Lair et al v. Motl et al

Filing 112

ORDER denying 102 Motion for Summary Judgment; finding as moot 108 Motion for Extension of Time to File Response/Reply ; finding as moot 111 Motion to Amend/Correct Signed by Judge Charles C. Lovell on 6/29/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (DED, )

CV 12-12-H-CCL

EXHIBIT A

Case 6:12-cv-00012-CCL Document 107 Filed 06{25{12 Page 1 of 28

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

02:01PM

Doug Lair, Steve Dogiakos,
American Tradition Partnership,
American Tradition Partnership PAC,
Montana Right to Life Association
PAC, Sweet Grass Council for
Community Integrity, Lake County
Republican Central Committee,
Beaverhead County Republican
Central Committee, Jake Oil LLC,
JL Oil LLC, Champion Painting Inc.,
and John Milanovich,
Plaintiffs,

Civil Docket
No. 12-12-H-CCL

-vsJames Murry, in his official
capacity as Commissioner of
Political Practices, Steve Bullock,
in his official capacity as Attorney
General of the State of Montana, and
Leo Gallagher, in his official
capacity as Lewis and Clark County
Attorney,
Defendants.
TRANSCRIPT OF STATUS HEARING PROCEEDINGS

Heard in Courtroom II

Paul G. Hatfield Federal Courthouse - 901 Front Street

Helena, Montana - March 9, 2012 -10:01 a.m.

BEFORE THE HONORABLE CHARLES C. LOVELL

UNITED STATES SENIOR JUDGE

Proceedings recorded by FTR Gold recording, transcript produced
by mechanical stenography and computer.
TINA C. BRILZ, RPR, FCRR - Official Court Reporter
United States District Court

Missouri River Courthouse - 125 Central Avenue West, Room 301

Great Falls, Montana 59404

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 2 of 28
A P PEA RAN C E S

PRESENT ON BEHALF OF THE PLAINTIFFS. Doug Lair. Steve
Dogiakos. American Tradition Partnership. American
Tradition Partnership PAC. Montana Right to Life
Association PAC. Sweet Grass Council for Community
Integrity. Lake County Republican Central Committee.
Beaverhead County Republican Central Committee. Jake
Oil LLC. JL Oil LLC. Champion Painting Inc .. and John
Milanovich:
MR. JAMES EDWARD BROWN
Attorney at Law
DONEY CROWLEY BLOOMQUIST PAYNE UDA
44 West 6th Avenue, Suite 200
P.O. Box 1185
Helena, Montana 59624

PRESENT ON BEHALF OF THE DEFENDANTS, James Murry, in
his official capacity as Commissioner of Political
Practices. Steve Bullock, in his official capacity as
Attorney General of the State of Montana. and Leo
Gallagher, in his official capacity as Lewis and Clark
County Attorney:

08:22AM
08:22AM

MR. MICHAEL G. BLACK and
MR. ANDREW HUFF
Assistants Attorney General
MONTANA ATTORNEY GENERAL
P.O. Box 201401
215 North Sanders
Helena, Montana 59620-1401

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The foll owi ng proceedi ngs were had:

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Good morning.

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We are ready to proceed in Civil 12-12, a Helena Division

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case, Lai r and others agai nst Murry and others.

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Mr. Brown here for the plaintiffs.

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defendants, and Mr. Huff al so here for the defendants.

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Thi sis the time set down for status conference and

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discussion and planning as to what happens next in this case.

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of introduction, the court has been working on a plan and a

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schedule.

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remains to be tried is at all in accord with the thinking of

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the parties.

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We mi ght di scuss, duri ng the course of thi s heari ng,

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whether there's anything in the court's order that both parties

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can agree on.

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examine what issues remain.

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we proceed.

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out a possible schedule that the court has considered.

THE COURT:

Be seated, please.

We have

Mr. Black for the

Everyone is aware that the court entered an order granting
and denying a motion for preliminary injunction.
Question now is where do we go from here?

What are the

remaining issues for trial?
And I want to hear from both sides on this.

I -- by way

But I don't know whether my thinking as to what

And I woul d 1 i ke the parti es to criti call y
It will make a difference in how

But absent some other happeni ng here, 1et me throw

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To begin with, any amendments or preliminary

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Deadline for expert disclosures would be the same date.

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March 30 for disclosure of responsive experts.

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Di scovery woul d end April 6.

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Motions deadline, fully briefed, would be April 13.

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I think the initial disclosures date was March 15.

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Now, all parti es know better than I do that you have a

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obligation to get this case settled or fully decided not only

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by the first week in June, but in an adequate time prior

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thereto that the candi dates and the publ i care abl e to

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meaningfully participate in the primary election?

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1atitude for the parti es, we are at thi s poi nt and query:

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what extent can the issues be streaml i ned; can the case be put

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in a position by both sides and by the court for resolution,

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comfortable period of time prior to the primary election?

