No. 90-421
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA, ex rel.
MARC RACICOT, Attorney General
for the State of Montana,
Relators,
THE DISTRICT COURT OF THE SEVENTH
JUDICIAL DISTRICT OF THE STATE
OF MONTANA, in and for the County
of Dawson, and the Honorable H.
R. Obert, District Judge,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relators:
Marc Racicot, Attorney General; Elisabeth S. Baker,
Assistant Attorney General; Garth Jacobson, Special
Assistant Attorney General, Helena, Montana
For Respondents:
Richard A. Simonton & Lorraine A. Schneider,
Simonton, Howe & Schneider, Glendive, Montana
Submitted: September 5, 1990
Decided: September 19, 1990
0
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
Richard A. Simonton, after years of estimable public service
as County Attorney of Dawson County, was defeated in his bid for
re-nomination as a candidate of the Democratic party by Gerald
Navratil in the primary election held on June 5, 1990.
On July 23, 1990, Simonton and Lorraine A. Schneider filed a
complaint for declaratory relief in the District Court, Seventh
Judicial District, Dawson County, alleging that 5 13-10-503, MCA,
barred Simonton's name from being placed on the ballot as an
independent candidate for the office of County Attorney of Dawson
County; that the said section denied Lorraine A. Schneider her
opportunity to vote for the candidate of her choice at the time of
the general election; that the plaintiffs were each denied the
right to equal protection and freedom of association under the
First and Fourteenth Amendments to the United States Constitution,
and Art. 11, 5 4 of the Montana constitution; and for declaratory
judgment that 5 13-10-503, MCA, was unconstitutional.
On August 7, 1990, Simonton presented his petition for
nomination as an independent candidate for the office of County
Attorney of Dawson County together with the requisite signatures
and filing fee to the Dawson County Election Administrator. She
rejected his petition on the grounds that 13-10-503, MCA,
required the petition for nomination as an independent candidate
to be submitted one week prior to the filing deadline for
candidates running for state political office.
The defendant in the declaratory judgment action was Patricia
Peterson BOjel the Dawson County Election ~dministrator,who was
represented in this case by the office of the Attorney General of
the State. On August 10, 1990, the District Court entered findings
of fact and conclusions of law, to the effect that ~imonton's
petition met the requirements of law for placement on the general
election ballot in November, 1990, and that 1 13-10-503 was
unconstitutional and unconstitutional as applied, and further
ordered the County Election ~dministrator to place the name of
Simonton on the general election ballot as an independent candidate
for Dawson County Attorney, provided that Simonton submitted to the
Election Administrator the requisite petition, signatures, oath of
office and filing fee on or before August 10, 1990.
On August 22, 1990, the Attorney General, by and through his
special assistant, Garth Jacobson, filed herein a petition and
memorandum in support thereof for supervisory control or other
appropriate relief from the order of the District Court entered on
August 10, 1990.
On receipt of the petition of the Attorney General, on August
23, 1990, this Court ordered the District Court and all counsel of
record to prepare, serve and file written responses to the
application for writ of supervisory control, together with
appropriate legal memoranda and exhibits in support thereof on or
before September 4, 1990; and that the Court would determine upon
receipt of those responses whether oral argument was necessary.
On the 5th day of September, 1990, this Court entered an order
in this cause finding there was no need for oral argument, and
further stating that the application of the Attorney General for
writ of supervisory control was granted. The ~istrictCourt and
presiding judge were ordered to take such steps as may be necessary
to reverse the decision of August 10, 1990, to inform the proper
election officials, and to remove from the general election ballot
of November, 1990, the name of Richard A. Simonton as an
independent candidate for the office of County Attorney. We also
stated that a full Opinion respecting the matter would issue later.
This opinion is in fulfillment of that statement.
Acceptance of Jurisdiction
Since this cause is an original proceeding in this Court, the
first question to be met is whether the petition and the responses
thereto present a cause sufficient to move the remedial
jurisdiction of this Court.
The Supreme Court of this state is given general supervisory
control over all of the state courts. Art. VII, 5 2(2), Mont.
Const. Our Rule 17(a), Montana Rules of Appellate Procedure,
recognizes that the institution of original proceedings in the
Supreme Court is sometimes justified by circumstances of an
emergency nature, when supervision of a trial court other than by
appeal is deemed necessary or proper. We have found that an
assumption of original jurisdiction is proper when (1)
constitutional issues of major statewide importance are involved;
(2) the case involves purely legal questions of statutory and
constitutional construction; and (3) urgency and emergency factors
exist, making the normal appeal process inadequate. State ex rel.
Greeley v. Water Court, State of Montana (1984), 214 Mont. 143, 691
P.2d 833. We will accept declaratory judgment proceedings "where
the issues have impact of major importance on a statewide basis,
or upon a major segment of the state, and where the purpose of a
declaratory judgment proceedings will serve the office of a writ
provided by law . . . Grossman v. State, Department of Natural
Resources (1984), 209 Mont. 427, 436, 682 P.2d 1319, 1324.
