No. 92-449
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
SJL OF MONTANA ASSOCIATES
LIMITED PARTNERSHIP, d/b/a KTVQ,
Petitioner and
Respondent/Cross-Appellant,
CITY OF BILLINGS,
Respondent and
Appellant/Cross-Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant/Cross-Respondent:
James L. Tillotson, City Attorney, Billings,
Montana
Bonnie J. Sutherland, Assistant City Attorney,
Billings, Montana (argued)
For Respondent/Cross-Appellant:
William J. OIConnor, 11; OIConnor & OIConnor,
Billings, Montana (argued)
Submitted: February 23, 1993
Decided: December 28, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal and cross-appeal from an order and
memorandum of the ~hirteenthJudicial District Court, Yellowstone
County, granting petitioner's motion for declaratory judgment,
denying petitioner's request for attorney's fees, and finding
petitioner's request to void certain actions and for an injunction
moot. We reverse.
Appellant City of Billings (City) raises the following issue:
I. Did the District Court err in holding that Article 11,
Section 9 of the Montana Constitution required that a meeting
involving the Billings Public Works Director, the City Engineer,
and individuals representing a private contractor and private
engineering company be open to the public?
Cross-appellant SJL of Montana Associates Limited Partnership,
d/b/a KTVQ (KTVQ), raises the following issues:
2. Did the District Court abuse its discretion in denying
KTVQts request for attorney's fees pursuant to 5 2-3-221, MCA?
3. Although the District Court determined that KTVQvsrequest
for an injunction was moot, does the controversy continue under the
standard "capable of repetition, yet evading review?ll
Because of our resolution of issue one, we need not address
issues two and three.
On May 22, 1992, a meeting was held in the office of the
Public Works Department for the City of Billings. City Engineer
Kurt Corey (Corey), Public Works Director Ken Haag (Haag), and
representatives of Empire Sand and Gravel and Engineering
Incorporated attended. No members of the city council were
present. The purpose of the meeting was to discuss the problems
and concerns surrounding the delays in construction on 27th Street
in Billings (the 27th Street project) and how to keep the
surrounding property owners better informed. No new contracts were
entered into and no amendments to the existing contracts were made.
Brian Michael (Michael), a reporter from KTVQ, learned of the
meeting on May 20th while following up on a tip that there was a
dispute between the City and Empire Sand and Gravel. Corey told
him that the press would not be allowed into the meeting because it
was a "staff meeting," and that Empire Sand and Gravel did not want
the media there. Michael was denied access because the City
Attorney had advised Haag that the meeting need not be open to the
pub1 ic .
On May 22, 1992, KTVQ petitioned the District Court for a
declaratory judgment and injunctive relief as follows: 1)
declaring the right of a KTVQ reporter to attend the ongoing
meetings concerning the 27th Street project; 2) requiring the City
to release public records, including the plans and amendments for
the 27th Street project; 3) voiding any actions taken at the May
22nd meeting; 4) enjoining further meetings unless the reporter was
allowed to attend; and 5) requiring the City to pay KTVQ's
attorney's fees as provided for in 5 2-3-221, MCA.
That afternoon the District Court granted a temporary
restraining order enjoining the City and its subdivisions from
prohibiting a KTVQ reporter from attending further meetings between
the above parties, and the court set a hearing on the petition for
June 3rd. Michael was allowed to attend a meeting between the same
parties held on May 29th at a local restaurant. After the May 22nd
meeting he was also given access to certain documents he had
requested.
After the hearing, the District Court allowed the parties time
to brief the issues. On July 9th, the court entered an order and
memorandum determining the following:
1. KTVQ's request to void the acts taken at the May 22nd
meeting was moot as no action was taken;
2. KTVQ1s request to enjoin the City was moot because the
reporter had been allowed to attend later meetings;
3. KTVQ was entitled to a declaratory judgment that it had a
constitutional right to attend meetings between the above
individuals regarding the 27th Street project; and
4. KTVQ1s request for attorney's fees must be denied.
We begin by pointing out that this case does not involve a
"staff meetingt1 the City has attempted to characterize it in the
as
proceedings in the District Court and in this Court. During a
hearing on this matter, the District Court and the City Attorney
engaged in the following discussion:
MR. TILLOTSON: Certainly it was a scheduled meeting. We
have many scheduled staff meetings.
