HomeMy WebLinkAbout19- Decision and Order Regarding Defendant City of Bozeman's Combined Motions to Dismiss and for Summary Judgment - Montana Eighteenth Judicial District Court, Gallatin County I RON. BRENDA R. GILBERT
Presiding District Judge
2 Sixth Judicial District Court
3 414 East Callender Street
Livingston,Montana 59047
4 Telephone: 406-222-4130
s MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY
6
7 ROGER KOOPMAN,Individually, as Resident ) CAUSE No.DV 18-1166B
Taxpayer,and Registered Voter entitled to vote on ) NO. FILED
8 Bond; PAUL F. JOHNSON,Property Owner,and )
Taxpayer not entitled to vote on bond; and DOES ) G�iTJ:i �1' --I
.lenmHa cndon,CHrk
9 1-5 Area Residents and Taxpayers, ) BY
10 )
Plaintiffs, )
11 )
12
vs. }
" )
13 CITY OF BOZEMAN; CYNDY ANDRUS,Mayor;)
CITY COMMISSIONERA; and JOHN and JANE )
14 DOE 1-30 PUBLIC EMPLOYEES/OFFICIALS; )
and NEST COLLECTIVE,LLC, )
I5 )
16 Defendants. 15 e—
ROGER KOOPMAN,Individually, as Resident ) CAUSE No.DV 1�
17 Taxpayer, and Registered Voter entitled to vote on )
Bond;PAUL F.JOHNSON,Property Owner, and )
18 Taxpayer not entitled to vote on bond; and DOES )
19
I-5 Area Residents and Taxpayers, ) "
)
20 Plaintiffs, )
21 vs. )
22 CITY OF BOZEMAN; CYNDY ANDRUS,Mayor;)
23 CITY COMMISSIONERA;and JOHN and JANE )
DOE 1-30 PUBLIC EMPLOYEES/OFFICIALS; )
24 and NEST COLLECTIVE,LLC, )
)
25 Defendants. )
26
27
28
�2c e►veal Il�� R,rncwQ-, 3-a s--i 9 � 5a
DECISION AND ORDER REGARDING DEFENDANT CITY OF BOZEMAN'S
COMBINED MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT
2
Plaintiffs Roger Koopman and Paul F. Johnson, (hereinafter "Plaintiffs") filed their
3
4 original Complaint for Declaratory Judgment and to Void Bond Election Results in Cause No,
5 DV-I8-1166B. On November 19, 2018, the Plaintiffs filed a Complaint for Declaratory
6 Judgment, Statutory Relief,and Attorneys Fees in Cause No.DCV 18-1215C. On November 20,
7 2018, Plaintiffs filed an Amended Complaint for Declaratory Judgment, Statutory Relief, and
8 "
9 Attomeys Fees in Cause No.DV-I8-1166B.
10 On January'8,2019,Hon.John C.Brown entered an Order sua sponte, consolidating DV-
11 18-1215C and DV-18-1.166B for all purposes,and directing that all future documents were to be
12 filed only in DV I8-116613. The same Order stayed the proceedings pursuant to a Stipulation to
13
Stay Proceedings fled on December 17,2018.
14
15 The Stay was 'implemented pending a decision from the Commissioner of Political
16 Practices regarding the City of Bozeman's self-initiated Complaint that was filed with the
17 Commissioner, attaching the Plaintiffs' Complaint filed herein. The Stay was lifted,by the terms
18 of the parties'Stipulation,once the Commissioner ofPolitical Practices made a decision regarding
19
said Complaint. On February-5,2019,Hon, Rienne H. McElyea entered an Order lifting the Stay
20
21 as a result of the Commissioner of Political Practices' decision in COPP 2018-CFP. The
22 Commissioner of Political Practices dismissed the Title 13 claims in their entirety.
23 Plaintiff Koopman submitted an ethics complaint with the City Board of Ethics on
24 December 14,2018. The City Board of Ethics voted to dismiss the Title 13 portions of the ethics
25
26 complaint for lack ofjurisdiction,voted to dismiss the Title 2 claims against the City of Bozeman
27 and Defendant The Nest Collective for lack of jurisdiction, dismissed the John and Jane Doe
28 claims for failure to state a claim and stayed the remaining Title 2 allegations against the City of
2
1 Bozeman's elected officials pending a decision by the Commissioner of Political Practices. After
2 the COPP decision was issued, the Board had a.further meeting and issued Findings and
3 Conclusions on February 20,2019,dismissing the entirety of the remaining allegations ofPlaintiff
4 Koopman's Ethics Complaint.
5
6 On January 30, 2019, the Defendants, City of Bozeman, Cyndy Andrus, City
7 Commissioners, and John and Jane Doe 1-30 Public Employees/Officials, filed their Combined
8 Motion to Dismiss and for Summary Judgment. The Defendants seek an Order Dismissing all of
9 the Plaintiffs' claims for lack of subject matter jurisdiction. In the alternative,should the Court
10
determine it has jurisdiction, the Defendants seek an order entering summary judgment in their
11
12 favor as to all of the Plaintiffs' claims. -The Plaintiffs oppose the Motion to Dismiss,assert that
13 this Court has subject matter jurisdiction and further opposes the City's Motion for Summary
14 Judgment.
15 On February 7, 2019 Defendant,Nest Collective, LLC, filed its Rule 12(b)(6)Motion to
16
Dismiss, which Plaintiffs oppose. Defendant, Nest Collective, LLC, has on February I9,2019,
17
18 filed its Notice of Joinder in Co-Defendants City's Combined Motion to Dismiss and for
19 Summary Judgment.
20 The Court; having considered the Motions, Affidavits, Briefs, the oral arguments of
21 counsel and applicable legal authority,now finds good cause for entry of the following decision
22
and order.
23
24 DECISION
25 1. APPLICABLE STATUTES
26 §2-2-121.Rules of conduct for public officers and public employees. (1)Proof of
27 commission of any act enumerated in subsection (2)is proof that the actor has breached a public
duty.
