed a brief in opposition to Plaintiffs' claim. In substance, the brief was essentially a motion to dismiss pursuant to M. R. Civ. P . 12(b) on the asserted grounds that Plaintiffs' complaint failed to state a cognizable private claim for relief and that the claim was non-justiciable in any event due to Plaintiffs' lack of legal standing and because it involved a political question.

         ¶9 On April 23, 2018, the Green Party first appeared in the litigation by notice of appearance filed the day before the scheduled evidentiary hearing. When the hearing convened the next day, the District Court denied the Green Party's motion to vacate the hearing and proceeded. Upon expiration of the allotted time, the Court set the hearing to continue on April 30th.

         ¶10 On April 25, 2018, the Montana Republican Legislative Campaign Committee (MRLCC) moved for leave to intervene in the case pursuant to M. R. Civ. P. 24. Identifying itself as a "duly-formed Montana political party committee dedicated to the recruitment, training, and election of Republicans to the Montana Legislature," the MRLCC asserted that it had a "direct, substantial, [and] legally protectable interest" in this matter based on the asserted fact that, if qualified for nomination, anticipated Green Party candidates in at least three Montana legislative races would likely "attract Montana voters away from [the] Democratic Party," thereby "increas[ing] the likelihood that the Republican Party candidate[s] . . . will win the general election."[4] Later that day, the Green Party filed a motion to continue the scheduled April 30th hearing. The District Court summarily denied the motion. On April 27th, three days before the scheduled hearing, the Green Party filed a notice of removal in the United States District Court, thereby stripping the state court of jurisdiction pursuant to 28 U.S.C. § 1441 based on an asserted federal court action. In a further attempt to delay, the Green Party filed a state court motion on the morning of April 30th for peremptory substitution of the presiding district judge pursuant to § 3-1-804, MCA. Later that same day, the United States District Court dismissed the Green Party's federal court action on Plaintiffs' motion due to lack of federal subject matter jurisdiction.

         ¶11 After a new district judge assumed jurisdiction, Plaintiffs filed their own peremptory substitution motion on May 1, 2018, thereby bumping the second assigned judge off the case. The next day, the third and final assigned judge reset the evidentiary hearing to continue on May 17, 2018. When the hearing reconvened, the District Court denied MRLCC's previously filed motion to intervene and then proceeded until expiration of the allotted time. Two days before the hearing reconvened on May 24th, MRLCC moved for a stay to allow it to appeal the court's prior denial of its motion to intervene. MRLCC followed up by filing a notice of appeal that day. When the hearing reconvened on May 24th, the District Court denied MRLCC's motion for a stay, disregarded its notice of appeal as procedurally premature, and then proceeded with the hearing.

         ¶12 Over the course of the evidentiary hearing, the District Court admitted 22 evidentiary exhibits offered by Plaintiffs. Plaintiffs also presented the testimony of two registered voters, Thai Nguyen and Dana Toole, who signed the Green Party qualification petition at the Helena Public Library on February 24, 2018. The court also heard testimony from various other witnesses presented by the parties. The Secretary offered no documentary evidence and the District Court excluded the three exhibits offered by the Green Party.[5]

         ¶13 On July 9, 2018, the District Court issued detailed findings of fact, conclusions of law, and declaratory judgment invalidating the Secretary's certification of the Green Party's ballot eligibility due to noncompliance with the requirements of § 13-10-601(2), MCA. The court adjudicated a total of 87 signatures from eight legislative districts invalid based on various cited legal defects. The court further enjoined the Secretary from implementing, enforcing, or otherwise giving effect to his prior Green Party certification. The court also affirmatively enjoined the Secretary to remove the Green Party from Montana's 2018 election ballot. The District Court essentially ruled that:

(1) 36 signatures from six legislative districts did not comply with §§ 13-10-601(2)(c) and 13-27-302, MCA, because the purported signature gatherer (Skye Robert Berns) submitted false affidavits attesting that he personally gathered petition signatures;
(2) an additional 31 signatures from eight legislative districts were not substantially similar to the signatures on the purported signatories' voter registration forms as required by the signature sheet form and §§ 13-10-601(2)(a), (c) and 13-27-303(1), MCA;
(3) an additional six signatures from three legislative districts did not match the names of registered voters in those districts as required by §§ 13-10-601(2)(b), (c) and 13-27-303(1), MCA;
(4) an additional nine signatures from four legislative districts were not associated with correct or correctly altered signing dates as required by § 13-10-601(2)(a), MCA; and
(5) an additional five signatures from four legislative districts did not include a printed name as required by § 13-10-601(2)(a), MCA.

