09/07/2016 Case Number: OP 16-0522 IN THE SUPREME COURT OF THE STATE OF MONTANA Cause No. JEFF ESSMANN, in his individual capacity as a registered Montana voter and in his capacity as Chairman of the Montana Republican Party, Petitioner, vs. THE STATE OF MONTANA, by and through its Secretary of State, LINDA McCULLOCH, and by and through its Commissioner of Political Practices, JONTHAN MOTL, sued in their official capacities, and Respondents, ROGER ROOTS, a necessary party pursuant to MCA Section 27-8-301, Respondent. PETITIONER'S MOTION FOR TEMPORARY RESTRAINING ORDER James E. Brown 30 South Ewing Street, Suite 100 Helena, MT 59601 Tel: (406) 449-7444 Fax: (406) 443-2478 thunderdomelaw@gmail.com Attorney for Petitioner Appearances 1
1. Petitioner, pursuant to MCA 27-19-314 and 27-19-201 and Rule of Appellate Procedure (RAP) Rule 14 and Rule 16, moves this Court for a Temporary Restraining Order that directs Respondent the Montana Secretary of State McCulloch ("McCulloch") to prevent county election administrators from printing or providing to voters a 2016 ballot that contains the name of Respondent Roger Roots ("Roots") as a candidate for the office of Secretary of State. The Motion is supported by the Petitioner's Affidavit attached as Exhibit "1." 2. In Porter v. K & S Parternship (1981), 192 Mont. 175, 183, 627 P.2d 836, 840, this Court made clear that the function of a temporary restraining order (TRO) is to maintain the "status quo" pending a decision on the merits of a controversy. MCA 27-19-201 sets forth the criteria for the issuance of a TRO. 3. As more fully set forth in Plaintiff s Petition, Secretary McCulloch certified the name of candidate Roger Roots who is unqualified to appear on 2016 ballot. Roots failed to file campaign finance disclosure reports (C-5 reports) with Respondent Jonathan Motl, Montana's Commissioner of Political Practices (`COPP"). C-5 reports are required by law. MCA 13-37-225. Roots also failed to file the required Business Disclosure Report (D-1 report), as required by MCA 2-2-106; see also, Affidavit of Essmann attached hereto at 17-22 and Exhibit "2", screenshot of Roots' 2016 COPP filings. 2
4. These failures disqualify Roots from appearing on the 2016 ballot. MCA 13-37-126(1) mandates: The name of a candidate may not appear on the official ballot for an election if the candidate or a treasurer for a candidate fails to file any statement or report as required by 2-2-106 (the D-1) or this chapter (the C-5 reports). 5. Despite Mr. Roots' failures to satisfy the requirements of the statute, and despite the clear statutory duty of both Respondents McCulloch and Motl to keep Roots' name from appearing on the ballot, Roots has been allowed to remain on the 2016 ballot. 6. No legitimate or reasonable legal basis exists for Respondents Motl or McCulloch to allow Roots to remain on the ballot when (1) other candidates who have not complied with the filing requirements were removed from the ballot, and (2) the other two Secretary of State candidates fully complied with Montana's disclosure reporting laws a scenario that implicates constitutional equal protection concerns. 7. By ignoring their duties under law, Respondents have undermined Montana's interest in full and complete disclosure. 8. On September 1, Petitioner, through legal counsel, contacted Respondent McCulloch and requested she use her authority as Chief Election Officer to immediately contact all county election administrators and direct them to 3
desist preparing ballots containing Roots' name. See, Exh. "3." Secretary of State McCulloch has not responded. 9. Pursuant to Rule 14 and Rule 16 RAP and MCA 27-19-201 and 27-19-314, a TRO should immediately issue directing Respondent McCulloch to fulfill her duties as Chief Election Officer by directing each election administrator to keep Roots' name from appearing on any ballot now being processed, printed or delivered to voters until Petitioner's claims are resolved. See, MCA 13-1-202. 10. A TRO must issue immediately to protect the status quo pending a decision on the merits of this controversy. As noted, unlawful ballots containing Roots' name could be sent to voters when printed, but no later than September 23, 2016. MCA 13-12-205. 11. A TRO works to maintain the status quo pending decisions on the merit of controversies and preliminary injunctions are granted when the applicant will suffer great or irreparable injury if the action specified is committed or continues, or if the injury affects the rights of the applicant and tends "to render the judgment [pending before the court] ineffectual." MCA 27-19-101 and 27-19- 201(2)-(3). 12. This Court is authorized to immediately prevent such actions from transpiring. Shammel v. Canyon Resources Group,2003 MT 372, Illf 15-16, 82 P.3d 912, 917. 4