28 (2) A public officer or a public employee may not:
3
I (a)subject to subsection(7),use public time,facilities,equipment, supplies,personnel,
or funds for the officer's or employee's private business purposes;
2 (b)engage in a substantial financial transaction for the officer's or employee's private
business purposes with a person whom the officer or employee inspects or supervises in the
3 course of official duties;
4 (e)assist any person for a fee or other compensation in obtaining a contract,claim,
license, or other economic benefit from the officer's or employee's agency;
5 (d)assist any person for a contingent fee in obtaining a contract, claim, license, or other
economic benefit from.any agency;
6 (e)perform an official act directly and substantially affecting to its economic benefit a
7 business or other undertaking in which the officer or employee either has a substantial financial
interest or is engaged as counsel, consultant,representative,or agent; or
8 (f) solicit or accept employment,or engage in negotiations or meetings to consider
employment,with a person whom the officer or employee regulates in the course of official
9
duties without first giving written notification to the officer's or employee's supervisor and
10 department director.
(3)(a)Except as provided in subsection(3)(b), a public officer or public employee may
11 not use public time,facilities,equipment,supplies,personnel,or funds to solicit support for or
opposition to any political committee, the nomination or election of any person to public office,
12 or the passage of a ballot issue unless the use is:
13 (i) authorized by law; or
(ii)properly incidental to another activity required or authorized by law,such as the
14 function of an elected public officer, the officer's staff, or the legislative staff in the normal
15 course of duties.
(b)As used in this subsection(3), "properly incidental to another activity required or
16 authorized by law" does not include any activities related to solicitation of support for or
opposition to the nomination or election of a person to public office or political committees
17 organized to support or oppose a candidate or candidates for public office. With respect to ballot
issues,properly incidental activities are restricted to:
18 (i) the activities of a public officer, the public officer's staff, or legislative staff related to
19 determining the impact ofpassage or failure of a ballot issue on state or local government
operations;
20 (ii) in the case of a school district, as defined in Title 20, chapter 6, compliance with the
21 requirements of law governing public meetings of the local board of trustees, including the
resulting dissemination of information by a board of trustees or a school superintendent or a
22 designated employee in a district with no superintendent in support of or opposition to a bond
issue or levy submitted to the electors. Public funds may not be expended for any form of
23 commercial advertising in support of or opposition to a bond issue or levy submitted to the
24 electors.
(c)This subsection(3)is not intended to restrict the right of a public officer or public
25 employee to express personal political views.
(d) (i)If the public officer or public employee is a Montana highway patrol chief or
26 highway patrol officer appointed under Title 44, chapter 1, the term "equipment" as used in this
27 subsection (3) includes the chiefs or officer's official highway patrol uniform.
28
4
I
I (ii)A Montana highway patrol chiefs or highway patrol officer's title may not be
referred to in the solicitation of support for or opposition to any political committee,the
2 nomination or election of any person to public office, or the passage of a ballot issue.
3 (4)(a) A candidate, as defined in 13-1-101(8)(a),may not use or permit the use of state
funds for any advertisement or public service announcement in a newspaper, on radio, or on
4 television that contains the candidate's name,picture, or voice except in the case of a state or
national emergency and then only if the announcement is reasonably necessary to the
5 candidate's official functions.
(b)A state officer may not use or permit the use of public time, facilities, equipment,
6 supplies,personnel,or funds to produce,print, or broadcast any advertisement or public service
7 announcement in a newspaper, on radio, or on television that contains the state officer's name,
picture, or voice except in the case of a state or national emergency if the announcement is
8 reasonably necessary to the state officer's official functions or in the case of an announcement
directly related to a program or activity under the jurisdiction of the office or position to which
9 the state officer was elected or appointed.
10 (5)A public officer or public employee may not participate in a proceeding when an
organization,other than an organization or association of local government officials,of which
I l the public officer or public employee is an officer or director is:
12 (a)involved in a proceeding before the employing agency that is within the scope of the
public officer's or public employee's job duties; or
13 (b)attempting to influence a local,state,or federal proceeding in which the public
officer or public employee represents the state or local government.
14 (6)A public officer or public employee may not engage in any activity,including
15 lobbying,as defined in 5-7-102, on behalf of an organization,other than'an organization or
association of local government officials,of which the public officer or public employee is a
16 member while performing the public officer's or public employee's job duties. The provisions of
this subsection do not prohibit a public officer or public employee from performing charitable
17 fundraising activities if approved by the public officer's or'public employee's supervisor or
18 authorized by law.
(7) A listing by a public officer or a public employee in the electronic directory provided
19 for in 30-17-101 of any product created outside of work in a public agency is not in violation of
subsection (2)(a) of this section. The public officer or public employee may not make
20 arrangements for the listing in the electronic directory during work hours.
21 (8)A department head or a member of a quasi-judicial or rulemaking board may
perform an official act notwithstanding the provisions of subsection(2)(e)if participation is
22 necessary to the administration of a statute and if the person complies with the disclosure
procedures under 2-2-131.
23 (9) Subsection (2)(d) does not apply to a member of a board,commission, council,or
24 committee unless the member is also a full-time public employee.
(10)Subsections (2)(b) and (2)(e) do not prevent a member of the governing body of a
25 local government from performing an official act when the member's participation is necessary
to obtain a quorum or to otherwise enable the body to act.The member shall disclose the
26 interest creating the appearance of impropriety prior to performing the official act.
27
§ 2-2-144. Enforcement for local government.(1)Except as provided in subsections
28 (5) and (6), a person alleging a violation of this part by a local government officer or local
5
1 government employee shall notify the county attorney of the county where the local government
is located.The county attorney shall request from the complainant or the person who is the
2 subject of the complaint any information necessary to make a determination concerning the
validity of the complaint.
3 (2)If the county attorney determines that the complaint is justified,the county attorney
4 may bring an action in district court seeking a civil fine of not less than$50 or more than
$1,000. If the county attorney determines that the complaint alleges a criminal violation,the
5 county attorney shall bring criminal charges against the officer or employee.