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Honor:

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judgment on those provisions that the court has granted

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preliminary injunction upon, and we intend to do that before

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the pri mary.

determi nations by the party, the deadl i ne woul d be March 23rd.

primary election coming the first week in June.

What is our

Now, recognizing that the rules would provide greater time

Let's begin with you, Mr. Brown.

To

What do you think of

that schedul e?
MR. BROWN:

Well, 1et me answer it thi sway, Your

It is the intent of the plaintiffs to file summary

We bel i eve that under the court's order, we're

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goi ng to have to develop some evi dence as to the contri but ion

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limits and whether they're unconstitutionally low,

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3 expect, as we i ndi cated to the defendants ina phone call

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yesterday, to have that information developed by the primary.

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So we expect to go past the primary in that.

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7 defendants woul d probabl y fil e for summary judgment on that

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case, whi ch coul d be resol ved probabl y before the pri mary

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season.

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So we bel i eve that at thi s poi nt in time, because of the

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need to develop evidence as to the contribution limits, we're

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okay with taki ng thi scase past the primary date for

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resolution.

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THE COURT:

Mr. Black.

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MR. BLACK:

With the understanding that it's

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plaintiffs' burden of proof, and we do not believe that they

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have satisfied their burden of proof, at least initially -- and

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I'll try and speak up, because I know I'm

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to the next legislative session.

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for a few months.

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plaintiffs.

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satisfy their burden of proof prior to the election, we would

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not be -- or at least the primary election, we would not

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necessarily be opposed to continuing this beyond that.

We do not

And then as to the direct contributions, my guess is that

It is important to the state to have this resolved prior
This case has been pending

We understand the position of the

So, if the plaintiffs don't believe that they can

It is

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their burden of proof.

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to have this resolved prior to the end of the year.

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election.

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concern, is before the next 1 egi sl ati ve sessi on convenes.

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motion for preliminary injunction, we believe that the

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contribution limits, which is, I think, primarily what we're

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going to talk about at the trial, are constitutional.

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be thei r burden of proof to demonstrate that the Eddl eman

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case _. that ci rcumstances have changed as refl ected in the

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court's preliminary injunction order.

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want to make sure that the next 1egi s 1ature has the opportunity

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to review that.

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state's perspective.

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THE COURT:

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is an issue for trial.

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facts that probabl y cannot be resol ved by summary judgment.

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the parties agree on this, it seems to me that this could save

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some considerable time in the scheduling here.

THE COURT:

However, it is important to the state

All right.

So Mr. Brown is comfortable with going past the primary
Your only concern, or at least your principal

MR. BLACK:

I mean, Your Honor, as we argued on a

It would

In the event that they can prevail on thei r theori es, we

That is the most important thing from the

Of course.

Mr. Brown suggested you might raise this by summary
judgment.
Let's consider that.

It has seemed to the court that that

That is an issue to be resolved on the
If

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I would carry that further and ask about the other issues

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which can be resolved by summary judgment.

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there shoul d be a few of those that coul d be.

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correct.

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complaint, except for the contribution limits, can probably be

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resolved as a matter of law on the pleadings at summary

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judgment, but that for tri al, it wi 11 be necessary to hol d a

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trial on the contribution limits and their constitutionality.

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THE COURT:

What do you say to that, Mr. Black?

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MR. BLACK:

I think it is likely that a lot of the

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1ega 1 issues, other than the contri but i on 1 i mits, will be

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susceptible to summary judgment.

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contributions limits issues will be.

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you both are sayi ng that the contri bution issues, or issue,

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needs to be tried on the facts.

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dispensed with by summary judgment.

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you know, basically, what we're talking about, at least as I

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understand the court's order on preliminary injunction as to

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the political libel statute and the voting disclosure statutes,

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those are essential facial challenges to the statute, and I

And it seems to me

Mr. Brown, do you want to address that point at this time?
MR. BROWN:

I believe Your Honor is absolutely

I believe that all counts of the plaintiffs'

THE COURT:

But I do not bel ieve that the

Well, if I hear and understand correctly,

All other issues can be

Is that right?
MR. BLACK:

I think it's likely, Your Honor.

I mean,

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think that those are susceptible to summary adjudication.

With

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respect to the issue of independent expenditures, obvi ousl y.

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that may depend upon what the United States Supreme Court does,

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but at least at this juncture, I don't know that there's going

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to be any, you know, material disputes of fact that would

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precl ude summary judgment.

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bei ng 1ega 1 issues.

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out, but I don't, as I sit here today, see triable issues with

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respect to that.

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is aware of the motion for leave to -- for reconsideration on

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the preliminary injunction order.

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that at some poi nt today, havi ng to do with how we work that

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out.

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preliminary injunction stage.

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a fact-intensive inquiry that will need a fully developed

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record.

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adjudi cat ion.

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distance here and say that the other issues can be resolved by

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summary judgment.

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hes i tant .

