McDonald v. Jacobsen

2021 MT 287, 512 P.3d 251, 406 Mont. 197

Opinion

11/03/2021

DA 21-0382 Case Number: DA 21-0382

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 287

SISTER MARY JO MCDONALD; LORI MALONEY; FRITZ DAILY; BOB BROWN; DOROTHY BRADLEY; VERNON FINLEY; MAE NAN ELLINGSON; and the LEAGUE OF WOMEN VOTERS OF MONTANA,

Plaintiffs and Appellees,

v.

CHRISTI JACOBSEN, Montana Secretary of State,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DV-21-120 Honorable Kurt Krueger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Austin Knudsen, Montana Attorney General, Kristin Hansen, Lieutenant General, David M.S. Dewhirst, Solicitor General, Christian B. Corrigan, Assistant Solicitor General, Jeremiah Langston, Assistant Attorney General, Helena, Montana

For Appellees:

James H. Goetz, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana

A. Clifford Edwards, Edwards & Culver, Billings, Montana

Submitted on Briefs: October 27, 2021 Decided: November 3, 2021

Filed:

c ir-641.—if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Montana Secretary of State Christi Jacobsen (the Secretary) appeals a July 30, 2021

Order from the Second Judicial District Court in Butte-Silver Bow County. The District

Court denied as untimely the Secretary’s motion to substitute a judge.

¶2 We restate the issue on appeal as follows:

Is an official-capacity lawsuit against the Secretary of State a lawsuit against “the State,” such that service of process was not complete until the date the Attorney General was served?

¶3 We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The 2021 Montana Legislature enacted HB 325, a bill that would alter the election

process for state supreme court justices if passed by ballot referendum in November 2022.

Sister Mary Jo McDonald and the other plaintiffs (collectively, McDonald) are suing over

the measure and allege it violates the Montana Constitution. They filed their lawsuit

against the Secretary in her official capacity, seeking to enjoin her from carrying out 2021

Mont. Laws ch. 402, § 8, the certification for the ballot of the bill’s modified provisions of

§ 3-2-101, MCA.

¶5 McDonald served her complaint and summons on the Secretary on May 13, 2021.

That same day, she served the Attorney General’s office a “notice of constitutional

challenge,” citing Rule 5.1 of the Montana Rules of Civil Procedure. The Secretary did

not file an answer to McDonald’s complaint, and McDonald moved the District Court for

summary judgment on July 1.

2 ¶6 Prior to the scheduled summary judgment hearing, the Attorney General’s office

reached out to McDonald to address how it had not been formally served. McDonald

disputed the need to do so, but she agreed to submit a joint motion to the District Court to

continue the summary judgment hearing until a later date. And on July 7, McDonald and

the Attorney General’s office executed an acknowledgment of service.

¶7 On July 16, the Secretary moved to substitute the District Court judge. McDonald

opposed this motion, arguing that the statutory right to request substitution expires 30 days

after service. The Secretary argued that service was only complete on July 7, rendering the

motion timely. McDonald argued that service was effective May 13, rendering the motion

too late.

¶8 The District Court denied the Secretary’s substitution motion as untimely, casting

the Attorney General as “not a party” in the case and holding that only the date of service

on the Secretary governed the timeliness of the motion. The Secretary appeals, arguing

that the District Court misinterpreted the law and the rules of civil procedure in doing so.

STANDARD OF REVIEW

¶9 “A district court’s determination whether to substitute a judge is a question of law

that we review for correctness.” City of Missoula v. Mt. Water Co., 2021 MT 122, ¶ 8, 404

Mont. 186, 487 P.3d 15.

3 DISCUSSION

¶10 Is an official-capacity lawsuit against the Secretary of State a lawsuit against “the State,” such that service of process was not complete until the date the Attorney General was served?

¶11 The crux of the dispute between McDonald and the Secretary is whether McDonald

is suing only the Secretary or whether she is really suing “the State.” At the outset of her

lawsuit, McDonald served the Secretary alone, and she sent the Attorney General’s office

only a “notice of constitutional challenge.” Montana Rule of Civil Procedure 5.1 requires

such a notice anytime a party’s lawsuit challenges the constitutionality of a state statute;

this includes a copy of the complaint and apprises the Attorney General of private lawsuits

that may warrant intervention by the State to defend the challenged law. Notice under Rule

5.1 is not the same thing as service of process under Rule 4, which governs the service

required on parties when commencing an action and includes a complaint and summons.