(3)If the county attorney declines to bring an action under this section, the person
6 alleging a violation of this part may file a civil action in district court seeking a civil fine of not
7 less than $50 or more than$1,000. In an action filed under this subsection, the court may assess
the costs and attorney fees against the person bringing the charges if the court determines that a
8 -violation did not occur or against the officer or employee if the court determines that a violation
did occur.The court may impose sanctions if the court determines that the action was frivolous
9 or intended for harassment.
10 (4)The employing entity of a local government employee may take disciplinary action
against an employee for a violation of this part.
11 (5)(a) A local government may establish a three-member panel to review complaints
12 alleging violations of this part by officers or employees of the local government. The local
government shall establish procedures and rules for the panel.The members of the panel may
13 not be officers or employees of the local government.The panel shall review complaints and
may refer to the county attorney complaints that appear to be substantiated. If the complaint is
14 against the county attorney,the panel shall refer the matter to the commissioner of political
15 practices and the complaint must then be processed by the commissioner pursuant to 2-2-136.
(b)In a local government that establishes a panel under this subsection(5),a complaint
16 - must be referred to the panel prior to making a complaint to the county attorney.
(6)If local government review panel has not been established pursuant to subsection
17 (5), a person alleging a violation of this part by a county attorney shaII file the complaint with
18 the commissioner of political practices pursuant to 2-2-136.
19 § 13-35-107. Voiding election,(1)(a)If a court finds that the violation of any provision
of this title by any person probably affected the outcome of any election,the result of that
20 election may be held void and a special election held at least $5 days after the finding.
21 (b) If the violation occurred during a primary election,the court may direct the selection
of anew candidate according to the provisions of state law relating to the filling of vacancies on:
22 the general election ballot. Except as provided in subsection(2),an action to void an election
must be commenced within 1 year after the date of the election in question.
23 (2)An action to void a bond election must be commenced within 60 days after the date
24 of the election in question.
25 § 13-35-226. Unlawful acts of employers and employees.(1)It is unlawful for any
employer, in paying employees the salary or wages due them, to include with their pay the name
26 of any candidate or any political mottoes, devices, or arguments containing threats or promises,
27 express or implied, calculated or intended to influence the political opinions or actions of the
employees.
28
6
1 (2) It is unlawful for an employer to exhibit in a place where the employer's workers or
employees may be working any handbill or placard containing:
2 (a)any threat,promise, notice, or information that,in case any particular ticket or
political party, organization, or candidate is elected:
3 (i)work in the employer's place or'establishment will cease, in whole or in part,or will
4 be continued or increased;
(ii) the employer's place or establishment will be closed; or
5 (iii) the salaries or wages of the workers or employees will be reduced or increased; or
(b)other threats or promises,express or implied, intended or calculated to infldence the
6 political opinions or actions of the employer's workers or employees.
7 • (3)A person may not coerce,command,or require a public employee to support or
oppose any political committee,the nomination or election of any person to public office, or the
8 passage of a ballot issue.
(4)A public employee may not solicit support for or opposition to any political
9 committee, the nomination or election of any person to public office, or the passage of a ballot
,0 issue while on the job or at the place of employment.However,subject to 2-2-121, this section
does not restrict the right of a public employee to perform activities properly incidental to
11 another activity required or authorized by Iaw or to express personal political views.
12 (5)A person who violates this section is Iiable in a civil action authorized by 13 3)7-128,
brought by the commissioner of political practices or a county attorney pursuant to 13-37-124
13 and I3•-37-125.
14 § 13-37-210. Naming and labeling of political committees. (1)Any political
15 committee filing a certification and organizational statement pursuant to 13-37-201 shall:
(a)name and identify itself in its organizational statement using a name or phrase:
16 (i)that clearly identifies the economic or other special interest,if identifiable,of a
majority of its contributors;and
17 (ii)if a majority of its contributors share a common employer, that identifies the
18 employer;and
(b)label any media advertisement or other paid public statement it makes or causes to be
19 made in support of or opposition to any candidate or ballot issue by printing or broadcasting its
name,as provided under subsection(1)(a),and position in support of or opposition to the
20 candidate or ballot issue as a part of the media advertisement or other paid public statement.
21 (2)The naming and labeling requirements in subsection(1) are reporting requirements
for purposes of enforcement under 13-37-128.
22
§ 13-37-124. Consultation and cooperation with county attorney. (1)Except as
23 provided in 13-35-240, whenever the commissioner determines that there appears to be
24 sufficient evidence to justify a civil or criminal prosecution under chapter 35 of this title or this
chapter, the commissioner shall notify the county attorney of the county in which the alleged
25 violation occurred 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
26 action within 30 days after receiving notification of the alleged violation,the commissioner may
27 then initiate the appropriate legal action.
28
7
1 (2)A county attorney may, at any time prior to the expiration of the 30-day time period
specified in subsection(1), waive the right to prosecute,and the waiver authorizes the
2 commissioner to initiate the appropriate civil or criminal action.
(3)The provisions of subsection(1) do not apply to a situation in which the alleged
3 violation has been committed by the county attorney of a county. In this instance, the
4 commissioner is authorized to directly prosecute any alleged violation of chapter 35 of this title
or this chapter.
5 (4)If a prosecution is undertaken by the commissioner,all court costs associated with
the prosecution must be paid by the state of Montana,and all fines and forfeitures imposed
6 pursuant to a prosecution by the commissioner,except those paid to or imposed by a justice's
7 court,must be deposited in the state general fund.
8 § 13-37-128. Cause of action created. (1)A person who intentionally or negligently
violates any of the reporting provisions of this chapter, a provision of 13 a5-225,or a provision
9 of Title 13,chapter 35,part 4, is liable in a civil action brought by the commissioner or a county
1C) attorney pursuant to the provisions outlined in 13-37-124 and 13-37-125 for an amount up to
$500 or three times the amount of the unlawful contributions or expenditures,whichever is
11 greater.
