Barthelmess v. Bergerson ( 1986 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
BOB BARTHELMESS,
Plaintiff and Respondent,
BRUCE K. BERGERSON, SR.,
TED HIRSCH and MAURICE E.
FLEMING, as COUNTY
COMMISSIONERS OF CUSTER
COUNTY, MONTANA; and CUSTER
COUNTY, MONTANA, a body
politic and corporate,
Defendants and Appellants,
V .
TONIA R. STRATFORD,
Contestant and Appellant,
v. O e w1. - X I L mCOURD
LP
CLERK OF SUCREME
'd*
STATE OF MONTANA
BOB BARTHELMESS,
Contestee and Respondent.
ORDER AND OPINION
This Court in an opinion issued on November 6, 1985,
Barthelmess v. Bergerson (Mont. 1985), 708 P.2d 1010, 42
St.Rep. 1685, ordered the redistricting of Custer County to
comply with the criteria set forth in 5 7-4-2102, MCA, noting
that the boundary lines approved October 31, 1983, do not
comply with the statutory requirements.
We ordered the districts be redrawn to comply with the
statute consistent with this opinion. In addition, we
directed that both District Judges of the Sixteenth Judicial
District must review and approve a plan before it was filed
and recorded.
In our opinion we noted that Mr. Barthelmess did not
reside in the commissioner district from which he ran and was
elected, and directed the District Court's conclusions of law
as to the boundary lines be modified. Furthermore, we
modified conclusion No. 5 of the court's findings and
conclusions "declaring Bob Barthelmess the duly elected
commissioner of District #2, to permit him to hold office
until the next general election when a candidate would be
elected for the remainder of the term involved."
Barthelmess, 708 P.2d at 1014, 42 St.Rep. at 1689.
The Custer County commissioners in good faith attempted
to carry out the ma.ndates of the opinion of this Court and
immediately upon receiving the decision of this Court,
attempted to draw new commissioner districts before December
2, 1985.
The need to meet the December 2, 1985 deadline was
noted in our opinion as mandated by $ 7-4-2102, MCA, which
sta.tes
:
No change in the boundary lines of any
commissioner district shall be made
within 6 months next preceding a primary
election.
The primary election is scheduled to occur in Custer County
on June 2, 1986.
A redistricting plan was submitted to Judges Alfred B.
Coate and A. B. Martin, November 26, 1985, and an order was
issued by the Honorable Alfred B. Coate the same day
rejecting the newly proposed commissioner districts that had
been created as mandated by the opinion of this Court. On
December 3, 1985, the two Judges issued a memorandum
expressing concern over the inability to create commissioner
districts as required by $ 7-4-2102, MCA, within the time
prescribed by statute. In late December, 1985, the
commissioners of Custer County submitted a new proposal for
the creation of commissioner districts which they believed to
be in conformity with 5 7-4-2102, MCA. On January 3, 1986,
the two presiding District Judges of the Sixteenth Judicial
District reviewed and approved the commissioner's second
redistricting plan as proposed. The District Judges rendered
no opinion as to whether these two newly created and approved
districts could now be filed, since filing would be in
violation of $ 7-4-2102, MCA, which allows no change in
commissioner district boundaries within six months before a
primary election.
Thereafter, this Court received on January 17, 1986, a
stipulation of the contesting parties, Bob Barthelmess and
Tonia R. Stratford, through their respective attorneys that
they are in agreement as to the facts set forth in the Motion
for Clarification or for a Declaratory Judgment or other
appropriate relief, and waived time in which to submit reply
briefs to this Court.
The purposes of the provision in 5 7-4-2102, MCA, that
no change in the boundaries of any commissioner district
shall be made within six months next preceding a primary
election are to prevent gerrymandering and to provide
sufficient time for candidates to file for election to the
office of county commissioner. Such provision should not be
construed or enforced so as to prevent the formation and
filing of county commissioner districts when as here the
former districts which had been proposed and approved did not
meet the other statutory requirements of compactness and
equality of population. Strict enforcement here of the six
month provision would serve to prevent the residents not only
of district # 2, but of the other district whose commissioner
must be elected this year, from legally electing their
commissioners. The voters of the two districts would be
disenfranchised and the transaction of county business
impeded. When the reason for the statutory rule ceases, the
reason for its enforcement also ceases. We have in this case
therefore a proper subject for declaratory relief in the
interpretations of statutes.
Accordingly, by way of declaratory relief,
IT IS ORDERED:
1. The county commissioner districts of Custer County,
Montana, as proposed by the county commissioners and as
approved by the District Judges of the Sixteenth Judicial
District on January 3, 1986, shall be and constitute the
county commissioner districts of said county for all purposes
relating to the primary and general election of 1986 and
until further redistricting.
2. The county commissioners of said county shall
forthwith file in the office of the county clerk and recorder
of said county a certificate designating the metes and bounds
of the boundary lines and limits of each commissioner
district pursuant to the proposal for districts approved by
the District Judges of said district on January 3, 1986.
3. The county commissioners shall append to said
certificate when filed a certified copy of this order, which
shall be in lieu of the requirement in S 7-4-2103, MCA, that
the certificate shall be dated and signed by the District
Judges.
4. Any person qualified to be a candidate for county
commissioner of said county from district # 2, or from any
other district for which an election is to be held in said
county, as said districts are here ordered and determined,
may file for election to such office prior to the closing
date of March 20, 1986.
5. This Court retains jurisdiction for such other
relief as may be necessary.
6. The Clerk of this Court shall serve by ordinary
mail copies of this order to the District Judges of the
Sixteenth Judicial District, and to counsel of record for the
respective parties, and a certified copy hereof to the county
commissioners of Custer County, Montana.
DATED thj.s %
yd
a' of January, 1986.
Chief Justice