December 17 2007
DA 06-0754
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 341
RUSSELL L. DOTY,
Petitioner and Appellant,
v.
MONTANA COMMISSIONER OF POLITICAL
PRACTICES, BRADLEY MOLNAR and JOHN E. OLSEN,
Respondents and Appellees,
and
IN THE MATTER OF:
THE COMPLAINT AGAINST BRADLEY
MOLNAR AND JOHN E. OLSEN.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV 2006 322,
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Russell L. Doty, pro se, Billings, Montana
For Appellees:
Honorable Mike McGrath, Attorney General; James M. Scheier,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: September 19, 2007
Decided: December 17, 2007
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant Russell L. Doty (Doty) filed two complaints before the Commissioner
of Political Practices (Commissioner) alleging that Bradley Molnar (Molnar) and John E.
Olsen (Olsen) violated campaign finance and practices laws by making false statements
about Doty during Molnar’s campaign against him. The Commissioner, Gordon Higgins,
found there was insufficient evidence to conclude that Molnar or Olsen violated such
laws, and Doty subsequently filed a petition for judicial review, a complaint for
declaratory judgment, and an application for mandamus challenging that decision in the
First Judicial District Court, Lewis and Clark County. The District Court granted the
Commissioner’s motion to dismiss all of the causes of action. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err in ruling that the Commissioner’s exercise of
discretion in electing not to file charges against Molnar and Olsen may not be controlled
by mandamus?
¶4 2. Did the District Court err in ruling that Doty was not entitled to seek a
declaratory judgment challenging the exercise of discretion by the Commissioner?
¶5 3. Did the District Court err in ruling that the Commissioner’s decision not to
prosecute is not subject to judicial review?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Doty and Molnar were both candidates for the Public Service Commission in
2004. Olsen was one of Molnar’s supporters. During the campaign, Molnar filed a
campaign finances and practices complaint against Doty with the Commissioner,
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alleging, among other things, that Doty was not a Montana resident, had used a false
address when he registered to vote, and had no intention of moving to Montana from his
home in Colorado, all of which Molnar argued was evidence that Doty was not qualified
to run for office in Montana. The Commissioner concluded there was insufficient
evidence that Doty violated § 45-7-202, MCA, Montana’s “false swearing” statute, or
§ 13-35-207, MCA, Montana’s “deceptive election practices” statute, and thus elected not
to pursue legal action against Doty on the basis of Molnar’s complaints.
¶7 Doty then filed two campaign finance and practices complaints against Molnar
with the Commissioner. The first complaint alleged that statements made by Molnar,
both in his complaint against Doty and elsewhere, were false. The second complaint
alleged that various statements made by Molnar and Olsen were false. With respect to
these claims by Doty against Molnar and Olsen, the Commissioner likewise found that
there was insufficient evidence to conclude that either Molnar or Olsen had violated
Montana’s political civil libel or false swearing statutes, and thus elected not to pursue
legal action against Molnar and Olsen. Doty then sought a declaratory judgment,
mandamus, and judicial review in the District Court challenging the Commissioner’s
decision not to prosecute Molnar and Olsen.
¶8 The Commissioner filed a motion to dismiss Doty’s action in the District Court.
The District Court held that: (1) Doty lacked standing to request a declaratory judgment
because h i s “rights, status, or other legal relations” were not affected by the
Commissioner’s decision not to pursue legal action against Molnar and Olsen; (2) the
Commissioner’s decision was not subject to mandamus because it was discretionary in
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nature; and (3) the Commissioner’s decision was not subject to judicial review because it
was not a “contested case,” and because Doty’s rights were not prejudiced by the
Commissioner’s decision. Accordingly, the District Court granted the Commissioner’s
motion to dismiss. Doty appeals.
STANDARD OF REVIEW
¶9 We review a district court’s ruling on a M. R. Civ. P 12(b)(6) motion to dismiss de
novo. State v. Hall, 2006 MT 37, ¶ 10, 331 Mont. 171, ¶ 10, 130 P.3d 601, ¶ 10. “A
motion to dismiss under [M. R. Civ. P. 12(b)(6)] has the effect of admitting all well-
pleaded allegations in the complaint. In considering the motion, the complaint is
construed in the light most favorable to the plaintiff, and all allegations of fact contained
therein are taken as true.” Hall, ¶ 10 (quoting Orr v. State, 2004 MT 354, ¶ 9, 324 Mont.