12 (2)A person who makes or receives a contribution or expenditure in violation of 13-35-
227, 13-35 228, or this chapter or who violates 13-35-226 is liable in a civil action brought by
13 the commissioner or a county attorney pursuant to the provisions outlined in 13-37-124 and 13-
37-125 for-an amount up to $500 or three times the amount of the unlawfW contribution or
14 expenditure,whichever is greater.
.15 §13-37-130.Limitation of action. An action may not be brought under 13-37-128 and
16 13-37-129 more than 4 years after the occurrence of the facts that give rise to the action.No
more than one judgment against a particular defendant may be had on a single state of facts. The
17 civil action created in 13-37-128 and 13-37-129 is the exclusive remedy for violation of the
18 contribution, expenditure, and reporting provisions of this chapter. These provisions are not
subject to the misdemeanor penalties of 13 335-103 but may be a ground for contest of election
19 or removal from office as provided in 13-35-106(3)and Title 13, chapter 36.
20 §27-8-102. Purpose--liberal construction. This chapter is declared to be remedial;
21 its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights,
status,and other legal relations; and it is to be liberally construed and administered.
22
§27-8-202. Who may obtain declaratory judgment.Any person interested under a
23 deed,will, written contract,or other writings constituting a contract or whose rights,status, or
24 other legal relations are affected by a statute,municipal ordinance,contract, or franchise may
have determined any question of construction or validity arising under the instrument,statute,
25 ordinance, contract, or franchise and obtain a declaration of rights,status, or other legal
relations thereunder,
26
27
28
8
1 Rule 12. Defenses and Objections: 'Wlien and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions;'Waiving Defenses; Pretrial Hearing.
2 (b) How to Present Defenses.Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required.But a party may assert the
3 following defenses by motion:
4 (1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction;
5 (3) improper venue;
(4) insufficient process;
6 (5) insufficient service of process;
7 (6)failure to state a claim upon which relief can be granted;and
(7) failure to join a party under.Rule 19.
8 A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a
9 responsive pleading, an opposing party may assert at trial any defense to that claim.No defense
10 or objection is waived by joining it with one or more other defenses or objections in a
responsive pleading or in a motion.'If a court grants a motion made under subsection(3), any
I 1 other defenses presented must be decided by the court in the proper venue, and not by the court
12 in which the action is commenced.
13 II. DEFENDANTS'MOTION TO DISMISS
14 A. Standard for Dismissal of Complaint
15 In considering a motion to dismiss under Rule 12(b)(1), M.R.Civ.P., the Court examines
16
17 only whether"a claim has been adequately stated in the complaint." Plouffe v. State,2003 MT
18 62 113,314 Mont. 413, 66 P.3d 316 (citations omitted).
19 "A motion to dismiss under Rule 12(b)(1)M.R.Civ.P. has the effect of admitting all
20 . well-pleaded allegations in the complaint. In considering the motion,the complaint is construed
21 in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken
22
as true." IYfllson u. Taylor, 194 Mont. 123, 126, 634 P.2d 1180, 1182(1981)(citations
23
24 omitted).
25 A complaint should not be dismissed for insufficiency unless it appears beyond doubt
26 that the plaintiff can prove no set of facts in support of his claim which would entitle him to
27
relief. Rule 12(b)(6),M.R.Civ.P. Martin n Iffncenl,(1979), 181 Mont. 247, 249, 593 P.2d. 45,
28 .
9
1 47. See also Lockwood v. PYR.Grace do Co., (1995),272 Mont.202,208-209, 900 P.2d 314,
2 320-321 and Hauschulz v. Michael Law Firm, (200I), 306 Mont. 102, 108,30 P.3d 357,362.
3 Where a complaint states facts sufficient to constitute a cause of action upon any theory,
4 a motion to dismiss must be overruled,but when a complaint alleges facts and, assuming the
5
6 facts are true, there is still no claim for relief under any theory, a motion to dismiss must be
7 granted. Pelion v. Markegard(1978), 179 Mont. 102,586 P.2d 306.
8 B. The Parties'Arguments Regarding the Motion to Dismiss
9 Defendants City of Bozeman, Cyndy Andrus,City Commissioners,and John and Jane
to
Joe 1-30 Public Employees/Officials(collectively,"the City"), move to dismiss the Plaintiffs'
11
12 claims under MCA§§2-2-121, 13-35-226, 13-37-210 and 13-35-107 for lack of subject matter
13 jurisdiction. The City argues that Plaintiffs ignore procedural requirements in state law and are
14 asking the Court to adjudicate claims which Plaintiffs have no authority to pursue. Specifically,
15 the City argues that by requesting relief from the Court for alleged violations of campaign
16
practices statutes enforceable only by the Commissioner of Political Practices("COPP"),
17
18 Plaintiffs seek to usurp this authority and disturb the balance struck by the Legislature.
19 The City argues that,under the circumstances of this case, the Court lacks subject matter
20 jurisdiction to decide Plaintiffs' claims under§§2-2-121, 13-35-226,and 13 37-210. The City
21 argues that the enforcement provisions accompanying these statutes, (§§2-2-144, 13-37-124,
22
and 13-37-128), clearly provide that only the COPP or a local government ethics board has
23
24 enforcement authority. The City argues that the COPP and the City Board of Ethics("the
25 Board"),have exclusive jurisdiction over these claims and Plaintiffs are prohibited from
26 litigating, or re-litigating them,in Court. Additionally, the City argues that the Court lacks
27
jurisdiction over Plaintiffs' claim under§13-35-107 because the COPP found no actionable
28
10
1 Title 13 misconduct. Absent a Title 13 violation, argues the City,the Court is without power to
2 void the Bozeman Public Safety Center('`BPSC") bond election under §13-35-107.
