Gottlob v. DesRosier

2025 MT 56, 565 P.3d 1196, 421 Mont. 176

• Court: Montana Supreme Court
• Decided: March 25, 2025
• Docket: DA 24-0235
• Status: Published

Opinion

03/25/2025

DA 24-0235 Case Number: DA 24-0235

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 56

JEFF GOTTLOB, ELAINE MITCHELL, JAMES CHILDRESS, AND ALL OTHERS SIMILARILY SITUATED,

Plaintiffs and Appellees,

v.

MICHAEL DESROSIER, RON RIDES AT THE DOOR, TOM MCKAY, JOHN OVERCAST, MARY JO BREMNER, and GLACIER COUNTY,

Defendants and Appellants,

MONTANA ASSOCIATION OF COUNTIES and MONTANA ASSOCIATION OF COUNTIES PROPERTY & CASUALTY TRUST,

Defendants.

APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DV-17-19 Honorable Kaydee Snipes Ruiz, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Terryl T. Matt, Glacier County Attorney, Cut Bank, Montana

Kirk Evenson, Marra, Evenson & Levine, P.C., Great Falls, Montana

For Appellee:

Lawrence A. Anderson, Attorney at Law, P.C., Great Falls, Montana

Submitted on Briefs: December 18, 2024

Decided: March 25, 2025 Filed:

ir,-6L-.--if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Glacier County and several of its current and former County Commissioners appeal

a Ninth Judicial District Court order certifying class claims related to Plaintiffs’ allegations

that the County unlawfully made expenditures or disbursements of public funds or incurred

obligations in excess of total appropriations. We consider the following restated issues:

1. Do Plaintiffs have standing to bring their claims?

2. Did the District Court abuse its discretion in determining that the Plaintiffs met the prerequisites for class certification under M. R. Civ. P. 23(a)?

3. Did the District Court abuse its discretion in certifying the class under M. R. Civ. P. 23(b)?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case concerns a longstanding dispute between Glacier County, the County

Commissioners, and Glacier County real property taxpayers. Plaintiff Elaine Mitchell

initially sued the County and the State on behalf of herself and other County residents in

2015, alleging that both entities had failed to comply with the Single Audit Act and the

Local Government Budget Act. Mitchell v. Glacier Cnty., 2017 MT 258, ¶¶ 3, 22, 34, 389

Mont. 122, 406 P.3d 427. Mitchell sued after an independent audit showed that many

county funds had deficit balances and noted that “the County had exceeded its budgetary

authority with respect to many of those funds.” Mitchell, ¶¶ 2-3, 18. The audit also

identified that, despite the deficits in some accounts, the County’s total government funds

stood at $4 million in 2013 and 2014. Mitchell, ¶ 18. In bringing claims against the State,

Mitchell plaintiffs asserted that “the State ha[d] not fulfilled its fiduciary duty to ensure 2 ‘strict accountability’ under the Constitution and that the State ha[d] abdicated its

enforcement obligations under the Single Audit Act.” Mitchell, ¶ 22. Mitchell plaintiffs

sought numerous forms of relief against the County, including declarations that it “had

failed to comply with generally accepted governmental accounting standards”; that “the

County was in violation of laws designed to ensure ‘strict accountability’ of government

finances”; and that “County officials who incurred financial obligations in excess of

appropriations were personally liable for the resulting budget deficits.” Mitchell, ¶ 3. The

Mitchell plaintiffs alleged that the County’s budget deficit threatened them with

“foreseeable” economic injury. Mitchell, ¶ 34. On appeal, we held that plaintiffs’ claims

against the County were insufficiently concrete, actual, or imminent to confer standing.

Mitchell, ¶¶ 36-37, 43.

¶4 The named Plaintiffs here—Mitchell, Jeff Gottlob, and James Childress—paid their

real property taxes under protest to Glacier County while the Mitchell appeal was pending.

In 2017, they filed the present action on behalf of themselves and others similarly situated

against Glacier County and the County Commissioners (collectively, the County), alleging

that the County unlawfully liquidated the fund containing the taxes paid under protest in

violation of § 15-1-402(4)(a), MCA.1

1 Section 15-1-402(4)(a), MCA, provides that a county must keep taxes paid under protest in a special fund to be retained until “the final determination of any action or suit to recover the taxes.” The District Court granted Plaintiffs partial summary judgment on this issue, ruling that the Defendants “improperly liquidat[ed] the special account while the dispute was still pending.” This ruling is not before us in the present appeal. 3 ¶5 To maintain their tax dispute, Plaintiffs continued paying their taxes annually under

protest. See § 15-1-406(3), MCA (“The taxes that are being challenged under this section

must be paid under protest when due as a condition of continuing the action.”).