THE COURT: Well, now, define a staff meeting.
MR. TILLOTSON: Staff meeting is a meeting attended by
governmental employees.
THE COURT: But not members of the public?
MR. TILLOTSON: That's correct, Your Honor.
THE COURT: Wasnlt this a meeting between staff and
members of the public?
MR. TILLOTSON: Yes, i was.
t
By the City's own admission, this was not a "staff meeting."
Does Article 11, Section 9 of the Montana Constitution require
t h a t these particular meetings be open to the public?
Article 11, Section 9 of the Montana Constitution 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.
The Montana Constitution is to be given a "broad and liberal
interpretation . . . .It Arps v. State Highway Commgn (1931), 90
Mont. 152, 160, 300 P. 549, 553, quoted in Board of Regents v.
Judge (19751, 168 Mont. 433, 443, 543 P.2d 1323, 1329. In
addition, this Court recently held that:
While the legislature is free to pass laws implementing
constitutional provisions, its interpretations and
restrictions will not be elevated over the protections
found within the Constitution.
In re Lacy (1989), 239 Mont. 321, 325, 780 P.2d 186, 188.
The provisions of Article 11, Section 9 are implemented by the
open meeting laws, 5 5 2-3-201 et seq., MCA. Flesh v. Board of
Trustees of Joint School Dist. #2 (1990), 241 Mont. 158, 164, 786
P. 2d 4, 8. Thus, the initial question before us is whether the
open meeting laws, 4 5 2-3-201 et seq., MCA, require the meeting at
issue to be open to the public. If so, we need go no further
because it will be clear that the City violated these laws in
refusing Michael's request to attend. If not, we must examine
whether the statutes implementing the constitutional right to know
are unduly restrictive of Article 11, Section 9.
Under the open meeting laws,
[a111 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.
Section 2-3-203, MCA. The legislature's intent, clearly expressed
in 9 2-3-201, MCA, is that
[alctions 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
[open meeting laws] shall be liberally construed.
The meeting at issue was attended by City Engineer Corey,
Public Works Director Haag and private persons. It is clear that
the meeting was not one of a public or governmental body, board,
bureau or commission. Thus, the only manner in which the meeting
might fit within the parameters of § 2-3-203, MCA, is if it can be
properly construed as a meeting of a public agency.
The term agency is defined in Part 1 of Title 2, Chapter 3,
MCA. That part implements Article 11, Section 8 of the Montana
Constitution, which provides for the public's right to participate
in government operations. However, when a word is defined in the
code, that definition is applicable to other parts of the code
except where the contrary is plainly indicated. Section 1-2-107,
MCA; Department of Revenue v. Gallatin Outpatient Clinic (1988),
234 Mont. 425, 430, 763 P.2d 1128, 1131.
Agency is defined in 5 2-3-102, MCA, as "any board, bureau,
commission, department, authority, or officer ofthe state or local
government authorized by law to make rules, determine contested
cases, or enter into contracts . . . ." The City argues that
neither Corey nor Haag is a board, bureau, commission, department,
or authority. Further, neither is authorized to make rules,
determine contested cases, or enter into contracts. KTVQ does not
dispute these assertions and, indeed, the record before us is clear
that Corey and Haag are City employees who are not authorized to
make rules, determine contested cases or enter into contracts. We
conclude, therefore, that Montana's open meeting statutes do not
require the meeting between Corey, Haag and private persons to be
open to the public.
The question remains, then, whether the statutes enacted by
the Montana legislature to implement the publicls constitutional
right to observe the deliberations of public bodies or agencies are
unduly restrictive of that right. If so, those statutory
interpretations will not be elevated over the protection found
within the Constitution. m, 780 P.2d at 188. Based on a
careful review of the constitutional history, we must conclude that
the statutory definition of agency is not restrictive of the
public's right to observe deliberations of public bodies and
agencies as contained in Article 11, Section 9 of the Montana
Constitution.
