Zastrow v. Bullock et al

Filing 19

ORDER denying as moot 3 Motion for Preliminary Injunction. Defendants admit and stipulate that MCA 13-35-218(2) is unconstitutional and will not be enforced. Signed by Judge Richard F. Cebull on 7/27/2012. (EMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CALVIN ZASTROW,
)
)
CV-12-18-BLG-RFC
Plaintiff,
)
vs.
)
)
ORDER
STEVEN BULLOCK, in his official
)
capacity as Montana’s Attorney General;
)
LINDA McCULLOCH, in her official
)
capacity as Montana’s Secretary of State;
)
JAMES MURRAY, in his official capacity
)
as the Political Practices Commissioner;
)
COUNTY OF YELLOWSTONE;
)
SCOTT TWITO, in his official capacity as
)
the Yellowstone County Deputy Attorney;
)
and JOHN DOES 1-3, in both their
)
individual and official capacity as
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Yellowstone County Deputy Sheriffs.
)
)
Defendants
)
________________________________________ )
BACKGROUND
Calvin Zastrow seeks injunctive relief from this Court to invalidate a
Montana statute prohibiting enforcement of Mont. Code Ann. §13-35-218(2).
Defendants respond and agree that the statute is unconstitutional and will not be
enforced.
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STANDARD OF REVIEW
The traditional criteria for granting preliminary injunctive relief are: (1) a
substantial likelihood of success on the merits; (2) the possibility of irreparable
injury to the plaintiff if injunctive relief is not granted; (3) a balance of hardships
favoring the plaintiff; and (4) advancement of the public interest. Los Angeles
Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir.
1980); Textile Unlimited Inc. v. A.B.M.H. and Co., Inc., 240 F.3d 781, 786 (9th
Cir. 2001). However, The Ninth Circuit has ruled that the moving party may meet
its burden by demonstrating either: (1) a combination of probable success on the
merits and the possibility of irreparable injury; or (2) that the plaintiff’s papers
raise “serious questions” on the merits and the balance of hardships tips sharply in
its favor. Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1201; Stuhlbarg
Int’l Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 840-41 (9th Cir.
2001). These two tests represent a sliding scale where the required degree of
irreparable harm increases as the probability of success decreases. Friends of the
Clearwater v. McAllister, 214 F.Supp.2d 1083, 1086 (D.Mont. 2002).
Furthermore, the plaintiff must show that there is a significant threat of irreparable
injury. Id. A preliminary injunction is not a preliminary adjudication on the

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merits but rather “a device for preserving status quo and preventing irreparable
loss of rights before judgment.” Textile Unlimited, 240 F.3d at 786.

ANALYSIS
Mont. Code Ann. § 13-35-218(2) states as follows:
(2) A person who is a minister, preacher, priest, or other church
officer or who is an officer of any corporation or organization,
religious or otherwise, may not, other than by public speech or print,
urge, persuade, or command any voter to vote or refrain from voting
for or against any candidate, political party ticket, or ballot issue
submitted to the people because of the person's religious duty or the
interest of any corporation, church, or other organization.

Defendants admit and stipulate that Mont. Code Ann. § 13-35-218(2) is
unconstitutional, has not been enforced, will not be enforced, and its text will not
be displayed in any signage in future elections regulated or administered by the
Secretary of State.
Plaintiff has not demonstrated that he has suffered or will suffer any harm.
Activities of Plaintiff will not be subject to any potential enforcement of Mont.
Code Ann. § 13-35-218(2). Plaintiff cannot show that there is a significant threat
of irreparable injury. Friends of the Clearwater v. McAllister, 214 F.Supp.2d
1083, 1086 (D.Mont. 2002).

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Zastrow’s Motion for Preliminary Injunction [doc. 3] is DENIED AS
MOOT. The Clerk of Court is directed to notify the parties of the making of this
Order.
DATED this 27th day of July, 2012.
/s/ Richard F. Cebull______________
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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