Those are goi ng to be very close to

I mean, dependi ng upon how it may play

We do have the issue, I know that the court

I suspect we'll talk about

And I thi nk that we can work that out, at 1east from the

But certainly, the contribution limits, that's going to be

And I just can't see that being subject to summary

THE COURT:

All right.

Both of you, then, agree that the contribution issue has
to be tri ed.
Mr. Black, you seem hesitant and willing to go the full

You say they 1 i ke 1 y can be.

You're

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MR. BLACK:

I'm always hesitant to stipulate, Your

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Honor, on thi ngs 1 i ke that.

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susceptible to summary judgment.

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particularly to the extent that there's a facial challenge to

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these statutes.

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determi ned that standi ng exi sts.

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there's an as-applied challenge to these statutes that is going

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to remai n, there is always the issue of di sputes of fact.

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understand that, you know, if certai n issues are summari 1 y

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adjudicated pending final trial in this matter, that those

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won't be fi nal orders and that we '11, you know, 1 imi t the

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evidence that we present at trial.

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that I'm preserv; ng my record, ; n the event that there is a

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factual issue that's important, that's how I couch it is I

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think it's likely susceptible to summary judgment.

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respect to the statutes on political libel or disclosure of

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voti ng record.

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statutory i nterpretati on.

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the court on that.

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bit reluctant to stipulate that everything's going to be

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I'm not sayi ng that they're not
I think they likely are,

We have the issue of standi ng.

The court

But to the extent that

I

However, just to make sure

Our focus going forward certainly. Your Honor, will be on
the contribution limits aspects of this case.
I don't think that there are significant issues with

I thi nk that those present issues of 1aw and
And I thi nk that we woul d agree wi th

So. that being said, I'm always a little

thei r evidence is on some of these issues at thi s poi nt in

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time,

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something to Mr, Black right now which will give him some

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comfort so that perhaps we can have a stipulation of some sort

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between counsel here today as to the issues that can be

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resol ved by summary judgment,

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What are you goi ng to prove in your presentati on that woul d

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present a factual issue as to either the rulings on

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constitutional vagueness -- let's start with those.

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injunction order, we believe that you got it right on point.

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We believe that the issues that you granted PIon and denied PI

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on, and especially as to the direct corporate contributions to

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candidates. that those are just questions of law, and that we

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can't reall y present any factual issues beyond what we've

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presented in our compl ai nt as to those matters, and we bel ieve

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that based on your ruling, those matters can be summarily

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di sposed of.

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fact that it would seem to me that. really, the only questions

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of fact left are as to the constitutionality of Montana's

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contribution limits.

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But I understand Mr. Black's position that he doesn't want

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to put the state in any position where they can't challenge the

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factual assertions,

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THE COURT:

MR, BROWN:

Well, Mr, Brown, maybe you can mention

Do you see any factual ; ssues?

Your Honor, having read your preliminary

I'm not sure what to offer the court beyond the

But we have submitted a verified complaint, where the

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1 plaintiffs have sworn to the facts in the complaint, so I don't

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2 see those factual all egat ions changi ng.

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4 ask for an i temi zat i on of fact issues today that the state

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7 disposed of timely, if it's not too late for that.

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MR. BROWN:

Sure.

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THE COURT:

And let me mention, then, at this point,

THE COURT:

I don't think it's unfair of the court to

We are in a situation where it's in the

interests of all parties and the court to have this case

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10 we have a motion for reconSideration, which is now properly

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pendi ng before the court, except that the grounds are not

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grounds permitted for recons i derat i on, as I understand the

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rule.

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the plaintiffs why we objected prior to their refiling the

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motion.

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I don't think it fall s under the rules, and we didn't have an

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opportunity to respond to the motion pursuant to the local

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rules.

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And so it's the court's expectation that that motion has
to be denied.
Do you have anything that you want to say, Mr. B1 ack?

being granted.

You

Do you want to be heard on that?

MR. BLACK:

Absolutely, Your Honor.

And I informed

And the basis for us not agreeing to their relief is:

We don't believe -- we understand what the court ruled on

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 12 of 28
preliminary injunction.

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And what the court ruled, per our

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2 understanding, which we informed plaintiffs of, is that this

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3 court has enjoined a prohibition against corporate

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4 contributions to pol itical committees that engage in

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independent expenditures to the extent that those funds are

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going to be used -- excuse me -- for independent expenditures.

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We understand that.

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that statute cannot be, to the extent it precludes that type of

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activity, cannot be enforced, and we're not going to enforce

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it.

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reconsideration is more of a technical argument seeking to

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clarify the court's order.

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yesterday, I think that we'd be willing to propose language or

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even stipulate that the court has ruled that corporate

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contributions to political committees making independent

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expenditures cannot be precluded under the law.

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thing that we'd point out is that what the plaintiffs requested

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when they sought relief is that to the extent that there's an

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anti-circumvention interest here, that these funds should be

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segregated and accounted for, so that these corporate

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contributions to committees cannot be used to go around the

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direct ban of corporate contributions to campaigns.