Consequently, Plaintiffs amended their complaint five times, adding new claims to reflect

the taxes they paid each year. In their Sixth Amended Complaint—the complaint at issue

here—Plaintiffs alleged that “[f]or fiscal years 2012 through 2020, the Glacier County

Audits show the Commissioners have made expenditures or disbursements or incurred

obligations in excess of total appropriations for funds in violation of § 7-6-4005(1), MCA.”

Plaintiffs also alleged that they,

as Glacier County taxpayers, have been injured because they have incurred and will incur tax obligations to pay for the Commissioners’ disbursements, expenditures and incurrence of obligations in excess of the total appropriations for the funds previously identified, and because they have lost Glacier County services as a result of the Commissioners’ . . . actions in violation of § 7-6-4005(1), MCA.

Relying on these factual allegations, Plaintiffs brought five counts in their Sixth Amended

Complaint: negligence per se for the County’s unlawful liquidation of the tax protest fund

(Count I); negligence per se for unlawful disbursement from County funds (Count II);

declaratory judgment (Count III); class claims under M. R. Civ. P. 23 (Count IV); and a

common fund claim (Count V). Plaintiffs did not reassert the Mitchell claims against the

State. Mitchell, ¶ 3.

¶6 The County filed a motion to dismiss Counts I and II of Plaintiffs’ Sixth Amended

Complaint. The District Court did not consider the County’s motion to dismiss Count I

4 because it already had granted Plaintiffs summary judgment on this count. The court

denied the motion to dismiss Count II.

¶7 Plaintiffs filed a motion to certify Count II as a class action. They argued that the

class held two factual and legal questions in common:

1) Whether, for the fiscal years 2012 through 2020, the Defendants have made disbursements and incurred obligations in violation of § 7-6-4005(1)[, MCA].

2) Whether, for the fiscal years 2012 through 2020, the Defendants should be held personally liable and/or jointly and severally liable under the provisions of § 7-6-4005(2), MCA, for their violations of § 7-6-4005(1)[, MCA].

The District Court granted Plaintiffs’ motion and certified Count II as a class action,

defining the class as “[p]roperty taxpayers of Glacier County who have paid their property

taxes for tax years 2012 to 2020.” The County appeals the class certification order and the

District Court’s denial of its motion to dismiss for Plaintiffs’ lack of standing.

STANDARDS OF REVIEW

¶8 “The determination of a party’s standing . . . is a question of law that we review de

novo.” Mitchell, ¶ 6 (citation omitted).

¶9 “Trial courts have the broadest discretion when deciding whether to certify a class.”

Worledge v. Riverstone Residential Grp., LLC, 2015 MT 142, ¶ 14, 379 Mont. 265,

350 P.3d 39 (quoting Sieglock v. Burlington N. & Santa Fe Ry. Co., 2003 MT 355, ¶ 8,

319 Mont. 8, 81 P.3d 495). We therefore review a district court’s ruling on class

certification for an abuse of discretion. Byorth v. USAA Cas. Ins. Co., 2016 MT 302, ¶ 13,

385 Mont. 396, 384 P.3d 455 (citation omitted). “A court abuses its discretion when it acts

5 ‘arbitrarily without conscientious judgment or exceed[s] the bounds of reason.’”

Worledge, ¶ 14 (quoting Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1,

291 P.3d 1209).

¶10 We review findings of fact that support a district court’s Rule 23 decision under the

clearly erroneous standard. Worledge, ¶ 14 (quoting Mattson, ¶ 17). Rulings on issues of

law, including a district court’s interpretation of procedural rules like Rule 23, are reviewed

de novo. Worledge, ¶ 14 (citation omitted); Byorth, ¶ 13 (citation omitted). We are

“reluctant to interfere with discretionary orders in the early stages of litigation, especially

as the trial court has flexibility to modify its certification orders as the litigation proceeds.”

Rogers v. Lewis & Clark Cnty., 2022 MT 144, ¶ 8, 409 Mont. 267, 513 P.3d 1256 (citation

omitted); see also M. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies class

certification may be altered or amended before final judgment.”).

DISCUSSION

¶11 The County’s appeal is properly before the Court on the District Court’s class

certification order. See M. R. App. P. 6(3)(d) (allowing a party to appeal an order certifying

or declining to certify a class). Orders denying motions to dismiss, on the other hand, are

not appealable. M. R. App. P. 6(5)(b). We nonetheless consider the County’s standing

argument—raised in its motion to dismiss—because “[s]tanding is a threshold

jurisdictional requirement,” Mitchell, ¶ 9 (citation omitted), that a court must evaluate at

every stage of litigation. Cross v. State, 2024 MT 303, ¶ 14, 419 Mont. 290, 560 P.3d 637,

¶ 14 (citation omitted).

6 ¶12 1. Do Plaintiffs have standing to bring their claims?