3 The City argues that,under a plain reading of the statutes above, only the COPP or a
4 local government ethics panel are authorized to enforce§§2-2-121(3), 13-35-226(4),or 13-37-
5,
6 210, MCA. That exclusive authority, argues the City,is expressly stated in §13-35-226(5)
7 MCA which provides that"[a] person who violates this section is liable in a civil action
8 authorized by §13-37-128, MCA brought by the commissioner of political practices or a county
9 attorney pursuant to 13-37-134 and 13-37-125." The City further relies upon§13-37-130 MCA,
10
which states that"the civil action created in 13-37-128 and 13-37-129 [discussing liability and
11
disposition of fines) is the exclusive remedy for violations of the reporting and expenditure
12
13 provisions of Title 13, chapter 37"
14 In this matter,the City points out that,because of its impact on the BPSC project,the
15 City self-referred the Complaint filed herein to the COPP based on the above statutes. The
16
17 COPP investigated the claims,as required by§13-37-111(2)(a)MCA, and dismissed plaintiffs'
18 Title 13 claims. The City argues that nowhere in the statutes is there authority for the Plaintiffs
19 to "'pick up the reins and prosecute"when the COPP found no basis to do so. The City argues
20 that §2-2-144(5)MCA requires that all complaints arising under Title 2, Chapter 2, Part I must
21 be fled with the ethics panel if a local government establishes an ethics panel. Once before the
22
panel,in this case, the Ethics Board, the City argues, a county attorney has enforcement
23
24 authority only if the panel chooses to refer the matter. §2-2-144(5)(a) MCA.
25 In this instance, Plaintiff Koopman acknowledged these requirements and presented his
26 Title 2 claim to the Board. The City argues that because no private right of action exists for
27
Plaintiffs to initiate enforcement of the statute, even if the Board found a substantiated
28
11
1 complaint and referred the matter to the Gallatin County Attorney, Plaintiffs would not have
2 been involved. In any event,the Board has dismissed all of the Title 2 claims.
3 The City argues that the Plaintiffs also have no implied private cause of action under the
4 statutes they cite. See Faust v. Utility Solutions,LLC, 2007 MT 326, 124, 340 Mont. 183, 173
5
P.3d 1183 and Mark Ibsen Inc. v. Caringfor Montanans,Inc.,2016 MT 111, 147, 383 Mont.
6
7 346, 371 P.3d 446. A court must consider.four factors when construing a statute to determine
8 whether au implied private cause of action exists: 1)consistency within the statute as a whole;
9 2) the intent of the legislature considering the statute's plain language; 3)the avoidance of
10
absurd results;and 4)any construction of the statute by the agency charged with its
11
administration. Id.
12
13 The City argues that the statutes cited by the Defendants are very clear and consistent
14 and that the plain language reveals the Legislature's intent. Further,the City argues that
15 expanding the statute to include a right of private action would be an absurd result. Finally,the
16
City maintains that, because the COPP is charged with monitoring and enforcing campaign
17
18 practices and ethical standards of conduct,along with adopting rules to carry out the provisions
19 of chapters 35 and 37 of Title 13, it is clear that there is no implied right of action for Plaintiffs
20 under the statutes cited in their Complaint.
21 The City maintains that because the COPP found insufficient facts to support a Title 13
22
violation, the Court lacks jurisdiction to void the BPSC bond election under§13-35-107,MCA_
23
24 The Court has jurisdiction under§13-35-107(1)(a)MCA,argues the City, only if the COPP(or
25 county attorney,if the COPP refers the matter), brings an action to enforce the above statutes,
26 ultimately proves the City violated the statutes,and thus supplies the underlying Title U
27
violation-necessary for the Court to exercise jurisdiction to void the election. This statutory
28
12
1 chain of circumstances has not happened, argues the City, so the Court is without jurisdiction
2 where Plaintiffs, not the COPP, allege and are attempting to prove that the City violated Title
3 13.
4 Last,the City argues that there is no justiciable controversy,because Plaintiffs Iack
5 •
6 standing to bring a declaratory judgment action. The City argues that a justiciable controversy
7 must exist in a declaratory action judgment to prevent courts from determining speculative or
8 academic matters. Mitchell v. Glacier County, 2017 MT 258, 389 Mont, 122, 406 P.3d 427.
9 The City argues that Plaintiffs cannot prove that their personal "rights, status, or other legal
10
relations are affected by a statute", as required to demonstrate standing under the Montana
I1
12 Uniform Declaratory Judgments Act. §27-8-202,MCA. The City argues that Plaintiffs'
13 allegation of increased taxes is not personal to them,and is indistinguishable from the impact of
14 the bond measure on every other property taxpayer of Bozeman. This is simply not enough to
15 give Plaintiffs standing to bring a declaratory judgment action and the City argues the Court
16
should grant the City's motion under Rule 12(b)(1)and dismiss.Plaintiffs'claims in their
17
18 entirety.
19 Plaintiffs argue that the City's Motion should be denied, first, because it is untimely.
20 PIaintiffs argue that where a party seeks to assert defenses provided under Rule 12(b),
21 M.R.Civ.P.,such defenses must be asserted by motion prior to filing a responsive pleading,
22
23 which has the effect of altering the deadline for a responsive pleading until after the motion is
24 ruled on. Rule 12(a)(4)(A),M.R.Civ.P_ In this case, by stipulation and court order,
25 Defendants'Responsive pleading deadline was no earlier than 10 days after a decision from
26 COPP was rendered. The COPP decision was issued on January 28,2019. Defendant Nest
27
Collective, LLC responded with a Rule 12(b)(6)Motion to Dismiss on February 7, 2019. The
28
13
1 City filed their responsive pleading by Answer on February 1,2019, along with their Combined
2 Motions to Dismiss and for Summary Judgment. Plaintiffs argue that the City's Motion to
3 Dismiss is thus untimely and should be denied,
Plaintiffs then emphasize that they bring this case under Montana's Declaratory
5
Judgment Act, ("the Act"), found in Title 27, Chapter 8 of the Montana Code. The Act
6
7 provides that"[w]hen declaratory relief is sought, all persons shall be made parties who have or
8 claim any interest which would be affected by the declaration, and no declaration shall prejudice
9 the rights of persons not parties to the proceeding. §27-8-301,MCA. The Plaintiffs argue that
10
they are'not seeking to enforce the statutes in Title 2 and 13 of the MCA, but, contrary to the
11
12 City's assertions,Plaintiffs are seeking a declaration from this Court that Defendants'actions
13 were unlawful. Because the COPP and the Ethics Board have dismissed their claims,Plaintiffs
14 argue they have no other recourse but to seek declaratory relief.
