RONNIE BURNS, Individually, as an Elector, and a Write-in Candidate for Musselshell County Sheriff, Petitioner and Appellee,
COUNTY OF MUSSELSHELL, STATE OF MONTANA ELECTION ADMINISTRATOR CHERYL TOMASSI, COUNTING BOARDS, CANVASSING BOARD, and RECOUNT BOARD, Respondents and Appellees, and SHAWN L. LESNIK, elected candidate, Intervenor and Appellant.
Submitted on Briefs: October 23, 2019
FROM: District Court of the Fourteenth Judicial District, In
and For the County of Musselshell, Cause No. DV 18-73
Honorable Katherine M. Bidegaray, Presiding Judge.
Appellant: Lisa A. Speare, Speare Law Firm, PC, Billings,
Appellee Ronnie Burns: Chris J. Gallus, Gallus Law, Helena,
County Appellees: Peter Michael Meloy, Meloy Law Firm,
Shawn L. Lesnik appeals from the order of the Fourteenth
Judicial District Court, Musselshell County, denying his
motion for attorney fees under either the private attorney
general doctrine or § 13-36-205, MCA. Lesnik argues both
theories for attorney fees on appeal. Because we agree the
District Court abused its discretion in denying fees under
the private attorney general doctrine, we decline to consider
Lesnik's arguments under § 13-36-205, MCA. We
reverse the District Court and remand with instructions for
further proceedings in accordance with this Opinion.
AND FACTUAL BACKGROUND
Ronnie Burns and Lesnik both sought the Republican nomination
for Sheriff of Musselshell County in the 2018 primary
election. Lesnik won the primary and his name appeared on the
general election ballot in November 2018 as the Republican
nominee. After the primary, Burns filed his intention to run
as a write-in candidate for the race with the election
administrator for Musselshell County, Cheryl Tomassi,
pursuant to § 13-10-211, MCA. Burns included fourteen
different variations of his name with his declaration.
After the official canvass of the vote on November 19, 2018,
Lesnik was declared the winner, defeating Burns by forty-one
votes. Burns filed a petition for a court-ordered recount
with the District Court on November 26, 2018. Burns asserted
votes cast for him were not correctly counted and Tomassi
failed to follow the correct statutory procedures. Burns
served his petition on the County but did not serve his
petition on Lesnik.
On November 30, 2018, Burns filed a motion for a temporary
restraining order and preliminary injunction to prevent the
County from seating a Sheriff candidate before the resolution
of Burns' recount petition and attached affidavits from
himself and election judges, asserting irregularities in the
counting process. The District Court issued an order for
preliminary injunction and temporary restraining order that
same day and set a show cause hearing for December 7, 2018.
Once again, Burns did not serve Lesnik.
On December 6, the County and Burns stipulated to stay the
show cause hearing. They stipulated probable cause existed
for a court-ordered recount and requested the court order
one. They agreed to negotiate the legal parameters and
framework for conducting the recount and that Burns should
not be required to post a bond for the costs of the recount.
The court entered an order the same day, approving the
On December 19, the County and Burns stipulated that Tomassi
should relinquish all access and control over any and all
ballots related to the election and give them to the County
attorney. They agreed to conduct a recount to begin at 9 a.m.
on December 21, 2018. On the morning of December 21, Burns
filed a motion to set parameters for the recount. The motion
stated the County did not oppose the proposed parameters. The
court signed an order approving the parameters set forth by
Burns, which included:
1. The Court directs that the Board shall count any of the 14
variations contained in the application, which ...