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No. 14908 IN THE SUPREME COURT OF THE STATE OF MONTANA BOARD OF TRUSTEES, HUNTLEY PROJECT SCHOOL DISTRICT NO. 24, WORDEN, MONTANA, Petitioner and Appellant, BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF YELLOWSTONE, STATE OF MONTANA, and M. E. McCLINTOCK, DUANE E. CHRISTIANSEN and J. A. STRAW, Constituting the members of said Board, Respondents and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Davidson, Veeder, Baugh & Broeder, Billings, Montana Doris M. Poppler argued, Billings, Montana For Respondents: Harold F. Hanser, County Attorney, Billings, Montana David W. Hoefer argued, Deputy County Attorney, Billings, Montana Submitted: Decided: Filed: FEi, 6 - l j a January 17, 1980 FEB S - 1980 Mr. Justice Gene B. Daly delivered the Opinion of the Court. his action arose from an application for a preemptory writ filed on the 26th day of January, 1979 by the Board of Trustees of Huntley Project School District No. 24, Worden, Montana, asking the court to compel the Yellowstone County Commissioners to void the meeting of December 28, 1978 and all actions taken at said meeting. This was based on peti- tioner's contention that the said meeting was not held in conformance with the laws of the State of Montana requiring public boards and commissions to hold open meetings after proper notice to the public whenever action is to be taken or a decision is to be made by the public agency. The case was heard on stipulated facts without a jury and submitted on briefs to the District Court. Court denied the application. The District It is from this denial that the Huntley Project School District No. 24 appeals. On December 26, 1978, a public meeting was held at the Yellowstone County Courthouse for the purpose of hearing testimony by the public and other interested parties in regard to the preliminary plat of Pryor Creek Estates Subdivision. A number of people testified both for and against the proposed subdivision. The Board's public hearing on the preliminary plat was then closed by the Chairman. The Commissioners announced that they would take the matter under advisement and that a decision would be made in the next day or two. On December 28, 1978, pursuant to adjournment, the Board of Commissioners convened at 9:00 a.m. The minutes reflect that Commissioners Christensen, Kamp, ~ c ~ l i n t o cand k County Clerk Klundt were present. The minutes indicate that the subdivision was conditionally approved on the motion of Mr. Kamp and seconded by Commissioner Christensen. A foot- note adds that Commissioner McClintock was not aware of the meeting on this matter, nor that a vote was to be taken at this time. The actual decision was made at approximately 2:30 in the afternoon of December 28th, 1978. by telephone. The vote was conducted Duane Christensen was on the phone in his office; David Hoefer of the County Attorney's Office was on a phone in the secretarial area of the Commissioners' office; Bonnie Hudson, a Deputy Clerk and Recorder, was in the conference room on an extension phone; and Leo Kamp was on a phone at the Circle Inn. Mr. McClintock was also at the Circle Inn but was not notified of the call and was not at that time aware that a vote was being taken on the matter. However, Mr. McClintock, to the best of his recollection, had on the morning of December 28th, 1978, participated in a discussion with Commissioners Kamp and Christensen concerning the Pryor Creek Estates Subdivision, with no decision being made at that time. On January 9, 1979, Commissioner Christensen attempted to have the December 28, 1978 action reconsidered, but failed when his motion was not seconded. After the filing of the lawsuit, a letter was sent to Elmer Link, the developer of the subdivision, by Commissioner Christensen, which purported to be findings of fact and conclusions of law. The School District challenged these find- ings of fact on a procedural basis alleging they were not based on a resolution passed by the Board of County Commissioners as required by section 76-3-608, MCA. The District Court ruled that the requirements of section 76-3-608, MCA had been met. Apparently these alleged findings were never filed with the County Clerk and Recorder. Written findings of fact were, however, filed with the Yellowstone County Clerk and Recorder on March 22, 1979. These findings appear to comply with section 76-3-608, MCA. The following issues