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certainly, what we have advised our clients is that the Judge

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has rul ed.

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enforce any banned contri butions to pol itical committees from

We believe that this court has ruled that

So I think that the objection or the motion for

And as I discussed with counsel

And the only

And

And we are not in any respect goi ng to try and

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corporate funds that are to be used for corporate expenditures.

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We only anticipate moving forward requiring an accounting as to

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how those funds are spent to preserve the state's

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anti-circumvention interest.

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motion for relief to file a motion for reconsideration as

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essentially a request to clarify the court's order to make it

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more precise.

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abi de by that order.

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front of thi s court wi th any argument that we're not abi di ng by

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the terms of the order.

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think that there's anything to reconsider here.

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that the court has rul ed.

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argument that you want to be maki ng here, if I understand it

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correctly, can be raised by motion for reconsideration.

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just doesn't fall within the rule.

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carefully and look at what you're trying to accomplish, it just

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i sn' t permi tted .

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And so the court is very unl ikely to grant your motion.

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Now, do you want to respond to anythi ng that Mr. Bl ack

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So to that extent, as we step back a little bit, I see the

I think we understand what the order says, we are going to

And I don't anti ci pate bei ng back in

So, that was the purpose of us objecting, is we don't

THE COURT:

We understand

Well, I don't think, Mr. Brown, that the

It

If you read the rule

just said?
MR. BROWN:

Your Honor, I agree with everything he

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said.

And I understand the court's position reading through

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that -- the federal rules, it's not exactly clear what

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mechanism we could use for the clarification.

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seeking is a clarification of the court's ruling.

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concern that the plaintiffs have is that there's nothing in the

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court's ruling that says that Section 1 and Section 2 of 13·227

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are enjoined to the extent that Mr. Black stated.

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there's nothing that binds the state at this point.

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though it seems clear that the court's intent was to enj oi n

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enforcement of those provi si ons.

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to clarify footnote 8, I would be amenable to that and seems

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Mr. 81 ack woul d too, if the court is amenabl e to that.

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just seeking some clarification in footnote 8, Your Honor.

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seemed to me that your remedy was in the fi nal judgment, whi ch

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fi ts into our di scussi on here.

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fact questions that need to be resolved in order to decide that

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issue?

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clear understanding and stipulation as to what issues actually

09:50PM

23

needed to be tri ed.

09:51PM

24

Mr. Black?

09:51PM

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What we're
And the

And so we have assurances from the state today that they
read your order to mean what both sides think it means, but
Even

So, to the extent that we can submit 1anguage to the court

THE COURT:

We' re

The order itself is preliminary.

And it

I s there anythi ng in the way of

And I was hopi ng that today, we coul d have some sort of

MR. BLACK:

In that regard, what do you thi nk,

I appreci ate that, Your Honor.

From what

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 15 of 28

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09:51PM

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I understand from Mr. Brown, is that the pl ai ntiffs don't

09:51PM

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intend to offer any additional evidence with respect to the

09:51PM

3

direct ban on corporate contributions to campaigns.

09:51PM

4

seems to me that that issue is moot from factual

09:51PM

5

considerations.

09:51PM

6

09:51PM

7

Mr. Brown represented earl i er. is that they don't intend to

09:51PM

8

offer any other further evi dence wi th respect to the other

09:51PM

9

statutes; that all that they expect to offer evi dence on is

09:51PM

10

contribution 1imits, as to everything outside of the direct

09:51PM

11

corporate ban on contri buti ons under 227.

09:51PM

12

M:51~

13

understanding that they're not going to offer any evidence with

09:51PM

14

respect to the direct corporate ban on contributions; that

09:51PM

15

that's not going to be a factual issue; that what we're going

09:52PM

16

to argue about In thi s case and present evl dence on I s the

09:52PM

17

const itutlonal ity of the contrl butlon 1 I mits that ex; st.

09:52PM

18

than happy to do that.

09:52PM

19

of factual disputes that will be relevant as to the other

09:52~

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statutory provisions.

09:52PM

21

09:52PM

22

09:52PM

23

09:52PM

24

the contri bution issues, and the others are gOi ng to be

09:52PM

25

resol ved by summary judgment, and that each of you will make

So it

It's al so my understandi ng based upon, you know. what

So I am comfortabl e with mov; ng forward on the

THE COURT:

More

I don't think that there's an awful lot

Well, I was with you until the last

several words that came from your mouth.
Can we not stipulate that we're going to have a trial on

Case 6:12·cv-00012·CCL Document 107 Filed 06/25/12 Page 16 of 28

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09:52PM

1

your motion for summary judgment within a certain length of

09:52PM

2

ti me?

09: 53PM

3

cont ri but ions issues that are goi ng to be tri ed?

09:53PM

4

right down to the nubbi ns here on the dates that I've thrown

09: 53PM

5

out to see whether you can 1 i ve with those dates.

09:53PM

6

trial date in mind, which is May Day.

