Carbon County Files Counterclaims Against Bennett and McKenzie

June 15, 2023

On May 1, Attorney for Carbon County Jacqueline Papez reponded to the remaining complaint in the lawsuit filed last October by Plaintiffs Lisa Bennett and Roy McKenzie alleging misdeeds by the Carbon County Election Administrator and others. She did so by answering the allegations and filing two counterclaims against the Plaintiffs.  The Plaintiffs were represented by Montana Commissioner of Political Practices (COPP) Chris Gallus until recently.  The County alleges in Count 1 (Breach of Agreement against Bennett) that Bennett requested public information from the County and agreed to pay for the costs for producing them.  After expending resources in fulfilling the request, “Bennett refused to pay for the costs and employee time incurred by the County.”  Bennett has yet to accept possession of any documents produced by the County in response to her requests that required payment.  Count 2 alleges Multiplication of Proceedings (against Bennett and McKenzie) wherein “With the County having fully responded to Plaintiffs’ pending records requests that form the basis of this litigation, Plaintiffs claims are moot, to the extent such claims were ever valid.  By continuing to pursue this litigation, Plaintiffs are multiplying the proceedings in this matter unreasonably and vexatiously.”

The County is seeking that the Plaintiffs’ complaint be dismissed with prejudice; that the County be awarded the damages for Bennett’s breach of agreement; that the County be awarded the cost incurred in the suit, expenses and attorney fees as allowed by law or in equity; and to grant all other relief the Court determines to be just or appropriate.

On January 11, 2023, Gallus was granted an extension for filing a previous motion based on his impending appointment as COPP which would “statutorily prohibit” him from representing the Plaintiffs.  He was granted the extension so he could hand the case off to an attorney who did not have a conflict of interest. Gallus was appointed to the COPP position on January 19 and confirmed on February 14.  On May 24, Gallus responded to the County’s answers and counterclaims with another motion for extension due to his “public employment creating potential conflicts”.  Another extension was granted until June 10.  On June 9, a notice of substitution of counsel and yet another request for extension was filed by the Plaintiffs’ new counsel, Del Post, of Missoula.

Emails to Gallus asking why he didn’t turn the case over to another attorney in January when he was granted the extension for the express purpose of doing just that remain unanswered.

In an earlier filing, Papez states: “Notably, Plaintiffs do not deny that Carbon County provided responses to their requests and did not deny any of them.  Rather, Plaintiffs contend that Carbon County’s need for additional time to respond to some of their requests is akin to denying those requests, and because this “delay” was alleged in their Complaint, they have made a prima facie claim for relief.  Plaintiffs are mistaken and their arguments are unconvincing.  There is no justiciable controversy for the Court to resolve here and Plaintiff’s Complaint should be dismissed for failing to state a claim.”