Banning retains attorney, will fight

Troy Mayor Don Banning has retained Attorney James Reintsma to represent him against the recent petition to recall his election.

Reintsma filed an affidavit Feb. 13 at the request of Banning, petitioning for a temporary restraining order and permanent-injunctive relief.

The temporary restraining order and the permanent-injunctive relief have been filed against the Lincoln County Clerk and Recorder Tammy Lauer.

“This has nothing to do with Tammy personally,” Reintsma said. “Because she is the duly-elected clerk she is required to act on the petition filed by Fran McCully.”

“This affidavit will temporarily stop the recall election.”

The recall election was announced Feb. 7 after a recall petition, drafted by Heather McDougall at the request of Troy Councilwoman Fran McCully, was submitted to Lauer.

The affidavit filed by Reintsma on behalf of Banning alleges the following:

• Banning has been targeted by a small political faction and their attorney for recall;

• McCully submitted an affidavit to recall Banning and used four reasons why Banning should be removed from office;

• Lincoln County Attorney Bernard Cassidy approved the form under Montana Code Annotated (MCA) § 2-16-616;

• McCully, McDougall and their assistants collected the requisite number of signatures on the petition and submitted it to the office of the Lincoln County Clerk;

• The Clerk’s office verified the signatures on the petition;

• The Clerk (now the defendant in this case) issued a written notification of recall to Banning with the intention to hold a special election and setting time limits for participation in the process.

• The Montana Recall Act sets forth the responsibilities and remedies to all parties involved in a recall process, the procedures for injunctive relief and requires ‘all such suits or appeals therefrom shall be advanced on the court docket and heard and decided by the court as expeditiously as possible.’

Banning also alleges the affidavit from McCully is incorrect at best and fraudulent at worst. He also affirms the petition and recall will cause personal and irreparable injury to him and great financial harm to the residents of Troy.

Banning denies the four allegations filed against him by McCully, and claims her affidavit is either an outright fabrication or a horrendous mis-statement of the facts. 

Reinstma compares McCully’s actions to prior court cases, wherein the mis-leading influence of a Councilwoman making inaccurate statements against the mayor and lending voters to take her word because of her position. Furthermore, Banning’s affidavit states given the undue influence of McCully, she should never have been the one to initiate the recall petition.

Reintsma reiterates, the four points McCully made on the recall petition do not qualify Banning’s removal from office. The courts will have to decide whether Banning has breached his oath-of-office and failed to ‘support, protect and defend the constitution of the United States and the state of Montana.’

According to the footnote in Banning’s affidavit, Reinstma stated an affidavit is a written declaration, under oath, made without notice to the adverse party § 26-1-1001. McCully is subject to perjury charges and false swearing under MCA if she is found to have lied in her affidavit.