¶12 McDonald takes the position that her suit was just between her and the Secretary,

one in which the Attorney General might intervene on behalf of the State but not one in

which the Attorney General, representing the State, is a party. The Secretary argues that a

lawsuit against her in her official capacity is a lawsuit against the State and that valid

service on the Attorney General, not just Rule 5.1 notice, was therefore required. Under

the Secretary’s framing, service was not complete until both she and the Attorney General’s

office were served, on July 7, rendering her substitution motion timely.

¶13 Resolving this issue requires a tour of several civil procedure rules and statutes. The

most important is M. R. Civ. P. 4(l), titled “Serving the State.” This rule notes that in

lawsuits against the State, a party must deliver the summons and complaint to the Attorney

4 General’s office. It goes on to describe what to do when suing an officer of the state in an

individual capacity. In such cases, a party “must serve the state and also serve the

officer[.]” M. R. Civ. P. 4(l). This clause also applies “whether or not the officer . . . is

also sued in an official capacity.” M. R. Civ. P. 4(l).

¶14 Thus, Rule 4(l) clearly requires service on the Attorney General if the lawsuit is

against the State, and it also requires service on the Attorney General if a lawsuit is against

an officer in her individual capacity. The rule, however, does not state clearly how to treat

a lawsuit against an officer in her official capacity alone, like McDonald’s lawsuit here

seeking to enjoin the Secretary from carrying out the requirements of 2021 Mont. Laws ch.

402, § 8. Is such a lawsuit just like one against the State?

¶15 One way to answer that question is simply to consider what an executive officer

acting in her official capacity is—an agent of the State. We have noted before that “official

capacity claims generally represent only another way of pleading an action against an entity

of which an officer is an agent.” Germann v. Stephens, 2006 MT 130, ¶ 38, 332 Mont.

303, 137 P.3d 545 (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099,

3106 n.14 (1985)). The larger entity here is the State, the ultimate target of McDonald’s

claim. However, because the more specific issue is what the rules require for effective

service, we can also answer the question by looking to two additional rules, a federal civil

procedure rule that informs the meaning of our Rule 4(l) and another Montana civil

procedure rule that does the same.

¶16 First, note that Federal Rule of Civil Procedure 4(i) does what our Rule 4(l) does

not: it contains express language about “official-capacity” suits. In such suits, “a party

5 must serve the United States and also send a copy of the summons and of the

complaint . . . to the . . . officer[.]” F. R. Civ. P. 4(i)(2). It is helpful to reference the federal

rule because the general process is the same and some of the language in the Montana rule

is borrowed from it verbatim. Our Rule 4(l) packs the federal rule 4(i) information into

one paragraph, and its text about individual-capacity suits is nearly identical. Although

Montana’s Rule 4(l) does not mirror the express “official capacity” language, its effect is

still implied. The rule describes service on the State, on the one hand, and service on

individual officers and the State in individual-capacity suits, on the other hand. It would

be strange for the rule to require service on the State even when an officer is sued not in an

official capacity, but then exempt the State from service when an officer is sued in an

official capacity. Thus, the rule appears to assume that official-capacity suits are simply

suits against the State.

¶17 Next, we can clearly see that assumption at play in M. R. Civ. P. 12(a)(2). This rule

governs when the “State of Montana and Its Agencies, Officers, or Employees Sued in an

Official Capacity” must serve their answers. The rule requires responsive pleadings

“within 42 days after service on the attorney general.” M. R. Civ. P. 12(a)(2). Clearly,

Rule 12(a)(2) acknowledges that the Attorney General must be served at the outset of an

official-capacity suit.

¶18 McDonald argues that the lack of direct “official capacity” language in Rule 4(l)

means that official-capacity suits sit outside its bounds, with no required service on the

Attorney General. This argument fails to grapple with the obvious implication of Rule

12(a)(2), and it contradicts our past treatment of official-capacity suits as suits against the

6 State. For example, in a previous case that addressed a very similar ballot referendum, we

treated the issue as one of preventing the State, through the Secretary of State’s office, from

certifying the referendum. Reichert v. State, 2012 MT 111, ¶ 8, 365 Mont. 92, 278 P.3d

455. The Secretary acts on the State’s behalf when carrying out her duties, and the Attorney

General represents the State and its officers in court. See § 2-15-501(1), (6), MCA

(imposing a duty on the Attorney General to defend cases “in which the state or any officer

of the state in the officer’s official capacity is a party”). Although the Attorney General

himself is “not a party” in the same way that McDonald’s counsel is “not a party,”

commencement of this lawsuit still required service on the State as laid out in the rules,

much in the same way that the State serves its materials on McDonald through her counsel.

