IN THE SUPREME COURT OF THE STATE OF MONTANA 

BOB BARTHELMESS, 

Plaintiff and Respondent, 

BRUCE K. BERGERSON, SR., 

TED HIRSCH and MAURICE E. 

FLEMING, as COUNTY 

COMMISSIONERS OF CUSTER 

COUNTY, MONTANA; and CUSTER 

COUNTY, MONTANA, a body 

politic and corporate, 

Defendants and Appellants, 

V. 

TONIA R. STRATFORD, 

Contestant and Appellant, 

v. 

BOB BARTHELMESS, 

Contestee and Respondent. 

ORDER AND OPINION 

OLeP w1. -XILm'd* 

CLERK OF SUCREME COURD 

STATE OF MONTANA 

This Court in an opinion issued on November 6, 1985, 

Barthelmess v. Bergerson (Mont. 1985), 708 P.2d 1010, 42 

St.Rep. 1685, ordered the redistricting of Custer County to 

comply with the criteria set forth in 5 7-4-2102, MCA, noting 

that the boundary lines approved October 31, 1983, do not 

comply with the statutory requirements. 

We ordered the districts be redrawn to comply with the 

statute consistent with this opinion. In addition, we 

directed that both District Judges of the Sixteenth Judicial 

District must review and approve a plan before it was filed 

and recorded. 
In our opinion we noted that Mr. Barthelmess did not 

reside in the commissioner district from which he ran and was 

elected, and directed the District Court's conclusions of law 

as to the boundary lines be modified. Furthermore, we 

modified conclusion No. 5 of the court's findings and 

conclusions "declaring Bob Barthelmess the duly elected 

commissioner of District #2, to permit him to hold office 

until the next general election when a candidate would be 

elected for the remainder of the term involved." 

Barthelmess, 708 P.2d at 1014, 42 St.Rep. at 1689. 

The Custer County commissioners in good faith attempted 

to carry out the ma.ndates of the opinion of this Court and 

immediately upon receiving the decision of this Court, 

attempted to draw new commissioner districts before December 

2, 1985. 

The need to meet the December 2, 1985 deadline was 

noted in our opinion as mandated by $ 7-4-2102, MCA, which 

sta.tes : 

No change in the boundary lines of any 

commissioner district shall be made 

within 6 months next preceding a primary 

election. 

The primary election is scheduled to occur in Custer County 

on June 2, 1986. 

A redistricting plan was submitted to Judges Alfred B. 

Coate and A. B. Martin, November 26, 1985, and an order was 

issued by the Honorable Alfred B. Coate the same day 

rejecting the newly proposed commissioner districts that had 

been created as mandated by the opinion of this Court. On 

December 3, 1985, the two Judges issued a memorandum 

expressing concern over the inability to create commissioner 

districts as required by $ 7-4-2102, MCA, within the time 
prescribed by statute. In late December, 1985, the 

commissioners of Custer County submitted a new proposal for 

the creation of commissioner districts which they believed to 

be in conformity with 5 7-4-2102, MCA. On January 3, 1986, 

the two presiding District Judges of the Sixteenth Judicial 

District reviewed and approved the commissioner's second 

redistricting plan as proposed. The District Judges rendered 

no opinion as to whether these two newly created and approved 

districts could now be filed, since filing would be in 

violation of $ 7-4-2102, MCA, which allows no change in 

commissioner district boundaries within six months before a 

primary election. 

Thereafter, this Court received on January 17, 1986, a 

stipulation of the contesting parties, Bob Barthelmess and 

Tonia R. Stratford, through their respective attorneys that 

they are in agreement as to the facts set forth in the Motion 

for Clarification or for a Declaratory Judgment or other 

appropriate relief, and waived time in which to submit reply 

briefs to this Court. 

The purposes of the provision in 5 7-4-2102, MCA, that 

no change in the boundaries of any commissioner district 

shall be made within six months next preceding a primary 

election are to prevent gerrymandering and to provide 

sufficient time for candidates to file for election to the 

office of county commissioner. Such provision should not be 

construed or enforced so as to prevent the formation and 

filing of county commissioner districts when as here the 

former districts which had been proposed and approved did not 

meet the other statutory requirements of compactness and 

equality of population. Strict enforcement here of the six 

month provision would serve to prevent the residents not only 
of district # 2, but of the other district whose commissioner 

must be elected this year, from legally electing their 

commissioners. The voters of the two districts would be 

disenfranchised and the transaction of county business 

impeded. When the reason for the statutory rule ceases, the 

reason for its enforcement also ceases. We have in this case 

therefore a proper subject for declaratory relief in the 

interpretations of statutes. 

Accordingly, by way of declaratory relief, 

IT IS ORDERED: 

1. The county commissioner districts of Custer County, 

Montana, as proposed by the county commissioners and as 

approved by the District Judges of the Sixteenth Judicial 

District on January 3, 1986, shall be and constitute the 

county commissioner districts of said county for all purposes 

relating to the primary and general election of 1986 and 

until further redistricting. 

2. The county commissioners of said county shall 

forthwith file in the office of the county clerk and recorder 

of said county a certificate designating the metes and bounds 

of the boundary lines and limits of each commissioner 

district pursuant to the proposal for districts approved by 

the District Judges of said district on January 3, 1986. 

3. The county commissioners shall append to said 

certificate when filed a certified copy of this order, which 

shall be in lieu of the requirement in S 7-4-2103, MCA, that 

the certificate shall be dated and signed by the District 

Judges. 

4. Any person qualified to be a candidate for county 

commissioner of said county from district # 2, or from any 

other district for which an election is to be held in said 
county, as said districts are here ordered and determined, 

may file for election to such office prior to the closing 

date of March 20, 1986. 

5. This Court retains jurisdiction for such other 

relief as may be necessary. 

6. The Clerk of this Court shall serve by ordinary 

mail copies of this order to the District Judges of the 

Sixteenth Judicial District, and to counsel of record for the 

respective parties, and a certified copy hereof to the county 

commissioners of Custer County, Montana. 

DATED thj.s %'day of January, 1986. 

Chief Justice