HD 12 case heads to Montana Supreme Court

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POLSON — The saga of who will represent House District 12 and which party will control the House of Representatives continued this week. The Lake County District Court decision upholding the findings of the recount board as a tie vote between Constitutionalist Rick Jore and Democrat Jean Windham was appealed by Anita Big Spring to the Montana Supreme Court last Friday, the same day that District Judge Kim Christopher issued her conclusions.

Big Spring notified Jore's attorney, Duncan Scott of Kalispell, that she is requesting a Supreme Court order "expediting the submission of this appeal by reducing the time for transmission of the record and by setting an expedited briefing schedule."

The need to move fast on the appeal was emphasized by Big Spring's attorney Peter Michael Meloy of Helena:

? The position has been taken that judicial relief will be unavailable to Contestant (Windham) once the House is seated on Jan. 3 in light of the House's authority over the seating of its members and the political composition of the House at that point.

? The court reporter, who indicated the evidentiary hearing portion of the district court hearing is about 58 pages long, would be out of town the weekend of Dec. 18 and 19.

? Jore's attorney in Kalispell would be on vacation from Dec. 22-30.

? Meloy advised the court that counsel for the respondent (Jore) has no objection to the motion for an expedited briefing and transmission of the record.

Big Spring proposed that her brief be due on Dec. 20 and Jore's brief be due on Dec. 21, and Big Spring's reply, if any, be due to Dec. 22. She also asked that both parties be required to serve briefs and appendices by fax and/or e-mail no later than 5 p.m. on the due dates.

Big Spring's motion stated she "realizes that this means the parties will be preparing their briefs without the benefit of the transcript. However, she does not believe this will prejudice the parties' ability to present their arguments to the Court. The central issue in this case is the facial validity of the seven disputed ballots, while the matters presented at hearing were largely peripheral. Indeed, the most important basic facts were stipulated in writing."

Judge Christopher's findings

Following last Friday morning's hearing on Big Spring's appeal, Judge Christopher issued a 14-page findings of fact, conclusions of law, and her order.

Among 43 basic findings of fact were the tie vote — 1,559 votes apiece for Jore and Windham and 1,108 for Republican Jack Cross, the certification of the results by the State Board of Canvassers, actions by the county recount board, the seven disputed ballots, and why the board considered them votes for Jore.

In the 29-point conclusions of law, the judge reviewed the rules adopted by the Secretary of State governing the procedures in the determination of a valid vote. She placed emphasis on provisions 44.3.2402, which provide "more than one designated voting area has been marked, but a clear word, mark or statement is used to indicate the correct vote. The election official shall clarify the ballot and cause a vote to be counted for the designated voting area indicated as the correct vote."

The judge also cited "As argued by Big Spring, the Montana Supreme Court has consistently required, even before Bush v. Gore, 'that both statutory and case law as required that ballots be disallowed unless the intent of electors could be established with reasonable certainty from the ballot.'" Judge Christopher placed emphasis on the part of the sentence reading 'unless the intent…"

"A decision by this Court to throw out the seven double marked, crossed out ballots would be grounds for throwing the 70 other ballots that share the identical characteristics and were interpreted in the same fashion in Lake County."

In a six-point order, the Judge denied Big Spring's request for relief; and found that the Lake County Election Administrator and Recount Board properly declared the race to be a tie by complying with the Montana Code, the Administrative Rules of Montana, the decisional law of the Montana Supreme Court and common sense."

She further found "to the extent it is proper for this Court to review the seven ballots at issue here, when treating them differently than other identical ballots raises constitutional and statutory infirmities, this court must find that each elector used a clear mark to indicate that the elector intended to vote for Jore, and thus his or her choice can be determine as provided in 13-15-2-6(6), MCA.

"The seven votes assigned to Contestee Rick Jore are valid," she wrote.

Big Spring's case was dismissed with prejudice and Jan. 6, 10 a.m., was set for a hearing in District Court on the issue of Jore's costs and reasonable attorney's fees.

On Monday of this week the Court accepted Big Spring's motion for an expedited hearing. All paperwork was to be filed by 5 p.m., Wednesday and presumably the Court would then consider the matter.

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