¶19 Having resolved that McDonald’s official-capacity suit against the Secretary did

require service on the Attorney General, we must still address the effect that this

requirement has on the Secretary’s motion for substitution of a judge. Section 3-1-804(1),

MCA, governs these motions. It entitles each party to one substitution, as long as the party

files its motion “within 30 calendar days after service has been completed in compliance

with M. R. Civ. P. 4.” Section 3-1-804(1)(a), MCA.

¶20 The question, therefore, is when McDonald’s service on the Secretary was complete

under Rule 4. McDonald served the Secretary on May 13, well over 30 days before the

Secretary’s substitution motion. But McDonald did not effectuate service on the Attorney

General’s office until July 7, with the execution of the acknowledgment, only nine days

before the Secretary’s motion. Because § 3-1-804(1)(a), MCA, refers to Rule 4 generally,

we must look to that rule as a whole to discern the effect of the acknowledgment of service.

7 Rule 4(d)(3)(E) governs typical service by use of such acknowledgments. It states that

“the notice and acknowledgment must be signed and dated by the defendant, and service

of summons and complaint will be deemed complete on the date shown.” M. R. Civ. P.

4(d)(3)(E). Thus, the service that Rule 4 requires was not complete until July 7, at which

point McDonald had served both the Secretary and the Attorney General as required by

Rule 4(l).

¶21 McDonald makes a final argument in defense of the District Court’s decision, which

is that we prefer not to “exalt form over substance.” Yarborough v. Glacier County, 285

Mont. 494, 497, 948 P.2d 1181, 1183 (1997). Our comment to that effect regarded a

dispute wherein a plaintiff served a defendant a duplicate of her summons because the

original, timely document had been misplaced after the defendant rejected it and demanded

personal service rather than a waiver. We held that it would be unjust to foreclose a

plaintiff’s access to justice based on the mere difference between an original piece of paper

and a copy that can serve the same purpose. Yarborough, 285 Mont. at 499. And we have

since taken the same approach in similar circumstances. See Quamme v. Jodsaas, 1998

MT 341, 292 Mont. 342, 970 P.2d 1049 (regarding a second summons issued after attorney

turnover led to the first expiring); Schmitz v. Vasquez, 1998 MT 314, 292 Mont. 164, 970

P.2d 1039 (regarding an amended summons that was identical except for dropping one of

two defendants).

¶22 While this case involves service of process, it is unlike the circumstances McDonald

cites. Those cases arose in a context where a plaintiff’s suit would be dismissed due to the

technical problems with the summons, while here, the only issue is the date upon which

8 McDonald’s lawsuit commences for certain purposes. Furthermore, we have previously

stressed that “[r]ules for service of process are mandatory and must be strictly followed.”

Cascade Dev., Inc. v. City of Bozeman, 2012 MT 79, ¶ 14, 364 Mont. 442, 276 P.3d 862.

McDonald points to the Rule 5.1 notice she sent to the Attorney General’s office in May

as an adequate substitute for strict service, contending that this notice effectuated the same

substantive purpose as service by providing the Attorney General a copy of the complaint.

But while McDonald’s Rule 5.1 notice may have made the Attorney General aware of her

suit against the Secretary, it did not include a summons like valid service under Rule 4.

Furthermore, we have previously held that “even where a defendant has actual notice of

the summons and complaint[,] knowledge of the action is not a substitute for valid service.”

Mountain W. Bank v. Glacier Kitchens, 2012 MT 132, ¶ 16, 365 Mont. 276, 281 P.3d 1284

(citing In re Marriage of Blaskovich, 249 Mont. 248, 250, 815 P.2d 581, 582 (1991))

(internal quotations omitted). The timeliness rule in the substitution statute is concerned

merely with when valid Rule 4 service was complete, and McDonald’s emphasis on the

fact that the Attorney General had knowledge of the case before then does not change our

analysis.

¶23 Because McDonald’s service under Rule 4 was incomplete until execution of the

acknowledgment with the Attorney General’s office on July 7, the Secretary’s July 16

motion to substitute a judge was timely, and the District Court erred in denying the motion.

9 CONCLUSION

¶24 We reverse the District Court’s July 30, 2021 order denying the Secretary’s

substitution motion as untimely, and we remand for further proceedings consistent with

this Opinion.

/S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR /S/ JIM RICE