Larson v. State

• Decision Date: 30 January 2019
• Docket Number: DA 18-0414
• Parties: James LARSON, Donald Judge, and Jean Price, Individual Electors, and Montana Democratic Party, Plaintiffs and Appellees, v. STATE of Montana, BY AND THROUGH its Secretary of State, Corey STAPLETON, Defendant and Appellant.
• Court: Montana Supreme Court

394 Mont. 167
434 P.3d 241
2019 MT 28

James LARSON, Donald Judge, and Jean Price, Individual Electors, and Montana Democratic Party, Plaintiffs and Appellees,
v.
STATE of Montana, BY AND THROUGH its Secretary of State, Corey STAPLETON, Defendant and Appellant.

DA 18-0414

Supreme Court of Montana.

Submitted on Briefs: August 22, 2018
Decided: January 30, 2019

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

Justice Dirk Sandefur delivered the Opinion of the Court.

394 Mont. 175

¶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

394 Mont. 176

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.

BACKGROUND

¶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

434 P.3d 248

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

394 Mont. 177

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

394 Mont. 178

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 Party³ 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

434 P.3d 249

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...