COMMON CAUSE v STATUTORY COMMITTEE

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No. 93-096 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 COMMON CAUSE OF MONTANA, a state organization Of COMMON CAUSE, a not-for-profit corporation; and HELENA INDEPENDENT RECORD, Plaintiffs and Appellants, -vsSTATUTORY COMMITTEE TO NOMINATE CANDIDATES FOR COMMISSIONER OF POLITICAL PRACTICES; and MARC RACICOT, as Governor of the State of Montana, Defendants and Respondents, APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding. COUNSEL OF RECORD: For Appellant: James P. Reynolds: Reynolds, Motl, Sherwood & Wright Helena, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Beth Baker Ass't Attorney General, Helena, Montana Submitted: Decided: Filed: i Clerk December 7, 1993 February 10, 1994 Justice Karla M. Gray delivered the Opinion of the Court. This case involves the effect of Montana's constitutional "right to know" and open meeting statutes on the selection and appointment of (Commissioner). the Commissioner of Political Common Cause of Montana Practices (Common Cause), a nonprofit organization that seeks to promote open, accessible and democratic government, Argenbright (Argenbright) challenged the appointment of Edward as Commissioner District Court, Lewis and Clark County. in the First Judicial Common Cause argued that the statutory committee whose function is to provide the governor with a list of names of possible candidates for the position had violated constitutional and statutory provisions guaranteeing the public a right to observe the deliberations of public bodies. Although we determine that the committee violated Montana's open meeting statutes, we conclude, under these unique circumstances, that the violation does not require Argenbright's removal from the office of Commissioner. The facts surrounding this appeal are undisputed. Section 1337-102, MCA, establishes a four-member committee to submit a 1iSt of names of possible candidates for the office of Commissioner to the governor for consideration. In 1992, the committee was comprised of Speaker of the House Hal Harper, President of the Senate Joseph Mazurek, Senate Minority Floor Leader Bruce Crippen, and House Minority Floor Leader John Mercer (the Committee). Due to an impending vacancy in the office in 1993, the Committee held several phone conversations in November of 1992 to discuss the 2 qualifications of the individuals who had applied for the position. During a meeting held November 20, 1992, Mazurek, Crippen and Mercer discussed the individuals they would recommend for the position. Harper did not attend. The meeting was not announced to the public and was not attended by members of the public. Following the meeting, three members of the Committee submitted a list of five names to Governor Stan Stephens. included Argenbright, and two others. two individuals recommended by Common Cause, Representative Harper submitted a separate list naming the two individuals recommended by Common Cause. Stephens interviewed the five appointment of applicants and Governor announced the Argenbright to the position on December 1, 1992. On December 18, 1992, Common Cause, the Record, The list Helena Independent and the Great Falls Tribune filed suit against the Committee and Governor Stephens (collectively, the Committee). They sought to void the Committee's submission of the list and, on that basis, the governor's appointment of Argenbright. asserted that the Committee's November 20 meeting They violated Montana's open meeting statutes and Article II, Section 9, and Article V, Section 10(3), of the Montana Constitution. They also requested a temporary restraining order prohibiting Governor Stephens from submitting the appointment to the Senate for confirmation. The District Court declined to issue the temporary restraining order on December 22, 1992. Argenbright took the oath of office and began performing his duties as Commissioner on January 1, 1993. Both parties moved for summary judgment. Following a February 9, 1993, hearing, the District Court granted summary judgment in favor of the Committee. The court determined that the governor's appointment was not subject to the open meeting laws and, therefore, could not be voided pursuant to 5 2-3-213, MCA. The court also determined that the governor's appointment was not dependent on the actions of the Committee and, thus, could not be voided due to any flaw in the Committee's procedures. Common Cause and the Helena Independent Record (collectively, Common Cause) filed a notice of appeal. Montana April Senate 13, began 1993, confirmation On March 25, 1993, the proceedings Argenbright's confirming which concluded appointment on as Commissioner. Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the trial court. City of Chinook (1990), McCracken v. 