The constitutional history reveals that Delegate Dorothy Eck
introduced what ultimately became Article 11, Section 9 of the
Montana Constitution. Delegate Eckls proposal, denominated
Delegate Proposal No. 57, provided in pertinent part:
No person shall be deprived of the right to . .. observe
the actions and deliberations of all public officials or
agencies ....
Montana Constitutional Convention 1972-72, Volume I, p. 157. It is
clear that Proposal No. 57 was very broad in scope. It applied to
actions and deliberations of all public officials and asencies
(emphasis added).
Delegate Eck's proposal was not adopted. Instead, the Bill of
Rights Committee proposed Section 9, Right to Know, as it was
finally passed by the Constitutional Convention and the people of
Montana. Montana Con. Con., Vol. 11, p. 621. There it was
narrowed from the original scope so that it no longer applied to
"actions1*--even
actions of public agencies; nor did it include any
reference to "public officialsn or any other individuals.
Referring again to the constitutional history, we are given
significant insight into precisely what the constitutional framers
intended when utilizing the term "public agencyM in Article 11,
Section 9. We note here for clarity that the floor debate in the
Constitutional Convention on Article 11, Section 8, preceded the
argument on ~rticle11, Section 9, and that as a result most of the
debate over the term I1public agenciesll is covered in that portion
of the convention transcripts.
The following remarks exemplify the thrust of the debate on
"governmental agenciesn:
DELEGATE DaHOOD: . .. .
I .
. urge all of the delegates
to look at the term "governmental agencies1',which is the
key to constructing that particular section. ...
Once
again, I want to point out, we have in mind the
governmental agenciesthatare miniature legislatures who
put together rules and regulations that affect us all.
Montana Con. Con., Vol. V, p. 1664.
DELEGATE McNEIL: .. .I think .
. .
[governmental
agencies] is what the committee intended to reach with
this, and that is appointive commissions, bureaus, so
forth .. . .
DELEGATE DaHOOD: ... [Glovernmental agencies that are
not elected, that are appointed, that function to carry
out the laws that are passed, are the ones, of course,
that will enact rules and regulations and make the
decisions that affect people ... .
Montana Con. Con., Vol. V, p. 1667.
Nothing in these floor debate comments and explanations
suggests that there was any intent to make "public agencies"
synonymous with individual public employees. It is obvious from
these and other remarks that the framers of the Constitution were
concerned with governmental entities which had rule-making
authority and regulatory powers
This intent is even more clear when the Bill of Rights
Committee's comments on Article 11, Section 9, are considered. The
Committee specifically cited with approval then-existing 5 82.3401,
RCM (1947), which states that the legislative intent regarding open
meetings; namely "that actions and deliberations of all public
agencies shall be conducted openly." Montana Con. Con., Vol. V, p.
1670. Section 82.3401, RCM (1947), subsequently recodified as 5 2-
3-201, MCA, also contained the legislative declaration of open
meeting laws--as they existed both before and after the passage of
the 1972 constitution--applied to "public boards, commissions,
councils, and other public agencies." These are the kind of
agencies that the delegates at the Montana Constitutional
Convention included in Article 11, Section 9.
We hold that, with regard to the meeting at issue here,
Montana's open meeting statutes do not restrict the public's
constitutional right to know. As a result, we hold that the
District Court erred in ruling that Article 11, Section 9 of the
Montana Constitution requires that a meeting involving the Billings
Public Works Director, the City Engineer, and individuals
representing a private contractor and a private engineering company
be open to the public. This opinion does not address, and shall
not be construed as interpreting, the public's right to examine
documents as provided for in Article 11, Section 9 of the Montana
Constitution.
