COPP v. Republican Party ( 2021 )

04/27/2021
DA 20-0294
Case Number: DA 20-0294
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 99THE COMMISSIONER OF POLITICAL PRACTICES FOR
THE STATE OF MONTANA, through JEFFREY MANGAN,
acting in his official capacity as the Commissioner of
Political Practices,
Petitioner and Appellant,
v.
MONTANA REPUBLICAN PARTY,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV-2019-987
Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jaime E. MacNaughton, Attorney at Law, Helena, Montana
Gene R. Jarussi, Heenan & Cook, Billings, Montana
For Appellee:
Emily Jones, Talia G. Damrow, Jones Law Firm, PLLC, Billings, Montana
Submitted on Briefs: December 16, 2020
Decided: April 27, 2021
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 The Commissioner of Political Practices (COPP) appeals from the order of the
First Judicial District Court, Lewis and Clark County, granting the Montana Republican
Party’s motion for summary judgment, denying COPP’s motion for summary judgment,
and dismissing COPP’s petition for declaratory and injunctive relief. We affirm,
addressing the following dispositive issue:
Did the District Court err in determining COPP lacked authority under
§ 13-37-111, MCA, to issue a subpoena requiring production of documents relevant
to an ongoing investigation of an alleged election law violation?
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On July 31, 2018, the Montana Democratic Party filed a campaign finance
complaint with COPP, alleging that the Montana Republican Party had failed to comply
with the reporting and disclosure requirements of § 13-37-229, MCA during 2016, 2017,
and 2018. COPP commenced an investigation and informally requested that the Montana
Republican Party produce documents relevant to the investigation. The Montana
Republican Party refused to produce any documents other than the campaign finance
reports that it had already publicly filed in 2016.
¶3 On June 12, 2019, COPP issued a Subpoena for Production of Documents,
commanding the Montana Republican Party to produce specified documents relating to the
Montana Republican Party’s campaign practices and expenditures from 2016 to 2018.
COPP issued the subpoena pursuant to the authority of § 13-37-111(2)(c), MCA, and
indicated that Rule 45, M. R. Civ. P., provided the procedure for responding to the
subpoena.
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¶4 When the Montana Republican Party failed to produce the requested documents by
the July 12, 2019 deadline, COPP petitioned the District Court to compel the Montana
Republican Party’s compliance with the subpoena. Pursuant to the Montana Uniform
Declaratory Judgments Act, § 27-8-101, MCA, et seq., COPP petitioned the District Court
to: (1) award declaratory relief, holding that the Montana Republican Party must comply
with the subpoena pursuant to § 13-37-111, MCA; and (2) enter an injunction directing the
Montana Republican Party to refrain from its refusal to comply with the subpoena.
¶5 The parties filed cross-motions for summary judgment. The District Court granted
summary judgment to the Montana Republican Party, denied COPP’s motion for summary
judgment, and dismissed COPP’s petition. The District Court held:
Montana Code Annotated § 13-37-111 simply does not confer COPP with
the statutory authority to issue subpoenas for documents. It may examine
documents, Mont. Code Ann. § 13-37-111(2)(b), or require the production
of documents, Mont. Code Ann. § 13-37-111(2)(c) but not subpoena
documents.
. . .
COPP has the authority to require the production of documents under
Mont. Code Ann. § 13-37-111(2)(c), and COPP may ask a Court to compel
that production pursuant to Mont. Code Ann. § 13-35-108. Notwithstanding,
however, that is not what COPP requested in its Petition or in its summary
judgment motion. COPP asked the Court to compel compliance with a
documentary subpoena that the relied upon statute does not authorize.
Consequently, this Court will not utilize Mont. Code Ann. § 13-35-108 to
compel compliance with COPP’s June 12, 2019 invalid documentary
subpoena.
STANDARDS OF REVIEW
¶6 We review a district court’s grant or denial of summary judgment de novo, applying
the criteria outlined in M. R. Civ. P. 56. City of Missoula v. Fox, 2019 MT 250, ¶ 6,
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397 Mont. 388, 450 P.3d 898. “Summary judgment is appropriate only when there is no
genuine issue of material fact, and the moving party is entitled to judgment as a matter of
law.” Town & Country Foods, Inc. v. City of Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453,
203 P.3d 1283; M. R. Civ. P. 56(c)(3). Where a district court determines there is no
material factual dispute and the moving party is entitled to judgment as a matter of law, we
review whether the district court correctly applied the law. Mont. Immigrant Justice
Alliance v. Bullock, 2016 MT 104, ¶ 14, 383 Mont. 318, 371 P.3d 430. “The correct
interpretation of a statute is a question of law that we review de novo.” Bates v. Neva,
2014 MT 336, ¶ 9, 377 Mont. 350, 339 P.3d 1265.
DISCUSSION
Did the District Court err in determining COPP lacked authority under
§ 13-37-111, MCA, to issue a subpoena requiring production of documents relevant
to an ongoing investigation of an alleged election law violation?