09:53PM

7

under some ci rcumstances.

09:53PM

8

limited to the contribution questions, it seems to me that you

09:53PM

9

can round up your experts: that you can exchange i nformati on,

09:54PM

10

and that you can be ready to try it by May 1.

09:54PM

11

that, then, if the court can decide that issue and all of the

09:54PM

12

motions for summary judgment, which will be fully briefed

09:54PM

13

before then, the court can have a final judgment prior to the

09:54PM

14

primary with sti 11 some time for campaigning on the basis of

09: 54PM

15

those rul i ngs .

09: 54PM

16

09:54PM

17

not be the end of the case.

09:54PM

18

time.

09:55PM

19

issues at least ruled upon ahead of the primary election.

09:55PM

20

09:55PM

21

you off on my last several words.

09: 55PM

22

make is:

09:55PM

23

than on the contribution limits themselves, the actual amounts

09:55PM

24

that are at issue in this case, that the plaintiffs do not

09:55PM

25

expect to offer any other evi dence on any of the other issues,

And we wi 11 go forward, then, wi th a schedul e on the
We'11 get

I have a

That may be too early

But if the - - if the issue is

If we can do

Now, that will be the end of my part i ci pat ion.

That may

The case may go on for along

But at 1east we wi 11 have done our part to get these

MR. BLACK:

Well, Your Honor, I didn't mean to throw
The point I was trying to

As I understand Mr. Brown's comments, is that other

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 17 of 28

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09:55PM

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which would include the direct -- the ban on direct corporate

09:55PM

2

contributions to campaigns.

09:55PM

3

bel i eve that there wi 11 be an issue of mater; al fact.

09:55PM

4

to the issues, other than the contri buti on 1 i mi ts, I bel i eve

09:55PM

5

that will be susceptible to summary adjudication.

09:55PM

6

understanding that they're not going to offer more evidence,

09:55PM

7

I'm more than happy to sti pul ate that we' 11 move for summary

09:56PM

8

judgment based upon the evidence in the record as to those

09:56PM

9

issues.

09:56PM

10

09:56PM

11

I'm a little bit reluctant to go further than that.

09:56PM

12

what I understand Mr. Brown represented to the court on the

09:56PM

13

issues other than the campaign limits themselves, the

09:56PM

14

contri buti on 1 i mits themsel ves.

09:56PM

15

THE COURT:

09:56PM

16

coul d go ahead and begi n the summary judgment process, and the

09:56PM

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court could guarantee you a hearing and give you the right to

09:57PM

18

present a witness at the time of the hearing. if that is the

09:57PM

19

assurance that you need for a stipulation here.

09:57PM

20

09:57PM

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the opportunity to offer evi dence.

09:57PM

22

thi sis goi ng back to what Mr. Brown -­

09:57PM

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09:57PM

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You coul d fi 1e your affi davi ts, whatever you want to do by way

09:57PM

25

of a factual presentation.

That being understood, I don't
And as

And with the

But not knowing what their evidence might otherwise be,

MR. BLACK:

THE COURT:

But that's

Well. by way of some comfort for you, we

Well, Your Honor, I would expect to have
I guess my quest; on. and

Well, you would as a part of the motion.

But if there is evi dence that comes

Case 6:12-cv-00012-CCL Document 107 Filed 06/25112 Page 18 of 28

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in from Mr. Brown that you're worried about now, so that you

09:57PM

2

don't want to foreclose that fact, it can be presented at the

09:57PM

3

time of the summary judgment hearing.

09:57PM

4

You mi ght thi nk about that.

09:57PM

5

09:58PM

6

prepared to so stipulate as to the issues other than

09: 58PM

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contribution limits.

09: 58PM

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THE COURT:

09:58PM

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09:58PM

10

MR. BLACK:

Absolutely.

09:58PM

11

THE COURT:

And that's the court's ruling today.

09:58PM

12

09:56PM

13

09:56PM

14

plaintiffs are prepared to dispose of every issue except for

09:56PM

15

the contribution limits by summary ruling.

09:58PM

16

get that done within the next several weeks to a month on those

09:58PM

17

issues.

09:58PM

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09:58PM

19

need a little more time than May to develop their evidence as

09:59PM

20

to the unconstitutionality or constitutionality of the

09:59PM

21

contribution limits.

09: 59PM

22

re 1 i ef pri or to the pri mary el ect i on on that count in order to

09:59PM

23

develop our -- or to develop the record, because we believe

09:59PM

24

it's important to develop the record, and the court has so

09:59PM

25

found.

MR. BLACK:

Sure.

No.

Well, Your Honor, I would be

We can't -­ contribution limits here

are going to resolve -­ require resolution by trial.

So, Mr. Brown.
MR. BROWN:

It's my suggestion, Your Honor, that

We believe we can

It would be my suggestion, Your Honor, that plaintiffs

The plaintiffs are willing to forego

We would suggest a trial date on that single issue in

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 19 of 28

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09:59PM

1 August or September, Your Honor.

09:59PM

2

09:59PM

3

so long as the court decides the issue before the next

09:59PM

4

legi slature convenes.

