                                                                                            08/11/2020


           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                        Case Number: OP 20-0388


                                        OP 20-0388


MONTANA REPUBLICAN PARTY,

            Petitioner,

      v.                                                            ORDER

RAPHAEL JEFFREY CARLISLE GRAYBILL,                                          F LE
            Respondent.                                                      AUG 1 1 2020
                                                                          Bowen Greenwood
                                                                        Clerk of Supreme Court
                                                                           State of Montana
       The Montana Republican Party (MRP) filed an original proceeding on
August 3, 2020, seeking a ruling declaring that Raphael Graybill, the successful
Democratic candidate for Attorney General in the June 2 primary election, is not entitled to
appear on the general election ballot because he does not meet minimum eligibility
requirements to hold the office. At our request, pursuant to M.R.App.P. 14(7)(a), Graybill
filed a summary response. The MRP followed with a motion for leave to file a reply brief,
which Graybill opposes.
       Graybill filed his declaration for nomination to the office ofAttorney General with the
Montana Secretary of State on January 9, 2020, the first day of filing.
See § 13-10-201(7), MCA. On February 3, 2020, David E. Wanzenried filed a campaign
finance and practices complaint with the Montana Commissioner of Political Practices
(`COPP"), claiming that Graybill did not meet the eligibility requirements for
Attorney General under Art. VI, sec. 3 of the Montana Constitution. The complaint
requested that the COPP investigate Graybill's qualifications and "take the steps necessary to
prevent[Graybill's] name from appearing on the primary and general election ballots." The
COPP proceeded expeditiously to receive evidence and authority from the parties and, on
February 28, 2020, issued its declaratory ruling. In a fifteen-page decision that included
findings offact and a legal analysis ofeach claim,the COPP determined that Graybill meets
the constitutional eligibility requirements to hold the office of Attorney General, or will by
the time ofthe November 2020 election. The COPP accordingly declared him eligible for
the ballot. Wanzenried,the complaining party, did not seek judicial review ofthe COPP's
decision. Graybill's name appeared on the primary ballot, he defeated his primary opponent
in the election, and the Secretary of State certified his nomination for the
2020 general election ballot.
       The MRP's August 3 petition raises arguments identical to those the COPP
considered. It has included the COPP complaint and the Agency Declaratory Ruling, along
with exhibits in that proceeding, as attachments to its Petition, and we have considered them.
       Rule 14(4) ofthe Montana Rules of Appellate Procedure provides:
       An original proceeding in the form of a declaratory judgment action may be
       commenced in the supreme court when urgency or emergency factors exist
       making litigation in the trial courts and the normal appeal process inadequate
       and when the case involves purely legal questions ofstatutory or constitutional
       interpretation which are of state-wide importance.

M.R.App.P. 14(7)(a) allows the Court to order a summary response or to dismiss a petition
without response. If a response is ordered, the Rule prohibits the petitioner from filing a
reply memorandum, except by order ofthe Court.
       We may deny a declaratoryjudgment petition when the Petitioner fails to demonstrate
each ofthe required criterion, including the "urgency or emergency factor? that"mak[e]"
inadequate the ordinary course oflitigation and appeal. See Public Emples. Ret. Bd. ofMont.
v. Lewis & Clark Cty., OP 20-0063, Or. Apr. 21, 2020, 2020 Mont. LEXIS 1179, *1;
In re Mantooth, S. Ct. No. OP 19-0252, Or. July 9, 2019, 2019 Mont. LEXIS 258, *1;
Dunsmore v. State, S. Ct. No.OP 10-0090, Or. March 16,2010,2010 Mont.LEXIS 257,*1.
      "[U]rgency or emergency factor? do not spring fiom a party's own unexplained
dilatory action. Giving the MRP every benefit ofthe doubt,it has known since at least early
February ofGraybill's qualifications—when the alleged eligibility issue was made public by
the filing of the COPP complaint. The COPP issued a decision well in advance of the
primary, providing a detailed legal analysis supporting its conclusion that Graybill is eligible

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for the office. When the complainant in that proceeding filed no petition forjudicial review
within the thirty-day deadline(§§ 2-4-501,2-4-702(2)(a), MCA),still nine weeks remained
before the primary election. At that election, Graybill was nominated as his party's
candidate for Attorney General. The MRP let eight more weeks pass before filing its petition
just seventeen days before the statutory deadline for the Secretary of State to certify for the
ballot the names and designations of statewide candidates to election administrators.
Section 13-12-201(1), MCA. The MRP has offered not a single reason in its Petition for this
extraordinary delay.' The MRP's eleventh-hour filing fails to demonstrate an emergency
sufficient to meet the criteria ofM.R.App. 14(4). Nor does it explain why this Courtshould
bypass the express statutory process for contesting a nomination or election to office.
Section 13-36-102, MCA. We have refused to engage in "hasty pre-election review" of
constitutional ballot questions, particularly where the Legislature has provided a process for
bringing the challenge. Mont. AFL-CIO v. McCulloch, 2016 MT 200, ¶ 7, 384 Mont. 331,
380 P.3d 728.
       Finally, upon review ofthe pertinent constitutional language,the COPP's declaratory
ruling, and this Court's own rules defining the "active practice oflaw," we are not persuaded
that our extraordinary intervention in the election process is necessary to prevent
constitutional error.
       IT IS THEREFORE ORDERED that the Petition for Declaratory Judgment is
DENIED and DISMISSED.
       IT IS FURTHER ORDERED that the Petitioner's Motion for Leave to File Reply is
DENIED



I Compare this to Cross v. VanDyke, 2014 MT 193, 375 Mont. 535, 332 P.3d 215, a challenge to
Supreme Court candidate Lawrence VanDyke's eligibility to hold the office he was seeking in 2014.
The challengers petitioned for declaratory and injunctive reliefin March ofthe 2014 election year,
just eleven days after VanDyke filed his declaration for nomination. Cross,¶ 3. We considered the
issue on direct appeal after development ofa record, a district court decision on summaryjudgment,
and full briefing on appeal.


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      The Clerk is directed to provide notice ofthis Order to all counsel ofrecord and to the
Montana Secretary of
      DATED this     h day of August, 2020.




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                                                           Justices




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