Kearns and Sons RS Aesthetics

Judge rules lawsuit over $675k county settlement will continue


In a recent Opinion and Order signed on July 14, District Court Judge Jeffrey Langton denied the County’s motion to strike the petition filed against it by Michael Howell, Publisher of the Bitterroot Star, over the decision to pay a $675,000 settlement to Big Sky Development. Howell filed a pro se Petition on behalf of the Star on Friday, June 6, and served it upon the commissioners alleging that the County Commissioners made a decision of significant public interest without affording the public the right to participate. The Star is seeking an order setting aside the commissioners’ decision made on May 6, to make a settlement payment of $675,000 to subdivision developer Big Sky Development. The newspaper wants the judge to require the commissioners to allow the public to participate in the decision.

Deputy County Attorney Howard Recht mailed a letter to Howell which he received on Monday, June 9, asking him to withdraw his petition since he his not licensed to practice law and a close corporation must by law be represented by an attorney. On June 11, Helena attorney Mike Meloy filed a notice of appearance in the case on Howell’s behalf. Nonetheless, on June 17, Deputy County Attorney Recht filed a motion to strike the Star’s petition.

Meloy argued that the defect of having filed pro se had been remedied when he filed his appearance and that he had submitted an Amended Petition signed by himself which was exactly the same as the petition filed by Howell except for the signatures. He also argued that this filing should relate back to the original filing when considering statute of limitations.

Recht maintained that “the Court cannot act upon a pleading not signed by an attorney of record, and that the appearance of counsel for the Star does not change the fact that the Petition is not signed by an attorney.” He also argues that the issue of whether the Amended Petition relates back to the original Petition is a separate issue not before the Court.

Langton notes in his Order that in a case relied on by both parties, the Montana Supreme Court adopted a test to apply to a pro se corporate complaint if the corporation later amends the filing to include a lawyer’s signature and then attempts to relate it back to the original complaint. Under this test a court is to consider whether the entity had knowledge that it could not file a pro se complaint, the amount of time that has elapsed between learning of the prohibition and seeking counsel, whether the pro se complaint caused prejudice to the opposing party, and how extensively the non-lawyer participated in the proceeding.

Langton underlined a sentence from that Court ruling: “A district court’s analysis of these factors will ensure that district courts will not declare an otherwise valid complaint void for technical reasons.”

Langton found the fact that Howell did not know he could not file pro se for his company to be uncontested. He noted that only two days passed after receiving notice of the problem before an attorney was retained. He stated that the attorney appeared 22 days before the county filed its answer to the petition and thus the county could not have been prejudiced by the defect in the petition. Langton also notes that Howell’s involvement was solely that of filing and serving the petition.

“Based on its analysis of these circumstances, the Court concludes that the defect in the Star’s Petition was cured once Mr. Meloy filed his notice of appearance. This conclusion comports with the Montana Supreme Court’s affirmation of the policy that an otherwise valid complaint should not be declared void for technical reasons,” wrote Langton.

The motion to strike was denied.

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