Doty v. Mont. Com'R of Political Practices

• Decision Date: 17 December 2007
• Docket Number: No. DA 06-0754.,DA 06-0754.
• Citation: 173 P.3d 700,2007 MT 341
• Parties: Russell L. DOTY, Petitioner and Appellant, v. MONTANA COMMISSIONER OF POLITICAL PRACTICES, Bradley Molnar and John E. Olsen, Respondents and Appellees, and In the Matter of The Complaint Against Bradley Molnar and John E. Olsen.
• Court: Montana Supreme Court

173 P.3d 700

2007 MT 341

Russell L. DOTY, Petitioner and Appellant, v. MONTANA COMMISSIONER OF POLITICAL PRACTICES, Bradley Molnar and John E. Olsen, Respondents and Appellees, and In the Matter of The Complaint Against Bradley Molnar and John E. Olsen.

No. DA 06-0754.

Supreme Court of Montana.

Submitted on Briefs September 19, 2007.

Decided December 17, 2007.

For Appellant: Russell L. Doty, pro se, Billings, Montana.

For Appellees: Honorable Mike McGrath, Attorney General; James M. Scheier, Assistant Attorney General, Helena, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Russell L. Doty (Doty) filed two complaints before the Commissioner of Political Practices (Commissioner) alleging that Bradley Molnar (Molnar) and John E. Olsen (Olsen) violated campaign finance and practices laws by making false statements about Doty during Molnar's campaign against him. The Commissioner, Gordon Higgins, found there was insufficient evidence to conclude that Molnar or Olsen violated such laws, and Doty subsequently filed a petition for judicial review, a complaint for declaratory judgment, and an application for mandamus challenging that decision in the First Judicial District Court, Lewis and Clark County. The District Court granted the Commissioner's motion to dismiss all of the causes of action. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err in ruling that the Commissioner's exercise of discretion in electing not to file charges against Molnar and Olsen may not be controlled by mandamus?

¶ 4 2. Did the District Court err in ruling that Doty was not entitled to seek a declaratory judgment challenging the exercise of discretion by the Commissioner?

¶ 5 3. Did the District Court err in ruling that the Commissioner's decision not to prosecute is not subject to judicial review?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Doty and Molnar were both candidates for the Public Service Commission in 2004. Olsen was one of Molnar's supporters. During the campaign, Molnar filed a campaign finances and practices complaint against Doty with the Commissioner, alleging, among other things, that Doty was not a Montana resident, had used a false address when he registered to vote, and had no intention of moving to Montana from his home in Colorado, all of which Molnar argued was evidence that Doty was not qualified to run for office in Montana. The Commissioner concluded there was insufficient evidence that Doty violated § 45-7-202, MCA, Montana's "false swearing" statute, or § 13-35-207, MCA, Montana's "deceptive election practices" statute, and thus elected not to pursue legal action against Doty on the basis of Molnar's complaints.

¶ 7 Doty then filed two campaign finance and practices complaints against Molnar with the Commissioner. The first complaint alleged that statements made by Molnar, both in his complaint against Doty and elsewhere, were false. The second complaint alleged that various statements made by Molnar and Olsen were false. With respect to these claims by Doty against Molnar and Olsen, the Commissioner likewise found that there was insufficient evidence to conclude that either Molnar or Olsen had violated Montana's political civil libel or false swearing statutes, and thus elected not to pursue legal action against Molnar and Olsen. Doty then sought a declaratory judgment, mandamus and judicial review in the District Court challenging the Commissioner's decision not to prosecute Molnar and Olsen.

¶ 8 The Commissioner filed a motion to dismiss Doty's action in the District Court. The District Court held that: (1) Doty lacked standing to request a declaratory judgment because his "rights, status, or other legal relations" were not affected by the Commissioner's decision not to pursue legal action against Molnar and Olsen; (2) the Commissioner's decision was not subject to mandamus because it was discretionary in nature; and (3) the Commissioner's decision was not subject to judicial review because it was not a "contested case," and because Doty's rights were not prejudiced by the Commissioner's decision. Accordingly, the District Court granted the Commissioner's motion to dismiss. Doty appeals.

