Judge denies Writ on citizens' petitions

MISSOULA – Fourth Judicial District Court Judge Robert L. (Dusty) Deschamps, III denied a Writ of Mandamus that would have forced the Missoula County Elections Administrator (EA) to approve two citizens’ initiative petitions for collection of signatures.

Attorney Colleen Dowdall filed the petition for the Writ in January of 2020 on behalf of a pair of landowners in the Seeley Lake Sewer District, Don Larson and Tom Morris.

The two citizens’ initiative petitions in question were filed with the EA in 2019 with one filed by SLSD resident Franny Trexler and the other filed by Dowdall. Dowdall also represents Larson and several dozen landowners in a separate lawsuit from 2018 that has recently been dismissed.

In order to get a Writ from the Court, Dowdall had to show that the EA had a “clear legal duty” or abused their discretion in their denial of the petitions. Dowdall argued that the EA had clear legal duty to approve or reject the petitions as to form but instead they rejected it based on the legal analysis of the SLSD’s attorney Jon Beal.

In his order denying the Writ, Deschamps wrote that there was not a clear legal duty for the EA to only consider the form of the petition. While Montana Code Annotated 7-5-134 does state that the EA must approve the petition as to form it also states that they must refer a copy of the sample petition to the attorney for the local government unit. The code goes on to say that the local government attorney must review it for form and compliance with the MCA regulating citizens initiatives.

Deschamps pointed to an attorney general’s opinion from 1993 that reads “The county election administrator, upon the advice of the county attorney, may reject a sample initiative petition where it does not involve a matter subject to the initiative or referendum process.”

Deschamps concluded that because the local government attorney has a duty to review for compliance with MCA then the EA has the inherent authority to reject the petition upon the local attorney’s advice.

The Trexler petition filed Sept. 3, 2019 was seeking to put to a vote the repeal of SLSD Resolution No. 08152019A which mandated properties connect to the sewer.

Deschamps felt that the EA and Beal did not abuse their discretion in denying Trexler’s petition. Deschamps accepted Beal’s analysis that the subject matter of the petition fell outside of the powers of citizens’ initiatives.

The second petition turned into the EA by Dowdall was seeking to repeal a SLSD resolution from December of 2017.

Deschamps denied this petition stating that the Doctrine of Laches barred it.

“What the Court finds troubling here is that the initiative petition to repeal Resolution No. 12212017 was not presented to the EA until nearly two years after it passed. During that time the sewer project has continued to move forward. Time and money have been spent,” wrote Deschamps.

Deschamps went on to explain that there was no legal or other reason why this petition wasn’t filed two years earlier. The lawsuit filed by Larson in 2018 did not prevent them from also seeking citizens’ initiatives. Deschamps felt that the petition was only filed after decisions were made in Larson’s 2018 lawsuit and they wanted a second opportunity.