No. 95-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
WILL GOYEN and BONNIE GOYEN,
Plaintiffs and Appellants,
v.
CITY OF TROY, MONTANA, a body politic
and corporate; the CITY COUNCIL thereof;
and ROD JOHNSON, Mayor; JIM HAMMONS,
LORETTA JONES, RON PIERCE, and LAURA
SCHRADER, in the official capacity as
City Council members,
Defendants and Respondents.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Michael H. Keedy, Atherton & Keedy,
Kalispell, Montana
For Respondents:
Thomas R. Bostock, Warden, Christiansen,
Johnson & Berg, Kalispell, Montana
Submitted on Briefs: March 14, 1996
Decided: April 22, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal from an order of the Nineteenth Judicial
District Court, Lincoln County, denying Will and Bonnie Goyens'
petition and quashing their application for alternative writs of
mandamus and prohibition. We affirm.
The dispositive issues are as follows:
1. Did the District Court err in concluding there was no
violation of the open meeting law in regard to the May 10, 1995,
meeting?
2. Did the District Court err in concluding there was no
violation of the open meeting law in regard to the August 16, 1995,
hearing?
3. Did the District Court err in quashing the writs of
mandamus and prohibition?
FACTS
Will Goyen was the Chief of Police in Troy. At the May 10,
1995, city council meeting, a number of citizens showed up to
question the mayor concerning Goyen's involvement in an incident
locally known as "gravel-gate." The gravel-gate incident involved
the removal of a significant quantity of gravel from a city gravel
pile by both Goyen and another individual. Apparently Goyen had
permission from a council member to use a city vehicle and remove
the gravel. However, while Goyen was removing the gravel, another
private citizen was also at the gravel pile and removed
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approximately seventy yards of gravel without any authority to do
so. Goyen took no action to stop or to report the violation.
The gravel-gate incident was not on the May 10 agenda and the
mayor and city council were not aware that it would be raised prior
to the meeting. Goyen was not present at the meeting. When the
issue was raised at the meeting, the mayor stated that the matter
was a personal problem and would not be handled at a public
meeting. Following the meeting, the council went into executive
session to discuss the allegations against Goyen. Goyen was not
notified that the council would be closing the meeting to discuss
matters that impacted on his individual privacy rights.
Before the council went into executive session, Crystal
Denton, a local woman, asked the mayor that she be permitted to
speak privately to the council. The mayor testified that he did
not know what she wanted to talk about. Denton informed the
council that she and Goyen had engaged in several voluntary acts of
sexual intercourse in or near the city patrol car while Goyen was
on duty and in uniform. The mayor and the council listened to
these allegations and informed Denton that she needed to file a
sworn statement before any action could be taken. Denton later
filed a sworn statement and the mayor confronted Goyen with the
allegations. Goyen denied the content of her allegations.
Members of the community raised a number of additional
allegations in regard to Goyen and as a result the mayor suspended
Goyen for five days. On August 1, 1995, a letter was prepared
3
recommending discharge and a pre-termination discharge hearing was
scheduled for August 16, 1995.
The August 16 hearing was held in open session and Goyen and
his attorney were given the right to cross-examine all witnesses.
At Denton's request, the meeting was closed during her testimony
although Goyen and his attorney were allowed to remain. During
Denton's testimony, the council was informed that another witness,
Sharon Anderson, needed to testify at that time due to her work
schedule. Since the council did not have subpoena power, they
interrupted Denton's testimony and allowed Anderson to testify.
The mayor was aware that Anderson's testimony concerned the
relationship between Denton and Goyen and therefore kept the
meeting closed. Goyen did not object to this closure. Anderson
testified as to her observations of physical contact between Denton
and Goyen while Goyen was on duty and in uniform. Following
Anderson's testimony, Denton continued with her testimony in closed
session.