13. Thus, a TRO is warranted to prevent irreparable harm to Petitioner resulting from having Roots an unqualified candidate appear on the 2016 ballot. See, MCA 27-19-201(2). 14. Only a TRO maintains the status quo and ensures that Petitioner's claims are not rendered moot before a decision on the merits. See, MCA 27-19- 201(3). 15. Should ballots containing the name of Roots be provided to voters, Petitioner will be harmed by having his constitutionally-protected right to vote diluted due to votes being cast for Roots, an unqualified candidate. 16. In addition, the D-1 form is required because it reveals to voters the candidate's financial interests, and identifies potential conflicts the voter sees if the candidate is elected. Roots' failure to file the D-1 deprives voters, including Petitioner, of information needed to decide whether to cast a vote for Roots. The public's interest, and the Petitioner's interest as a voter and Party Chair, in candidate transparency are harmed by allowing Roots to remain on the ballot. Montana Auto, Ass'n v. Greely (1981), 193 Mont. 378, 632 P.2d 300. 17. Petitioner demonstrates that Respondents have violated their duties as set forth in MCA 13-37-126(1) by allowing Roots' name to appear on the 2016 ballot even though Roots failed to file the D-1 and C-5 disclosure forms with 5
COPP. Petitioner demonstrates a strong likelihood of succeeding on the merits. MCA 27-19-201(1). 18. Secretary McCulloch unlawfully certified Roots to appear on the 2016 ballot. The only relief available to correct that illegal action is filing the TRO and related Petition. The TRO and Petition are the only legally available remedies ensuring that voters are not provided an unlawful ballot. Petitioner will be irreparably injured when votes are cast for Roots. Exh. "1" at pp. 12-14. Petitioner clearly brings forth sufficient facts substantiating 'great or irreparable injury'. MCA 27-19-201(2). Monetary damages are not appropriate to address Petitioner's harm caused by Respondents Motl's and McCulloch's failure to perform their legal duties. See, MCA 27-19-201(2). 19. Any balance of hardships tips in Petitioner's favor because Petitioner and all Montana voters are being subject to unlawful actions by Respondents Motl and McCulloch when unqualified candidates, like Roots, appear on a ballot. Requiring government officials perform legal duties is not a hardship. There is a clear public interest in ensuring that a person who fails to file campaign finance reports does not benefit from his unlawful acts. 20. Pursuant to MCA 27-19-314, the undersigned notified the State of this filing (Exhibit"4") as required and thus this motion is made with notice. 6
PETITIONER REQUESTS 1. The Court issue an immediate TRO prohibiting any ballot containing Roots' name from being processed, printed or provided to voters; 2. That Respondent Motl violated MCA 13-37-126(3), and should be directed to notify Montana county election administrators of this Order and that ballots containing the name of Roger Roots should not be processed, printed or provided to voters; 3. The Court immediately set a show cause hearing that directs the Respondents to appear and show cause why the preliminary injunction requested should not issue; 4. That after such hearing, the Court issue a preliminary injunction enjoining Respondent McCulloch and elections administrators from providing the unlawful ballot with Roots' name on it to voters pending resolution of this matter; 5. In the interest of justice and pursuant to MCA 29-19-306, no bond or undertaking should be required in this matter. A TRO will actually avoid financial harm to the Parties. Respectfully submitted this 7th day of September, 2016. By: 7 JAMES E. B Attorney for Petitioner
CERTIFICATION OF COMPLAINCE Pursuant to Rule 11(4)(e) of the Montana Rules of Appellate Procedure, I certify that the foregoing is proportionally spaced using 14-point font, is double spaced, and the word count calculated by Microsoft Word 2016 for Windows 10 is 1,247 words, excluding tables, captions and summaries. By: Yf JAMES E. B Attorney for Petitioner 8
CERTIFICATE OF SERVICE I hereby certify that on the 76- day of September, 2016, I served true and accurate copies of the foregoing by the method(s) indicated below, addressed as follows: Linda McCulloch Montana Secretary of State P.O. Box 202801 Helena, MT 59620 Respondent Jonathan Motl Montana Commissioner of Political Practices P.O. Box 202401 Helena, MT 59620-2401 Respondent Roger Roots 113 Lake Drive East Livingston, MT 59047 Respondent Attorney General Tim Fox Montana Department of Justice P.O. Box 201401 Helena, MT 59620-1401 (courtesy copy) El E-Mail El Hand Delivered EI Certified Mail 111 Overnight El E-Mail EZI Hand Delivered Certified Mail El Overnight O E-Mail El Hand Delivered El Certified Mail Overnight El E-Mail NI Hand Delivered O Certified Mail O Overnight Laura Welker Legal Secretary 4t/./i42. 9