¶13 “The judicial power of Montana’s courts, like the federal courts, is limited to

‘justiciable controversies.’” Cross, ¶ 14 (quoting Plan Helena, Inc. v. Helena Reg’l Airport

Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567). Like Article III of the United

States Constitution, which limits federal courts to deciding cases and controversies, U.S.

Const. art. III, § 2, cl. 1, Article VII, Section 4, of the Montana Constitution grants district

courts original jurisdiction in “all civil matters and cases at law and in equity.” Mont.

Const. art. VII, § 4(1); Plan Helena, ¶ 6.

¶14 “Standing is a justiciability doctrine that is ‘employed to refuse to determine the

merits of a legal claim, on the ground that even though the claim may be correct the litigant

advancing it is not properly situated to be entitled to its judicial determination.’” Cross,

¶ 14 (quoting 13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure § 3531, 1-2 (3d ed. 2008)). Constitutional standing requires that

the plaintiff show she “has suffered a past, present, or threatened injury to a property or

civil right, and that the injury would be alleviated by successfully maintaining the action.”

Mitchell, ¶ 10 (quoting Schoof v. Nesbit, 2014 MT 6, ¶ 15, 373 Mont. 226, 316 P.3d 831).

This injury must be concrete—that is, it must be “actual or imminent, not conjectural or

hypothetical.” Mitchell, ¶ 10 (quoting Heffernan v. Missoula City Council, 2011 MT 91,

¶ 32, 360 Mont. 207, 255 P.3d 80). A plaintiff alleging direct economic injury or the

prospect of criminal prosecution satisfies the injury requirement. Helena Parents Comm’n

v. Lewis & Clark Cnty. Comm’rs, 277 Mont. 367, 372, 922 P.2d 1140, 1143 (1996).

7 ¶15 The violation of a constitutional or statutory right may confer standing. Mitchell,

¶ 11 (citation omitted). “[S]tanding depends on whether the constitutional or statutory

provision . . . can be understood as granting persons in the plaintiff’s position a right to

judicial relief.” Mitchell, ¶ 11 (quoting Schoof, ¶ 21). The injury requirement of

constitutional standing—even if the alleged violation is based on a statutory right—“must

always be met.” Mitchell, ¶ 11 (quoting Heffernan, ¶ 34).

¶16 Considering the County’s standing argument, the District Court reasoned that “[t]he

allegations in the Sixth Amended Complaint are far different than the allegations” Plaintiffs

brought in their Mitchell complaint. Unlike Mitchell, where they alleged that it was merely

“‘foreseeable’ that the County will raise property taxes to compensate for its imbalanced

budget,” Mitchell, ¶ 34 (emphasis added), the District Court found the current complaint

to allege concrete injury sufficient to confer standing. The District Court likened the

allegations in the Sixth Amended Complaint to the claims in Helena Parents Commission

v. Lewis and Clark County Commissioners, reasoning that “plaintiffs allege in past tense

that they incurred tax obligations as a result of the County’s failure to assume personal

liability” and “allege that they have lost government services as a result of the County’s

violations of § 7-6-4005(1), MCA.” The District Court ruled that Plaintiffs’ allegations

are “even stronger” than those in Helena Parents Commission, where we held that plaintiffs

had alleged an injury adequate to confer standing. Helena Parents Comm’n, 277 Mont.

at 374, 922 P.2d at 1144. The District Court also cited Montana and federal case law for

8 the proposition that municipal taxpayers have a right to challenge their government’s fiscal

mismanagement.

¶17 The County argues that certain taxpayers in the certified class “are precluded under

Mitchell from litigating [Single Audit Act] or Budget Act claims.” The County asserts that

because we held the Mitchell plaintiffs lacked standing, the District Court erred in

certifying a class including the same plaintiffs. Plaintiffs counter that by advancing this

argument, the County implicitly asserts that issue or claim preclusion bars Plaintiffs’

claims. Citing Denturist Association of Montana v. State, Plaintiffs note that application

of issue or claim preclusion requires a final judgment on the merits. Denturist Ass’n of

Mont. v. State, 2016 MT 119, ¶¶ 11-12, 383 Mont. 391, 372 P.3d 466. Plaintiffs contend

that there was no final judgment on the merits in Mitchell and consequently claim or issue

preclusion do not apply to this lawsuit.

¶18 Plaintiffs assert that they have remedied the standing defects that were determinative

in Mitchell. See Mitchell, ¶¶ 35-40. They highlight their present allegations—that they

“have incurred and will incur tax obligations” and “have lost Glacier County services” as

a result of the County’s conduct. In an affidavit, Plaintiff Elaine Mitchell, who has been

engaged as an accountant in Glacier County since 1976, attested that “[s]ince this case has

been pending, the county has been required to either suspend or eliminate the budget for

ambulance service, the county’s museum, and home health care services.” Plaintiffs argue

that they have already suffered the same injuries that were sufficiently imminent for the

plaintiffs to have standing in Helena Parents Commission. Helena Parents Comm’n,

9 277 Mont. at 372, 922 P.2d at 1143 (“[P]laintiffs alleged that the government will impose

tax burdens on them as it seeks to recoup losses and that the investments will result in a

lessening of governmental services. These allegations of an economic injury satisfy the

injury requirement.”). Last, Plaintiffs argue that the municipal taxpayer doctrine grants

them standing to bring their claims.