391, ¶ 9, 106 P.3d 100, ¶ 9). Dismissal is proper if the plaintiff would not be entitled to
relief based on any set of facts that could be proven to support the claim. Hall, ¶ 10.
“The determination of whether a complaint states a claim is a conclusion of law, and the
district court’s conclusions of law are reviewed for correctness.” Hall, ¶ 10.
DISCUSSION
¶10 The Commissioner is primarily responsible for investigating alleged violations of
Montana’s election laws and, in conjunction with the county attorneys, is also responsible
for enforcing those laws. Section 13-37-111, MCA. However, the Commissioner’s
obligation to enforce Montana’s election laws, and more specific to this case, Montana’s
campaign finance and practices statutes, is discretionary. The statute authorizing the
Commissioner to prosecute a violation of the election laws allows the Commissioner to
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begin such a prosecution only if the county attorney fails to do so, and even then, the
language authorizing such action is permissive. Section 13-37-124(1), MCA, states:
[W]henever the commissioner determines that there appears to be sufficient
evidence to justify a civil or criminal prosecution . . ., the commissioner
shall notify the county attorney . . . and shall arrange to transmit to the
county attorney all information relevant to the alleged violation. If the
county attorney fails to initiate the appropriate civil or criminal action
within 30 days after receiving notification of the alleged violation, the
commissioner may then initiate the appropriate legal action.
The statute does not require the Commissioner to prosecute any violation of election laws
if the county attorney declines to do so.
¶11 Doty alleged that Molnar and Olsen violated §§ 13-37-131(1) and 45-7-202,
MCA. Section 13-37-131(1), MCA, is Montana’s political civil libel statute, and reads:
“It is unlawful for a person to misrepresent a candidate’s public voting record or any
other matter that is relevant to the issues of the campaign with knowledge that the
assertion is false or with a reckless disregard of whether or not the assertion is false.” If
the Commissioner finds that the statute has been violated, the Commissioner or county
attorney is authorized to bring a civil action against such persons, who may in turn be
liable for up to $1,000, payable to the county and/or the general fund of the State.
Sections 13-37-129 and 13-37-131(4), MCA. Montana’s false swearing statute, § 45-7-
202(1)(a), MCA, makes it unlawful for a person to knowingly make a false statement,
under oath, in an official proceeding. Neither statute provides a remedy to an individual,
such as Doty, who files a complaint with the Commissioner. Rather, the campaign
finance and practices laws are, as the Commissioner correctly argues, for the benefit of
the public at large.
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¶12 Did the District Court err in ruling that the Commissioner’s exercise of
discretion in electing not to file charges against Molnar and Olsen may not be
controlled by mandamus?
¶13 Doty petitioned the District Court to compel the Commissioner to investigate and
make findings pursuant to the requirements of Admin. R. M. 44.10.307(3), which states:
Upon receipt of a complaint, the commissioner shall investigate . . . the
alleged violation. The commissioner, upon completion of the investigation,
shall prepare a written summary of facts and statement of findings, which
shall be sent to the complainant and the alleged violator. Following the
issuance of a summary of facts and statement of findings, the commissioner
may take other appropriate action.
The Commissioner issued a fifteen-page Summary of Facts and Statement of Findings
responding to Doty’s complaint. However, Doty argues that the Commissioner failed to
“summarize the facts and completely ignored his duty to make findings on the false
swearing charge.” The Commissioner responds that he sufficiently explained the basis
for his exercise of discretion, and that a discretionary act—such as his decision not to
prosecute Molnar and Olsen—cannot be compelled by mandamus. Doty replies that the
Commissioner’s argument fails because he is not seeking to compel the performance of a
discretionary act, but merely those ministerial duties required of the Commissioner by
law.
