Jones v. Montana University System, 05-142.

Citation2007 MT 82,155 P.3d 1247
Decision Date23 March 2007
Docket NumberNo. 05-142.,05-142.
PartiesStan JONES, Libertarian Candidate for Governor and Bob Kelleher, Green Party Candidate for Governor, Petitioners and Appellants, v. MONTANA UNIVERSITY SYSTEM, Defendant and Respondent.
CourtUnited States State Supreme Court of Montana
155 P.3d 1247
2007 MT 82
Stan JONES, Libertarian Candidate for Governor and Bob Kelleher, Green Party Candidate for Governor, Petitioners and Appellants,
MONTANA UNIVERSITY SYSTEM, Defendant and Respondent.
No. 05-142.
Supreme Court of Montana.
Submitted on Briefs November 9, 2005.
Decided March 23, 2007.

[155 P.3d 1250]

For Appellants: Robert C. Kelleher, Sr., Attorney at Law, Butte, Montana.

For Respondent: James M. Scheier, Agency Legal Services Bureau, Helena, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Stan Jones and Bob Kelleher (Petitioners) appeal from the order of the Second Judicial District Court, Silver Bow County, dismissing their Second Amended Complaint pursuant to Rule 12(b)(6), M.R.Civ.P. We affirm.


¶ 2 The present appeal stems from a series of three gubernatorial debates held on public university campuses throughout Montana in September and October 2004. The debate sponsors varied with the debate's location. The Montana Standard, the Butte-Silver Bow Chamber of Commerce, Butte Local Development Corporation, several local radio stations, and Montana Tech sponsored the debate on Montana Tech's Butte campus. The Associated Students of Montana State University (MSU), the Communications and Public Affairs office of MSU, the MSU Leadership Institute, the Wheeler Center, and the Bozeman Chronicle sponsored the debate in Bozeman. Finally, the University of Montana (UM) Alumni Association, the Montana Economic Development Association, and, to a small degree, the UM Political Science Honor Society, sponsored Missoula's debate. The record does not allocate each entity's sponsorship percentage for any of the debates.

¶ 3 The debates' sponsors did not invite Stan Jones or Bob Kelleher, the Libertarian Party and Green Party candidates for governor in 2004, respectively, to participate in the debates. Petitioners initiated a series of judicial actions before the first debate scheduled for September 21, 2004, seeking injunctive relief to compel their participation in the debates. Petitioners also sought monetary damages to compensate for alleged violations of their civil and constitutional rights.

¶ 4 Petitioners initiated their attempts to participate in the debates by filing in this Court on September 7, 2004, what they titled a "Rule 17 Motion For Order to Show Cause Why Writ of Mandamus Should Not Be Issued Directing Respondents To Obey Open Meeting Law By Allowing Registered Voters To Quiz, Observe And Evaluate All Four Gubernatorial Candidates While Debating on Sept. 21, 2004 At Montana Tech And Thereafter." We entered an order the following day dismissing Petitioners' motion for failure to provide even an arguable basis for this Court to exercise original jurisdiction.

¶ 5 Petitioners then filed a document in District Court the following week seeking a temporary restraining order (TRO), hearing, and a jury trial on damages. The original complaint named 18 defendants. On that same day, the Petitioners filed with the District Court a "Mini-Brief on Public Fora." The District Court, then Judge Kurt Krueger presiding, held an ex parte hearing on September 16, 2004. The court noted that Petitioners' complaint did not allege irreparable injury or demonstrate likelihood of succeeding on the merits in support of Petitioners' request for immediate injunctive relief. Petitioners also had failed to formally serve any of the 18 defendants named in the complaint. The District Court thus denied Petitioners'

155 P.3d 1251

requests and ordered Petitioners to serve the defendants properly and allow them sufficient time to respond before it would schedule further hearings in the matter. Judge Krueger recused himself from the matter on September 20, 2004, and Judge John W. Whelan assumed jurisdiction.

¶ 6 Petitioners amended their request for a TRO and served some parties in accordance with the Montana Rules of Civil Procedure. We note that although Petitioners continued to caption their requests to participate in the debates as requests for a TRO, the District Court, by virtue of requiring Petitioners to provide proper notice to the defendants, subsequently treated the matter as a request for a preliminary injunction. Compare § 27-19-315, MCA (allowing a court to grant a restraining order without notice to the adverse party provided specified criteria are met) to § 27-19-301(1), MCA (stating that a court may not enter a preliminary injunction without reasonable notice to the adverse party).

