AG stands ground on blocking Brophy’s ballot bid

While the state of Montana agreed to a stipulation that allowed Cliff Brophy to file as a candidate for the District 3 Stillwater County Commission seat after the deadline date had passed, it is holding strong to its opposition of Brophy’s name appearing on the June ballot.
In a nutshell, the state contends Brophy does not have a constitutional right to run for public office and that the mere length of his public service with the Stillwater County Sheriff’s Office does not over-ride the 2-year residency requirement mandated by law for all commissioner candidates.
Brophy is ending his law enforcement career as sheriff at the close of this year and is hoping to become a county commissioner.
However, he has lived in that district for less than a year and is asking a judge to declare the residency requirement unconstitutional.
The stipulation agreement reached by Brophy and the respondents in the case (which include Attorney General Tim Fox, Secretary of State Corey Stapleton and Stillwater County Clerk & Recorder Heidi Stadel), was signed by District Judge Randal Spaulding a few days after the filing deadline. That allowed Brophy to file as a candidate and begin campaigning.
Brophy still needs Spaulding to rule in his favor in order for his name to appear on the June primary ballot.

THE STATE DIGS IN
In court documents filed March 22, the state contends that it has the authority to set residency requirements on candidates seeking public office and does so by relying on three principal elements:
•To ensure that the candidate is familiar with his or her constituency
•To ensure the voters have been thoroughly exposed to the candidate
•To prevent “political carpet-bagging”
Under the heading of “Level of Scrutiny: Rational Basis,” the state argues that the right to run for and hold public office is not a fundamental constitutional right to public employment. Specifically, the Supreme Court has held there is no fundamental right to public employment, according to the motion.
Therefore, Brophy’s case is without merit.
Also, the state contends that Brophy has the burden of proving the durational residency requirement has “no rational relationship to any legitimate State interest” and that his many years in public service do not take the place of the residency requirement.

RESIDENCY REQUIREMENTS
One of Brophy’s main arguments is that the 2-year residency requirement denies him equal protection under the law because of what he calls the disproportionate one-year in-state/six-months in-district residency requirement for legislative candidates.
The state contends that the residency requirement for state legislature candidates is the exception. Subject to a 2-year residency requirement are candidates for governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction, auditor, the Montana Supreme Court, county attorney and county auditors, according to cross-motion for summary judgement.
If the shorter residency requirement for legislators means that state law is unconstitutional, then every public office listed above would also be unconstitutional, according to the motion.
“Under Brophy’s reasoning, one should also conclude that some politicians are denied equal protection by the disparities in the lengths of the terms of office for different political offices. This cannot be,” the state wrote in the motion.
The state also offered its reasons for the difference in residency requirements.
“Because county commissioners generally serve smaller constituencies and geographic areas than legislators, it is reasonable to expect commissioners to have more intimate familiarity with constituents. Similarly, it is reasonable to assume the constituents expect this, along with greater familiarity with their commissioner. Commissioners’ duties are confined to representing the county’s interests, which requires a greater degree of familiarity on a local level; whereas, a representative has an obligation to her district and the State as a whole. Hence, compelling justifications exist for the two-year residency requirement for county commissioners,” according to the state’s motion.

PLAYING BY THE SAME RULES
The state also argues that Brophy’s 37 years of public service does not amount to meeting the residency requirement.
“(Brophy) contends that the rules should not apply to him because he individually meets the objectives of the durational residency requirement, due to his particular record of public service and the degree of his personal familiarity with Stillwater County.
The State has no reason to question Brophy’s representations regarding his record of public service, or his commitment to his community. But in short, those matters do not – and cannot - hold any legal relevance,” according to motion.
Otherwise, the state argues, courts would have to start assessing individual qualifications of hopeful candidates prior to each election cycle.
The state offers the analogy of a well-informed, mature and intelligent 17-year-old who is more qualified to vote for candidates and ballot items than a unaware and uninformed 19-year-old. Regardless of the individuals, an 17-year-old cannot vote and “no court would entertain the merit” of allowing a 17-year-old to vote.

BROPHY’S RESPONSE
Ray Kuntz, who represents Brophy, argues that the matter of residency requirements is not as clear-cut as the state would assert.
Specifically, other offices with two-year residency requirements are in the executive or judicial branches of government, which is “comparing apples to oranges,” said Kuntz Wednesday morning.
Also, the question of residency requirements has been ruled on by a district judge in Carbon County and found to be unconstitutional, according to a response to the cross-motion filed by Kuntz on Monday. The case involved a Fromberg City Council candidate who wanted to run for election but did not meet the residency requirements. A judge ruled that Fromberg’s city ordinance on the residency requirement was unconstitutional, according to Kuntz’s response to the state. The case was directly challenging a municipal law, rather than state law.
Kuntz also cites other court rulings on residency requirements being found unconstitutional, but all of those are from other states.
Regarding other state and county positions being subject to the two-year residency requirement, Kuntz argues those fall under the executive and judicial offices, and not legislative offices.
“Those offices are different branches of government, and therefore are not similarly situated to legislators,” Kuntz wrote in his response motion. “The Montana Constitution has divided the government into three different and equal branches. For the purpose of analyzing Brophy’s equal protection claim the similarly situated classes are legislative branch offices, not executive and judicial branch offices.”
Kuntz argues that voters should get the opportunity to vote for — or even against — Brophy because it does not go against any of the state’s three interests of “insuring Brophy’s familiarity with the district, the voter’s familiarity with Brophy, or the prevention of ‘carpet bagging’,” according to the response motion.