STANDARD OF REVIEW

¶ 9 We review a district court's ruling on a M.R. Civ. P 12(b)(6) motion to dismiss de novo. Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, ¶ 10, 130 P.3d 601, ¶ 10. "A motion to dismiss under [M.R. Civ. P. 12(b)(6)] has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true." Hall, ¶ 10 (quoting Orr v. State, 2004 MT 354, ¶ 9, 324 Mont. 391, ¶ 9, 106 P.3d 100, ¶ 9). Dismissal is proper if the plaintiff would not be entitled to relief based on any set of facts that could be proven to support the claim. Hall, ¶ 10 "The determination of whether a complaint states a claim is a conclusion of law, and the district court's conclusions of law are reviewed for correctness." Hall, ¶ 10

DISCUSSION

¶ 10 The Commissioner is primarily responsible for investigating alleged violations of Montana's election laws and, in conjunction with the county attorneys, is also responsible for enforcing those laws. Section 13-37-111, MCA. However, the Commissioner's obligation to enforce Montana's election laws, and more specific to this case, Montana's campaign finance and practices statutes, is discretionary. The statute authorizing the Commissioner to prosecute a violation of the election laws allows the Commissioner to begin such a prosecution only if the county attorney fails to do so, and even then, the language authorizing such action is permissive. Section 13-37-124(1), MCA, states:

[W]henever the commissioner determines that there appears to be sufficient evidence to justify a civil or criminal prosecution . . ., the commissioner shall notify the county attorney . . . and shall arrange to transmit to the county attorney all information relevant to the alleged violation. If the county attorney fails to initiate the appropriate civil or criminal action within 30 days after receiving notification of the alleged violation, the commissioner may then initiate the appropriate legal action.

The statute does not require the Commissioner to prosecute any violation of election laws if the county attorney declines to do so.

¶ 11 Doty alleged that Molnar and Olsen violated §§ 13-37-131(1) and 45-7-202, MCA. Section 13-37-131(1), MCA, is Montana's political civil libel statute, and reads: "It is unlawful for a person to misrepresent a candidate's public voting record or any other matter that is relevant to the issues of the campaign with knowledge that the assertion is false or with a reckless disregard of whether or not the assertion is false." If the Commissioner finds that the statute has been violated, the Commissioner or county attorney is authorized to bring a civil action against such persons, who may in turn be liable for up to $1,000, payable to the county and/or the general fund of the State. Sections 13-37-129 and 13-37-131(4), MCA. Montana's false swearing statute, § 45-7-202(1)(a), MCA, makes it unlawful for a person to knowingly make a false statement, under oath, in an official proceeding. Neither statute provides a remedy to an individual, such as Doty, who files a complaint with the Commissioner. Rather, the campaign finance and practices laws are, as the Commissioner correctly argues, for the benefit of the public at large.

¶ 12 Did the District Court err in ruling that the Commissioner's exercise of discretion in electing not to file charges against Molnar and Olsen may not be controlled by mandamus?

¶ 13 Doty petitioned the District Court to compel the Commissioner to investigate and make findings pursuant to the requirements of Admin. R.M. 44.10.307(3), which states:

Upon receipt of a complaint, the commissioner shall investigate . . . the alleged violation. The commissioner, upon completion of the investigation, shall prepare a written summary of facts and statement of findings, which shall be sent to the complainant and the alleged violator. Following the issuance of a summary of facts and statement of findings, the commissioner may take other appropriate action.

The Commissioner issued a fifteen-page Summary of Facts and Statement of Findings responding to Doty's complaint. However, Doty argues that the Commissioner failed to "summarize the facts and completely ignored his duty to make findings on the false swearing charge." The Commissioner responds that he sufficiently explained the basis for his exercise of discretion, and that a discretionary act — such as his decision not to prosecute Molnar and Olsen—cannot be compelled by mandamus. Doty replies that the Commissioner's argument fails because he is not seeking to compel the performance of a discretionary act, but merely those ministerial duties required of the Commissioner by law.

¶ 14 However, while it is true that the focus of Doty's argument on appeal is compelling the ministerial duties required of the Commissioner, his pleadings were not as narrowly tailored as he asserts. His complaint contained assertions regarding the "standard of determining whether or not to proceed with a prosecution" and calling into question the process the Commissioner must undertake "in determining whether to present his findings to a County Attorney." These assertions necessarily involve the exercise of the Commissioner's discretion in deciding whether to prosecute.

¶ 15 A writ of mandamus "will not issue to compel performance of a discretionary function." Jeppeson v. Dept. of State Lands, 205 Mont. 282, 288, 667 P.2d 428, 431 (1983). In determining whether an act is ministerial or discretionary, we have observed:

[W]here the law prescribes and defines the duty to be performed with such precision and...