¶19 Issue and claim preclusion each require that a final judgment have been entered on

the merits in the prior adjudication. Denturist Ass’n of Mont., ¶¶ 11-12. Dismissal of a

plaintiff’s claims “with prejudice” ordinarily affords preclusive effect. See Hawkes v.

Mont. Dept. of Corrections, 2008 MT 446, ¶ 19, 348 Mont. 7, 199 P.3d 260 (citation

omitted) (“An order of dismissal with prejudice is a final judgment on the merits.”); Hells

Canyon Pres. Council v. USFS, 403 F.3d 683, 686 (9th Cir. 2005) (citations omitted)

(“‘[F]inal judgment on the merits’ is synonymous with ‘dismissal with prejudice.’”);

9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2373, 922-29

(4th ed. 2020) (“[B]ecause an involuntary dismissal is an adjudication on the merits, it is,

in the words commonly used by the federal courts, ‘with prejudice.’”). See also Touris v.

Flathead Cnty., 2011 MT 165, ¶ 15, 361 Mont. 172, 258 P.3d 1 (citation omitted) (A case

that is voluntarily dismissed with prejudice is a final judgment on the merits for purposes

of res judicata, regardless of whether there was “substantive resolution on the merits” of

claims.).

¶20 M. R. Civ. P. 41(b) provides that when a court grants a defendant’s motion to

dismiss, “[u]nless the dismissal order states otherwise, [the] dismissal . . . except one for

10 lack of jurisdiction . . . operates as an adjudication on the merits.” M. R. Civ. P. 41(b)

(emphasis added). The district court in Mitchell dismissed plaintiffs’ claims for lack of

standing, a “jurisdictional requirement.” Mitchell, ¶¶ 5, 9. In such a case, the court

“refuse[s] to determine the merits of a legal claim.” Cross, ¶ 14 (quoting Wright & Miller

§ 3531, 1-2). Other courts have recognized that “[a] dismissal for lack of standing is

jurisdictional and is not an adjudication on the merits.” Univ. of Pittsburg v. Varian Med.

Sys., Inc., 569 F.3d 1328, 1332 (Fed. Cir. 2009) (citation omitted). Similarly, courts hold

consistently that dismissal for lack of standing should generally be without prejudice. See

Varian Med. Sys., 569 F.3d at 1332 (citations omitted) (collecting cases); Fleck & Assocs.,

Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) (remanding for trial court

to dismiss without prejudice where plaintiff lacked standing); Stalley v. Orlando Reg’l

Healthcare Sys., Inc., 524 F.3d 1229, 1234-35 (11th Cir. 2008) (same); Brereton v.

Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (citation omitted) (“Since

standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is

inappropriate, and should be corrected to a dismissal without prejudice.”).

¶21 Based on this authority, we conclude that the dismissal of the Mitchell plaintiffs’

claims for lack of standing was without prejudice—in other words, the dismissal was not a

final determination on the merits. Thus, claim and issue preclusion do not apply to the

present dispute. See Denturist Ass’n of Mont., ¶¶ 11-12.

¶22 The District Court relied on Helena Parents Commission to hold that Plaintiffs have

now alleged sufficient facts to establish standing. The plaintiffs in Helena Parents

11 Commission argued that they had standing as property taxpayers to sue Lewis and Clark

County and a Helena school district after the entities illegally invested public funds.

Helena Parents Comm’n, 277 Mont. at 370, 922 P.2d at 1142. The Helena Parents

Commission alleged that the entities lost over five million dollars of public money; that

property taxpayers would see their taxes increase as a result; and that the government

would have to reduce public services to recoup its losses. Helena Parents Comm’n,

277 Mont. at 373, 922 P.2d at 1144. We held that the plaintiff’s allegations of direct

economic injury satisfied the injury requirement for standing. Helena Parents Comm’n,

277 Mont. at 372, 922 P.2d at 1143.

¶23 In Mitchell, plaintiffs lacked standing because they did not make “concrete

allegations that the County squandered a specific amount of money that it would need to

recoup through increased property taxes.” Mitchell, ¶ 36 (citation omitted). The Mitchell

plaintiffs alleged that additional property tax burdens were “foreseeable,” claims that were

insufficiently “actual or imminent” to meet the concrete injury requirement. Mitchell, ¶¶ 7,

