Opinion
No. 04-820
December 9, 2004
ORDER
On December 6, 2004, applicant Jeanne Windham filed with this Court an Application for Writ of Mandamus or Declaratory Relief. This application is related to the as yet undetermined outcome of a race for Montana House District 12, which is geographically located in Lake County, Montana. Windham requests that we exercise original jurisdiction over the counting of certain ballots by the Lake County Election Administrator and its Board of Resolution. Specifically, Windham "prays that this Court assume original jurisdiction and that an alternative writ of mandate issue to the Lake County election administrator and its Board of Resolution commanding them to appear before this Court and show cause, if any they have, why the said Respondents have failed to follow the administrative rules and the decisional law of the Court by counting the invalid ballots as aforesaid and why a writ of mandate should not issue from this Court commanding the said Respondents to declare the Applicant the duly elected Representative for House District 12." The application also names Rick Jore, who ran for House District 12 on the Constitution Party ticket — and with whom Windham is tied as a result of the counting of certain ballots — as a respondent.
We recognize the importance and immediacy of the matters raised by Windham's application, particularly given the imminence of the Fifty-Ninth Legislature. We observe, however, that Windham has not advanced any authority under which this Court is authorized, in the first instance, to declare the winner of an election. Under the current facts, there has been no declared winner in the race for House District 12. As of today, the race has been declared a tie and, pursuant to §§ 13-16-501 and 13-16-503, MCA, the secretary of state must "send a certified statement to the governor showing the votes cast for each individual and the governor shall appoint one of those candidates to the office."
A writ of mandate may issue to compel the performance of an act that the law specifically enjoins in cases in which there is not a plain, speedy and adequate remedy in the ordinary course of law. See § 27-26-102, MCA. Here, there are remedies provided in the ordinary course of law. Section 13-16-503, MCA, provides the Secretary of State must send a certified statement to the Governor showing the votes cast for each individual, and the Governor shall appoint one of the candidates to the office. Further, an elector wishing to contest the above process on the basis of an erroneous or fraudulent count of votes may file a challenge pursuant to Title 13, Chapter 36, MCA.
We also observe that, by requesting that we require respondents to appear before this Court to show cause on these matters, Windham seems to contemplate something in the nature of "making a record" before this Court. To the extent a "record" is required, it must be made in the district court specified by statute to address challenges to election outcomes.
THEREFORE,
IT IS ORDERED that the Application is DENIED without prejudice to the raising of the issues at another time and in another forum.
The Clerk is directed to give immediate telephonic or facsimile notice of this Order, followed by notice by mail, to the Lake County Attorney, Rick Jore, and counsel for Windham.
JUSTICES KARLA M. GRAY, W. WILLIAM LEAPHART, JIM RICE, JOHN WARNER, concur.
I dissent. I would conclude that this is a case in which the remedy in the ordinary course of law is inadequate.
The plain fact is that in a mere three weeks, the Fifty-Ninth Legislature will convene. Even now, the parties are meeting to name committee chairpersons and align their respective ducks for the session's commencement. To do this correctly and efficiently, everyone — not just the Republicans or just the Democrats — needs to know as soon as possible what the composition of the House will be. Under the "remedy" left to them by the Court's Order, this question may well go unanswered for weeks as the parties await the governor's appointment, and the ensuing preparation and filing of an application contesting the appointment in the Lake County District Court under Title 13, Chapter 36, MCA. Next, there will be a hearing at which the contested ballots are considered. The District Court will then presumably reach its decision, following which an appeal to this Court will — given the stakes presented by this situation — inevitably proceed. Thus, the parties will end up right back here, where they are now, and the only matter at issue then will be, as it is now, the legality of the seven ballots attached to Windham's petition.
In Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124, a case substantially similar to the one at bar, we held that regardless of the District Court's determination of the legality of the ballots at issue there, we were free to make our own examination of the entire case, and to make a determination in accordance with our findings. Rennie, 226 Mont. 415, 735 P.2d 1126. Moreover, we have extensive case law as to how ballots of the sort at issue here are to be interpreted, and there are statutes and administrative regulations that directly control. In the final analysis, however the matter is decided in the District Court, its application of our cases and the statutes and administrative regulations governing the interpretation of the ballots will be reviewed by this Court, de novo, for correctness as issues of law. Marsh v. Overland (1995), 274 Mont. 21, 25, 905 P.2d 1088, 1090.
Under these circumstances, it makes no sense to require Windham and Jore to first engage in truncated litigation in the District Court. Nor will they be the only persons to suffer as a result of the Court's decision. Every member of the legislature, and by extension, the citizens who elected them to provide efficient service there, will be harmed as the process the Court compels here unfolds and plays out over costly and irretrievable time.
If ever a set of circumstances was presented that rendered the remedy available in the ordinary course of law inadequate, this is it. I would assume original jurisdiction and issue a writ of mandate as requested. I therefore dissent from the Court's Order.
Justice James C. Nelson joins in the dissent of Justice Patricia O. Cotter.
Justice Jim Regnier joins in the dissent of Justice Patricia O. Cotter.