Comm'r of Political Practices for Mont. v. Wittich

Decision Date23 August 2017
Docket NumberDA 16-0695
Citation388 Mont. 347,400 P.3d 735,2017 MT 210
Parties The COMMISSIONER OF POLITICAL PRACTICES FOR the STATE of Montana, THROUGH Jeff MANGAN, acting in his official capacity as the Commissioner of Political Practices, Plaintiffs and Appellees, v. Arthur "Art" WITTICH, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Michael L. Rabb, The Rabb Law Firm, PLLC, Bozeman, Montana

For Appellee: Gene R. Jarussi, Bishop & Heenan, Billings, Montana, Jaime MacNaughton, Attorney at Law, Helena, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Montana's Commissioner of Political Practices, Jonathan Motl, initiated a judicial action against then-State Senator Art Wittich in April 2014, alleging that Wittich violated Montana campaign finance and practices laws during his 2010 primary campaign for Senate District 35. Following a five-day trial, a Lewis and Clark County jury concluded that Wittich accepted and failed to report nearly $20,000 in campaign contributions, including coordinated in-kind contributions, in violation of Montana campaign laws. The District Court denied Wittich's motion for a new trial and entered an order trebling the verdict amount. Wittich appeals.1

¶2 We consider the following issues on appeal:

1. Whether the Commissioner satisfied the statutory procedures for filing a judicial action against Wittich;
2. Whether the District Court abused its discretion by denying Wittich's motions in limine to exclude two witnesses from testifying as experts;
3. Whether the District Court abused its discretion in denying Wittich's motion for a new trial;
4. Whether the District Court acted within its discretion in trebling the verdict amount.

¶3 We affirm.


¶4 In June 2010, Wittich won the Republican primary election for Senate District 35 in Gallatin County. Wittich went on to win the general election in November. In early 2010, Wittich—an attorney—represented Western Tradition Partnership in a case against the Montana Attorney General and the Commissioner. W. Tradition P'ship v. Att'y Gen. , 2011 MT 328, 363 Mont. 220, 271 P.3d 1. Western Tradition Partnership acted as a "conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections." W. Tradition P'ship , ¶ 7. The United States Supreme Court ultimately reversed this Court's holding in Western Tradition Partnership and concluded that Montana law violated the First Amendment by prohibiting political expenditures by corporations on behalf of candidates for public office. Am. Tradition P'ship, Inc. v. Bullock , 567 U.S. 516, 132 S.Ct. 2490, 183 L.Ed.2d 448 (2012). The High Court's decision did not address Montana's campaign finance disclosure and reporting requirements.

¶5 In September 2010, Debra Bonogofsky—a Republican candidate for House District 57 in Yellowstone County—filed an administrative complaint with the Commissioner against her primary opponent, Dan Kennedy. Bonogofsky asserted that Kennedy violated Montana's campaign laws, in part, by coordinating with a number of groups on campaign mailings. Her written complaint alleged:

Only the candidates that are supported by these groups ( [Western Tradition Partnership], Montana Conservative Alliance, Montana Citizens for Right to Work etc) are given the information to use Direct Mail and Communication, which is directly connected to [Western Tradition Partnership] through a common address in Aurora, CO. The mailings that [Western Tradition Partnership] sent out and the mailings the candidates "sent out" are all too similar to be coincidence. I maintain that Dan Kennedy and also the other candidates knew what kind of help they would receive and these mailings should not be considered an independent expenditure.

The Commissioner began investigating Bonogofsky's complaint.

¶6 During the investigation, Commissioner Motl identified a number of the "other candidates" Bonogofsky referenced in her complaint. One of the candidates was Wittich. The Commissioner consulted with Bonogofsky, and she directed that her complaint be filed against Wittich as well. Commissioner Motl notified Wittich of the complaint in January 2014 and issued a Sufficiency Decision on March 31, 2014. The Commissioner concluded that Wittich violated Montana's campaign laws during his 2010 primary by failing to report or disclose expenses for services associated with campaign mailings that the Commissioner determined were in-kind contributions, by accepting illegal corporate contributions through coordination, and by failing to maintain or produce campaign finance records. The Commissioner concluded further that the case warranted civil adjudication.

