I represented Roger Koopman in a recent case against the City of Bozeman involving their public safety center bond. This was an issue that should concern every Montanan. The lawsuit wasn’t about the safety center as such. It was about the City’s well-orchestrated and one-sided political election campaign — complete with logos, buttons, T-shirts, banners and all manner of paid advertising. Montana’s election and ethics laws specifically preclude state and local government from involving itself in political activity. The law lets public servants present neutral facts about how bond issues impact government operations. It precludes the use of public funds and resources for government persuasion and interference in an election process reserved to the people.
Unfortunately, the City succeeded in bumping Koopman’s district court complaint over to the commissioner of political practices, and predictably, the CoPP sympathized and sided with city government, ignoring many facts and twisting state law in the process. But local citizens are the best judge of what actually took place. Did Bozeman residents feel educated or persuaded? Were they equally informed of both sides of the bond issue question? Did they witness the presentation of neutral facts or a political campaign? Just ask them.
Unlike what Bozeman’s city manager later announced, the City wasn’t worried about rising construction costs. They were worried about losing the case. The predetermined part of their case was over. CoPP issued its rubber stamp of approval. The City thereafter was losing control of their agenda, and would need to start answering Koopman’s questions directly, rather than filtering them through a government agency that had its fingerprints all over their activities from the start, and a city board of ethics appointed by the defendant commissioners.
If Koopman had been allowed his day in court, City officials would have been under oath. Their entire case rested on an agency prone to misapplying campaign finance law, and headed by a politician with no formal legal training. Sadly, the dismissing judge felt obligated to accept the agency decision, even though it failed to address the most substantive issues in the case, and did not afford Koopman his due process rights. Dismissing the case created a host of serious legal issues, as dismissal is a highly disfavored judicial remedy. This is what concerned the City, and why they pressed for a settlement with Koopman.
It’s important to note that the CoPP’s flawed decision started a sequence of events that allowed the City to avoid accountability, based on a legal supposition that agency decisions receive preferential treatment over individual grievances and rights. Here, the agency was given far too much deference, as its decision was clearly erroneous. These weren’t legal victories by the City. They were echoes from a prerecorded script.
The U.S. Supreme Court is currently deciding a case that will likely stand this ill-conceived agency superiority notion on its head. The City of Bozeman knew this, and didn’t want to confront a shifting legal environment that places the Constitution back in its preeminent role of protecting the rights of the individual from governmental encroachment.
Roger and I will soon be establishing a defense fund aimed at curbing these kinds of ballot issue abuses throughout the state. In the meantime, it will be interesting to see if Bozeman city officials continue with business as usual.
Democracy and honest, uncorrupted elections still matter. The City of Bozeman should remember that, as should every city and county government official in this state. If we do not hold our local officials accountable for electioneering at taxpayer expense, free elections will become nothing more than a mockery and a sham. We alone will be to blame.