¶7 The question of whether § 13-37-111, MCA, authorizes COPP to issue a subpoena
for production of documents is a matter of statutory construction. When interpreting
statutes, our role is “simply to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted or to omit what has been inserted.”
Section 1-2-101, MCA. “We construe statutes ‘according to the plain meaning’ of their
language.” Comm’r of Political Practices for Mont. v. Wittich, 2017 MT 210, ¶ 19,
388 Mont. 347, 400 P.3d 735 (quoting Fellows v. Saylor, 2016 MT 45, ¶ 21, 382 Mont.
298, 367 P.3d 732).
¶8 Section 13-37-111, MCA, provides that “[COPP] is responsible for investigating all
of the alleged violations of the election laws contained in chapter 35 of this title or this
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chapter and in conjunction with the county attorneys is responsible for enforcing these
election laws.” In furtherance of its investigatory responsibilities, COPP may:
Administer oaths and affirmations, subpoena witnesses, compel their
attendance, take evidence, and require the production of any books, papers,
correspondence, memoranda, bank account statements of a political
committee or candidate, or other records that are relevant or material for the
purpose of conducting any investigation pursuant to the provisions of
chapter 35 of this title or this chapter.
Section 13-37-111(2)(c), MCA (emphasis added).
¶9 By its plain language, § 13-37-111(2)(c), MCA, enumerates a list of discrete
investigative powers. The statute states that the COPP may “subpoena witnesses” and
“require the production” of relevant documents. Section 13-37-111(2)(c), MCA
(emphasis added). The word “subpoena” only appears once in the language of the statute,
immediately preceding the term “witnesses.” Nevertheless, COPP asserts that its authority
to “require the production” of documents includes or implies the authority to issue a
subpoena for the production of documents. We disagree.
¶10 When the Legislature does not use identical language in different provisions of a
statute, it is proper for us to assume that a different statutory meaning was intended.
Zinvest, LLC v. Gunnersfield Enters., 2017 MT 284, ¶ 26, 389 Mont. 334, 405 P.3d 1270(citing Gregg v. Whitefish City Council, 2004 MT 262, ¶ 38, 323 Mont. 109, 99 P.3d 151(“Different language is to be given different construction.”); In re Kesl’s Estate,
117 Mont. 377, 386, 161 P.2d 641, 646 (1945) (citations and internal quotations omitted)
(“It is a settled rule of statutory construction that, where different language is used in the
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same connection in different parts of a statute, it is presumed the legislature intended a
different meaning and effect.”)).
¶11 The Legislature used different language within § 13-37-111(2)(c), MCA, to provide
distinct COPP powers of investigation into witnesses from those into documents. The
statute expressly states that COPP may “subpoena witnesses.”
Section 13-37-111(2)(c), MCA (emphasis added). Nowhere in § 13-37-111, MCA, does it
state that COPP may issue a subpoena for production of documents. Instead, when COPP
seeks access to documents, it may “require the production of any books, papers,
correspondence, memoranda, bank account statements . . . or other records. . . .”
Section 13-37-111(2)(c), MCA (emphasis added). If the Legislature had intended to
provide COPP with authority to subpoena documents, it could have expressly used the term
“subpoena” in connection with documents. It did not. Instead, the statute authorized COPP
to “require the production.” As the District Court observed, there is an avenue to compel
that production via court order pursuant to § 13-35-108, MCA. However, the plain
language of § 13-37-111(2)(c), MCA, does not provide for documentary subpoena power
and this Court will not insert a term that the Legislature has omitted.
¶12 COPP urges this Court to compare § 13-37-111, MCA, to other statutes governing
administrative agencies, relying on analogy to the subpoena power of the Montana Human
Rights Division. See, e.g., Montana Human Rights Div. v. City of Billings, 199 Mont. 434,
649 P.2d 1283 (1982). But “[w]hen statutory language is clear and unambiguous, we must
discern and effect legislative intent from the plain meaning of the language used without
further resort to means of statutory construction.” Larson v. State, 2019 MT 28, ¶ 28, 394
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Mont. 167, 434 P.3d 241. “If the intent of the legislature can be determined from the plain
meaning of the words used in the statute, the plain meaning controls, and this Court need
go no further nor apply any other means of interpretation.” Mont. Vending, Inc. v. Coca-
Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499 (citations omitted). The
plain meaning of § 13-37-111, MCA, does not provide documentary subpoena power.