37, 40. Glacier County taxpayers now allege that they already have faced an increased tax

burden and a reduction in Glacier County services due to the County’s conduct. The Sixth

Amended Complaint alleges that Plaintiffs “have incurred and will incur tax obligations”

and “have lost Glacier County services as a result of the Commissioners’ . . . actions.” This

contrasts with the Mitchell plaintiffs’ “conjectural or hypothetical” allegations because

here Plaintiffs allege they already have suffered economic injuries from the Defendants’

actions. See Mitchell, ¶ 37 (quoting Heffernan, ¶ 32). We conclude that, because they

12 have alleged concrete economic injuries like those in Helena Parents Commission,

Plaintiffs meet the injury requirement for standing. See Helena Parents Comm’n,

277 Mont. at 372, 922 P.2d at 1143. The District Court did not err when it ruled that

Plaintiffs have standing to bring their claims.

¶24 2. Did the District Court abuse its discretion in determining that the Plaintiffs met the prerequisites for class certification under M. R. Civ. P. 23(a)?

¶25 A class action is “an exception to the usual rule that litigation is conducted by and

on behalf of the individual named parties only.” Rogers, ¶ 15 (quoting Jacobsen v. Allstate

Ins. Co., 2013 MT 244, ¶ 27, 371 Mont. 393, 310 P.3d 452). “Departure from the usual

rule is justified if the class representative is part of the class and has the same interest and

injury as the class members.” Worledge, ¶ 22 (quoting Sangwin v. State, 2013 MT 373,

¶ 12, 373 Mont. 131, 315 P.3d 279). Class action suits allow litigation of common issues

of law and fact in a single case, conserving the judiciary’s and similarly situated parties’

resources. Rogers, ¶ 15 (citation omitted). “Rule 23 of the Montana Rules of Civil

Procedure governs class certification in Montana.” Worledge, ¶ 22.

¶26 The party seeking certification under Rule 23(a) must establish that the class meets

four prerequisites: numerosity, commonality, typicality, and adequate representation.

Worledge, ¶ 23; M. R. Civ. P. 23(a). Failure to establish any one of the Rule 23(a)

prerequisites is fatal to class certification, Rogers, ¶ 15, but the “class action proponent

need not prove each element with absolute certainty.” Cook v. Buscher Constr. & Dev.,

Inc., 2024 MT 137, ¶ 10, 417 Mont. 111, 551 P.3d 811 (quoting Roose v. Lincoln Cnty.

Emp. Grp. Health Plan, 2015 MT 324, ¶ 14, 381 Mont. 409, 362 P.3d 40). The District

13 Court must conduct a “rigorous analysis” to determine whether each of the Rule 23(a)

prerequisites is met, which “may entail analyzing some merits issues, but only to the extent

that those issues are relevant to determining whether the Rule 23 requirements are

satisfied.” Worledge, ¶ 23 (citation omitted).

Numerosity

¶27 Numerosity means the class must be “so numerous that joinder of all members is

impracticable.” M. R. Civ. P. 23(a)(1). “There is no ‘bright-line number’ that satisfies

numerosity—impracticability must be determined on a case-by-case basis.” Byorth, ¶ 20

(quoting Morrow v. Monfric, Inc., 2015 MT 194, ¶ 9, 380 Mont. 58, 354 P.3d 558). A

party seeking class certification “must present some evidence of, or reasonably estimate,

the number of class members.” Byorth, ¶ 20 (quoting Sangwin, ¶ 17). “‘Mere speculation’

is not sufficient to satisfy the numerosity requirement.” Rogers, ¶ 19 (quoting Diaz v. Blue

Cross & Blue Shield of Mont., 2011 MT 322, ¶ 31, 363 Mont. 151, 267 P.3d 756, abrogated

on other grounds by Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 52, 366 Mont.

450, 288 P.3d 193).

¶28 The District Court noted that it had previously certified a 1,020-person class in the

case involving taxpayers who paid their taxes under protest. The court concluded that

joinder was impracticable, and therefore Plaintiffs met the numerosity requirement,

because the class at issue included all Glacier County property taxpayers, exceeding the

1,020 residents who paid their taxes under protest.

14 ¶29 The County argues that the District Court had “no evidence regarding the actual

number of these taxpayers who were injured.” The County contends that Plaintiffs cannot

meet the numerosity requirement because the court’s “class definition . . . includes those

taxpayers who . . . have not suffered any damages by loss of governmental services.” Citing

Byorth v. USAA Casualty Insurance Company, the County asserts that the District Court’s

certification order was not “specific enough” to satisfy the numerosity prerequisite. The

District Court, Plaintiffs respond, was correct when it found that the class comprises at

least 1,020 taxpayers; joinder is thus impracticable, and Plaintiffs meet the numerosity

prerequisite.

