The Montana Supreme Court has denied a request to intervene in a lower court's handling of a disputed sheriff's race, as the sheriff-elect prepared to be sworn in Wednesday.
Ronnie Burns, the unsuccessful write-in candidate for sheriff in Musselshell County, submitted an emergency petition for a writ of supervisory control Monday morning to the Montana Supreme Court.
The court denied the request in a ruling Monday afternoon.
The county scheduled a swearing-in ceremony for newly elected county officials, including the sheriff-elect, Shawn Lesnik, for 10:30 a.m. Wednesday.
Burns, a horse breeder and former Texas police officer, ran as a write-in candidate after losing the Republican primary to Undersheriff Shawn Lesnik. Lesnik won the general election by 41 votes.
Burns argued a lower court was wrong to vacate earlier orders approving a recount and corresponding special recount rules.
An attorney for the winning candidate has said each of the eight special recount rules violated state elections law.
Burns said the proper remedy was for the lower court to vacate only the special recount rules, but leave in place other rulings, such as the one requiring a recount, and another temporarily blocking the county from seating Lesnik.
In its ruling denying the writ, Chief Justice Mike McGrath wrote that the lower court had allowed Lesnik to intervene in Burns' recount lawsuit, but that the court hadn't yet provided reasoning for vacating its earlier orders, and that it had requested additional briefing.
"At this point, the proceeding appears to be in procedural flux and we cannot conclude the District Court has committed a mistake of law causing a gross injustice and requiring supervisory control," the order read.
Lisa Speare, attorney for Lesnik, said Lesnik was set to be sworn in Wednesday morning. She said the district court order vacating the recount cleared the way for Lesnik to take office as the sheriff-elect. And the Supreme Court's dismissal of Burns' Monday request meant the lower court's order stood.
Chris Gallus, attorney for Burns, declined to say what, if any, his next step would be.
Meanwhile, attorneys continued to argue over copies of un-redacted emails from law enforcement and other county officials that were inadvertently released.
The county had released nearly a year's-worth of emails from seven county employees, including the sheriff, as part of an information request related to the sheriff's race.
County Attorney Kevin Peterson said Friday that he immediately took steps to return the thumb drives containing the information to the county, but in fact, one of the thumb drives was not in county custody.
The thumb drive given to Lesnik was still in his possession, being kept in his personal safe, according to his attorney, Speare.
Peterson blamed Lesnik for not returning it, after asking him to.
"This is ridiculous," Peterson said. "It’s county property. (Lesnik) has actually no business hanging on to it."
But Speare, Lesnik's attorney, said Peterson needed to contact her about returning the drive.
"Mr. Lesnik told me that upon receiving the sealed envelope from (the county attorney's office), he immediately locked it up in his personal safe at his house. Given that Mr. Lesnik, but not I, can possess confidential criminal justice information, he and I decided that he should keep the (sealed) envelope containing the drives in his safe at home and that I would bring it to the judge’s attention," Speare wrote. "We also now know that given the scope of the emails Mr. Peterson requested, the drive likely contains confidential personnel information that neither my client nor I should possess."
Speare said she would wait for a written request from Peterson to have Lesnik return the drive.
"So a request needs to go through me," she said. "And I have not received any requests for the return of that, which was provided to me via this lawsuit."