The hearing took a total of nine and one-half hours and the
council conducted their deliberations in open session. The council
voted unanimously to fire Goyen, finding that he had not been
truthful in his response to the gravel issue and that a
preponderance of the evidence indicated that he had sexual
intercourse with Denton on at least two occasions while he was on
duty, in uniform, and using the patrol car. The council also found
that Goyen had wrongfully removed beer from the city police
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evidence locker and that he had improperly handled a traffic arrest
by permitting an obviously intoxicated minor to drive an uninsured
vehicle which resulted in damage to the vehicle.
Following his discharge, Goyen and his wife filed a petition
to void the city council's decision pursuant to the open meeting
law and also filed writs of mandamus and prohibition. These claims
were combined in a single action. The court initially issued the
alternative writs but following a hearing on a motion to quash,
subsequently quashed the writs and dismissed the petition. From
the court's denial of the Goyens' petition and writs, they appeal.
ISSUE 1
Did the District Court err in concluding there was no
violation of the open meeting law in regard to the May 10, 1995,
meeting?
Section 2-3-203, MCA, provides that all meetings of
governmental bodies be open with the following exception:
[Tlhe 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 must be open.
Section 2-3-203(3), MCA.
In its conclusions of law, the District Court determined that
The closure of the May 10 meeting to the public by the
Mayor was made for the individual privacy of Will Goyen,
and the Mayor had made a determination that the demands
of individual privacy clearly exceeded the merits of
public disclosure; the continued closure while Crystal
5
Denton addressed the council still involved the
individual privacy of Will Goyen, and it also included
Denton's right to privacy, apart from the fact that there
was no one else there anyhow; and, nothing was done by
the council, so there is nothing to void.
While the District Court's conclusion upheld a discretionary
decision to close the meeting on May 10, our review is based upon
the District Court's interpretation of § 2-3-203, MCA, and so we
will review the court's conclusion for correctness of law. See Day
v. Child Support Enforcement Div. (1995), 272 Mont. 170, 175, 900
P.2d 296, 299.
Goyen asserts he did not attend the May 10 meeting because he
had no notice that he was going to be discussed. Without notice,
Goyen argues he was in no position to either assert or waive his
right of individual privacy. Therefore, he claims any discussion
pertaining to him should have transpired in open session pursuant
to § 2-3-203, MCA, so that the public could adequately evaluate
whether the resulting action by the council--Goyen's discharge--was
fair and appropriate. Goyen contends his discharge should be void
as a result of the council's violation in closing the May 10
meeting.
As noted, 5 2-3-203, MCA, allows an individual about whom the
discussion pertains to waive his or her right of individual
privacy. That right is ineffectual where the individual had no
notice of the closure. A right granted is presumed to include
whatever rights are essential to its use. Section 1-3-213, MCA.
Therefore, the statutory right to waive individual privacy implies
6
that notice must be given to the individual discussed so that he or
she has the opportunity to waive this right.
In the present case, the council discussed the allegations
against Goyen concerning gravel-gate in executive session because
the mayor, as the presiding officer, determined the demands of
Goyen's privacy interests clearly exceeded the merits of public
disclosure. Once the demands of individual privacy were found to
predominate, the council was obligated to notify Goyen so that he
could exercise his right to waive that interest. Goyen was not
notified. As a result, the council's discussion of Goyen's privacy
interest in executive session violated 5 2-3-203, MCA, of the open
meeting statutes.
It must be noted, however, that once the mayor determined that
Goyen's privacy interest outweighed the public's right to know, the
council could not discuss the matter in open session without
subjecting themselves to a potential action for invasion of Goyen's
privacy. In these situations, public bodies subject to the open
meeting law should simply defer any discussion of the issue until
the individual whose privacy interest is involved is notified and
is given the opportunity to attend the meeting and/or waive his or
her right of privacy and have the meeting conducted in open
session. Thus, without notice to Goyen the discussion of the
gravel-gate incident during an open meeting on that date would have
been inappropriate as well.