¶ 7 Petitioners filed a First Amended Complaint along with a motion for an order to show cause and for preliminary injunctive relief on September 21, 2004. The District Court, Judge Nels Swandal having assumed jurisdiction over the matter following the recusals of Judge Whelan and Judge Krueger, issued an order to show cause on September 22, 2004. The order directed the defendants to appear on September 28, 2004, for a hearing on Petitioners' motion. Petitioners filed a Second Amended Complaint on September 23, 2004.

¶ 8 Petitioners' Second Amended Complaint contains a preliminary statement in which they maintain that they initially sought an order to show cause before this Court why the Defendants "should not be ordered to obey Montana's open meeting laws" by allowing the Petitioners to participate in the debates. The preliminary statement explains that we denied Petitioners' request on the grounds that we could not rule in a "factual vacuum." Petitioners further allege in this preliminary statement that they "bring this action," presumably the Second Amended Complaint, "to obtain enforcement of federal and state anti-discrimination laws and decisions." In particular, the preliminary statement cites to a provision of the Government Code of Fair Practices, § 49-3-205(1), MCA, that prohibits the performance of any governmental service with discrimination based upon "political ideas."

¶ 9 The Second Amended Complaint contains three actual causes of action following this preliminary statement. The first cause alleges that Defendants "have agreed and conspired with the knowledge and consent of each other under color of official right and color of state law within the meaning of 42 USC § 1983 and 1985 and the Voting Rights Act of 1965 to prevent Jones and Kelleher from participating in the debates scheduled for Tuesday, September 21 in the Library of TECH, the theatre of U of M on October 8 and at MSU, Bozeman on October 4." The first cause of action further alleges that "[s]aid conspiracy consists of denying candidates JONES and KELLEHER the right to tell voters gathered in a designated, tax-supported public forum on how to solve" numerous problems facing Montana. After cataloguing these problems, the complaint continues that "VOTERS have a constitutional and statutory right to listen to and observe all four candidates for governor while in the presence of each other and being cross-examined by each other just as a jury has a right to observe witnesses on the witness stand after being sworn to tell the truth."

¶ 10 Petitioners purport to bring the second cause of action on behalf of "91,989 unregistered Montana minors [MINORS] including 77,943 school children . . . and 14,046 pre-schoolers [25.6% of 54,869], a Class." The second cause of action alleges that these 91,989 unregistered minors must rely upon their parents becoming educated "about the four — not two — candidates" for governor. The third cause of action, titled "Kelleher's Cause of Action," challenges the accuracy of an editorial published in the Montana Standard that claimed that Petitioner Kelleher had "never topped 5 percent" in all of the elections in which he has been a candidate.

¶ 11 The District Court held a hearing on September 28, 2004, that addressed Petitioners' request for a preliminary injunction and received one exhibit. Petitioner Kelleher testified at the hearing. The defendants presented

155 P.3d 1252

as witnesses Bill Johnston, the alumni director for UM, and Jodie DeLay, a program coordinator in the Office of Communications and Public Affairs at MSU. The District Court denied Petitioners' request for injunctive relief based on their failure to demonstrate either irreparable harm or a likelihood of succeeding on the merits. The District Court issued this order on October 4, 2004. Petitioners did not appeal.

¶ 12 All remaining defendants then filed motions to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court dismissed Petitioners' Second Amended Complaint, and ordered the file closed on December 21, 2004. Petitioners filed a motion for reconsideration and various defendants responded. The District Court denied the motion on January 12, 2005. Petitioners' notice of appeal filed on January 31, 2005, stated that they appealed from the District Court's order denying their Motion for Reconsideration.

¶ 13 The Montana Rules of Civil Procedure do not recognize, however, a Motion for Reconsideration. See Nelson v. Driscoll, 285 Mont. 355, 359, 948 P.2d 256, 258 (1997). The District Court's order denying Petitioners' Motion for Reconsideration acknowledged Petitioners' procedural misstep. The court's order also recognized that even if the court considered Petitioners' motion as one to alter or amend the judgment (as permitted under Rule 59(g), M.R.Civ.P.), Petitioners had failed to bring any new information or cite any new law for the court to consider.

¶ 14 Although Petitioners appealed from an order in response to a motion not authorized under the Montana Rules of Civil Procedure, Petitioners filed the notice of appeal within the 60-day time limit from the notice of entry of judgment of the court's first order dismissing the Second Amended Complaint. Rule 5(a)(1), M.R.App.P. Thus, we will accommodate Petitioners' appeal in this instance as though they had appealed from the District Court's dismissal of their Second Amended Complaint.



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