         The signatures invalidated by the court broke down as follows:

House Berns/False Dissimilar Voter Date No Printed Invalidated
District Affidavit Signature Mismatch Discrepancy Name Per-District

9 3 1
43 1 1
1 1 4
54 10 3 1

56 2 4 2

80 8 1
3 1 13
83 9 3
4 1 17
84 6 3

2 11

Subtotals 36 31 6 9 5 87

Total Invalidated By District Court 87

         ¶14 The District Court thus found and concluded that the numbers of valid signature counts in eight legislative districts fell below the requisite number in each of those districts, to wit:

House Needed Per Certified Original Invalidated Per-District
District § 13-10-601 By Sec'y Margin By Court Shortfall
20 140 145 5 7 (2)
21 135 141 6 13 (7)
43 105 107 2 4 (2)
54 130 141 11 14 (3)
56 101 103 2 8 (6)
80 132 138 6 13 (7)
83 150 161 11 17 (6)
84 150 151 1 11 (10)

Total Invalidated By District Court 87

         The adjudicated shortfalls dropped the number of districts with the requisite number of valid signatures from the 38 qualifying districts originally certified by the Secretary to only 30, well below the 34-district minimum required by § 13-10-601(2), MCA.

         ¶15 The Secretary timely appealed. The Green Party did not appeal. We granted MRLCC leave to file an amicus brief in support of the Secretary's appeal.


         ¶16 Whether a complaint states a cognizable claim for relief is a question of law reviewed de novo. Anderson v. ReconTrust Co., N.A., 2017 MT 313, ¶ 7, 390 Mont. 12, 407 P.3d 692 (citing Sinclair v. BNSF Ry. Co., 2008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46). Whether a cognizable claim is nonetheless non-justiciable as a political question or due to lack of standing are also questions of law reviewed de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455. We review district court findings of fact for clear error. Montanans for Justice v. State, 2006 MT 277, ¶ 19, 334 Mont. 237, 146 P.3d 759. A finding of fact is clearly erroneous only if not supported by substantial evidence, the court misapprehended the effect of the evidence, or we are convinced upon our review of the record that the district court was mistaken. Montanans for Justice, ¶ 19 (citing Petitioners I-549 v. Missoula Irrigation Dist., 2005 MT 100, ¶ 8, 326 Mont. 527, 111 P.3d 664). We review district court conclusions and applications of law de novo for correctness. Montanans for Justice, 20 (internal citation omitted). A district court abuses its discretion when it exercises its discretion based on a mistake of law, clearly erroneous finding of fact, or otherwise acts arbitrarily without employment of conscientious judgment, or in excess of the bounds of reason, resulting in substantial injustice. In re X.B., 2018 MT 153, ¶ 19, 392 Mont. 15, 420 P.3d 538 (internal citation omitted). We review the grant or denial of injunctive relief for a "manifest abuse of discretion." Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912.


         ¶17 The Secretary's appeal raises various issues of threshold justiciability, substantive cognizability, and evidentiary sufficiency. Subject matter jurisdiction is the threshold power of a court to consider and adjudicate particular types of cases and controversies. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 62, 345 Mont. 12, 192 P.3d 186; Ballas v. Missoula City Bd. of Adjustment, 2007 MT 299, ¶ 14, 340 Mont. 56, 172 P.3d 1232; In re B.F., 2004 MT 61, ¶ 18, 320 Mont. 261, 87 P.3d 427. The subject matter jurisdiction of Montana district courts derives exclusively from Article VII, Section 4, of the Montana Constitution (district court subject matter jurisdiction over "all civil matters and cases" arising at law or in equity) and conforming statutes. Harrington v. Energy W. Inc., 2015 MT 233, ¶ 13, 380 Mont. 298, 356 P.3d 441; LaPlante v. Town Pump, Inc., 2012 MT 63, ¶ 15, 364 Mont. 323, 274 P.3d 724. See also §§ 3-5-301(1), -302, MCA (general statutory jurisdiction of district courts).

