dv-14-656c complaint

8/11/2019 DV-14-656C Complaint

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ORIGINAL

Michael J San Souci

LAW OFFICE OF

MICHAEL J. S N SOUCI

2135

Charlotte St., Suite

l

Bozeman, MT

5 9 7 8 ~ 7 4

TelephoneNo.: (406) 586-2221

Fax No.: (406) 582-1966

E-Mail: [email protected]

Attorney for Plaintiffs Petitioners

GALLATIN C WfHY eLERK

OF DISTRICi COURT

JENNIFER

BRMiDON

U 6

PrJ

2

fiLED

By ~ t i \ . : . . . : . . . . . .

DEPUTY

MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT

GALLATIN COUNTY

PETERARNONE, DAVEBALDWIN,

ROSS HARTMAN,

WNETTE OSEN

and SHARON SWANSON, for themselves

and on behalf

of

all similarly situated

Bozeman residents, property owners and

taxpayers,

Plaintiffs Petitioners,

vs.

CITY OF BOZEMAN, BOZEMAN CITY

COMMISSION and JEFF KRAUSS,

CARSON TAYLOR, CHRIS MEHL,

CYNTHIAANDRUS and I-HO POMEROY,

individually and as agents of the City of

Bozeman, and DOES 1-10, inclusive,

Defendants Respondents.

:

Cause N 0 . 1 J I I - / t / - ~ 5 P ~

COMWLMNT AND PETITION

FORDECLARATORYRELIEF

) ~ ~

Plaintiffs and Petitioners (hereinafter collectively plaintiffs ) allege as follows:

COMPLAINTAND PETITION FORDECLARATORYRELIEF

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GENERAL ALLEGATIONS

ature

of

Action

1.

This is a request for declaratory relief, and a corresponding declaratory

judgment, brought pursuant to theMontana Uniform. Declaratory Judgments Act

( UDJA ), Title 27, Chapter 8, Montana Code Annotated ( MCA ).

2.

y

virtue

of

this action plaintiffs seek a legal declaration from this honorable

Court invalidating the action taken by the Defendant City and its commissioners in the

recent enactment of theirNondiscrimination Ordinance UNDO ), which purports to

broadly regulate and penalize alleged discrimination in employment, public

accommodations and housing. It is plaintiffs position that the action taken by said

defendants in the enactment of this ordinance is unavoidably preempted by State law, is

ultr vir s and beyond the scope of any power granted to the City and should, therefor, be

declared invalid and without legal force or effect. Plaintiffs further request that said

defendants be required reimburse them for all reasonable costs and private litigation

expenses that necessarily have been, and will be, incurred in their having to pursue this

declaratory relief action for the purpose ofvoiding this action.

Parties

and

Their

Relationships

3. Plaintiffs are, and at all times herein mentioned were, residents

of

the City of

Bozeman. Plaintiffs are members of a large class of similarly concerned and aggrieved

citizen-taxpayers, and thereby have appropriate standing to bring this action within the

COMPLAINTAND PETITION FOR DECLARATORY RELIEF

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meaning

of

the UDJA 27-8-202 MCA since they are persons interested in and whose

rights status or other legal relations

may

be affected by the enactment and

implementation

of

the NDO. Accordingly plaintiffs are thereby entitled

to

have

detennined by this Court questions concerning the validity or invalidity of said ordinance.

4. The Defendant CityCommission and its individual members serve for and

under the auspices ofthe Defendant City

of

Bozeman a political subdivision

of

the State

of

Montana. Defendants Krauss Taylor

MeW

Andrus and Pomeroy serve as

Commissioners for the Defendant City and in all

of

their actions complained

of

herein

said defendants acted for themselves and as agents on behalfof the other named

defendants.

5. Plaintiffs are infonned and believe and thereon allege that those defendants

sued herein as DOES are the officers agents andlor employees

of

othernamed

defendants who ratified andlor approved the acts or omissions of those responsible

andlor are otherwise legally responsible in somemanner for the wrongful conduct herein

alleged. Once said defendants have been properly identified plaintiffmay ask that this

complaint be amended to include said defendants in lieu

of

their fictitious names

togetherwith apt and properwords

to

charge

them.

Bases

of

Jurisdiction n Venue

6. This Court has original jurisdiction over this action pursuant to 3-5-302

MeA and venue is proper in this judicial district pursuant to 25-2-121 25-2-122

and

COMPLAINT AND PETITION FOR DECLARATORY RELIEF

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25-2-126 MCA since this

is

the county in which the Defendant City is located and since

the

wrongful acts which are the subject of this action arose within this judicial district.

