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,
-vs-
STATUTORY 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: December 7, 1993
Decided: February 10, 1994
Filed:
i
Clerk
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 the Commissioner of Political Practices
(Commissioner). Common Cause of Montana (Common Cause), a
nonprofit organization that seeks to promote open, accessible and
democratic government, challenged the appointment of Edward
Argenbright (Argenbright) as Commissioner in the First Judicial
District Court, Lewis and Clark County. 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 13-
37-102, 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. The list
included Argenbright, two individuals recommended by Common Cause,
and two others. Representative Harper submitted a separate list
naming the two individuals recommended by Common Cause. Governor
Stephens interviewed the five applicants and announced the
appointment of Argenbright to the position on December 1, 1992.
On December 18, 1992, Common Cause, the Helena Independent
Record, 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. They
asserted that the Committee's November 20 meeting 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. On March 25, 1993, the
Montana Senate began confirmation proceedings which concluded on
April 13, 1993, confirming Argenbright's appointment as
Commissioner.
Our standard in reviewing a grant of summary judgment is the
same as that initially utilized by the trial court. McCracken v.
City of Chinook (1990), 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. The
changed circumstance, according to the Committee, is that
Argenbright's appointment has been confirmed by the Senate, vesting
Argenbright with title to the office. We disagree that the claim
is 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. Romero v. J & J Tire
(1989) I 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 removal from
office. Regarding the first issue, Common Cause argues that the
Committee's November 20 meeting violated Montana's open meeting
statutes and Article II, 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. If so, we need not proceed to
constitutional 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 of these statutes. Section 2-3-203(l), MCA,
provides, 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 the committee statutorily
established by 9 13-37-102, MCA, is not a board, 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. SJL, 50 St-Rep. at 1728.
Section 2-3-102, MCA, defines agency as any board, bureau,
commission, department, authority, or officer of the state or local
government authorized by law to make rules, determine contested
cases, or enter into contracts. It is evident that the statutory
committee is not authorized to make rules, determine contested
cases or enter into contracts. 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. Webster's Third International Dictionary
defines "bodyVV as a group of individuals organized for some
purpose. "Public" is defined in Black's Law Dictionary, 4th Ed.
1968, as pertaining to a state, nation or community, while
"governmental" is defined similarly as pertaining to government.
Thus, the 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. We conclude, therefore, that under the plain
meaning of § 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), 480 A.2d 628, 631; Annot. 33 A.L.R.3d 1070 (1971
& SUPP.1993). 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. The same reasoning applies to the
selection of the Commissioner in Montana. The "public or
9
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. Thus,
by definition, a "meeting" was held. 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 5 2-3-203, MCA. Based on the nexus
between the Committee's recommendations 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), MCA. Because no legal nexus exists between the
Committee's 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 2-3-213, MCA, provides that any decision made in
violation of § 2-3-203, MCA, may be declared void by a district
court. We have concluded that the Committee's November 20, 1992,
meeting 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 commissioners held an
11
unannounced meeting at which a controversial subdivision was
approved. 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 appointment by the governor and senate confirmation.
The 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
appointee from the list of names submitted by an advisory
committee. 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 5 2-3-213,
MCA, is the Committee's choice of the names to submit to the
governor. No statutory violations occurred in the governor's
appointment of Argenbright or the Senate's confirmation of that
appointment. As explained, 9 13-37-102(l), 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 of office for incompetence,
malfeasance, or neglect of duty. Finally, the 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,
MCA. Thus, 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 _