are presented for review: (1) Did the District Court err in determining that the Commissioners' meeting of December 28, 1978 was improper but that there existed insufficient grounds to nullify the action taken by the commission? (2) Did the District Court abuse its discretion by not compelling respondents to void the meeting of December 28, (3) Is mandamus a proper remedy in this matter? The Montana Constitution guarantees that "[nlo person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." Article 11, section 9, 1972 Constitution of the State of Montana. Montana also has a number of statutes which protect this right to an "open meeting", sections 2-3-201, MCA, et seq. Section 2-3-201 provides: "The legislature finds and declares that public boards, commissions, councils, and other public agencies in this state exist to aid in the conduct of the peoples' business. It is the intent of this part that actions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Toward these ends, the provisions of the part shall be liberally construed." Section 2-3-203, MCA provides: "(1) All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds shall be open to the public. "(2) Provided, however, the presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting shall be open. " (3) However, a meeting may be closed to discuss a strategy to be followed with respect to collective bargaining or litigation when an open meeting would have a detrimental effect on the bargaining or litigating position of the public agency. "(4) Any committee or subcommittee appointed by a public body for the purpose of conducting business which is within the jurisdiction of that agency shall be subject to the requirements of this section." A "meeting" is defined as ". . . the convening of a quorum of the constituent membership of a public agency, whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the agency has supervision, control, jurisdiction, or advisory power." Section 2-3-202, MCA. "Appropriate minutes of all meetings required by 2-3203 to be open shall be kept and shall be available for inspection by the public." Section 2-3-212(1), MCA. minutes must include the: "(a) date, time, and place of meeting; " (b) a list of the individual members of the public body, agency, or organization in attendance; Such " (c) t h e substance of a l l m a t t e r s prop o s e d , d i s c u s s e d , o r d e c i d e d ; and " ( d ) a t t h e r e q u e s t o f a n y member, a r e c o r d by i n d i v i d u a l members o f a n y v o t e s taken." S e c t i o n 2-3-212 ( 2 ) , MCA. "Any d e c i s i o n made i n v i o l a t i o n o f 2-3-203 may b e d e c l a r e d v o i d by a d i s t r i c t c o u r t h a v i n g j u r i s d i c t i o n . A s u i t t o v o i d a n y s u c h d e c i s i o n must be commenced w i t h i n 30 days of t h e decision." S e c t i o n 2-3-213, MCA. "Each a g e n c y s h a l l d e v e l o p p r o c e d u r e s f o r p e r m i t t i n g and e n c o u r a g i n g t h e p u b l i c t o p a r t i c i p a t e i n agency d e c i s i o n s t h a t a r e of s i g n i f i c a n t i n t e r e s t t o the public. The p r o c e d u r e s s h a l l a s s u r e a d e q u a t e n o t i c e and a s s i s t public participation before a f i n a l agency a c t i o n i s taken t h a t i s o f significant i n t e r e s t t o the public." S e c t i o n 2-3-103 ( I ) , MCA. An agency s h a l l be c o n s i d e r e d t o have c o m p l i e d w i t h t h e above n o t i c e p r o v i s i o n i f : " (3) a public hearing, a f t e r appropria t e n o t i c e i s given, i s held pursuant t o a n y o t h e r p r o v i s i o n o f s t a t e law o r a l o c a l ordinance o r resolution; o r " ( 4 ) a newspaper o f g e n e r a l c i r c u l a t i o n w i t h i n t h e a r e a t o b e a f f e c t e d by a d e c i s i o n of s i g n i f i c a n t i n t e r e s t t o t h e p u b l i c h a s c a r r i e d a news s t o r y o r advertisement concerning t h e d e c i s i o n sufficiently prior t o a f i n a l decision t o p e r m i t p u b l i c comment on t h e m a t t e r . " S e c t i o n 2-3-104, MCA. T h e r e i s no q u e s t i o n t h a t t h e above s t a t u t e s a p p l y t o t h e County Commissioners and t o t h i s " m e e t i n g " . I n a d d i t i o n , t h e r e a r e s t a t u t e s which s p e c i f i c a l l y r e g u l a t e t h e m e e t i n g s o f County Commissioners. S e c t i o n 7-5-2122, MCA p r o v i d e s : " ( 1 )The g o v e r n i n g body o f t h e c o u n t y s h a l l e s t a b l i s h by r e s o l u t i o n a r e g u l a r m e e t i n g d a t e and n o t i f y t h e p u b l i c o f t h a t date. " (2) The governing body of the county, except as may be otherwise required of them, may meet at the county seat of their respective counties at any time for the purpose of attending to county business. Commissioners may, by resolutiion and prior 2 days' posted public notice, designate another meeting time and place." Section 7-5-2125, MCA provides that "[all1 meetings of the board of county commissioners must be public." The outcome of this case rests on a determination of whether the "meeting" held by the County Commissioners on December 28, 1978 complied with the provisions of the above statutes. Respondents argue that the "meeting" did not violate the above statutes. They submit that the "meeting" was a continuation of a meeting properly held on December 26, 1978. They further submit that notice was given in the form of a news story in the "Yellowstone County News" printed on December 28, 1978 and indicating that the Commission was to make its decision on the Pryor Creek Estates Subdivision today or tomorrow. " Additionally, the respondents argue that throughout the entire decision making process, public meetings were held and the public was kept informed. Appellant, on the other hand, questions whether or not the telephone conversation constituted a valid meeting at all. It submits that no notice was given of the "meeting's" time or place as required by statute and questions the validity of the individual action of one Commissioner in calling a meeting to decide matters of this magnitude. Appellant argues that the open meeting statutes must be liberally construed and that it is inconceivable that an open m e e t i n g c a n be h e l d w i t h o u t p u b l i c n o t i c e and s t i l l a c c o m p l i s h t h e l e g i s l a t i v e p u r p o s e o f t h e Open Meeting Law. A review of t h e f a c t s i n t h e i n s t a n t c a s e l e a d s t o t h e c o n c l u s i o n t h a t a " m e e t i n g " t o o k p l a c e a s d e f i n e d by s e c t i o n 2-3-202, MCA. A "quorum" o f t h e County Commissioners ( 2 o f 3; see B l a c k ' s Law D i c t i o n a r y 1 4 2 1 ( 4 t h e d . 1 9 6 8 ) ) m e t "by means o f e l e c t r o n i c e q u i p m e n t ( t e l e p h o n e ) t o a c t upon a m a t t e r o v e r which t h e a g e n c y had s u p e r v i s i o n , c o n t r o l , jurisdiction, o r a d v i s o r y power." S e c t i o n 2-3-202, MCA. The r e c o r d a l s o i n d i c a t e s t h a t d u e t o t h e framework i n which t h e m e e t i n g was h e l d , i . e . by means o f t e l e p h o n e conv e r s a t i o n , and d u e t o t h e f a c t t h a t Commissioner McClintock was n o t i n f o r m e d o f t h e m e e t i n g , i t was n o t a n "open m e e t i n g " a s r e q u i r e d i n Montana. I n Montana, n o t i c e i s r e q u i r e d by s e c t i o n s 2-3-103 7-5-2122, MCA. and The c o n t e s t e d " m e e t i n g " h e r e f a i l e d t o comply w i t h t h e n o t i c e r e q u i r e m e n t s o f b o t h t h o s e s e c t i o n s . Respondents c o n t e n d t h a t t h e newspaper s t o r y p r i n t e d i n t h e " Y e l l o w s t o n e County News" and t h e f a c t t h a t t h e y h e l d p u b l i c m e e t i n g s u n d e r t h e Montana S u b d i v i s i o n and P l a t t i n g A c t s u f f i c i e n t l y complied w i t h t h e above n o t i c e p r o v i s i o n s . T h i s i n t e r p r e t a t i o n o f t h e f a c t s and t h e law i s m i s t a k e n . The newspaper a r t i c l e d i d n o t p r o v i d e s u f f i c i e n t f a c t s c o n c e r n i n g t h e " m e e t i n g ' s " t i m e and p l a c e t o i n f o r m t h e public s u f f i c i e n t l y p r i o r t o the f i n a l decision t o permit f u r t h e r p u b l i c comment on t h e m a t t e r . Furthermore, t h i s "meeting" v i o l a t e d t h e p r o v i s i o n s t h a t c o n t r o l t h e meetings o f t h e Board o f County Commissioners. 