09: 59PM

5

09:59PM

6

-- you know, the issue of the impending election was raised by

10:00PM

7

plaintiffs in their pleadings.

10:00PM

8

presenti ng thei r case pri or to the primary. the state - - or the

10:00PM

9 defendants have no objection.

THE COURT:

MR. BLACK:

That meets your requirement, Mr. Black,

Your Honor, that would be fine by me.

they're willing to forego

If

It

I

is imperative to us that in

10:00PM

10

the event that thi s court rul es that these contri buti on 1imits

10:00PM

11

are not constitutional, that the legislature has the

10:00PM

12

opportunity to review them in the next session.

10:00PM

13

10:00PM

14

be worthwhile to consider submitting the issues that we've

10:00PM

15

agreed to on summary judgment and bifurcating the case, then,

10:00PM

16

and set down the single issue for trial subsequently at some

10:00PM

17

date, even after the primary, in August perhaps?

10:01PM

18

to be after the salmon season.

10.01PM

19

10:01PM

20

summary judgment and enter final judgment.

10:01PM

21

would be bifurcated in that regard.

10;OlPM

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10:01PM

23

you say "final judgment," do you anticipate a 54(b)

10:01PM

24

certification on those issues?

10:01PM

25

about?

THE COURT:

Let me ask this question then:

Would it

It would have

And the court can go ahead and hear the other matters on

MR. BLACK:

The case, then,

Just for clarification, Your Honor, when

Is that what we're talking

Case 6:12·cv·00012·CCL Document 107 Filed 06125112 Page 20 of 28

THE COURT:

I hadn't thought that far ahead.

20

10:01PM

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I'm

10:01PM

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just thinking out loud here.

10:01PM

3

thi nk about thi s, because it's not a suggest i on.

10:02PM

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a possi bil i ty.

10:02PM

5

MR. BLACK:

Sure.

10:02PM

6

THE COURT:

I feel quite strongly about trying to get

!O:02PM

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the case resolved as rapidly as we can in view of the

10:02PM

8

forthcoming election.

10:02PM

9

background that I ran into ina case, whi ch I don't thi nk the

10:02PH

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plaintiffs have cited.

10:02PH

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it, Chamber of Commerce against Argenbright.

10:03PM

12

had not elections of candidates, but rather ballot issues.

10:03PH

13

there were two which were at issue.

10:03PM

14

requisite to ban

10:03PM

15

cyanide leaching in gold mining; and the other banned corporate

10:03PM

16

contributions in the ballot elections.

10:03PH

17

issues.

10:04PH

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cyani de ban and the corporate case deci ded.

10:04PM

19

together and then separated them.

10:04PM

20

manner that that occurred.

10:04PM

21

event, after trial, the ruling was that corporations could

10:04PM

22

contribute to ballot elections, and .- but it came at a time,

10:04PH

23

three weeks or so, before the election.

10:05PM

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10:05PH

25

I should give you all time to
It is more of

And I feel that way because of the

I'm sure the defendants are aware of
And in that, we
And

One of them was the

in fact, it had passed, as I recall -­

And we tried those

And I had a little difficulty getting the ban -- the
I had them

I can't remember exactl y the

It's been 20 years ago.

But in any

And so here were the mine owners and sympathizers and the
public in the absence of any active campaigning by the

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 21

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corporations.

And they moved the court for an order cancelling

10:05PM

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the election, which kept me awake at night.

10:05PM

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'0:05PM

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denied it.

10:05PM

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the fi rst thi ng I did in thi s case was set a prompt heari ng on

10:05PM

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your pre 1 i mi nary mot i on - - or prel i mi nary i nj unct ion moti on, so

10:06PM

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that we coul d try to get a start on what reall y coul d be done

'0:06PM

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here as far in advance for the benefit of the publ ic as coul d

'0:06PM

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be done.

10:06PM

10

10:06PM

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can be avoided.

'0:06PM

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minutes or so and think about this, discuss it a little bit.

10:06PM

13

And we'll resume, then, at eleven o'clock.

10:06PM

14

back, let's start with thi s schedul e that I gave you.

'0: 07PM

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maybe you'll have specific changes in the dates that you both

10:07PM

16

can agree to and we can discuss at that time.

10:07PM

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10:07PM

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MR. BLACK:

10:07PM

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(The proceedings in this matter were recessed at

10: 07PH

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10:45 a.m. and reconvened at 11:08)

10:07PM

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THE COURT:

10:08PM

22

conference in the case of Lair against Murry; Civil 12-12,

10:08PM

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Helena Division case.

10:08PM

24

Counsel are present.

10:08PM

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I don't expect you two to have settled the entire case.

And ultimately, I denied it.

Well, I fairly promptly

But it has always troubled me.