¶30 In Byorth, plaintiffs sued USAA Casualty Insurance Company, alleging that the

company’s practice of sending medical claims to a third party for review, then denying

coverage after the third party determined certain medical procedures were unnecessary,

constituted breach of fiduciary duty and breach of contract and violated Montana’s Unfair

Trade Practices Act. Byorth, ¶¶ 3-5. The trial court certified a class action, and USAA

filed an interlocutory appeal. Byorth, ¶ 1. USAA admitted that it gave the third party

154 Montana insureds’ claims from 2012 to 2015, but the record contained no evidence

indicating how many of these claims it denied in whole or in part. Byorth, ¶¶ 21-23. The

record further lacked any evidence regarding the number of claims filed or denied during

another relevant timeframe. Byorth, ¶ 21. We reversed the district court’s class

certification, holding that “[b]ecause the record lacks evidence or a reasonable means of

15 estimating the size of the class, Plaintiffs have not at this juncture satisfied their burden of

proving numerosity.” Byorth, ¶¶ 23, 44.

¶31 Here, based on those who paid taxes under protest, the District Court found that at

least 1,020 Glacier County taxpayers were injured. Although the number of class members

may exceed this figure, Plaintiffs’ burden for the numerosity prerequisite is to provide

“some evidence, or reasonably estimate” the size of the class. Byorth, ¶ 20 (quoting

Sangwin, ¶ 17). Plaintiffs point to the District Court’s previous certification of the class of

individuals who had paid their taxes under protest. This meets their burden of providing

some evidence regarding class size. Byorth, ¶ 20 (citation omitted). They are not obligated

to prove every element with absolute certainty. Cook, ¶ 10 (quoting Roose, ¶ 11).

¶32 The County’s numerosity argument hinges largely on its claim that only those

taxpayers who attempted to access reduced government services and can show damage

therefrom may be included in the class. We conclude that this argument raises a question

of commonality and address it under that factor.

¶33 Assuming they share a common question of fact or law, joinder of over 1,000

taxpayers would be impracticable; therefore, the class is sufficiently numerous for

certification. See M. R. Civ. P. 23(a)(1). The District Court did not abuse its broad

discretion when it ruled that Plaintiffs satisfied the numerosity prerequisite. See Worledge,

¶ 14 (quoting Sieglock, ¶ 8).

16 Commonality

¶34 The commonality prerequisite requires “questions of law or fact common to the

class.” M. R. Civ. P. 23(a)(2). This means that “claims by class members and their

representatives ‘must depend upon a common contention of such a nature that it is capable

of classwide resolution—which means that determination of its truth or falsity will resolve

an issue that is central to the validity of each one of the claims in one stroke.’” Worledge,

¶ 25 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 2551

(2011)). “An alleged common legal or factual contention must demonstrate ‘the class

members have suffered the same injury. . . .’” Rogers, ¶ 23 (quoting Wal-Mart Stores,

564 U.S. at 350, 131 S. Ct. at 2551).

¶35 The District Court ruled that Plaintiffs demonstrated commonality because the

questions of law and fact they presented—whether the County made disbursements in

violation of § 7-6-4005(1), MCA, and whether the Commissioners are personally or jointly

and severally liable under § 7-6-4005(2), MCA—were “common for the representatives as

well as all county taxpayers.”

¶36 The County argues that the District Court erred in analyzing commonality because

it did not reference an injury shared across the taxpayer class. Because not all taxpayers

“can claim to have lost or attempted to access the same non-essential services,” the County

maintains that Plaintiffs do not share a common injury. The County further insists that

governmental immunity bars Plaintiffs from recovering against Glacier County or the

17 County Commissioners. Last, the County argues that the District Court failed to analyze

the elements of Plaintiffs’ negligence per se claim, which constitutes an abuse of discretion.

¶37 Plaintiffs respond that the County’s unlawful disbursement of funds injures all

taxpayers, and therefore the District Court was not obligated to identify an injury common

to each member of the class. The County’s governmental immunity and negligence per se

arguments, Plaintiffs contend, are irrelevant to class certification.

¶38 Plaintiffs allege that they have lost access to the county museum and ambulance and

home health care services—services that benefit the community at large. County taxpayers

suffer a common injury when the local government allegedly mismanages its finances. See

Davenport v. Kleinschmidt, 6 Mont. 502, 521-22, 527, 13 P. 249, 250 (1887); ASARCO

Inc. v. Kadish, 490 U.S. 605, 613, 109 S. Ct. 2037, 2043 (1989) (quoting Frothingham v.