15 Additionally,Plaintiffs argue that the Court is not obligated to adopt the COPP's
16
reasoning without scrutiny, and if the Court disagrees with COPP's reasoning, it may so state
17
18 and afford the Plaintiffs supplemental relief, including voiding the bond election pursuant to
19 §27-8-3I3 MCA. Plaintiffs rely upon the Order entered in Sheehy v. Mont., Yellowstone
20 County Cause No.DV 18-004, Feb. 2019.
21 Plaintiffs argue that their claim under the Act is not an implied right of action,but even
22
if it were,Plaintiffs meet the four-part test articulated in Faust, supra. Plaintiffs maintain that:
23
24 1)Plaintiffs do not seek to enforce the violated statutes against Defendants;2) the plain
25 language of the Act is crafted broadly to include any person with an interest affected by a
26 declaration to be a party;3)no absurd results occur from requesting a declaration from a court
27
regarding an ethics election law violation, as even the COPP must pursue legal action from a
28
14
I court to secure such a declaration; and 4) neither the COPP nor the Board have placed a
2 construction on the Act which conflicts with this Court's involvement,
3 Plaintiffs argue that they have standing to bring this matter. Standing has three
4 elements: a)injury in fact; b) causation;and c)redressability. Lujan v. Defenders of Wildlife,
5
6 504 U.S. 555, 560-61(1992). Additionally,a party must assert their own legal rights and
7 interests alleging a past,present or threatened injury. Olson v, Dept. of Revenue,223 Mont,
8 464, 960-70(1986). Plaintiffs Koopman and Johnson argue they are qualified under the statute
9 to bring this action, that their injury is concrete and one not endured by the public in general,
10
but only by Bozeman property owners. If allowed to proceed,the City will authorize-the bond,
11
12 which will be secured and paid by property taxes for which Koopman and Johnson will be
13 assessed. Plaintiffs argue that these injuries, and others, are traceable to the conduct of the
14 Defendants. Plaintiffs argue that a decision by the Court can redress the harm caused by the
15 past and ongoing conduct of the Defendants. In oral argument, the Plaintiffs emphasized that
16
one branch of government should not be permitted to address violations alleged to have been
17
18 committed by another government entity, without the opportunity foi•public involvement.
19 The Plaintiffs argue that this presents a question of public importance that will otherwise
20 go unaddressed and the City's Motion to Dismiss should be denied.
21 C. , The,Court's Analysis
22
23 1. Timeliness of the City's Motion to Dismiss
24 Plaintiffs initially argue that the City's Motion to Dismiss was not timely filed.
25 Plaintiffs rely, in part, upon the parties' December 10,2018 Stipulation to stay this case pending
26 a decision by the COPP and the"deadlines"and language therein regarding further pleadings.
27
The Stipulation provides, in pertinent part, "[Qhus, no party shall be obligated to appear,plead
28
15
1 or otherwise prosecute or defense the case until,at the earliest, 10 days following the issuance
2 by the Commissioner of his decision as to COPP complaint. Any party may appear prior to the
3 Commissioner's decision but is not obligated to do so." (emphasis supplied)
4 Plaintiffs further argue that the City's Motion to Dismiss is untimely because the City
5
did not await a resolution of its Motion to Dismiss before filing its Answer to the Complaint, as
6
7 contemplated by Rule 12(a)(4)(A),Mont.R. Civ. P.
8 Here,the Plaintiffs complain that the City filed its Motion to Dismiss and its Answer to
9 the Complaint on January 30,2019, two days after the COPP decision was made on January 28,
10 2019. (The Court notes that the filing stamp reflects that the Defendants' Combined Motion to
11
12 Dismiss and for Summary Judgment was actually filed on February 1,2019.) In any event, the
13 City's flings were timely in terms of the language of the parties Stipulation,given the language,
14 "at the earliest ten days following the issuance by the Commissioner of his decision as to COPP
15 complaint." There is no language regarding the latest date such filings could be made. The
16
Motion to Dismiss was not untimely.
17
18 The Plaintiff s argument that the Motion to Dismiss was untimely because it was filed
19 on the same day Answer to the Complaint was filed misses the mark. The City explains in its
20 Reply Brief that the Answer was filed on the same day as its Combined Motion to Dismiss and
- 21 Motion for Summary Judgment was filed in order to facilitate the Court granting its Motion for
22
23
Summary Judgment,in the event the Court determines it has jurisdiction of Plaintiffs' § 13-35-
24 107 claim.
25 PIaintiff cites no authority for the proposition that filing an Answer on the same day a
26 Motion to Dismiss is tiled is growids for denying the Motion to Dismiss or deeming it untimely.
27
Perhaps,under Rule 12(a)(4)(A) Mont. R. Civ.P., the Plaintiffs could have moved to strike the
28
16
I Defendants' Answer as being premature, but Plaintiffs did not make such a request. The
2 Defendants' early filing of their Answer does not give rise to a summary denial of the
3 Defendants' Motion to Dismiss,as plaintiffs request.
4 Moreover,the Plaintiffs' position that the City's Motion to Dismiss is untimely flies in
5
the face of the overall principle that subject matter jurisdiction can be raised at any point in a
6
7 proceeding by any party or by the court. See In re Estate of Big Spring, 2011 MT 109¶23,360
8 Mont. 370,255 P.3d 121.
9 The City's Motion to Dismiss was timely made.
10
2. Subject Matter Jurisdiction
11 -
12 The Defendants properly move to dismiss the Plaintiffs'claims for Iack of jurisdiction.
13 The Court lacks subject matter jurisdiction to decide the Plaintiffs' claims under§§2-2-121, I3-
14 35-226,and 13-37-210 MCA. The enforcement statutes corresponding to these claims provide
15 that only the COPP or a local government ethics board has enforcement authority. The statutory
16
framework is unambiguous. Only the COPP has the authority to bring an enforcement action
17
18 under Title 13; and the Plaintiffs' Title 2 claim must he presented to the Board.
