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City attorney asks judge to reverse decision in Crismore case

| February 27, 2007 11:00 PM

By BRENT SHRUM Western News Editor

The city of Libby is asking District Judge Michael Prezeau to reverse his Feb. 1 ruling barring the removal of Councilman Stu Crismore from office.

Crismore was removed from the council in August on the grounds that he had neglected his duty by failing to attend a number of meetings. Crismore took the matter to court, and Prezeau initially issued a temporary order reinstating him to the council but then upheld the council's action, determining it had acted within its authority.

Crismore appealed that decision to the Montana Supreme Court, which ordered Prezeau to which ordered Prezeau to review the case and determine how many meetings Crismore had missed, whether he had received due process, and if he had in fact neglected his office or refuse to perform his duties.

Following a hearing in January, Prezeau determined that the council had violated one of its own rules - requiring an affirmative vote of four council members to pass any measure - in removing Crismore. The council's vote was 3-3, and Mayor Tony Berget cast the deciding vote, as provided for under state law and in the city's charter.

In the months prior to Crismore's removal, the council had discussed several times the four-vote rule but failed to reach consensus on how to interpret it and whether to change it. In an April 9, 2006, opinion letter to the council, City Attorney Charles Evans said he interpreted the rule to mean that four council members must always vote in favor of any motion, resolution, ordinance or other measure before it could be passed. The letter was entered as evidence during Prezeau's review of the case in January

In asking Prezeau to reverse his decision, however, Evans argued that the city charter trumps its "rules of procedure." He noted that there is no record that the rules were ever officially adopted by the city and that Berget presumes that they were prepared by Montana State University and distributed by the Montana Municipal Insurance Association.

Evans also argued that the council never took a position regarding its interpretation of the four-vote rule.

In addition, Evans claimed that the due process clause of the U.S. Constitution's 14th Amendment does not apply to Crismore because he does not have a "property interest" in his seat on the council. The $325 per month Crismore earns as a councilman is not significant compared to his income as owner of a road construction company, Evans said.

Evans added that Crismore was afforded due process by the council's voting procedure, however. He argued that the council did not discriminate against Crismore because it had not followed the four-vote rule in the past. The council was bound by the city charter to allow Berget to break the tie, Evans concluded.

Crismore's attorney, Amy Guth, said in a brief response to Evans' motion that Crismore will defer to Prezeau's previous ruling and will respond to particular issues only if requested by the court. Guth noted that the court already awarded attorney's fees to Crismore and said she did not want to needlessly charge additional fees to the city.

Following Prezeau's Feb. 1 ruling, Guth submitted a motion for $6,348.20 in fees and costs.

Crismore was elected to the council in November 2003. His term expires this year.