Mellon, 262 U.S. 447, 486-87, 43 S. Ct. 597, 600-01) (Municipal taxpayers have standing

where the “‘peculiar relation of the corporate taxpayer to the [municipal] corporation’

makes the taxpayer’s interest in the application of municipal revenues ‘direct and

immediate.’”). In Davenport v. Kleinschmidt, we held that Lewis and Clark County

taxpayers could sue to enjoin the Helena mayor and city council from entering into an

allegedly illegal contract, writing that there is “no serious question” of

the right of resident tax-payers, to invoke the interposition of a court of equity, to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt, which they, in common with other property holders of the county, may otherwise be compelled to pay. . . .

Davenport, 6 Mont. at 522, 13 P. at 250 (quoting Crampton v. Zabriskie, 101 U.S. 601,

609 (1879)); see also Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir. 1991) (“[W]e

18 conclude that municipal taxpayer standing simply requires the ‘injury’ of an allegedly

improper expenditure of municipal funds. . . .”) These cases addressed whether municipal

taxpayers had standing to bring their claims against the government. Though not critical

to our standing analysis here, the cases explain why the injury from the County’s allegedly

improper expenditures is common across the class. Plaintiffs’ complaint does not seek

individual damages for each County taxpayer allegedly injured by a deprivation of a

particular government service, such as an ambulance trip. Instead, the Sixth Amended

Complaint requests, for Count II, that the trial court “assess damages against the

Defendants, jointly and severally liable, for the violations of § 7-6-4005(1), MCA.” That

statute makes a violating party “liable for the amount of the excess disbursement,

expenditure, or obligation personally.” Section 7-6-4005(2), MCA.

¶39 A particular taxpayer’s injury from loss of a specific service could be an issue of

damages but does not defeat class certification. See Rogers, ¶ 33 (quoting Tyson Foods,

Inc. v Bouaphakeo, 577 U.S. 442, 453, 136 S. Ct. 1036, 1045 (2016)) (“Common questions

may predominate ‘even though other important matters will have to be tried separately,

such as damages or some affirmative defenses peculiar to some individual class

members.’”). Whether, as the County argues, every taxpayer in the class attempted to

access reduced county services is not determinative of commonality. Allegations that the

County illegally disbursed public funds are sufficient to make a common contention that

all county taxpayers suffered the same injury. Because Plaintiffs share the same alleged

injury, answering the common questions of law and fact they pose would

19 “resolve . . . issue[s] that [are] central to the validity of each one of the claims in one

stroke.” Worledge, ¶ 25 (quoting Wal-Mart Stores, 564 U.S. at 350, 131 S. Ct. at 2545).

¶40 Additionally, class certification orders “are not frozen once made.” Cook, ¶ 35

(quoting Rolan v. New West Health Servs., 2013 MT 220, ¶ 15, 371 Mont. 228, 307 P.3d

291). Under M. R. Civ. P. 23(c)(1)(C), if the District Court finds later that Plaintiffs no

longer satisfy commonality, it may alter or amend the class certification order before final

judgment. The District Court therefore did not abuse its discretion when it ruled that

Plaintiffs established commonality.

Typicality

¶41 To satisfy the typicality prerequisite, a plaintiff must demonstrate that “the claims

or defenses of the representative parties are typical of the claims or defenses of the class.”

M. R. Civ. P. 23(a)(3). Typicality “tends to merge” with commonality, Jacobsen ¶ 51

(citation omitted), and is “designed to ensure that the named representatives’ interests are

aligned with the class’s interests, the rationale being that a named plaintiff who vigorously

pursues his or her own interests will necessarily advance the interests of the class.” Diaz,

¶ 35 (citation and internal quotation marks omitted). “Typicality is not a demanding

standard: it is met if a named plaintiff’s claim ‘stems from the same event, practice, or

course of conduct that forms the basis of the class claims and is based upon the same legal

or remedial theory.’” Worledge, ¶ 34 (quoting Sangwin, ¶ 21).

¶42 Contesting the District Court’s typicality ruling, the County reiterates its argument

that not all Glacier County taxpayers suffered the same injury as the class representatives

20 because not every taxpayer “actually lost access to [Glacier County] governmental

services.” Plaintiffs respond that their claims satisfy typicality because they are based on

the same practice or course of conduct and involve the same legal theory.

¶43 Plaintiffs’ claims stem from the same alleged practice or course of conduct—the

County’s alleged illegal disbursement of funds—on which the class claims rely. Plaintiffs

and class members also share an identical legal theory: they allege that the County violated

§ 7-6-4005(1), MCA, and for this violation the county commissioners should be held

personally or jointly and severally liable under § 7-6-4005(2), MCA. That not all class

members attempted to access the county museum, ambulance services, or home health care

services does not make Plaintiffs’ claims atypical for the class because, as addressed above,

all taxpayers are injured when a municipality makes illegal disbursements or expenditures.

Typicality is not a demanding standard, Worledge, ¶ 24 (quoting Sangwin, ¶ 21), and the

District Court did not abuse its discretion when it ruled that Plaintiffs met this requirement.

