Swapinski ordered to pay legal fees

District Judge Jim Wheelis rejected resident Dale Swapinki’s claim that the legal fees being assessed to him following an unsuccessful lawsuit were excessive and unreasonable on Oct. 29.

Swapinski sued Lincoln County regarding what he characterized as the “orchestrated succession” of Commissioner Greg Larson when he was appointed to replace former commissioner Ron Downey upon his resignation.

Because he had previously written an opinion on the resignation of Downey, Lincoln County Attorney Bernie Cassidy retained outside attorney Jinnifer Mariman to defend the county. Cassidy was concerned that his previous involvement could result in his being called as a witness and thus create a conflict of interest in the case.

Swapinski alleged that Downey’s resignation became effective 72 hours after his letter was submitted on June 4, per Montana law. This would then require Downey’s replacement to be elected in the next general election, instead of appointed.  

He cited Montana Code Annotated 7-4-2106(3), “Whenever a vacancy occurs prior to August 1 before the general election held during the second and fourth year of the term, an individual must be elected to complete the term in the general election.”

The county’s attorney responded that Downey’s letter was not an actual resignation, but a notice of intent to resign. The letter read: “It is with great regret that I must inform you that I will resign my position as County Commissioner, District 2, Troy, effective Aug. 1, 2014. I will be leaving this position for personal reasons that won’t allow me to fulfill my duties as a County Commissioner to the fullest extent needed.”

Judge Wheelis agreed with the county’s claim and entered a summary judgment on Sept. 2. He ruled that the letter of intent, because it used the words “will resign” was not an actual resignation and therefore was not required to be effective within the 72 hours as dictated by statute. He further ruled that even if it was a resignation, there was “no provision in Montana law precluding a resignation from designating a future date for the actual resignation.”

After Swapinksi filed suit, Lincoln County made the decision to pursue legal fees in order to discourage frivolous lawsuits against the county. Current law allows victors in civil litigation to recoup costs and fees from the other party. Judge Wheelis ruled that the suit was frivolous and that the county could, therefore, recoup the expenses incurred in its defense. Those fees were billed at $6,721, but Judge Wheelis authorized the county’s attorney to add an additional $2,000 to the bill to cover expenses incurred leading up to the fee hearing.

Swapinski said he is unsure whether he will appeal.