H1. Res. 6187, 2024 Declaration of vacancy election order for Ward 1 and 2/► M
City of Kalispell
201 lst Ave E. P.O. Box 1997
Kalispell, Montana 59903-1997
(406) 758-7000 Fax (406)7757
REPORT TO: Mayor Johnson and Kalispell City Council
FROM: Doug Russell, City Manager
SUBJECT: Tentative- Resolution Declaring Vacant Seats in Wards 1 and 2 in
Accordance with the District Court Order
MEETING DATE: March 4, 2024
BACKGROUND: On February 16, a ruling from District Court for Cause DV-23-1393 was
issued that set aside the elections for Ward 1 and Ward 2 of the City of Kalispell municipal
election. The decision was based on Flathead County using the previous Ward boundary maps,
rather than the updated boundary maps passed by the City of Kalispell.
At the time of this writing, city staff is waiting on clarification on what that order means for our
sitting councilors in Wards 1 and 2. Further clarification could result in proceeding with the
current make-up of the City Council until a new election is held, which we anticipate being in
June in conjunction with the Primary, or potentially having vacancies in those positions that may
need to be filled by appointment under state law, MCA 7-4-4112, until the new election is
conducted by the County.
Should we receive notice that the judicial intent is that the current council members remain in
their seats until the new election is conducted, no further action is required, and this agenda item
is unnecessary. If the clarification includes guidance that the seats are considered vacated, we are
then recommending two actions. The first action would be for Council to declare these seats in
Wards 1 and 2 vacant. The second action item would be to move forward with appointments to
fill those seats, which will be discussed in the subsequent agenda item and memo.
RECOMMENDATION: If applicable, it is recommended that Council pass Resolution 6187
declaring seats subject to the District Court order in Wards 1 and 2 be declared vacant.
ATTACHMENTS:
Resolution 6187
Judicial Order for Cause DV-23-1393
RESOLUTION NO. 6187
A RESOLUTION TO DECLARE WARD I AND WARD 2 COUNCIL VACANCIES.
WHEREAS, the municipal general election for the City of Kalispell was held on November 7,
2023; and
WHEREAS, the Flathead County Election Department failed to enter updated ward boundaries
approved by the City of Kalispell in December 2021 into the election system; and
WHEREAS, on December 1, 2023, the Office of the Flathead County Attorney on behalf of the
Flathead County Election Administrator petitioned the Flathead County District
Court to annul the November 7, 2023 election (DV-23-1393); and
WHEREAS, on February 16, 2024, the Flathead County District Court granted the Election
Administrator's Petition in part and set aside the elections in Ward 1 and Ward 2;
and
WHEREAS, on February 28, 2024, the Office of the Flathead County Attorney filed a Motion for
Clarification of the Court's February 16'h Order requesting "the Court issue a
clarifying Order requiring that the status quo as of the date of the November election
remain in place — i.e., the incumbents for Wards 1 and 2 remain seated and active
City Council members — until the new election is held on June 4, 2024."
WHEREAS, the Court denied the County's February 28 h Motion to Clarify and held that the
incumbents for Wards 1 and 2 shall not remain seated and active City Council
members until the new election is held.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, AS FOLLOWS:
SECTION 1. That the Kalispell City Council positions for Wards 1 and Ward 2 are hereby
vacant in accordance with § 7-4-4111(11) which states that a municipal
office becomes vacant upon the decision of a competent tribunal declaring
void the incumbent's election.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 4TH DAY OF MARCH, 2024.
Mark Johnson
Mayor
ATTEST:
Aimee Brunckhorst, CMC
City Clerk
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Robert B. Allison, District Judge
Department No. 2
Flathead County Justice Center
920 South Main Street, Suite 310
Kalispell, Montana 59901
Telephone: (406) 758-5906
MONTANA ELEVENTH JUDICIAL DISTRICT COURT
FLATHEAD COUNTY
In re the November 7, 2023, )
Cause No. DV-23-1393
Kalispell Municipal General Election )
ORDER AND RATIONALE ON
PETITION TO ANNUL ELECTION
FI
t
P1
Flathead i
STATE
By: Racl
DV-15
This matter is before the Court on Petitioner Flathead County Election Administrator
Debbie Pierson's ("Petitioner") Petition to Annul the November 7, 2023, Kalispell Municipal
General Election as to Wards 1, 2, 3, and 4 ("Petition").' Based on said Petition, Petitioner's
now ripe Motion for Judgment on the Pleadings ("Motion"), the supporting and opposing
memoranda, the Court, being fully advised in the premises, now enters the following:
IT IS HEREBY ORDERED that the Petition is GRANTED in part and DENIED in part.