Adequate Representation

¶44 The County does not contest the adequate representation prerequisite; we therefore

do not address it.

County’s Substantive Claims

¶45 Citing Prindel v. Ravalli County, the County contends that to establish a class claim

of negligence per se, class members must show that they are within the specific class the

Local Government Budget Act was enacted to protect and that the statute was “intended to

regulate members of the County Defendants’ class.” Prindel v. Ravalli Cnty., 2006 MT

21 62, 331 Mont. 338, 133 P.3d 165. This argument, however, calls for analysis of the

Plaintiffs’ negligence per se claim on the merits and is unrelated to the question of common

injury under Rule 23. Byorth, ¶ 16 (quoting Sangwin, ¶ 15) (“[W]e have cautioned district

courts against assessing ‘any aspect of the merits unrelated to a Rule 23 requirement.’”).

Whether, as the County maintains, Plaintiffs and other class members belong to the specific

class of persons the law was intended to protect raises a question of the Defendants’

ultimate liability on the allegations of the Sixth Amended Complaint. For purposes of this

appeal, it is enough to conclude—as we have here—that the class claims collectively will

stand or fall with the resolution of this issue. The same holds true for the County’s

governmental immunity defense: it is an issue separate from the question of class

certification but will, if successful, apply to all members of the class equally. The County

may reassert its merits defenses as the case proceeds.

¶46 3. Did the District Court abuse its discretion in certifying the class under M. R. Civ. P. 23(b)?

¶47 After satisfying the Rule 23(a) prerequisites, a class must meet one of the

requirements for certification under Rule 23(b). Cook, ¶ 29. The District Court certified

the class under M. R. Civ. P. 23(b)(3), which requires that “questions of law or fact

common to the class members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” A district court’s predominance and superiority

findings are informed by the class members’ interests in individually controlling the

prosecution or defense of separate actions; the extent and nature of any litigation

22 concerning the controversy already begun by or against class members; the desirability or

undesirability of concentrating the litigation of the claims in the particular forum; and the

likely difficulties in managing a class action. M. R. Civ. P. 23(b)(3)(A-D). “A fundamental

concern of the Rule 23(b)(3) predominance test is whether adjudication of common issues

will help achieve judicial economy.” Cook, ¶ 29 (citation omitted).

¶48 The District Court certified the class after finding that the County did not contest

class certification under M. R. Civ. P. 23(b)(3). The County cites Ascencio v. Orion

International Corporation, maintaining that it did not concede its Rule 23(b)(3) argument

because it was not obligated to address this prong of the class certification test if the Rule

23(a) requirements were not met. See Ascencio v. Orion Int’l Corp., 2018 MT 121, ¶ 15,

391 Mont. 336, 417 P.3d 1094 (quoting Rimrock Chrysler, Inc. v. Mont. Dep’t of Justice,

Motor Vehicle Div., 2018 MT 24, ¶ 19, 390 Mont. 235, 411 P.3d 1278) (citation omitted)

(“[I]f an insufficient showing is made regarding one prong of the test, there is no need to

address the other prong.”). The County insists that Plaintiffs do not meet the predominance

and superiority requirements because the trial court must do an individualized inquiry for

each class member to determine whether the person attempted to access county services.

Plaintiffs argue that the County failed to preserve its Rule 23(b) argument because it did

not bring the argument before the District Court. The County’s confidence that its Rule

23(a) argument would prevail, Plaintiffs maintain, is no justification for failing to contest

class certification under Rule 23(b).

23 ¶49 Plaintiffs here do not seek individualized damages for loss of specific government

services. Instead, they seek damages against Defendants for unlawful liquidation of the

tax protest fund; damages for violations of § 7-6-4005(1), MCA; declaratory relief that the

Montana Association of Counties is jointly and severally liable for Defendants’ conduct;

class certification; and establishment of a common fund. Even if each individual

taxpayer’s attempted access to reduced county services pertained to damages, Plaintiffs’

common class questions predominate over questions affecting only individual members.

Rogers, ¶ 33 (quoting Tyson Foods, 577 U.S. at 453, 136 S. Ct. at 1045) (“Common

questions may predominate ‘even though other important matters will have to be tried

separately, such as damages . . . peculiar to some individual class members.’”). Answering

the class’s common questions is integral to determining whether all class members are

entitled to the shared relief they seek. The district court did not act arbitrarily, without

conscientious judgment, or exceed the bounds of reason in holding that common questions

predominate under Rule 23(b)(3). See Cook, ¶ 9 (citation omitted).

CONCLUSION

¶50 Plaintiffs have standing to bring this action. The District Court did not abuse its

discretion in finding that they satisfied the M. R. Civ. P. 23 criteria. Its order certifying a

class action is affirmed. The case is remanded for further proceedings.

/S/ BETH BAKER We Concur: /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ JIM RICE 24