19 Once the City self-reported the alleged violations set forth in the Plaintiffs' Complaint to
20 the COPP,the COPP addressed the matter and found that no actionable Title 13 misconduct
21 occurred. With regard to the Board of Ethics' review of Plaintiff Koopman's Title 2,claims,
22
the Board dismissed the claims against the City and the Nest Collective LLC,for lack of
23
24 Jurisdiction.
25 With regard to the Title 2 claims against the individual Defendants,the Board
26 determined that Plaintiff Koopman was provided a full and fair opportunity to address or rebut
27
the responding parties' response to the Title 2 claims,and Plaintiff Koopman did not provide
28
17
I evidence that refuted the sworn statements of the responding parties or the evidence uncovered
2 by the COPP's investigation. Thus,the Board concluded that the uncontroverted evidence
3 showed that Mayor Cyndy Andrus,Deputy Mayor Chris Mehl,and Commissioners Jeff Krauss,
4
Terry Cunningham,and I-Ho Pomeroy did not violate either the Bozeman Code of Ethics or
5
§2-2-121(3),MCA.
. 6
7 Under§ 13-37-124 MCA, if the COPP finds sufficient evidence to justify a civil or
8 criminal prosecution,the COPP must notify the county attorney of the county in which the
9 alleged violation occurred. This determination on the part of the COPP is analogous to
10
prosecutorial discretion. If the COPP finds sufficient evidence to justify a prosecution,the
11
12 COPP then refers the matter to the county attorney where the alleged violation occurred. The
13 county attorney may prosecute the action in district court or.decline to do so. If the county
14 attorney declines to pursue the matter in district court, then the COPP may initiate the
15 appropriate Iegal action in district court.
16
There is no provision in the statute for a private right of action. In fact,to the contrary,
17
18 § 13 3)7-130, MCA states that"the civil action created in 13-37-128 and 13-37-129 is the
19 exclusive remedy for violations of the reporting and expenditure provisions of Title 13,chapter
20 37." The same is true of§13-37-210 MCA claims,which are enforced under §13-37-128(1),
21 MCA, imposing civil liability in an action brought by the commissioner or a county attorney.
22
Under the statutory provisions discussed above,the Court lacks jurisdiction to grant the
23
24 relief sought by the Plaintiffs' Amended Complaint, that is,an order voiding the BPSC bond
25 election under§13-35-107, MCA. This statute provides that if a court finds a violation of any
26 provision of the title by any person probably affected by the outcome of any election,the result
27
of that election may be held void. Before an election can be voided, there would be a
28
18
I requirement of a violation of one or more provisions of Title 13, The COPP, the entity with the
2 authority to pursue these claims,dismissed the Plaintiffs'claims. This Court is,therefore,
3 without authority to void the BPSC bond election. The Court lacks jurisdiction to void an
4 election in-the absence of the COPP or a county attorney bringing an action and proving Title
5
13 violations.
6
7 Plaintiffs nonetheless contend that their action for declaratory relief is appropriate
8 because they seek a ruling that the City violated Montana law and that they are not seeking to
9 enforce the statutes cited in their Complaint. This is but a semantic sidestep, given the
10.
allegations pled in the plaintiffs' Amended Complaint and Plaintiffs' request for a court order
11
12 voiding the bond election results.
13 The Plaintiffs employ the Act as a means of circumventing the plain language of the
14 statutory framework that clearly does not provide a private right of action for the Plaintiffs'
15 complaints about the:Defendant's conduct, The City cites ample authority from other
16
jurisdictions holding that a declaratory judgment action cannot be used to circumvent the
17
18 enforcement mechanism established by statute. To allow the Plaintiffs to proceed in a
19 declaratory judgment action where the statute does not authorize a private cause of action is
20 tantamount to allowing a private cause of action.
21 Although this issue has apparently not been directly addressed by the Montana Supreme
22
23 Court, this Court is convinced that the Legislative intent evidenced in Title 2, Chapter 2,Part 1
24 is that all complaints arising thereunder are to be filed with an ethics panel, in this case,the
25 City's Board of Ethics. Plaintiff Koopman acknowledged this process by fling his Title 2
26 claims with the Board. A county attorney only has enforcement authority if the panel chooses
27
to refer the matter to the county attorney.
28
19
1 As to complaints regarding violations of Title 13, Chapters 35 and 37, these matters only
2 come before the district court if the COPP refers the matter to the county attorney for action and
3 the county attorney files an action in district court,or by the COPP electing to file,if the county
4 attorney declines to do so. This is the exclusive remedy for these Title 13 claims and there is no
5
6 provision for a private right of action.
7 Conversely,in Title 13, Chapters 13 and 36, the Legislature specifically provided an
8 elector a private right of action to 1) challenge another elector's right to vote or 2) to contest the
9 right of any person to any nomination for election to public office for which the elector has the
10
right to vote. The fact that other chapters of Title 13 do specify a private right of action
11 '
12 convinces this Court that the Legislature's omission of a private right of action for the claims
13 herein is an intentional decision.
14 For these reasons,this Court concludes that,as established in other jurisdictions,where
15 there is no provision for a private right of action,the Declaratory Judgment Act should not be
16
sanctioned as a tool to contravene the statutory enforcement process specified by the
17
18 Legislature.
19 Plaintiffs rely upon the order entered in Sheehy v. klont., Yellowstone County Cause
20 No.DV 18-004,Feb.2019. Sheehy sought declaratory relief in district court under a different
21 portion of the Code of Ethics that applies to state-level officers,Iegislators, and employees. The
22
district court reviewed a COPP decision that was the product of a contested case hearing
23
24 resulting in a reviewable final agency order. Under the Montana Administrative Procedure Act,
25 judicial review is allowed in such contested cases. Here,the Plaintiffs are not challenging a
26 final agency order, but are rather attempting to prosecute claims that the COPP has determined
27
have no merit. This case is not analogous to the district court's decision in the Sheehy case.