RATIONALE
"[A] motion for judgment on the pleadings is appropriate only where all material
allegations of fact are either admitted or not controverted in the pleadings, and only questions of
law remain for determination by the court." Montana Interventional & Diagnostic Radiology
Specialists, PLLC v. St. Peter's Hosp., 381 Mont. 25, 31 (2015). Here, Petitioner alleges in her
Motion that "[t]he ward boundaries approved by the City of Kalispell in December 2021 that are
utilized for ballot distribution were not updated in the election system prior to the election,
resulting in the distribution of ballots with incorrect wards for 8% (1,413) of the eligible voters
in the City of Kalispell." ECF No. 8, pp. 1-2. In response, Intervenor Ryan Hunter
("Intervenor") concedes this point. See ECF No. 3, p. 1 ("Flathead County conducted the
November 7th Kalispell City Council election using old Ward boundary maps, having failed to
update their system with the new Ward boundaries. This resulted in a number of voters receiving
ballots for the wrong wards."). Accordingly, the remaining questions are whether Petitioner has
I The uncontested election for municipal judge that took place on November 7, 2023, is not
affected by ward boundaries because it is a city-wide race and thus remains valid. ECF No. 1, p.
3.
1
'/16/2024
1 L. Allison
CLERK
aunty District Court
OF MONTANA
)23-0001393-MT
m, Robert B
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the authority to challenge the results of the Election and if so, whether the Election must be set
aside.
§ 13-36-101, MCA, states:
An elector may contest the right of any person to any nomination or election to
public office for which the elector has the right to vote if the elector believes that:
(1) a deliberate, serious, and material violation of any provision of the law
relating to nominations or elections has occurred;
(2) the person was not, at the time of the election, eligible to be a candidate for
the office;
(3) votes were cast illegally or were counted or canvassed in an erroneous or
fraudulent manner.
Petitioner is thus well within her right to challenge the results of the November 7, 2023,
Kalispell Municipal General Election ("Election"), although her office is at fault for conducting
the Election improperly in the first place. ECF No. 1, p. 1 ("[L]ess than one week before the
election, it came to the attention of the Flathead County Election Department that some absentee
voters may have received ballots for incorrect wards. The Election Department investigated and
discovered in the coming days that the ward boundaries approved by the City of Kalispell in
December 2021 had not been entered into the election system."). It is also undoubted that votes
were counted in an erroneous manner. Id at Ex. A, p. 2 ("1,413 [t]otal eligible voters impacted .
176 [t]otal voters receiving an incorrect ballot who VOTED.").
However, § 13-36-101, MCA, must be read in conjunction with § 13-36-211, MCA,
which states:
The ground of contest specified in 13-36-101(3) may not be construed to
authorize a nomination or election to be set aside on account of illegal votes
unless it appears:
(1) that the candidate or nominee whose right is contested had knowledge of or
connived in the illegal votes; or
(2) that the number of illegal votes given to the person whose right to the
nomination or office is contested, if taken from the person, would reduce the
number of legal votes for the person below the number of votes given to some
other person for the same nomination or office, after deducting the illegal votes
that may be shown to have been given to the other person.
Petitioner proffers no evidence that Intervenor "had knowledge of or connived in the
illegal votes," resulting from ballots issued in accordance with outdated ward
boundaries. Moreover, Petitioner concedes that Intervenor "won the [Ward 3] election by
372 more votes than his opponent" and that "in Ward 3 there were 64 impacted voters
receiving an incorrect ballot who voted as stated in the 2023 Municipal General Election
Canvas Report." ECF No. 8, p. 2. It follows that even if those 64 votes had gone against
Intervenor, he would have still prevailed. Accordingly, "whatever voting irregularities
occurred ... had no effect on [Intervenor]'s election." Baker v. Bink, 223 Mont. 375, 378
(1986).
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Petitioner also "does not dispute that Ward 4 was an uncontested race," which
means Petitioner cannot meet the requirements of § 13-36-211, MCA, to set aside that
election either. ECF No. 8, p. 2. As for Ward 1 and Ward 2, Intervenor's recitations of
those elections are well taken. To wit: "In the case of the contested elections in Wards 1
and 2, [Petitioner's] mistake could have been determinative in the outcome of those
elections." ECF No. 3, p. 1. This is because in "Ward 1, a total of 80 votes separated the
two candidates on the ballot. Of the votes cast in Ward 1, a total of 124 ballots were
impacted by the County's mistake." Id. "In Ward 2, a total of 109 votes separated the
two candidates on the ballot. Of the votes cast in Ward 2, a total of 155 ballots were
impacted by the County's mistake." Id. Thus, § 13-36-211(2), MCA, mandates the
elections in Ward 1 and Ward 2 be set aside.
In review:
o Ward 1: the Petition is GRANTED.
o Ward 2: the Petition is GANTED.
o Ward 3: the Petition is DENIED.
o Ward: 4: the Petition is DENIED.
DATED and electronically signed below:
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Electronically Signed By:
Hon. Judge Robert B. Allison
Fri, Feb 16 2024 11:08:52 AM