And as you know,

So, I'm hesitant to go beyond the primary date here if it
Now, maybe you'd like to take a recess for 15

And when we come
And

About 15 minutes, then, subject to the call of the court.
Thank you, Your Honor:

This is a continuation of status

We're ready to proceed.

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 22 of 28

22

But r hope we have some good agreements.

10:08PH

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10:08PH

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10:08PM

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10:08PM

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10:06PH

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that you raised.

10:0SPH

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bifurcate this case, separating out the contribution limit

10:06PM

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challenge from the other matters.

10;09PM

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understand your concerns - - Your Honor' s concerns about Chamber

10:09PH

9

versus Argenbri ght.

10:09PH

10

were present in that case are necessarily present in this case.

10:09PM

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And the reason that is, is because if the contribution limits

10:09PM

12

stay in pl ace duri ng the pendency of thi schall enge, that all

10;09PH

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parti es are pl ayi ng under the same rul es and nobody' s

10:09PH

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di sadvantaged .

10:09PN

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We bel i eve that we coul d di spose of all the matters except

10:09PM

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for the contribution limits prior to the June primary, and that

10;09PH

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those woul d be ready for summary rul i ng.

10:09PH

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10:09PH

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be abl e to put together evi dence.

10:09PM

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witnesses to show how Montana's contribution limits are

10:09PM

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unconstituti onal .

10:10PM

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10:10PM

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10: 10PM

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10:10PM

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Mr. Brown, do you want to begi n?
MR. BROWN:

Yes, Your Honor.

Thank you.

As you stated, counsel took a break to di scuss the matters
Counsel are in agreement that we can

We believe that we

We don't bel ieve that the concerns that

It is plaintiffs' contention that we need a little time to
Namel y, getti ng expert

We would again propose that the trial on that portion be
held in August.
The opi ni on on whi ch that sets, of course. is p1a1 ntiffs .
ability to come up with experts who will render opinions on the

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 23 of 28

23

10:10PM

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constitutionality of that.

1010PM

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have to di scl ose thei r experts by May 15th.

10:10PH

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of the schedule would fall in behind that as to the -- as to

10:10PH

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the trial. Your Honor.

10: 10PH

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10:10PH

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10:10PM

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10: 10PM

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1010PM

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10:11PM

10

54(b), as I recall.

10: l1PH

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me that that woul d take care of it

10:11PH

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MR. BLACK:

It certainly may, Your Honor.

10:11PH

13

THE COURT:

It wouldn't require bifurcation, but it

10:11PM

14

10:11PH

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10:11PM

16

thinking about the injunctive aspect of this.

10:11PH

17

extent that an injunction is entered, I believe that that would

10:11PH

18

be appealable, as well.

10:11PM

19

certainly happy to 1ive with that i f that's what the court is

10;11PM

20

inclined to do.

10:11PM

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The issue would just be, you know, if we're going to

10:IIPH

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bifurcate it, how do we deal with appeal issues on either side

10:11PM

23

if we choose to go that way.

10:11PH

24

us, and we're happy to have a deadline for motions, dispositive

10:12PH

25

motions on everything, but for the contribution limits in the

THE COURT :

So we would propose that plaintiffs
And then the rest

All ri ght .

Mr. Black.

MR. BLACK:

Your Honor, I -- we are in agreement that

it coul d be bifurcated -­
THE COURT:

I might say that you suggested Rule

And in thinking about that, it seemed to

<

would allow either side to immediately go on.

MR. BLACK:

Yeah.

And Your Honor, I wasn't even

I mean, to the

So, whether it's 54(b), we're

So, the 54(b) would be fine with

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 24 of 28

24

10:12PH

1

near term.

10: 12PH

2

10:12PH

3

whatever the court decides regarding scheduling.

10:12PH

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also -- we're not against giving plaintiffs an opportunity to

10:12PH

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set this for trial in August.

10:12PH

6

were going to suggest, or at least what plaintiffs were going

10: 12PM

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to suggest, is thei r deadl i ne for experts isMay 1; we have two

10:12PM

8

weeks to fi 1 e responsi ve experts, so around May 15th.

10: 12PH

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know what the Fri days are.

10:12PH

10

discovery.

10:12PM

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July, a week later.

10:12PH

12

to go at the court's convenience in August.

10:12PM

13

10:12PM

14

court determines, so -- but we're also going to accommodate the

10:13PH

15

plaintiffs in that regard.

10: 13PH

16

10: 13PH

17

first week in September.

10:13PH

18

problem for anybody.

10: 13PH

19

Mr. Brown.

10: 13PM

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10: 13P"

21

Honor, but I'll likely be a delegate to the Republican National

10: 13PH

22

Convention, and that will be held in Tampa in the first week of

10: 13P"

23

September.

10:13PH

24

THE COURT:

10:13PH

25

that obligation on your part.

