Lawsuit filed in campaign violation case

Libby Mayor Doug Roll, along with current and former Libby City Council members Peggy Williams, Barb Desch, Bill Bischoff, Robin Benson and Vicky Lawrence, have filed a petition in Montana’s 19th Judicial District Court asking for judicial review of the sufficiency finding filed against them by Montana Commissioner of Political Practices Jonathan Motl in May 2015.

In his ruling, Commissioner Motl determined Roll and the current and former council members, along with former City Attorney James Reintsma, violated Montana campaign practice laws when they allowed a lawsuit to be filed in the name of the City of Libby against Councilman Allen Olsen, who was at the time a candidate for the office of mayor. The suit challenged Olsen’s residence within city limits and sought to have his name stricken from the ballot and to require the Lincoln County Clerk and Recorder’s Office to not count any ballots cast in his favor.

The lawsuit was dismissed by Judge James Wheelis and Olsen ultimately settled his countersuit for costs and fees against the City of Libby. 

The suit against Motl was filed by attorney James E. Brown of Helena. Brown is an attorney with the James Brown Law Office PLLC. From 2007 until 2012, he practiced as an associate attorney and senior attorney for the firm of Doney Crowley Payne Bloomquist PC, according to his website. In the suit he asks the court to reverse Motl’s administrative decision and to award costs and fees to the petitioners. In the petition, Brown alleges Motl made errors in both state and federal law. Those errors, he said, resulted in an erroneous conclusion.

“In Motl’s administrative decision in Magill v. Reintsma, Motl clearly errs as a matter of law, both statutorily under Montana law and constitutionally under federal law, when he amazingly concludes that all the Libby City Council members, including petitioners, engaged in advocated supporting or opposing the nomination of a person under Montana Code Annotated 13-35-226(4),” Brown wrote in the petition. “In doing so, he further concluded erroneously that these members became a political committee required to register their activities with the State of Montana and to file campaign finance reports with Motl by not objecting to the City Attorney’s suit for determination of Olsen’s residency.”

Brown referenced internal correspondence from the Commissioner of Political Practices office staff as compromising the objectivity of Motl’s investigation.

“The correspondence indicates that Jon Motl’s COPP staff was encouraging Jon Motl to ‘help Allen with his problem,’” Brown wrote. “As a result, petitioners believe that Motl’s ability to carry out the mission of the COPP office to act in a fair and impartial manner was compromised.”

The email in question was sent from COPP staff member Karen Musgrave to Commissioner Motl, including a forwarded message from Olsen explaining his concerns with the city’s suit challenging his residency. Musgrave forwarded the email to Motl with, “Jon, I hope you can help Allen with his problem,” appended to Olsen’s original message.

Brown also challenged Motl’s decision on the grounds that none of the petitioners gave Reintsma explicit approval to proceed with the suit against Olsen. In support of the claim, he submitted a memorandum from Reintsma to Roll and the City Council announcing his intent to file the suit. In the memorandum, Reintsma explicitly writes “no current member of the Libby City Council, Mayor or candidate for such position has requested this action.”

The memorandum, dated October 18, 2013, was written on letterhead from the office of the Libby City Attorney and presented to the City Council prior to the filing of the suit against Olsen. The suit, captioned City of Libby v. Allen Olsen, was filed Oct. 24, 2013.

In his ruling Motl determined the suit constituted express advocacy on the part of the city, with responsibility lying at the feet of the city officials who allowed the suit to proceed, namely Roll, Bischoff, Lawrence, Williams, Benson, Desch and Reintsma. The United States Supreme Court ruled in the case of Buckley v. Valeo, 1976, public resources cannot be used for express advocacy for or against a candidate or specific ballot measure. Motl determined the suit’s request for “an order declaring defendant Olsen’s seat on the Libby City Council to be vacated,” and an order prohibiting the elections office from “counting any vote for defendant Olsen in the Libby City Mayor election,” to constitute express advocacy. As the suit was filed in the name of the City, by the City Attorney, he ruled public resources had been used improperly for the purpose of express advocacy.

Brown contended Motl’s basis for finding express advocacy was flawed, as the express advocacy standard should be used as a judicial limitation on the ability of government entities to require registration and reporting of speech and other associated campaign activities.

“With this in mind, Motl erred as a matter of law and as a matter of constitutional jurisprudence in interpreting the express advocacy standard to apply to the filing of a lawsuit seeking a court determination as to the residence of a candidate for public office,” he wrote. “Under even the most strained interpretation of the United States Supreme Court’s ‘express advocacy’ standard, Mr. Reintsma’s lawsuit complaint does not constitute express advocacy.”

The suit asks the court to reverse and dismiss with prejudice the decision of Commissioner Motl in Magill v. Reintsma. It also requests attorney’s fees and costs and “such other relief in law or equity as the court finds just and proper.”

Commissioner Motl said while he has not yet been served with the suit, which was filed Jan. 21, 2016, in Libby, he is prepared to take the matter to court for resolution.

“It’s time to take it to court,” he said. “The only question now is the venue. There is clearly no interest in settling at this point, it’s time to go to court.”

Motl said the district court in Lewis and Clark County is the normal venue for these actions, and the filing of this claim in Lincoln County leaves him with two options. He said in some similar cases the office has filed their cases in Lewis and Clark County and then requested dismissal in the other county. In others, he has appeared in the other county and requested a change of venue to Lewis and Clark County.