¶14 However, while i t is true that the focus of Doty’s argument on appeal is
compelling the ministerial duties required of the Commissioner, his pleadings were not as
narrowly tailored as he asserts. His complaint contained assertions regarding the
“standard of determining whether or not to proceed with a prosecution” and calling into
question the process the Commissioner must undertake “in determining whether to
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present his findings to a County Attorney.” These assertions necessarily involve the
exercise of the Commissioner’s discretion in deciding whether to prosecute.
¶15 A writ of mandamus “will not issue to compel performance of a discretionary
function.” Jeppeson v. Dept. of State Lands, 205 Mont. 282, 288, 667 P.2d 428, 431
(1983). In determining whether an act is ministerial or discretionary, we have observed:
[W]here the law prescribes and defines the duty to be performed with such
precision and certainty as to leave nothing to the exercise of discretion or
judgment, the act is ministerial, but where the act to be done involves the
exercise of discretion or judgment, i t is not to be deemed merely
ministerial.
State v. Cooney, 102 Mont. 521, 529, 59 P.2d 48, 53 (1936). Ministerial acts can be
compelled by mandamus; discretionary acts cannot. For example, we have held that a
prosecutor’s “decision as to whether or not to prosecute and what charge to bring against
an individual is entirely within the discretion of the county attorney.” Helena Parents
Commn. v. Lewis & Clark County Commissioners, 277 Mont. 367, 375, 922 P.2d 1140,
1145 (1996). The Commissioner’s role in determining whether or not to prosecute
alleged violations of Montana’s campaign finance and practices laws is analogous to the
prosecutorial work done by a county attorney, and cannot be compelled by mandamus.
Once his Summary of Facts and Statement of Findings was issued, the Commissioner had
discretion whether or not to “take appropriate action” by undertaking a civil prosecution.
See also § 13-37-124(1), MCA (“If the county attorney fails to initiate the appropriate
civil or criminal action within 30 days after receiving notification of the alleged violation,
the commissioner may then initiate the appropriate legal action.”) (emphasis added). We
thus concur with the District Court that the Commissioner’s decision not to pursue legal
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action against Molnar and Olsen was discretionary and is not subject to mandamus. The
Commissioner was under no legal duty to prosecute Molnar and Olsen for their alleged
violations of campaign laws.
¶16 That said, Doty also asserted that the Commissioner had failed to perform his
duties under Admin. R. M. 44.10.307(3) to “investigate” and “prepare a written
summary” upon receipt of Doty’s complaint on all of the issues raised therein. Under the
regulation, the Commissioner does not have the discretion to ignore these tasks. Rather,
they are ministerial duties which the Commissioner must perform. The State largely
ignores this argument, lumping all of Doty’s claims into one discretionary “pot.”
¶17 The Commissioner’s Summary of Facts and Statement of Findings explained, in
great detail and after a thorough investigation, the basis for his determination that there
was insufficient evidence to prove that Molnar or Olsen violated § 13-37-131(1), MCA.
Such findings also support the Commissioner’s conclusion that § 45-7-202(1)(a), MCA,
was not violated. Our review of the report leads to the conclusion that the Commissioner
investigated and issued a Summary of Facts and Statement of Findings which thoroughly
and carefully responded to Doty’s complaint, and which were sufficient to satisfy the
Commissioner’s duties with regard to all of Doty’s claims.
¶18 Did the District Court err in ruling that Doty was not entitled to seek a
declaratory judgment challenging the exercise of discretion by the Commissioner?
¶19 Doty also alleged that the Commissioner misinterpreted § 13-37-131(1), MCA,
and § 45-7-202(1)(a), MCA, and seeks review pursuant to Montana’s declaratory
judgment statute. The declaratory judgment statute, § 27-8-202, MCA, provides:
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Any person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are
affected by a statute, municipal ordinance, contract, or franchise may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder.
Thus, in order to file a declaratory judgment action against the Commissioner for failing
to pursue legal action against Molnar and Olsen, Doty’s “rights, status, or other legal
relations” must be affected the Commissioner’s interpretation of §§ 13-37-131(1) and 45-
7-202(1)(a), MCA.