Facts Giving Rise to Action

7 On June 2 2014 the Defendant Commissioners acting for themselves

and

their official capacities for the Defendant City and its Commission enacted the

NO

Ordinance No. 1890 which is not intended and does not purport to be limited any

manner solely to regulating the acts or conduct

of

city employees city affairs and/or its

local government but instead seeks to extend and apply expansively to individuals

businesses institutions and organizations residing or coming within its boundaries for the

purpose ofbroadly regulating any discrimination that conceivably might be alleged in the

areas ofemployment public accommodations

and

housing.

8 The defendants passage and enactment of this controversial measure followed

several months ofpublic debate and significant opposition thereto which included the

Defendant Commissioners

the

Bozeman City Manager and its City Attorney. having been

provided with legal opinions categorically advising against its passage due to its inherent

conflict with State law and its unavoidable incursion into State sovereignty matters

of

statewide concern.

9

Consequently

an

actual controversy exists between

plaintiffs and those

other concerned citizens and taxpayers similarly situated on

the one hand and the

defendants on the other hand arising outof the events hereinabove alleged. Specifically

COMPLAINT

AND

PETITION FOR

DECLARATORY RELIEF

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independent self-government administrative power, unless suchpower

is specifically delegated by law];

f

Sections 7-1-113 1), 3),MCA, [local govermnent with self-governing

powers prohibited

from

exercising anypower

in

a manner inconsistent

with state law or administrative regulation

in

any area afftrmatively

subjected by law to state regulation or control, where a state agency or

officer is directed to establish administrative rules goyeming

matter or i the enforcement

o

standards or requirements established .

by statute is vested in a state officer or agency];

g

The Montana Human Rights Act, Title 49, Chapter 2, and the Govenunent .

Code o FairPractices, Title 49, Chapter3 [provisions comprising

the exclusive remedy for acts

o

discrimination, within themeaning

o

49-1-102,MCA, with the MontanaHuman Rights Commission having

been vestedwithjurisdiction over suchmatters, and having

been

directed

by the StateLegislature to establish, implement

and

enforce these laws,

as set forth

49-2-204, MeA];

h Mont. Const., Art. VII, Section 4 and Section 3-5-302,MCA [district courts

haveoriginal jurisdiction in all cases involving matters in equity];

i

Sections 3-6-103,

3-10-301

and 3-11-102,

MCA

[no corresponding

authority, pertaining to municipal court jurisdiction, to award or fashion

affinnative or equitable reliefo anynature];

j Sections 3-11-103 1), 2),MCA [municipal court jurisdiction limited, by

its very nature,

to

specified categories o offenses unrelated

to

anti

discrimination legislation];

k Section7-1-4152,MCA [municipal court jurisdiction to potentially

impose affinnative reliefstrictly limited to orders o abatement or

correction under the municipal infraction statute], and

I In

direct contravention

o

other clearly established state and civil rights

laws regarding the potential right

to

recover private litigation expenses,

otherwise expressly reserved

to

the

district courts,

by

including therein a

discretionary ... prevailing party fee-shifting authorization for municipal

courts.

COMPLAINTAND PETITION FOR DECLARATORY RELIEF

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Based on all of the above plaintiffs seek a declaratory judgment with respect

to this controversy and all other appropriate remedies available pursuant to the UDJA

2 7 ~ 8 1 0 1

et seq. and accordingly ask that this honorable Court adjudge declare and

decree that the enactment of the NDO was and is a nullity and invalid as a matter oflaw

and that said defendants and each of them are liable for the enactment of the same.

2 As a result of the unwarranted action of the defendants plaintiffs have been

compelled to incur attorney s fees and costs

n

having to prosecute this action which for

all intents and purposes should have been unnecessary.

13. Accordingly plaintiffs will ask that this honorable Court award their costs in

accordance with 2 7 8 ~ 3 1 1 Me as well as reasonable attorney s fees and any non-

statutory expenses as the Court;in its discretion may impose consistent with the

supplemental relief provision of 27-8-313 Me and/or under the private attorney

general doctrine.

PR Y R FOR R LI F

WHEREFORE plaintiffs pray for judgment against the defendants and each of

them as follows:

For an appropriate declaration or decree that the Bozeman is invalid as a

matter of law;

2.

or

an award

of

those reasonable attorney s fees necessarily incurred in

bringing this action pursuant to statute and/or the private attorney general doctrine;

COMPLAINT AND PETITION FOR DECLARATORY RELIEF

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For those costs and expenses incurred;

4 For pre-judgment interest on those sums expended according to proof and

5

For any further relief

as

this honorable Courtmay deem just and proper.

D TED

By:

Respectfully Submitted

LAW OFFICE OF

MICHAEL

J

SAN SOUCI

Michael J SanSouci

Attorneyfor Plaintiffs Petitioners

COMPLAINT AND PETITION FORDECLARATORY RELIEF

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dv-14-656c complaint

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