[EL] MT Supreme Court Wittich ruling

[Steve Klein]

The *Wittich* opinion is a must-read, cautionary tale for practitioners,
particularly paragraphs 63-82. The Montana Supreme Court did not reach a
core question--whether Montana’s “contribution” definition in 2010 was
constitutional--because of issue waiver. Specifically, to the part of the
case that alleged illegal corporate contributions via coordination with
Western Tradition Partnership, the law back then did not address
coordination.

Just from the opinion (I’m unfamiliar with the entire trial record), it
looks like Wittich’s counsel got lost in the weeds regarding trial evidence
and jury instructions but was confident (with justification, I’d argue)
that the issue was preserved. I’m cautiously optimistic about an appeal on
this issue, that it may at least be worth a try given the importance of
protecting First Amendment rights.

That said, the affirmative defense should have been thoroughly briefed
before trial. Heck, even a three-page motion/memo with a misinterpretation
of *Buckley* would have sufficed.

Certainly a jewel of a dodge for the Montana Supreme Court. In 2010, the
definition of “contribution” included:

an advance, gift, loan, conveyance, deposit, payment, or distribution of
> money or anything of value to influence an election;


Coordination? It is now in the law at Mont. Code Ann. § 13-1-101(10), and
still rather dubious. Back in 2010? Well, it was all Motl, and Motl knew it
when he saw it.


On Thu, Aug 24, 2017 at 10:44 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>
>
> *“MT Supreme Court upholds landmark campaign-finance verdict against
> Wittich” <http://electionlawblog.org/?p=94413>*
>
> Posted on August 23, 2017 4:53 pm <http://electionlawblog.org/?p=94413>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> KTVH:
> <http://www.ktvh.com/2017/08/montana-supreme-court-upholds-campaign-finance-decision-against-former-legislator-wittich>
>
> *The Montana Supreme Court Wednesday rejected an appeal from former state
> lawmaker Art Wittich in a landmark campaign-finance case, upholding a
> verdict that he accepted illegal campaign contributions in a 2010 state
> Senate race.*
>
> *A District Court jury in Helena last year found that Wittich violated
> campaign-finance laws by accepting illegal, unreported help from several
> conservative political groups. District Judge Ray Dayton of Anaconda later
> ordered Wittich to pay $84,000 in fines and court costs.*
>
> You can find the unanimous opinion of the court as well as a brief
> concurring opinion at this link.
> <https://supremecourtdocket.mt.gov/view/DA%2016-0695%20Published%20--%20Opinion?id=%7bB0D20F5E-0000-C812-BC67-A6BF9A39CE09%7d>
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94413&title=%E2%80%9CMT%20Supreme%20Court%20upholds%20landmark%20campaign-finance%20verdict%20against%20Wittich%E2%80%9D>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>

-- 
Steve Klein
Attorney*
https://www.linkedin.com/in/stephenrklein

**Licensed to practice law in Illinois and Michigan*
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