We find that the criteria for exercising original jurisdiction
are present in this case and have accepted jurisdiction for the
purpose of determining what relief should be granted.
Grounds Used By District Court To Grant Relief
The District Court found that S 13-10-503(2), MCA, and the
procedure for the inclusion of an independent candidate's name on
the general election ballot is unconstitutional because it deprived
the independent candidate of equal protection of the law afforded
by the Fourteenth Amendment, and because it deprived the electorate
of an effective right to exercise free speech and the right of
association protected by the First Amendment. The District Court
found that it was arbitrary and capricious to require independent
candidates to file their petitions for office with the Election
Administrator prior to the primary filing deadline. The District
Court also found no rational basis or compelling state interest for
requiring an independent candidate to secure signatures and to
submit them in the form of a petition to the ~lection
~dministrator
at least one week before the primary deadline when the same
commitment was not required of major party candidates and when the
independent candidate's name does not appear on the primary ballot.
The court further said there was no rational basis for requiring
independent candidates for offices other than President or Vice-
President to submit petitions prior to the primary deadline when
the same is not required of Presidential and Vice-Presidential
candidates.
The District Court further stated that 5 13-10-503 (2), MCA,
infringed on Simonton's right to an effective and meaningful access
to the general election ballot and served only to shield party
candidates from independent competition in the general election.
Basis For The Constitutional Issue
The parts of our statutes which are pertinent follow:
13-10-501. Petition for nomination by independent
candidates. (1) . .
. nominations for public office by
an independent candidate ...may be made by a petition
for nomination.
(2) The petition must contain the same information and
the oath of the candidate required for a declaration for
nomination.
13-10-503. Filing Deadlines. (1) A petition for
nomination, accompanied by the required filing fee, shall
be filed with the same officer with whom other
nominations for the office sought are filed. Petitions
must be submitted, at least 1 week before the deadline
for filing, to the election administrator in the county
where the signer resides for verification and
certification . .
. In the event there are insufficient
signatures on the petition, additional signatures may be
submitted before the deadline for filing.
(2) ... each petition shall be filed on or before the
filing deadline for the primary election or for the
special or general election if no primary election is
scheduled.
13-10-504. Independent or minor party candidates for
president or vice-president. (1) An individual who
desires to run for president or vice-president as an
independent candidate . . . must file a petition for
nomination with the secretary of state 90 days prior to
the date of the general election.
(2) The petition must first be submitted, at least 1
week before the deadline for filing, to the election
administrator in the county where the signer resides for
verification and certification . ..
In addition, 9 13-10-327, MCA, provides that if a party
candidate dies or withdraws after the primary and before the
general election, the affected political party shall appoint
someone to replace the candidate. Such appointments to fill
vacancies must be made no later than 75 days before the election.
Section 13-10-327(2), MCA.
Candidates on a partisan ticket for an elective office must
file their declarations for nomination under 5 13-10-201(6), MCA,
at least 75 days before the date of the primary election.
Insofar as the foregoing statutes affect this case, the
primary election was held on June 5, 1990. The final filing date
was March 22, 1990. Independent candidates were required to submit
their petitions for candidacy by March 15, 1990, to be final by
March 22, 1990. Candidates for nomination by a political party for
an elective office were required to file their declarations of
nomination by March 22, 1990. Since 1990 was not a presidential
election year, there were no contests in Montana for the office of
President or Vice-President of the United States.
The District Court did not quarrel with the requirement that
independent candidates submit their petitions to the election
administrator prior to the final filing date. Rather it contended
that the statute violates the Fourteenth Amendment's Equal
Protection Clause in two requirements: (1) the required filing
before the primary deadline when the independent's name did not
appear on the primary ballot; and, (2) requiring the independent
to secure sufficient signatures on a petition and submitting it at
least one week before the party candidates must express their
intentions. (Under 13-10-502(2), MCA, the petition of an
independent candidate to be placed on the ballot must be signed by
electors residing within the county, and the number must be 5% or
more of the total vote cast for the successful candidate for the
same office at the last general election.)
Disposition
Simonton's Fourteenth Amendment arguments compare the
differences in final filing dates between Presidential and Vice-
Presidential candidates, candidates for major party nomination, and
candidates who are independents or minor party candidates. He
argues that there is no compelling reason for the differences in
filing requirements and that such requirements serve only to
inhibit minor parties and independent candidates from running for
election and they perpetuate the two-party system. He further
points out that until 1973, independent candidates could file after
the primary election as candidates on the general election ballot
and no chaos or confusion resulted thereby.
Simonton relies primarily upon two U.S. Supreme Court
decisions, Williams v. Rhodes (1968), 393 U.S. 23, 89 S.Ct. 5, 21
L.Ed.2d 24, and Anderson v. Celebrezze (1983), 460 U.S. 780, 103
S.Ct. 1564, 75 L.Ed.2d 547.