         ¶18 Justiciability is a related, multi-faceted question of whether the exercise of preexisting subject matter jurisdiction is appropriate under the circumstances in a given case based on the constitutional "case" and separation of powers provisions of Article III, Section 1, and Article VII, Section 4, of the Montana Constitution and related prudential policy limits. See Baker v. Carr, 369 U.S. 186, 217-36, 82 S.Ct. 691, 710-20 (1962); Reichert, ¶ 53; Heffernan v. Missoula City Council, 2011 MT 91, ¶¶ 31-34, 360 Mont. 207, 255 P.3d 80; Plan Helena, Inc. v. Helena Reg'l Airport Auth. Bd., 2010 MT 26, ¶¶ 6-8, 355 Mont. 142, 226 P.3d 567 (recognizing Article VII, Section 4, of the Montana Constitution as state law counterpart to Article III, Section 2, of the United States Constitution's "case or controversy" requirement for exercise of federal jurisdiction).[6] In contrast to a "purely political, administrative, philosophical or academic" issue, an issue is justiciable if within the constitutional power of a court to decide, an issue in which the asserting party has an actual, non-theoretical interest, and an issue upon which a judgment can "effectively operate" and provide meaningful relief. See Clark v. Roosevelt Cty., 2007 MT 44, ¶ 11, 336 Mont. 118, 154 P.3d 48 (citing Seubert v. Seubert, 2000 MT 241, ¶ 20, 301 Mont. 382, 13 P.3d 365). Justiciability includes distinct considerations of legal standing, mootness, ripeness, and whether a claim or issue involves a political or legal question. Reichert, ¶¶ 20, 54; Plan Helena, ¶ 8; Greater Missoula Area Fed'n of Early Childhood Educators v. Child Start, Inc., 2009 MT 362, ¶¶ 22-23, 353 Mont. 201, 219 P.3d 881. Though not determinative of the existence or extent of a court's subject matter jurisdiction, justiciability is a mandatory prerequisite to the initial and continued exercise of that jurisdiction. See Ballas, ¶¶ 14-16 (distinguishing existence and extent of subject matter jurisdiction from justiciability as a prerequisite for exercise thereof); Clark, ¶ 11 (justiciability "is a threshold requirement" for dispute adjudication).

         ¶19 Apart from threshold considerations of subject matter jurisdiction and justiciability, a complaint must also state a substantively cognizable claim for relief. See M. R. Civ. P. 12(b)(6). Whether a complaint states a cognizable claim for relief is a question of substantive law on the merits rather than a threshold jurisdictional issue. Baker, 369 U.S. at 200, 82 S.Ct. at 700-01; Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012). See also M. R. Civ. P. 12(b)(1), (6). A cognizable claim for relief generally consists of a recognized legal right or duty; infringement or breach of that right or duty; resulting injury or harm; and, upon proof of requisite facts, an available remedy at law or in equity. See Dillon v. Great N. Ry. Co., 38 Mont. 485, 496, 100 P. 960, 963 (1909); 1 Am. Jur. 2d Actions § 1; 1A C.J.S. Actions § 64. See also Murray Cty. v. Homesales, Inc., 330 P.3d 519, 528 (Okla. 2014) (distinguishing standing from "the issues tendered for determination"). Within this general framework, we turn to the dispositive issues presented.

         ¶20 1. Whether Plaintiffs' claim challenging the legal sufficiency of the Secretary'scertification of the Green Party's ballot eligibility due to noncompliance with § 13-10-601(2), ...

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