We concur: A
Chief Justice
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Article 11, Section 9, of the Montana Constitution, is clear
and self-executing. It does not require resorting to the extrinsic
methods of construction relied on by the majority. It provides
that :
No person shall be deprived of the right to examine
documents or to observe the deliberations of all public
bodies or aqencies of state government and its
subdivisions, except in cases in which the demand of
individual privacy clearly exceeds the merits of public
disclosure. [Emphasis added].
In this case, two members of the City's public works
department, the city engineer and the public works director, met
with representatives of corporations with whom the City had
contracted to discuss and resolve problems that had arisen during
the construction of North 27th Street in the City of Billings.
Local governments can only act through their employees, and the
city engineer and public works director clearly represented the
public works department which was an agency of the City of
Billings. A public agency is "[a] department or agency of
government which has official or quasi official status." Black's
Law Dictionary 1227 (6th ed. 1990). A public agent is "[aln agent
of the public, the state, or the government; a person appointed to
act for the public in some matter pertaining to the administration
of government or the public business." Black's at 64. Ken Haag
and Kurt Corey were clearly public agents acting on behalf of a
public agency when they attended the meeting that KTVQ sought to
observe and record.
Furthermore, deliberations are defined as " [t]he act of
weighing and examining the reasons for and against a contemplated
act or course of conduct or a choice of acts or means." Black's at
427. To deliberate means " [t]o weigh, ponder, discuss, regard
upon, consider." Black's at 426. It is clear that Haag and Corey
were engaged in government deliberations when they met with these
contractors to resolve problems that had arisen on this
construction project.
The majority opinion ignores the plain language of Article 11,
Section 9, Montana Constitution, in favor of suggestions from the
convention history that what it states is not really what it means.
However, this form of construction clearly flies in the face of our
previous decisions. In Associated Press v. Board of Educatiort (1991.) , 246
Mont. 386, 804 P.2d 376, which was reaffirmed in Great Falls Tribune v.
Great Falk Public Schook (1992), 255 Mont. 125, 841 P.2d 502, we held
that:
The language of [Article 11, Section 91 speaks for
itself. It applies to all persons and all public bodies
of the state and its subdivisions without exception.
Under such circumstances, it is our duty to interpret the
intent of the framers from the language of the provision
alone and not resort to extrinsic aids or rules of
construction in determining the intent of the delegates
to the Constitutional Convention.
What was prohibited by our decision in Associated Press is exactly
what was done in this case. How can the two approaches be
reconciled?
Furthermore, although there is extensive discussion of the
definition of "agencyw set forth in Montana's open meeting laws,
that definition is irrelevant. Any statutory definition which
limits the scope of a constitutional provision is unconstitutional.
As we stated in I n r e L n c y v . CityofBillings (1989), 239 Mont. 321, 325,
While the legislature is free to pass laws implementing
constitutional provisions, its interpretations and
restrictions will not be elevated over the protections
found within the Constitution.
Here, the statutory definition of agency clearly limits the
plain and common interpretation that is required by our prior
decisions.
The majority decision is a substantial blow to the public's
right to know guaranteed by our State Constitution. It allows
public agencies and their officers to conduct public business in
secret and without public scrutiny. This is not in the public's
interest and is exactly what our constitutional right to know was
designed to prevent.
Neither can any public policy reason be constructed for
denying members of the media the opportunity to observe this
agency's meeting with other members of the public in a
nondisruptive way. There is no serious argument which can be made
that the public interest is better served by keeping from the
citizens of Billings the most direct information of how their
affairs are being handled.
Therefore, I dissent from the majority opinion. I would
affirm the District Court's conclusion that when members of the
news media were excluded from this meeting between members of the
Billings public works department and contractors with whom it did
business, that Montana's open meeting law found at Article 11,
Section 9, of the Montana Constitution was violated. However,
because it was necessary to bring this court action to enforce that
constitutional right, I believe that attorney fees should have been
recoverable under § 2-3-221, MCA, and I would have reversed the
District Court's decision to deny those fees.
Justice William E. Hunt, Sr., joins in the foregoing dissent.