Therefore, we do not consider other means of statutory interpretation.
¶13 COPP argues that a subpoena is the “only means with real teeth” by which it can
implement its authority to “require the production” of documents, and the District Court
abrogated COPP’s investigative powers by refusing to recognize its authority to issue
subpoenas. We disagree.
¶14 Section 13-35-108, MCA, provides the avenue by which COPP may implement its
investigative powers. “In any action brought under the election laws of this state, the
appropriate district court may enjoin any person to prevent the doing of any prohibited act
or to compel the performance of any act required by the election laws.”
Section 13-35-108, MCA. “Section 13-35-108, MCA is a broadly applicable remedy
expressly provided by the Legislature for enforcement of the provisions of Title 13, MCA.”
Larson, ¶ 32. The District Court correctly observed that while § 13-37-111(2)(b), MCA,
authorizes the examination of documents, and § 13-37-112(2)(c), MCA, authorizes the
production of documents, § 13-35-108, MCA, is the statute that, to use COPP’s words,
provides the “teeth” by which COPP can implement that authority.
¶15 The District Court observed that “COPP has the authority to require the production
of documents under Mont. Code Ann. § 13-37-111(2)(c), and COPP may ask a [c]ourt to
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compel that production pursuant to Mont. Code Ann. § 13-35-108.” However, COPP’s
statutory authority to “require the production” of documents does not include the authority
to issue a documentary subpoena. Pursuant to § 13-35-108, MCA, COPP may invoke the
jurisdiction of the District Court to compel the production of documents relevant to an
ongoing election law investigation, thus providing due process and judicial oversight over
the production. As the District Court noted:
COPP’s broad investigation authority is not boundless. It is subject to
judicial oversight particularly when those it investigates are subjected to
unlawful document subpoena oppression. Such judicial oversight involves
the balance of powers between the judicial branch and the executive branch’s
election related prosecutorial arm.
Expounding on the District Court’s point, the Montana Republican Party observed:
If COPP can issue election-related subpoenas, COPP would be both the
subpoenaing party and the issuer of the subpoena. This raises due process
concerns which includes the right to an impartial tribunal. See Clements v.
Airport Auth., 69 F.3d 321, 333 (9th Cir. 1995) (citing Ward v. Village of
Monroeville, 409 U.S. 57 (1972)) (“At a minimum, Due Process requires a
hearing before an impartial tribunal.”). [A] COPP-subpoenaed party entitled
to due process can only protect that right by refusing to comply with the
subpoena in the first instance so an impartial tribunal, like a court, can be
engaged to review the subpoena and compel compliance or otherwise resolve
any disputes surrounding the subpoena. (Emphasis in original.)
The Montana Republican Party’s point is well-taken. Whenever a government entity seeks
to exercise the power of the state to compel an individual—or in this case a political party—
to relinquish documents or to appear for examination, due process concerns are necessarily
implicated, which in turn necessarily implicates judicial oversight. Even assuming, for the
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sake of argument, that COPP had the authority to issue the subpoena,1 this still would not
give it carte blanche to compel the materials sought without judicial oversight ensuring it
is entitled to all, or even some, of the sought-after materials. To hold otherwise would vest
unfettered power over the citizenry of this State in a single branch of government, contrary
to our well-enshrined system of checks and balances.
CONCLUSION
¶16 The District Court did not err in determining that COPP lacked authority under
§ 13-37-111, MCA, to issue a subpoena for production of documents.
¶17 The District Court did not err in granting summary judgment in favor of the
Montana Republican Party.
¶18 The District Court did not err in dismissing the COPP’s petition for declaratory and
injunctive relief.
¶19 We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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The Montana Republican Party argues § 13-37-111(2)(c), MCA, does not give COPP the right
to issue election-related investigative subpoenas under its own authority, but rather must seek the
subpoena “in the name of [an appropriate] court, subjecting both the subpoena and those
subpoenaed to that court’s authority and oversight.” Since the subpoena at issue in this case was
strictly for the production of documents, and we are affirming the District Court’s order that
§ 13-37-111(2)(c), MCA, standing alone, does not confer that right, we need not address this issue.
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