IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 20-0295

ROBYN DRISCOLL; MONTANA DEMOCRATIC

PARTY; AND DEMOCRATIC SENATORIAL

CAMPAIGN COMMI1 FEE,

Plaintiffs and Appellees,

v. ORDER

COREY STAPLETON, IN HIS OFFICIAL

CAPACITY AS MONTANA SECRETARY OF

STATE,

Defendant and Appellant.

AUL) 1 1 2020

Bowen Greenwood

Clerk of Supreme Court

State of Montana

Proposed Intervenors-Appellants Speaker Greg Hertz on behalf of the House of

Representatives of Montana and President Scott Sales on behalf of the Montana State

Senate (Legislators) move this Court to intervene in this matter. Plaintiffs/Appellees

Robyn Driscoll, Montana Democratic Party, and the Democratic Senatorial Campaign

Committee (Plaintiffs) and Intervenors Western Native Voice, Montana Native Vote,

Assiniboine and Sioux Tribes of Fort Peck, Blackfeet Nation, Confederate Salish and

Kootenai Tribes, Crow Tribe, and Fort Belknap Indian Community (Intervenors) object to

the intervention. Defendant/Appellant Corey Stapleton (Stapleton) does not object to the

intervention.

The Plaintiffs, Legislators, and Intervenors agree an applicant must satisfy each of

the following four criteria to be entitled to intervene as a matter of right: 1) be timely;

2) show an interest in the subject matter of the action; 3) show the protection of the interest

may be impaired by the disposition of the action; and 4) show the interest is not adequately

represented by an existing party. Sportsmen for 1-143 v. Mont. Fifieenth Judicial Dist.

08/11/2020

Case Number: DA 20-0295
Court, 2002 MT 18, ¶ 7, 308 Mont. 189, 40 P.3d 400; Estate of Schwenke v.

Becktold, 252 Mont. 127, 131, 827 P2d 808, 811 (1992).

We conclude Legislators have failed to satisfy these four criteria and, as such, are

not entitled to intervene. First, Legislators motion to intervene is not timely. We generally

look to four factors in considering whether a motion to intervene is timely: "(1) the length

of time the intervenor knew or should have known of its interest in the case before moving

to intervene; (2) the prejudice to the original parties, if intervention is granted, resulting

from the intervenor's delay in making its application to intervene; (3) the prejudice to the

intervenor if the motion is denied; and (4) any unusual circumstances mitigating for or

against a determination that the application is timely." In re C.C.L.B., 2001 MT 66, ¶ 24,

305 Mont. 22, 22 P.3d 646.

There are two pending District Court actions challenging the Ballot Interference

Prevention Act and the election-day receipt deadline for absentee ballots—this case and

Western Native Voice v. Stapleton, No. 20-0377 (13th Judicial Dist. filed March 25, 2020).

This case was commenced five months ago on March 13, 2020. Preliminary injunction

was granted by the District Court on May 22, 2020. Legislators failed to seek intervention

in the District Court action. Over three months ago, Stapleton filed notice of appeal,

petitioned this Court for supervisory control, and sought a stay of the District Court

proceeding. On May 27, 2020, this Court denied the writ of supervisory control but stayed

the District Court's order enjoining enforcement of the election-day receipt cutoff and

ordered expedited appeal briefing to "allow sufficient time for consideration and ruling in

advance of preparations for the November general election." Under that Order, the briefing

in this case was completed on August 10, 2020.1 Legislators do not assert they did not

know or should not have known of this case and their interest in the case since it was filed

and have failed to assert any legitimate reason they could not have sought timely

intervention.

1 Appellant's Brief was filed June 26, 2020, Appellees and Intervenors' answer briefs were filed

July 27, 2020, and Appellant's Reply was filed August 10, 2020.

2
Although Legislators attached their proposed opening brief to their motion,

apparently to show they were not intending additional delay, this is insufficient to avoid

prejudice to the original parties were intervention granted. This matter is highly time

sensitive and granting intervention will significantly delay consideration by extendi ng the

briefing to permit a response to Legislators' brief as well as a reply thereto. In sum,

Legislators have failed to demonstrate their motion for intervention to be timely.

Further, Legislators have not shown an interest in the subject matter of the action or

that their interest may be impaired by the disposition of the action. Rather, Legislators

assert they have a claim under Article, I, Section 4, of the U.S. Constitution, which neither

the Secretary nor the Attorney General acting on his behalf have standing to assert. While

this may be accurate, now is not the time for Legislators to assert a claim not raised below.

We generally will not address an issue raised for the first time on appeal, and the assertion

of such does not support intervention.

Finally, Legislators have failed to demonstrate their interest is not adequately

represented by Stapleton represented by the Attorney General. The Legislators' proposed

brief, attached to their motion, makes clear their arguments are overlapping to those of

Stapleton and the Attorney General is vigorously asserting the legislature has "a

compelling interest in preserving the integrity of its election process" and the need to

"protect its constitutionally granted exclusive authority." Accordingly,

IT IS ORDERED that Legislators' Motion to Intervene is DENIED.

The Clerk is directed to provide a copy of this Order to counsel of record.

DATED this ) —day of August, 2020.
SU xi 4-14,_ 

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Justices 'Cc—.