Williams involved a challenge to Ohiols election laws which
required a person other than a nominee of a major political party
to secure signatures of 15 percent of the qualified electors on a
petition and the filing of that petition earlier than for other
candidates. The case involved candidates of a minor party seeking
to secure a place on the Ohio ballot for President and Vice-
President. In Williams, the U.S. Supreme Court found that Ohio's
election procedures were burdensome and preventedthe minor parties
from ever getting on the ballot and that reliance on write-ins was
an insufficient remedy when compared to a printed appearance on the
ballot.
In Anderson, the U. S. Supreme Court again examined Ohio law
and found its primary deadlines, when applied to independent
candidates and minor candidates, to be unconstitutional. There,
Anderson, running for president of the United States, did not
tender his petition until May 16, when the filing deadline was
March 20, and the election administrator refused the petition. The
Supreme Court held that Ohio's early filing deadline placed an
unconstitutional burden on the voting and associational rights of
Anderson supporters and that the requirement that he must gather
5,000 signatures on a number of petitions would discourage
independent candidates who otherwise would have to decide well in
advance of the March filing deadline whether to run.
Simonton also relies on Bradley v. Mandel (D. Md. 1978), 449
F.Supp. 983, examining a Maryland statute and resulting in the same
kind of decision, and other cases.
Simontonls and Schneiderls arguments respecting the First
Amendment follow along the same lines. They contend that the state
must have a compelling interest in order to restrict independent's
rights; that such election laws are the product of legislators
elected by major parties who have a direct interest in the failure
of independent candidacies; and that such filing limitations burden
the rights of individuals to associate for the advancement of
political beliefs and prevent qualified voters from casting their
votes effectively. They also contend that being independent is
evidence of a state of mind and that the statute which prevents
independent persons from fielding an opposition candidate to
partisan candidates after a primary is in effect a prior restraint.
Simonton and Schneider raise constitutional issues of
considerable complexity and depth, but in this case they are not
the right parties to raise such issues. Simonton does not come
before the Court as a truly independent candidate. He is a
partisan candidate who ran for re-election for the office of County
Attorney on the Democratic ticket and failed to prevail in the
primary election. When he filed his declaration for nomination as
a Democratic candidate, that declaration became conclusive evidence
that he was a candidate for nomination by his party. Section 13-
10-201(4), MCA. He has not been denied access by law to the
general election ballot, but by the will of the electors in the
party he sought to represent. He made no attempt to file as an
independent candidate prior to the filing date and the laws
requiring petitions and signatures for nomination as an independent
candidate did not prevent him from seeking office. He chose a
method of obtaining office that was permitted by law and cannot
now complain about the operation of law that would apply to other
possible candidates than himself.
The same situation exists with respect to Lorraine A.
Schneider. The evidence in the case is that she voted in the
primary election, having signed the register of voters at the
primary election in Dawson County which certifies that she received
primary election ballots. We do not know how she voted but we do
know she had an opportunity to vote for the candidate of her
choice, Mr. Simonton. Again, no operation of the laws relating to
independent candidates prevented her from voting for her candidate
as a representative of the party ticket under which he chose to
run, and in which she was given the right to choose to vote.
This position of lack of standing of either Simonton or
Schneider to raise the constitutional issues in this case is
strongly urged upon us by amicus curiae, Montana Association of
Counties, which filed with us an amicus brief. Essentially, the
Association argues that neither Simonton nor Schneider have been
disadvantaged in the sense that he was truly an independent who was
prevented from appearing on the ballot by virtue of the filing
requirements.
The District Court, recognizing that Simonton had been a
partisan candidate for the same office, gave no heed to this factor
because, the court said, Montana did not have a Ivsore loservv
statute that would prevent defeated partisan candidates from filing
as an independent for the same office. Until the enactment of 9
13-10-503, MCA, in 1973, defeated partisan candidates often re-
entered the fray as independent candidates at the general election.
The adoption by the legislature of 3 13-10-503, MCA, effectively
stopped this procedure. While the statute might be considered in
some respects as a "sore loservv
provision, we do not rely on it for
that effect. It is far more to the point here that Simonton and
Schneider each exercised full candidacy and electoral rights as
partisans, and now seek the advantages of law preserved to
independents in election matters. When Simonton filed for re-
election as a partisan, he did so under the election laws which
vvburdenedll
independent candidates for the same office. He cannot
now complain of the unconstitutional burdens on others which, if
Simonton is correct, kept independent candidates out of the race.
It is old but settled law that to raise questions of the
unconstitutional discriminatory effect of statutes, the party
complaining must belong to the class discriminated against. State
v. State Bank of Moore (1931), 90 Mont. 539, 552, 4 P.2d 717, 720.
One cannot abide by the provisions of laws which work in one's
favor, and then attack their constitutionality when they work to
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