Following a recent ruling by District Court Judge Robert Olson, candidate Joan Mell’s name will appear on the ballot in the upcoming June 7 election ballot for the position of Ravalli County Attorney, but her eligibility to serve will not be decided until after the election.
In an order filed on May 17, Judge Olson partly granted and partly denied Mell’s motion for summary judgement in the case, in which Ravalli County Sheriff’s Deputy Jason Liechty challenged her eligibility to hold the office.
In his lawsuit Liechty alleged that Mell does not meet the residency requirements and has not been practicing law in the state long enough to meet Montana’s legal requirements, which state:
A person is not eligible for the position of full-time county attorney in counties that have a population in excess of 30,000 unless the person is a citizen of the United States and has resided in the state 2 years immediately before taking office and has been admitted to the practice of law for at lest five years before the date of the election appointment.
Liechty alleged that Mell did not meet either of the requirements. Judge Olson found that Mell did meet the legal requirements for being admitted to the practice of law since she was admitted to practice law in Washington state in November of 1991.
“While some elected offices in Montana, like the Montana Attorney General’s office, do include the requirement that a certain number of those years be in the state of Montana, that is not the case for the office of County Attorney,” wrote Judge Olson. “This court will not add a requirement that is not contained in the statute,” wrote Olson. With no facts in dispute, Olson granted Mell’s request for summary judgment in her favor on the issue.
Olson found that the allegation’s concerning residency involve a factual dispute that precludes any summary judgment on the issue and did not make a judgment on the issue. Nor did Olson rule on Liechty’s request for injunctive relief by removing her name from the ballot. A hearing will be set to address that issue in a separate order. “In the meantime,” states Olson, “the defendant’s name should remain on the ballot.”
Olson found that the Montana Supreme Court has held that the law “merely provides a district court with guidelines in determining a person’s place of residence. Hence, each case regarding a person’s place of residence ‘must stand on its own facts.’” The law also states that “a person can only have one residence. The residence can be changed by the union of act and intent.”
Olson wrote that it appears to the Court that the Defendant [Mell] showed her intent with respect to residence when she voted as a resident in Washington state from 1996 through 2021.
“It does not appear that she took any affirmative action to lose or give up her Washington state residency and become a resident of the state of Montana until she registered to vote in Montana on February 25, 2022. Casting an absentee ballot in Washington state on November 2, 2021 clearly shows intent that Washington was her state of residence. Additionally, the Defendant’s participation in Washington state’s election franchise precludes her from the argument that she was away from Montana temporarily…” wrote Olson.
Olson notes, however, that the Montana Supreme Court has analyzed a case in which residency was determined by the state in which income taxes are paid. The key to the analysis was whether the individual held himself out as a Montana resident by renewing his driver’s license; whether he applied and acquired a Montana resident hunting, fishing, or trapping license; whether he applied; and whether he voted in Montana elections.
“The defendant’s affidavit does not contain any of the above factors,” wrote Olson “It merely provides subjective facts that do not definitely determine whether she is a resident of Montana of Montana. There may also be other objective facts by the Defendant in which she declared a state residency. For example, the address she used in filing state and federal income tax returns may be relevant in determining her state of residence. At a minimum, there are material issues of fact in dispute with respect to the Defendant’s residence which preclude summary Judgment,” wrote Olson.
Mell also claimed that there was unreasonable delay in filing the lawsuit. She alleges that the suit could have and should have been filed right after she filed for office instead of right before the election.
Judge Olson states in his order that, “The Court does not know if laches [unreasonable delay] exists in this case. The defendant filed for her candidacy on March 11, 2022. The Plaintiff did his research and filed this action within 60 days after the Defendant filed for office.
“On its face, laches is not obvious,” wrote Olson, “The Defendant will have the opportunity to prove laches at trial. At this point, there are material issues of fact in dispute, or there are facts at least unknown to the Court which preclude summary judgment.”
The questions of residency and laches will be decided at trial. A hearing will be set to decide those issues in a separate Order.
In the meantime, the race is still on.