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is appropriate when the pleadings, depositions, and other documents on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The parties have submitted stipulated facts and agree that only issues of law are before us. Therefore, our standard of review is whether the District Court's interpretation of the law is correct. Mooney v. Brennan (1993), 257 Mont. 197, 199, 848 P.2d 1020, 1022. As a threshold issue, the Committee contends that Common Cause's claim of an alleged constitutional and statutory violation 4 is moot because a change in circumstances prevailing at the beginning of the litigation now precludes meaningful relief. changed circumstance, according to the Committee, is The that Argenbright's appointment has been confirmed by the Senate, vesting Argenbright with title to the office. is We disagree that the claim moot. When faced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised on appeal. (1989) I Romero v. J & J Tire 238 Mont. 146, 148, 777 P.2d 292, 294; Butte-Silver Bow Local Gov't v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in Butte-Silver Bow: [t]he exception to mootness for those actions that are capable of repetition, yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will be repeated. Butte-Silver Bow, 743 P.2d at 567. Here, the alleged violation of the open meeting statutes and the public's right to know is capable of recurring, in the context of both future selection and appointment procedures for the position of Commissioner and actions taken by other purely advisory entities. Further, to allow an alleged violation of the public's right to know escape judicial scrutiny, simply because legal proceedings are not always swift, would soon vitiate that important right guaranteed to the people of Montana by their constitution. Thus, we conclude that the issues raised by this appeal are not moot. The remaining legal issues are whether the Committee's 5 November 20, 1992, meeting violated the public's right to know and, if so, whether such a violation requires this Court to void the entire appointment process, resulting in Argenbright's office. removal from Regarding the first issue, Common Cause argues that the Committee's November 20 statutes and Article II, meeting violated Montana's open meeting Section 9 of the Montana Constitution. The District Court did not analyze this issue and, on appeal, the Committee does not address its merits. The "right to know" is found at Article II, Section 9, of the Montana Constitution and provides: Right to know. No 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. This constitutional mandate is protected and implemented primarily through Montana's open meeting statutes, codified at §§ 2-3-201, & seq., MCA. SJL of Montana v. City of Billings (Mont. 1993), _ P.2d _, .w....e, 50 St.Rep. 1726, 1727; Jarussi v. Board of Trustees (1983) r 204 Mont. 131, 138, 664 P.2d 316, 319; Board of Trustees v. Board of County Comm'rs (1980), 186 Mont. 148, 152, 606 P.2d 1069, 1071. Thus, the initial question before us is whether the open meeting statutes require the meeting at issue to be open to the public. SJL, 50 St.Rep. at 1727. constitutional If so, we need not proceed to analysis; it is elementary that courts should avoid constitutional questions if an issue can be resolved otherwise. Wolfe v. Montana Dep't of Labor and Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340. 6 The legislature's expressed intent that the open meeting laws be liberally construed, contained in § 2-3-201, MCA, guides our interpretation provides, of these statutes. Section 2-3-203(l), MCA, in pertinent part: 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 must be open to the public. None of the listed entities are further defined in the open meeting statutes. It is clear, however, that established by 9 13-37-102, MCA, the committee is not a board, statutorily bureau, or commission of the state, under any common understanding of those terms. Additionally, while the word agency is not defined in the open meeting statutes themselves, we determined in SJL that the definition of "agency 'I contained in 5 2-3-102, MCA, applies to the term "agencies" used in 5 2-3-203, MCA. Section 2-3-102, MCA, SJL, 50 St-Rep. at 1728. defines agency as any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make cases, or enter into contracts. rules, contested It is evident that the statutory committee is not authorized to make rules, cases or enter into contracts. determine determine contested Accordingly, the Committee is not an "agency" under 5 2-3-203, MCA. Therefore, unless the Committee properly can be characterized as a "public or governmental body" under § 2-3-203, MCA, its November 20, 1992, meeting does not fall within the purview of the open meeting statutes. 7 As stated above, the legislature did not define "public body" or "governmental body" in the open meeting statutes. When interpreting statutes, it is fundamental that words and phrases are to be given their plain, ordinary and usual meaning. Watson & Assoc. v. Green (1992), 253 Mont. 291, 293, 833 P.2d 199, 200; Jarussi, 664 P.2d at 319. defines "bodyVV purpose. 1968, a group of individuals organized for some "Public" is defined in Black's Law Dictionary, 4th Ed. as pertaining to a state, "governmental" Thus, as Webster's Third International Dictionary the nation or community, while is defined similarly as pertaining to government. common understanding of the phrase "public or governmental body" would include a group of individuals organized for a governmental or public purpose. Section 13-37-102, MCA, which establishes the committee, provides, in pertinent part: [a] four-member selection committee comprised of the speaker of the house, the president of the senate, and the minority floor leaders of both houses shall submit to the governor a list of not less than two or more than five names of individuals for his consideration. Here, the Committee has a clear public and governmental purpose--to assist in the governor's selection of a Commissioner by providing a slate of names of possible candidates for consideration. This group of individuals is statutorily organized for that specific governmental task. meaning of § We conclude, therefore, that under the plain 2-3-203, MCA, the Committee is subject to the requirements of the open meeting statutes because it is a public or governmental body. 8 We find support for this conclusion in case law of sister states. Laws requiring that meetings of governmental or public bodies be open to the public have been enacted in some form in every state. Delaware Solid Waste Authority v. News-Journal (Del.Supr. 1984), & SUPP.1993). 