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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.
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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;
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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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