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Judge holds firmin Crismore case

| March 14, 2007 12:00 AM

By BRENT SHRUM Western News Editor

District Judge Michael Prezeau has rejected a request from Libby City Attorney Charles Evans to reverse his Feb. 1 ruling barring the removal of Councilman Stu Crismore from office.

In an order filed Friday, Prezeau said the city's reliance on its charter - which, according to Evans in his motion asking Prezeau to amend his judgment, overrides a council rule requiring an affirmative vote of four council members to pass any measure - is a new argument never brought up in previous proceedings.

"Only now, after the city has lost on its argument that its practice of ignoring its own procedural rules should trump the rules themselves, does the city advance the argument that the city charter should trump the procedural rules," Prezeau wrote. "The city is not entitled to keep changing its theories until it finds one that might appeal to the court."

Even if the argument were allowed, Prezeau added, the charter does not overrule the clear language of the council rules.

The rule in question was changed by the council at its March 5 meeting to require only a majority vote of those present - as long as there is a quorum of at least four members - to pass a measure. The rule change also specifically gives the mayor the authority to vote to break a tie, as allowed for under state law and in the city charter.

When the council acted to remove Crismore from office last August due to his poor attendance at meetings, the vote was split 3-3. Mayor Tony Berget cast the deciding vote, but Prezeau determined the vote to be at odds with the council's rules and ordered Crismore reinstated.

Evans also argued in his request for an amended judgment that Crismore was not entitled to due process because his $325 per month salary as a councilman did not represent a "significant property interest."

Prezeau wrote that the only cases before the Montana Supreme Court that seemed to apply to that argument involved situations in which the person who was discharged was a probationary or at-will employee.

"Crismore is an elected official, not an employee, and certainly not a probationary or at-will employee," he wrote. "To suggest that he was not entitled to due process in the council's effort to oust him from his elected position is absurd."

Prezeau upheld the council's actions last fall when he was initially presented with the case, holding that it had acted within the law in removing Crismore. Crismore appealed to the Montana Supreme Court, which directed Prezeau to review the case in more detail and look at issues including whether Crismore had received due process.

"It would no doubt come as a surprise to the Montana Supreme Court if this court's response to that directive was that in Montana, a democratically elected official may be purged from office without due process," Prezeau wrote in his order last week.

Prezeau also noted in his order that the city was arguing "for the first time" that the rules were never formally adopted. That argument is "grasping at straws" and "flies in the face" of previous statements, he wrote.

Prezeau called a statement that the rules are simply a model set that do not apply specifically to Libby "false and disingenuous," pointing to two separate references within the rules to Libby, including the address of Libby City Hall.