Davis v. Jefferson Cnty. Election Office

• Decision Date: 27 February 2018
• Docket Number: DA 17-0300
• Citation: 390 Mont. 280,2018 MT 32,412 P.3d 1048
• Parties: 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.
• Court: Montana Supreme Court

390 Mont. 280

412 P.3d 1048

2018 MT 32

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.

DA 17-0300

Supreme Court of Montana.

Submitted on Briefs: January 10, 2018

Decided: February 27, 2018

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)

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 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 filings, the Elected Officers requested that the court declare the recall petitions legally insufficient and thus invalid and grant them attorney fees and costs. The Elected Officers alleged that Nemeth inappropriately filed, and Ramey improperly approved, the nonconforming documents.

¶ 5 Nemeth eventually stated her intention to voluntarily withdraw the recall petitions. The Elected Officers supported Nemeth's decision and requested that Nemeth and Jefferson County pay their attorney fees and costs. Nemeth and Jefferson County refused, and, consequently, the Elected Officers continued to pursue their action for injunctive relief and declaratory judgment. Ultimately, the District Court analyzed Nemeth's recall petitions and circulation sheets and found that the documents did not substantially conform to the statutory forms. Accordingly, the court granted the Elected Officers' petition for injunctive relief and declaratory judgment. That decision is not at issue on appeal.

¶ 6 In its order granting injunctive relief and declaratory judgment, the District Court issued three conclusions of law regarding the Elected Officers' requests for attorney fees and costs. It noted that the Elected Officers may have a right to attorney fees and costs pursuant to either §§ 27-8-313 or 25-10-711, MCA, but requested additional briefing before issuing its final judgment on the matter. Once the parties submitted their briefing, the court held a telephonic conference to discuss the matter. The parties agreed that the issue of whether attorney fees and costs should be awarded was a matter of law that could be decided separately from the issue of how much should be awarded. Therefore, the court decided that it would first decide whether the Elected Officers were entitled to attorney fees and costs, and then, if it decided they were, would later decide whether the requested fees and costs were reasonable. The parties agreed to the court's approach.

¶ 7 The District Court ultimately decided, based on the briefing, that the Elected Officers were not entitled to attorney fees or costs. The court issued two orders denying the Elected Officers' requests. One order denied attorney fees for "the reasons Ramey and Nemeth argue." The other order denied costs and disbursements for "the reason argued in Nemeth's Answer Brief that there is no legal basis for taxing costs against Nemeth." The Elected Officers appeal those orders, seeking reimbursement from Nemeth and Jefferson County.

STANDARD OF REVIEW

¶ 8 This Court reviews for correctness a district court's determination of whether legal authority exists to award attorney fees, as it is a conclusion of law. Mlekush v. Farmers Ins. Exch. , 2015 MT 302, ¶ 8, 381 Mont. 292, 358 P.3d 913 ; City of Helena v. Svee , 2014 MT 311, ¶ 7, 377 Mont. 158, 339 P.3d 32 ; Braach v. Graybeal , 1999 MT 234, ¶ 6, 296 Mont. 138, 988 P.2d 761 ; Tanner v. Dream Island , 275 Mont. 414, 429, 913 P.2d 641, 650 (1996) (stating that this Court's review of a district court's legal conclusion that no legal basis exists to award attorney fees is plenary). If legal authority to award attorney fees exists, this Court reviews a district court's decision to grant or deny attorney fees for an abuse of discretion. Svee , ¶ 7 ; Wohl v. City of Missoula , 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119 ; Western Tradition P'ship v. AG of Mont. , 2012 MT 271, ¶ 7, 367 Mont. 112, 291 P.3d 545 (stating that this Court reviews a district court's decision to grant or deny attorney fees under the UDJA for an abuse of discretion); Slack v. Landmark Co. , 2011 MT 292, ¶ 15, 362 Mont. 514, 267 P.3d 6 (stating that this Court reviews a district court's decision to grant or deny attorney fees under § 25-10-711, MCA, for an abuse of discretion).

¶ 9 Similarly, a district court's interpretation of a statute in determining whether a party is entitled to costs is a question of law this Court reviews for correctness and an order concerning costs is reviewed for an abuse of discretion. Total Indus. Plant Servs., Inc. v. Turner Indus. Grp., LLC , 2013 MT 5, ¶ 61, 368 Mont. 189, 294 P.3d 363.

DISCUSSION

¶ 10 Montana follows the American Rule regarding payment of attorney fees—that each party is generally responsible for its own. Western Tradition P'ship , ¶ 9. Thus, a prevailing party is normally not entitled to recover its attorney fees. Trs. of Ind. Univ. v. Buxbaum , 2003 MT 97, ¶ 19, 315 Mont. 210, 69 P.3d 663. There are equitable exceptions to the general rule, but this Court consistently construes those exceptions narrowly to ensure they do not overtake the rule. Jacobsen v. Allstate Ins. Co. , 2009 MT 248, ¶ 23, 351 Mont. 464, 215 P.3d 649. One exception is where statutory or contractual authority exists to support an award of attorney fees. Svee , ¶ 18. The Elected Officers allege they should recover attorney fees and costs from both Jefferson County and Nemeth under various statutes, which we address in turn.

¶ 11 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 ?

¶ 12 Declaratory judgments in Montana are governed by the UDJA, §§ 27-8-101 to -313, MCA. Under the UDJA, a court may grant a party supplemental...