¶7 Commissioner Motl notified the Lewis and Clark County Attorney of the Sufficiency Decision the same day it was issued. The County Attorney waived his right to prosecute the alleged violations. The next day, the Commissioner filed the underlying complaint against Wittich in the First Judicial District Court, Lewis and Clark County.

¶8 Wittich moved to dismiss, arguing that the District Court lacked subject matter jurisdiction because the Commissioner referred the matter to the wrong county attorney before filing the judicial action in violation of § 13-37-124, MCA. The District Court denied the motion following a hearing. Wittich filed another motion to dismiss for lack of subject matter jurisdiction because an administrative complaint was not filed against him with the Commissioner. The District Court denied the motion, and Wittich appealed. This Court dismissed Wittich's appeal as premature, based in part on our conclusion that "the issues on appeal are not matters implicating the court's subject matter jurisdiction." Comm'r of Political Practices v. Wittich , No. DA 16-0151, Or. (Mont. Mar. 18, 2016).

¶9 Wittich moved to amend his answer to add an affirmative defense. His affirmative defense asserted that the laws underlying the Commissioner's complaint violated his right to freedom of speech under the United States and Montana Constitutions. In its order allowing the amendment, the District Court noted that it was a "claim that could be handled by briefing prior to the trial." Wittich did not brief the issue or request a legal ruling prior to trial. The final pretrial order included Wittich's affirmative defense, and the parties discussed the issue during the final pretrial conference. The District Court concluded during the conference that Wittich could not raise the issue during trial because it was "not a jury question." The court reiterated during settlement of jury instructions that Wittich's affirmative defense did not "raise the type of claims that are appropriate for submission to the jury." The District Court ultimately rejected Wittich's proposed jury instruction on his affirmative defense and instructed the jury on a definition of "contribution" that Wittich asserted was unconstitutional. Wittich did not object to the rejection of his jury instruction or to the given instruction defining "contribution."2

¶10 Commissioner Motl disclosed two experts prior to trial—himself and C.B. Pearson, a campaign consultant. Wittich filed motions in limine to exclude both Commissioner Motl and Pearson from testifying as experts. The District Court denied both motions and allowed the Commissioner and Pearson to testify as experts during the trial.

¶11 The jury trial began on March 28, 2016. By then, Wittich had been elected to the Montana House of Representatives. After the parties' opening statements, a juror approached the Clerk of Court and expressed concern that she may not be able to remain unbiased because she felt that Wittich was being unfairly prosecuted. The Clerk reported the issue to the court and the court conferred together with the parties' counsel and the juror. Upon questioning by the court, the juror stated that she thought she could reserve her judgment until the parties had presented all of the evidence, but she stated also that she "felt all along [that she] shouldn't be part of this." Following their discussion, the District Court excused the juror. It expressed concern to counsel that the juror was "distraught" and that she was "on the edge of a breakdown." After discussing the matter further with counsel, the court released the juror.

¶12 The trial proceeded for five days. The jury concluded that Wittich failed to maintain and preserve records of his campaign contributions and expenditures; that he accepted or received corporate contributions, including coordinated in-kind contributions; and that he failed to report all contributions, including coordinated in-kind contributions. The jury determined that Wittich accepted and failed to report $19,599 in corporate contributions, including coordinated in-kind contributions. The District Court trebled the verdict amount and entered judgment in the amount of $68,232.58. The final judgment included $9,435.58 in penalties for violations the court had determined in a prior summary judgment order.

¶13 Wittich filed a motion for a new trial, which the District Court denied. Wittich appeals.


¶14 We review a district court's interpretation of a statute for correctness. Williams v. Bd. of Cnty. Comm'rs , 2013 MT 243, ¶ 24, 371 Mont. 356, 308 P.3d 88. We review a district court's discretionary rulings for an abuse of discretion. Plath v. Schonrock , 2003 MT 21, ¶ 13, 314 Mont. 101, 64 P.3d 984. Similarly, we review a district court's ruling on the admissibility of expert testimony for an abuse of discretion. Cartwright v. Scheels All Sports, Inc. , 2013 MT 158, ¶ 37, 370 Mont. 369, 310 P.3d 1080. The decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion. Willing v. Quebedeaux , 2009 MT 102, ¶ 19, 350 Mont. 119, 204 P.3d 1248. A district court...

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