¶20 The District Court observed, and we agree, that “Doty, himself, has not been
prosecuted or threatened with prosecution for violating campaign laws,” and thus, Doty’s
legal rights are unaffected by the Commissioner’s decision not to pursue legal action
against Molnar and Olsen. Indeed, Doty’s interest in the Commissioner’s interpretation
of §§ 13-37-131(1) and 45-7-202(1)(a), MCA, and its discretionary decision not to
prosecute Molnar and Olsen for political civil libel and false swearing, is no greater than
the public’s generally. “[A] showing only of such interest in the subject of the suit as the
public generally has is not sufficient to warrant the exercise of judicial power.”
Chovanak v. Matthews, 120 Mont. 520, 529, 188 P.2d 582, 585 (1948). To establish
standing, Doty must “clearly allege a past, present, or threatened injury to a property or
civil right,” and “the alleged injury must be distinguishable from the injury to the public
generally . . . .” Board of Trustees v. Cut Bank Pioneer Press, 2007 MT 115, ¶ 15, 337
Mont. 229, ¶ 15, 160 P.3d 482, ¶ 15 (citation omitted). Doty has failed to establish
standing.
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¶21 Doty’s conclusory allegations of injury to his character, reputation, and rights as a
past and future political candidate did not result from the Commissioner’s exercise of
discretion, and would not be redressed by any interpretation of §§ 13-37-131(1) or 45-7-
202(1)(a), MCA. Similarly, his allegation that “Montana voters were denied their
inalienable right . . . to truthful information during a campaign” is an injury to the general
public that cannot be redressed by the declaratory judgment sought. While Doty’s
defamation claims may have been pursuable within an independent civil proceeding, we
agree with the District Court that the declaratory judgment statute does not provide Doty
with standing to challenge the Commissioner’s discretionary decision not to prosecute
Molnar and Olsen, and therefore affirm the District Court.
¶22 Did the District Court err in ruling that the Commissioner’s decision not to
prosecute is not subject to judicial review?
¶23 Doty’s complaint sought to invoke the jurisdiction of the District Court under two
Montana statutes providing an aggrieved party the opportunity for judicial review of an
agency decision. The first is § 2-4-702(1)(a), MCA, which provides that “[a] person who
has exhausted all administrative remedies available within the agency and who is
aggrieved by a final written decision in a contested case is entitled to judicial review
. . . .” Alternatively, Doty cited § 2-3-114, MCA, which provides a district court with
“jurisdiction to set aside an agency decision . . . upon petition of any person whose rights
have been prejudiced.” The District Court correctly concluded that neither statute
subjects the Commissioner’s investigation, Summary of Facts and Statement of Findings,
or decision not to prosecute Molnar and Olsen, to judicial review.
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¶24 Section 2-4-702(1)(a), MCA, authorizes judicial review only of “contested case”
proceedings. A “contested case” is defined as “a proceeding before an agency in which a
determination of legal rights, duties, or privileges of a party is required by law to be made
after an opportunity for hearing.” Section 2-4-102(4), MCA (emphasis added). Doty’s
complaint before the Commissioner did not result in a “contested case.” The
Commissioner was not “required by law” to determine the legal rights, duties, or
privileges of any party. Likewise, there was no statutory requirement that the
Commissioner hold a public hearing during his investigation and decisionmaking
process. See § 13-37-111, MCA. Thus, the proceeding did not involve a “contested
case” and Doty is not authorized to seek judicial review of the Commissioner’s exercise
of discretion pursuant to § 2-4-702(1), MCA.
¶25 Section 2-3-114, MCA, authorizes judicial review, under certain circumstances,
“upon petition of any person whose rights have been prejudiced.” Under our discussion
of Doty’s complaint for declaratory judgment, we observed that Doty’s legal rights are
unaffected by the Commissioner’s decision not to pursue legal action against Molnar and
Olsen. For the same reason, we also hold that Doty is not a “person whose rights have
been prejudiced.” Any action taken by the Commissioner would have affected Molnar
and Olsen alone. The Commissioner had discretion to pursue legal action against Molnar
and Olsen and declined to do so after finding insufficient evidence to conclude that they
violated Montana’s campaign finance and practices laws. The Commissioner’s decision
not to prosecute is not subject to judicial review under § 2-3-114, MCA.
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¶26 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
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