480 A.2d 628, 631; Annot. 33 A.L.R.3d 1070 (1971 A common thread throughout the statutory definitions in most states is that the entity have a governmental or state function and that the entity is supported in whole or in part by public funds. @ News and Observer Pub. Co. v. Poole (N.C. 1992), 412 S.E.2d 7, 15; American Sot. for the Prevention of Cruelty to Animals v. Board of Trustees (N.Y. 1992), 591 N.E.2d 1169, 1170; Carroll County Educ. Ass/n v. Board of Educ. (Md. 1982), 448 A.2d 345, 347. Moreover, in a factually similar case, the Michigan Supreme Court determined that a selection committee and its advisory subcommittees organized to select a university president were "public bodies" under Michigan's Open Meetings Act. Booth Newspapers v. University of Michigan (Mich. 1993), 507 N.W.2d 422, 429. The Michigan definition of "public body" focused on the entity's ability to exercise governmental or proprietary authority. The Michigan Supreme Court held that the selection of a public university president constituted the exercise of governmental authority regardless of whether the authority was exercised by the nominating committee, the board or even the advisory subcommittees. Booth, 507 N.W.2d at 429. selection The same reasoning applies to the of the Commissioner in Montana. 9 The "public or governmental" nature of the Committee's purpose is obvious. Further, the Committee is created and organized by state statute to perform its governmental function. Having determined that the Committee is subject to the requirements of the open meeting statutes, we focus on whether its November 20, 1992, meeting violated those statutes. Section 2-3- 202, MCA, defines a "meeting" as a convening of a quorum of the constituent membership of an entity described in 5 2-3-203, MCA, to hear, discuss or act upon a matter over which that entity has supervision, control, jurisdiction or advisory power. On November 20, 1992, three of the four members met to discuss the candidates and the transmission of the list of names to the governor. by definition, a "meeting" was held. Thus, See Board of Trustees, 606 P.2d at 1073. Additiona lly, Montana law requires that public notice be g 'iven of meetings subject to the requirements of the open meeting statutes. Board of Trustees, 606 P.2d at 1073. Without public notice, an "open" meeting is open in theory only, not in practice. Board of Trustees, 606 P.2d at 1073. In this case, the parties stipulated that no public notice was given of the Committee's November 20, 1992, meeting. We conclude, therefore, that the Committee violated 5 2-3-203, MCA, of the open meeting statutes. Having concluded that the open meeting statutes apply and were violated by the Committee, we turn to the effect of that violation on Argenbright's appointment. Common Cause contends that the Committee's decision to submit the names to the governor should be 10 voided pursuant to § 2-3-213, MCA, which allows a court to void a decision made in violation of between the Committee's 5 2-3-203, MCA. recommendations Based on the nexus and the governor's appointment of Argenbright, Common Cause argues that Argenbright's appointment is tainted by the Committee's statutory violation. Thus, Common Cause contends that the entire appointment process should be voided and Argenbright removed from office, relying on Board of Trustees. The Committee argues, on the other hand, that voiding the Committee's decision and submission of its list to the governor would not affect the governor's appointment of Argenbright. It argues that the governor's appointment is statutorily independent of the Committee's recommendations, as indicated by the language of 3 13-37-102(l), Committee's MCA. Because no legal nexus exists between the recommendations and the governor's appointment, the Committee asserts that any flaw in its recommendation does not require Argenbright's appointment to be voided. Section violation court. meeting of 2-3-213, MCA, provides that any decision made in § 2-3-203, MCA, may be declared void by a district We have concluded that the Committee's November 20, 1992, violated 5 z-3-203, MCA. However, in this unique situation, we conclude that the District Court did not abuse its discretion in refusing to void the entire appointment and confirmation process based on the Committee's violation of the open meeting laws. In Board of Trustees, the county 11 commissioners held an unannounced meeting at which a controversial approved. subdivision was We determined that the failure to give notice of the meeting had the effect of invalidating the decision made there: we concluded that the district court clearly abused its discretion under 5 2-3-213, MCA, in deciding to "look past form to the substance" and in refusing to void the commissioners' approval of the subdivision. Board of Trustees, 606 P.2d at 1074. Unlike the commissioners' approval of the subdivision in Board of Trustees, the Committeels submission of a slate of names to the governor is not directly linked to the eventual action taken-Argenbright's The appointment by the governor and senate confirmation. commissioners' decision in Board of Trustees was the only official act required for approval of the subdivision. Here, while required by statute, the Committee's decision is not in any way, or to any extent, binding on the governor's ultimate choice of a candidate to fill the office of Commissioner. Section 