Our thought is, is that we are wi 11 i ng to 1 i ve wi th -­
But we're

My notes indicate that what we

I don't

The end of June is close of

Pretrial motions by the end of the first week of
We're going to have this matter prepared

But we're also willing to live with whatever schedule the

THE COURT:

MR. BROWN:

The trial then might run as late as the
But I wouldn't think that would be a

Not to show my political leanings, Your

Well. we'll think about that comment and

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 25 of 28

MR. BLACK:

25

I don't believe counsel for defendants

10: 13PM

1

10:13PM

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have any such obligation or intention, so our schedule is a

10:13PM

3

little bit more open.

10:13PM

4

10:13PH

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All right.

10:l4PH

6

I will need to think about this.

10:14PH

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10: 14PH

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10:14PM

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10;14PH

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of any other part of the case?

10:14PH

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MR. BLACK:

10:14PH

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10:14PH

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10:14PM

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10: 14PH

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agreements that you can thi nk of?

10: lSPH

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perhaps, can be resol ved?

10:15PH

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MR. BLACK:

I don't know that there are, Your Honor.

10:15PH

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THE COURT:

All right.

10:15PH

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10;15PM

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MR. BLACK:

Okay.

10: 15PH

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THE COURT:

And I won't be here tomorrow to receive

10: 15PM

22

obj ections.

10: 15PM

23

agreement that you simpl y cannot cope wi th, you can present

10: 15PM

24

those on Monday.

10: 15PM

25

THE COURT:

I can understand that.

And I think we can get

an order out promptl y.
Are there any other issues that you can agree on today?
Anything that will aid and contribute to the early resolution

I'm not sure what other issues there are

that we haven't di scussed, Your Honor.
THE COURT:

All right.

Is there any way that this can be streamlined?

Any other

Or any di sagreements that,

Then, I'll try to get an order out yet today.

But i f for some reason there's some part of the

Now, I gather there i sn 't anythi ng else, then, that ei ther

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 26 of 28

party wants to be heard from today?

26

10:15PM

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Mr. Brown.

10:15PM

2

MR. BROWN:

No, Your Honor.

10: lSPM

3

THE COURT:

Mr. Bl ack?

10: ISPM

4

MR. BLACK:

None, Your Honor.

10:1SPM

5

10:16PM

6

our Rule 26(f) statement and suggested initial disclosures by

10: 16PM

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March 30th.

10:16PM

8

You know, we're open to whatever the court decides, but I did

10:16PM

9

want to point out that we did file our 26(f) thing -­

10:16PM

10

disclosure yesterday.

10;16PM

11

preliminary pretrial conference, so there's really no reason

10:16PM

12

for us not to proceed with discovery after we filed our initial

10:16PM

13

disclosures or submitted our initial disclosures to the other

10:16PH

14

parties.

10:16PH

15

THE COURT:

I think that's so.

10:16PH

16

MR. BLACK:

Okay.

10:16PH

17

THE COURT:

Any objection to that?

10:16PH

18

MR. BROWN:

None, Your Honor.

10: 16PH

19

THE COURT:

All right.

10: 16PM

20

We' 11 get that order out today then.

10:16PM

21

Thank you, gentlemen. for coming in; being here for -­

10:16PH

22

being in a cooperative, and I think very professional mood.

10:17PH

23

Court's adjourned.

10;17PH

24

MR. BLACK:

Thank you, Your Honor.

10:17PH

25

MR. BROWN:

Thank you, Your Honor.

I do want to pOint out that yesterday, I think we filed

And I know earl i er today, you sai d March 15th.

And I assume that this is essentially a

Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 27 of 28

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(The proceedings in this matter were adjourned at

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11:18a.m.)

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Case 6:12-cv-00012-CCL Document 107 Filed 06/25/12 Page 28 of 28
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28

C E R T I F I CAT E

2 STATE OF MONTANA

)

3 County of Cascade )

SS

4

5

I, TINA C. BRILZ, RPR, FCRR, Official Court Reporter and

6 Notary Public of the State of Montana residing at Great Falls,
7
8
9

10
11

Montana, do hereby certify as follows:
That the foregoing status hearing was reported by FTR Gold
recording on March 9, 2012, at 10:01 a.m. in Courtroom II in
the Paul G. Hatfield Federal Courthouse in Helena, Montana.
That the foregoing twenty-seven (27) pages of typewritten

12

material constitute a true and accurate transcription of my

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stenographic notes which were reduced to writing by means of

14 computer-aided transcription from an FTR Gold recording.
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I further certify that I am not an attorney nor counsel of

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any of the parties nor a relative or employee of any attorney

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or counsel connected with this action or otherwise interested

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in the event thereof.

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IN WITNESS WHEREOf, I have hereunto set my hand and

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affixed my Official Seal on this 24th day of June, 2012.

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lsI Tina C. Brilz

TINA C. BRILZ
REGISTERED PROFESSIONAL REPORTER
NOTARY PUBLIC for the State of
Montana residing at Great Falls,
Montana. My commission expires
October 11, 2015.