28
20
1 Plaintiffs deny that their use of the Declaratory Judgment Act is an implied right of
2 action,but even if it were, Plaintiffs maintain that they meet the test for such implied private
3 right of action. Whether a statute creates an implied private cause of action is a matter of
4 statutory construction. Faust v. Utility Solutions, LLC, 2007 MT 326,T 24, 340 Mont. 183, 173
3
6 P.3d 1183. The court is to consider the following factors when addressing an implied private
7 cause of action claim:
8 1. Consistency within the statute as a whole;
9 2. The intent of the legislature considering the statute's plain-language;
10
3. The avoidance of absurd results; and
11
12 4, Any construction of the statue by the agency charged with its administration.
13 Id. The Court also examines legislative history to determine whether the statute in question
14 implicitly creates a private cause of action.Faust, ¶24..
15 In terms of the first factor, the statutes at issue provide expressly for enforcement, but do
16
17 not authorize a private right of action. The second factor,legislative intent,as addressed above,
18 contravenes the Plaintiff's position because the legislature provides for a private right of action
19 in other Title 13 complaints, but such a right of action is omitted from statutes governing the
20 claims at issue herein.
21 Under the third factor,the expansion of a private right of action here, where none is
22
23 provided by statute,would lead to an absurd result. If every Title I3 complaint led to(lie
24 aggrieved party having a private right of action, the Courts would be overwhelmed with
25 litigation following elections. The implementation of measures to improve community services,
26 as here, would grind to a halt. Other jurisdictions have pronounced that Tile Declaratory
27
28
21
I Judgment Act should not operate to imply a private right of action where no such right is
2 provided by the underlying statute.
3 Finally, under the fourth prong of the Faust test,the COPP website, and ARM
4 44.11.101,indicate the COPP agrees that it has the responsibility to enforce Chapters 35 and 37
5
of Title 1 as well as Title 2,Chapter 2,part 1.
6
7 For all of the foregoing reasons, the Court concludes that the Plaintiffs have no implied
8 private right of action to pursue the claims set forth in their Amended Complaint.
9 Although the Plaintiffs bring their claims under the Act, Plaintiffs still must establish
10
that they have standing based upon the presence of a justiciable controversy. Mitchell v.
11
12 Glacier County, 2017 MT 258, 142,389 Mont. 122,406 P.3d 427. Plaintiffs must prove that
18 their own personal"rights, status, or other legal relations are affected by a statute"to establish
14 standing under the Act. § 27-8-202, MCA. The Plaintiffs' alleged injury must be
16 distinguishable from the injury to the public generally. ,Dory v. J%ont. Comin'r of Political
16
Practices, 2007 MT 341,¶20, 340 Mont. 276, 173 P.3d 700, citing Board of Trustees V. Cut
17
18 Bank Pioneer Press, 2007 MT 115,115,337 Mont.229, 160 P.3d 482, The Plaintiffs rely
19 upon Missoula City-County Air Pollution Control Board v. Bd. of EnvtL Rev.,282 Mont.255,
20 260,937 P.2d 463, 466 (1997), where the Court found that"the importance of the question to
21 the public"could be considered in a standing determination. Plaintiffs claim that there is no
22
review available of COPP's decision, absent their case proceeding forward in district court.
23
24 The Plaintiffs claimed injury,payment of additional property taxes,is indistinguishable
25 from the position of all property owners in the City of Bozeman. Because the municipal bond
26 election only involved property owners in the City, Bozeman property owners and the public in
27
general are one in the same. To the extent that the municipal bond election generated an
28
22
I alleged injury, the injury is one affecting all property owners in the City of Bozeman. The
2 Plaintiffs' claimed injury is indistinguishable from the public at Jarge,i.e. all other Bozeman
3 property tax payers.
1
4 The Court concludes that this case does not present a question of public importance that
5
6 will otherwise go unaddressed if this Court lacks subject-matter jurisdiction. The statutory
7 framework provides a process for judicial review of Title 13 and Title 2 complaints where
8 appropriately brought. In this case,the COPP and the Board of Ethics addressed the matters
9 raised by the Plaintiff's claims herein and neither entity found evidence of wrongdoing. There
10
is no justiciable controversy presented by the Plaintiffs' claims and this Court lacks subject-
11
12 matter jurisdiction regarding them.
13 The Plaintiffs take great issue with government oversight by the COPP of another
14 govemmental entity. Plaintiffs staunchly maintain that the Plaintiffs must be entitled to
15 maintain their claims under the Act and that public input.is essential to the process. The
16
17 position the Plaintiffs take herein is not, however,warranted by a plain reading of the existing
18 statutory framework.
19 For all of the foregoing reasons,the City's Motion to Dismiss should be granted.
20 Granting the City's Motion for Summary Judgment renders the City's Motion for Summary
21 Judgment moot.
22
23 Accordingly,good cause exists for entry of the following Order:
24 ORDER
25 L
26 The Defendants' Motion to Dismiss the Plaintiffs' Complaint is hereby GRANTED.
27
The Plaintiffs'Amended Complaint is hereby dismissed with prejudice.
28
23
1 II.
2 The Defendants' Motion for Summary Judgment is rendered MOOT by the Order of
3 Dismissal.
4
DATED this A day of March,2019.
5 /
6y� ' / ,
7 BRENDA R. GILBERT,District Judge
g .
cc: Chris J. Gallus
9 Randy J. Cox/Natasha Priming Jones/John M. Newman
x Scott G. Gratton/Adam M.Shaw
jx-,-BOA Judge McElyea
";Z&--1 Judge Gilbert
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24