7-5-2122 A reading of s e c t i o n i n d i c a t e s t h a t b e f o r e t h e County Commissioners c a n change t h e t i m e , p l a c e and manner o f t h e i r m e e t i n g s o r h o l d a s p e c i a l m e e t i n g , two d a y s p o s t e d p u b l i c n o t i c e must b e given. T h i s n o t i c e must d e s i g n a t e t h e new m e e t i n g t i m e and place. I t i s c l e a r t h a t t h i s was n o t done h e r e even t o t h e e x c l u s i o n o f one o f t h e County Commissioners. It is d i f f i c u l t t o e n v i s i o n a n open m e e t i n g h e l d w i t h o u t p u b l i c n o t i c e t h a t s t i l l a c c o m p l i s h e s t h e l e g i s l a t i v e purpose of t h e Montana "open meeting" s t a t u t e s . Without p u b l i c n o t i c e , an open meeting i s open i n t h e o r y o n l y , n o t i n p r a c t i c e . This type o f c l a n d e s t i n e meeting v i o l a t e s t h e s p i r i t and t h e l e t t e r o f t h e Montana Open Meeting Law. The q u e s t i o n t h e n becomes d i d t h e D i s t r i c t C o u r t a c t improperly i n n o t voiding t h e d e c i s i o n . s i m i l a r e f f e c t govern h e r e . Two s t a t u t e s o f S e c t i o n 2-3-114 provides: "The d i s t r i c t c o u r t s o f t h e s t a t e have j u r i s d i c t i o n t o s e t a s i d e an agency d e c i s i o n under t h i s p a r t upon p e t i t i o n made w i t h i n 30 d a y s o f t h e d a t e of t h e d e c i s i o n o f any p e r s o n whose r i g h t s have been p r e j u d i c e d . " S e c t i o n 2-3-213, "Any d e c i s i o n made i n v i o l a t i o n o f 2-3-203 MCA p r o v i d e s : may be d e c l a r e d v o i d by a d i s t r i c t c o u r t having j u r i s d i c t i o n . A suit to v o i d any such d e c i s i o n must be commenced w i t h i n 30 d a y s of the decision." The above p r o v i s i o n s i n d i c a t e t h a t i t i s within the D i s t r i c t Court's d i s c r e t i o n t o void the a c t i o n s i f t h e r e h a s been a v i o l a t i o n of t h e "open m e e t i n g " law. The D i s t r i c t Judge h e r e p u b l i s h e d a memorandum i n supp o r t of h i s d e c i s i o n d e n y i n g a p p e l l a n t s ' a p p l i c a t i o n f o r w r i t of mandamus. I n t h i s memorandum, t h e judge, w h i l e f i n d i n g t e c h n i c a l d e f i c i e n c i e s i n t h e p r o c e d u r e s employed, ruled that: "In t h i s case it appears appropriate t o assume t h a t t h e 'open m e e t i n g ' s t a t u t e a p p l i e s and h a s been v i o l a t e d . The c r i t i c a l question then revolves about t h e consequences t o be imposed s i n c e t h e s t a t u t e makes t h e v o i d i n g of t h e Commissioner's action discretionary rather t h a n mandatory ( S e c t i o n 2-3-213) " . ". . .[A]s a matter of substance over form there is not sufficient ground existing to nullify the action taken ... 11 The District Judge also discussed the ramifications of failing immediately to make public written findings of fact in support of the Commissioners' conclusions. At the time of this opinion those written findings and conclusions are properly on file in Yellowstone County. this issue is therefore moot. A discussion of This should not be taken as an indication that this Court approves of the delay and deficient procedure shown in this case. disapprove of such delays. In fact, we strongly Any unreasonable delay as was the case here will not be tolerated in the future. We strongly urge the various County Commissioners to file written findings of fact and conclusions in subdivision matters as required by section 76-3-608, MCA and State ex rel. Florence-Carlton School District v. Board of County Commissioners (1978), - Mont. , 590 P.2d 602, 35 St.Rptr. 1836 immediately following their decision to approve, conditionally approve or disapprove a subdivision proposal. In his memorandum, the District Judge correctly determined that the procedure followed was improper. He went on to determine, however, that the decision involved an element of urgency. He also determined that the decision would not change simply because a public meeting was held. He, therefore, decided to look past the form to the substance and uphold the decision. It is too familiar a concept of Montana law to require citation that a discretionary decision of the District Court will not be reversed unless there is a clear abuse of discretion. However, the disregard shown for the statutes regulating the procedure of an open meeting in terms of notice and place and voting procedure placed a heavy duty and burden on those who would prove the meeting legal. In the absence of such proof, we must hold there was a clear abuse of discretion on the part of the trial court. The failure here to follow proper statutory procedures of