13-37-102, MCA, states: There is a commissioner of political practices who is appointed by the governor, subject to confirmation by a majority of the senate. A four member selection committee . . . shall submit to the governor a list of not less than two or more than five names of individuals for his consideration. . . . The language "for his consideration" illustrates the advisory role of the Committee. Under $j 13-37-102, MCA, the governor is free is disregard entirely the list of names submitted by the Committee. In direct contrast, 55 3-l-1011 and 2-15-1813(2), MCA, (relating to appointment of Montana's judges and the coordinator of Indian affairs, respectively) both require the governor to choose an 12 from appointee committee. the list of names submitted by an advisory If the legislature had desired a similar result in 5 13-37-102, MCA, similar mandatory language would have been added. Therefore, although the Committee violated the open meeting statutes by holding its November 20, 1992, meeting without public notice, the only "decision" that could be voided under MCA, 5 2-3-213, is the Committee's choice of the names to submit to the governor. No statutory violations occurred in the governor's appointment appointment. of Argenbright or the Senate's As explained, 9 13-37-102(l), confirmation of that MCA, establishes that the two critical steps in the selection of the Commissioner are "the appointment and confirmation" of the Commissioner. Those steps, properly performed, are sufficient to vest Argenbright with title to the office of Commissioner. In effect, Common Cause is challenging Argenbright's right to hold the position of Commissioner. Three statutory provisions provide the exclusive means by which Argenbright can be removed from his office. First, under the quo warrant0 provisions found at §§ 27-28-101, et seq., MCA, either the attorney general or an individual claiming to be entitled to the public office can commence a quo warrant0 proceeding against a person unlawfully holding public office. Sections 27-28-103 and -301, MCA. Second, § 13-37-102(2), MCA, provides for removal of the Commissioner prior to the expiration of the term malfeasance, or neglect of duty. of office Finally, the for incompetence, Commissioner could be removed from office by impeachment or if prosecuted for 13 official misconduct. Section 37-13-105, MCA. None of those procedures is involved in this case. The District Court did not find a statutory or constitutional violation in the Committee's November 20, 1992, meeting, and we have determined that the meeting did in fact violate 5 2-3-203, Thus, MCA. the District Court erred in this regard. However, because the Committee's submission of the names is statutorily independent of the governor's choice and not in any way binding on that choice, we also conclude that the Committee's statutory violation does not require that the entire appointment process be voided. Thus, in this case, the District Court's ultimate refusal to void Argenbright's appointment pursuant to 5 2-3-213, MCA, was not an abuse of discretion. Notwithstanding the unique circumstances of this case, open meetings violations remain of utmost concern to this Court. Nothing in this opinion should be interpreted to suggest that violations of open meeting laws by anv entity subject to those laws will not result in voiding decisions so reached. We will not hesitate to affirm a district court's determination to void such decisions or reverse a court's refusal to do so. Affirmed. 15 Justice William E. Hunt, Sr., dissenting. I dissent. Like the majority, I determine that the committee violated Montana's open meeting statutes, but reach a different conclusion about what the result should be. I do not find, as the majority did, that the unique circumstances of the violation do not taint the entire process from start to finish. I conclude that it does and the only cure is to commence the proceedings again. This dissent is not intended as a reflection upon the qualifications of the incumbent, nor his performance in the job from the time he accepted the appointment. On the contrary, there is nothing in the record to indicate anything but competence on his part. This dissent is aimed at the idea that a process can be tainted from the start, but somehow or other cured en route because the committee which held the meeting without giving notice recommended a person acceptable to the Governor who, if he had found the nominee unacceptable, could have selected another person, even if that second person was not recommended by the nominating committee. While there may be better ways to process a nomination, this is the one provided by statute, and is the one that put the present office holder in the office. It was tainted from the start because of a violation of the open meeting law. I think the warning at the end of the majority's opinion that this Court will not "hesitate to affirm a district court's determination to void such decisions or reverse a court's refusal 16 to do so" rings hollow in view of this Court's conclusion in this case. I would hold that the process should be started over and conducted in accordance with Montana's Constitution and statutes. Justice Terry N. Trieweiler joins in the foregoing dissent. 17 February 10, 1994 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: James P. Reynolds, Esq. Reynolds, Motl, Sherwood and Wright 401 No. Last Chance Gulch Helena, MT 59601 Hon. Joseph P. Mamrek, Attorney General Beth Baker, Assistant Justice Bldg. Helena, MT 59620 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA _

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