The Montana Supreme Court has reversed a lower court’s ruling and awarded attorney fees to a sheriff who had to intervene in an election recount, after the county green-lighted rules that broke state law.
Musselshell County Sheriff Shawn Lesnik was awarded attorney fees in a ruling by the Montana Supreme Court on Tuesday. Those fees will now be determined in a lower court.
Lesnik was elected by 41 votes in 2018. Ronnie Burns, who lost the Republican primary to Lesnik, ran as a write-in candidate.
After the election, Burns moved for a recount and the county agreed to it, signing off on a special set of vote-counting parameters that contradicted rules for write-in votes laid out by the Secretary of State’s Office, as required by Montana law. Examples included allowing ballots for Burns to be counted when the voter wrote his name but did not color in the oval.
The 5-0 ruling Tuesday, written by Justice Ingrid Gustafson, said the actions of the county and challenger Burns required Lesnik to go to court “to defend the electoral process for the benefit of all Musselshell County voters,” and that the lower court failed to recognize that.
“Contrary to the District Court’s findings and the County’s arguments, the County’s actions in this case forced Lesnik to pursue private enforcement of the election laws and increased the burden on Lesnik to do so,” the Supreme Court ruling said. “The County agreed to parameters for the recount that clearly violated (state law). Lesnik bore the entire burden to halt the recount taking place under the illegal parameters.”
Reached Wednesday, Lesnik provided a written statement on the ruling.
“While I am glad that I prevailed in this legal action, which has protected the constitutional rights of Musselshell County voters, I am disappointed the Musselshell County Attorney’s Office failed to provide sound legal guidance to the Musselshell County elected officials and ultimately the taxpayers of Musselshell County in such a clear abuse of Montana state law,” he said. “The abuse ended up costing public servants and taxpayers unnecessary time and money.”
Lesnik attorney Lisa Speare lives in Billings, but grew up in Roundup.
“When the people’s attorney (the county attorney) fails to stand up for the people and the law, most people do not have the ability to access a lawyer on short notice to try and right a wrong,” Speare said, in an emailed statement. “I sincerely hope that the attorneys paid by Musselshell County residents’ tax dollars do not again stand idle, or actively agree, when attempts are made to subvert the constitutionally protected rights of Musselshell County citizens.”
Musselshell County Attorney Kevin Peterson called the criticism from the sheriff and his attorney “a potshot” and stressed that he recused himself from representing the county during the recount process.
He appointed Walter Congdon, an attorney in Lake County, instead, due to a conflict of interest, after one of Peterson’s staff members filed a complaint with the Commission on Political Practices regarding Lesnik’s campaign actions. Peterson said he made no decisions regarding the recount.
When asked about his appointed attorney signing off on illegal vote-counting rules, Peterson replied that election judges or observers had submitted complaints about the procedures followed on election night, saying they were concerned the process didn’t comply with state law.
Peterson said the complaints were submitted to the Secretary of State's Office, which sent them to the Attorney General's Office. That office then forwarded the complaints to Peterson, he said. Peterson declined to release the complaints but said he believed they were a matter of public record.
When asked for confirmation of the complaints and copies of them, Dana Corson of the Secretary of State's Office said only that she did not recall receiving any.
None of the complaints have been substantiated. Peterson believed they were never investigated.
Peterson said state law doesn’t provide guidance on how to remedy any problems with the original vote count.
“The statutes and administrative rules, they’re written to tell you how to do it right,” Peterson said. “There’s no section in there that follows up, ‘If you don’t do it right, here’s how to fix it.’”
Elections Administrator Cheryl Tomassi denied any wrongdoing on Election Night and responded to each of the wrongdoing allegations leveled against her by Burns in 2018. Tomassi said she was frustrated that, as the county's appointed attorney, Congdon never defended her against the allegations.
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