notice has the effect of invalidating the Commissioners' decision. We would emphasize that our ruling here has no bearing on the merits of the Commissioners' decision but only reflects on the impropriety of the procedure used. There is one further issue raised by respondents as to the proper remedy involved here. The appellants petitioned for a writ of mandate requesting the court to void the illegal meeting. Respondent correctly contends that mandamus is not a proper remedy to correct action which has already taken place. Oleson (1974), 165 Mont. 424, 530 P.2d 466. Melton v. Appellants agree with this but contend they are not requesting the undoing of an act, but rather that this Court void the illegal meeting. They cite Kadillak v. The Anaconda Co. (1979)r - Mont. , 602 P.2d 147, 36 St.Rep 1820, wherein we stated: "State Lands contends that mandamus cannot lie to correct'lorundo an act already performed . . . This is a correct statement of the law. What this Court is mandating, however, is not the undoing of an act. Rather, we are directing State Lands to perform an act which they have not done and which they had a clear legal duty to do. They are to return the Permit 41A application to Anaconda as inadequate and incomplete. Because the application was not returned Permit 41A was void from the beginning and Anaconda may not continue the mining activities on the Permit 41A area until a valid permit is granted by State Lands." 602 P.2d at 157. I n Montana u s e o f a w r i t o f mandate i s s p e c i f i c a l l y c o n t r o l l e d by s t a t u t e . S e c t i o n 27-26-106 provides i n per- t i n e n t p a r t t h a t a w r i t o f mandamus: ". . . may be i s s u e d by t h e supreme c o u r t o r t h e d i s t r i c t c o u r t o r a n y judge o f t h e d i s t r i c t c o u r t t o any i n f e r i o r t r i b u n a l , c o r p o r a t i o n , b o a r d , o r p e r s o n t o compel t h e p e r f o r mance o f a n a c t which t h e l a w s p e c i a l l y e n j o i n s a s a d u t y r e s u l t i n g from a n o f f i c e , t r u s t , o r s t a t i o n o r t o compel t h e a d m i s s i o n o f a p a r t y t o t h e u s e and enjoyment o f a r i g h t o r o f f i c e t o which h e i s e n t i t l e d and from which h e i s u n l a w f u l l y p r e c l u d e d by s u c h i n f e r i o r t r i b u n a l , The w r i t corporation, board, o r person must be i s s u e d i n a l l c a s e s where t h e r e i s n o t a p l a i n , s p e e d y and a d e q u a t e remedy i n t h e o r d i n a r y c o u r s e of law." . . . Both s e c t i o n 2-3-213 and 2-3-114, MCA p r o v i d e f o r s u i t s t o v o i d a c t i o n s t a k e n i n v i o l a t i o n o f s e c t i o n s 2-3-203 2-3-103, respectively. and While t h e r e i s a s p e c i f i c remedy a t law p r o v i d e d t o a p p e l l a n t s , t h e form o f t h a t remedy i s unclear. Further, t h e a p p e l l a n t ' s contentions here could f i t under t h e K a d i l l a k r a t i o n a l e . Thus w h i l e t h e u s e o f a w r i t o f mandamus i s n o t t e x t b o o k law, i t i s a p p r o p r i a t e h e r e . I n t h e f u t u r e , however, i t would s e e m t h e s u i t s h o u l d t a k e t h e form o f a s i m p l e p e t i t i o n t o v o i d a n a c t i o n o r a p e t i t i o n f o r d e c l a r a t o r y judgment. I n t h e i n t e r e s t s of t i m e and l i b e r a l c o n s t r u c t i o n , however, a p p e l l a n t ' s c h o i c e o f remedy i s a d e q u a t e . A s t o a t t o r n e y s f e e s , they a r e s p e c i f i c a l l y provided f o r i n s e c t i o n 2-3-221, MCA, t h e r e f o r e , t h e f a c t t h a t they a r e p r o v i d e d i n mandamus becomes u n i m p o r t a n t and o f no weight a s t o t h e p r o p r i e t y of t h e w r i t . W e f i n d t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n i n f i n d i n g an i l l e g a l meeting b u t f a i l i n g t o n u l l i f y t h e a c t i o n s t a k e n by t h e Y e l l o w s t o n e County Commissioners. The judgment o f t h e D i s t r i c t C o u r t i s v a c t e d and s e t aside and the cause remanded with instructions to enter judgment nullifying the proceedings of the Yellowstone County Commissioners which are the subject of this appeal. , ' 4 ., L&-u. fl Justice We concur. Mr. Justice John C. Sheehy, deeming himself disqualified, did not participate in this case.
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