As for the May 10 Denton allegations, Goyen's privacy interest
was again the topic of discussion. Consequently, Goyen had a right
to be notified of that discussion, regardless of whether Denton's
assertion of her own privacy interest was reason enough to close
the meeting. While the council asserts they took no action in
executive session other than to recommend to Denton that she
provide them with a sworn statement, the meeting was still subject
to the open meeting laws set forth in §§ 2-3-201through -221, MCA.
In State v. Conrad (1982), 197 Mont. 406, 643 P.2d 239, we reviewed
the legislative history of the open meeting law and said, "while
the original section [now § 2-3-203, MCAI required that meetings at
which action was taken be open, the section as amended required
that all public meetings be open, whether action was taken or not."
Conrad, 643 P.2d at 242. Accordingly, the May 10 meeting was
subject to the requirements for open meetings regardless of whether
any action was taken.
Nevertheless, no adverse action was taken against Goyen at the
May 10 meeting and the subsequent hearing on August 16 provided
Goyen with notice and the opportunity to confront those testifying
against him and to observe, in open session, the council's
deliberations before any action was taken. We have held that a
meeting in violation of § 2-3-203, MCA, will not result in the
voidance of a final decision where that final decision was not
based upon actions taken at the illegal meeting. Common Cause v.
Statutory Committee (1994), 263 Mont. 324, 333-34, 868 P.2d 604,
8
609 (comparing a governor's appointment which considered but was
not bound by a list of candidates developed at a meeting held in
violation of § 2-3-203, MCA, with the Board of Trustees v. Board of
County Commissioners (1980), 186 Mont. 148, 606 P.2d 1069, where
the Court voided a decision based solely upon a meeting held in
violation of § 2-3-203, MCA.) The council took no action at the
May 10 meeting and the decision to discharge Goyen was based upon
testimony and evidence presented at the August 16 hearing. Under
this factual situation the illegal May 10 meeting did not taint the
August 16 hearing and the council's ultimate decision cannot be
voided for the earlier violations.
While the District Court erred in concluding that the May 10
meeting did not violate the open meeting law, we have determined
this error is harmless given the subsequent events of August 16.
We have stated that "a district court's decision will not be
reversed or remanded when the eventual result of the case would be
the same without the error." In re S.C. (1994), 264 Mont. 24, 30,
869 P.2d 266, 269. We therefore conclude the District Court did
not commit reversible error when it determined there was no
violation of the open meeting law in regard to the May 10 meeting.
ISSUE 2
Did the District Court err in concluding there was no
violation of the open meeting law in regard to the August 16, 1995,
hearing?
9
Goyen was provided notice of the August 16 meeting and he
waived his privacy interest in favor of an open meeting. Denton,
however, requested closure of the meeting during her testimony.
Anderson's testimony pertained to Denton and the council continued
its closed meeting throughout her testimony as well.
In its conclusions of law, the District Court determined the
council did not violate § 2-3-203, MCA, due to the fact that
[tlhere was a specific request by Denton for a closed
meeting on August 16, 1995, and again, the demand for
individual privacy of Denton clearly exceeded the merits
of public disclosure; the request of Anderson to be heard
out of order was unexpected, but the nature of her
testimony was known to the Mayor, and it involved matters
personal to Will Goyen and Crystal Denton;
notwithstanding Goyen had waived his right to privacy,
Denton had expressly demanded hers.
We will review the District Court's conclusion of law for its
correctness. See m, 900 P.2d at 299.
Goyen contends Denton's privacy interest was not at issue, and
therefore, the District Court erred in concluding that the council
did not violate § 2-3-203, MCA, when it closed the meeting to the
public given that Goyen had waived his privacy interest.
Section 2-3-203(3), MCA, provides that 'I [tl he right of
individual privacy may be waived by the individual about whom the
discussion pertains and, in that event, the meeting must be open."
In interpreting statutes, our role is to ascertain what is
contained in the statute, not to insert what has been omitted nor
to omit what has been inserted. Section l-2-101, MCA; see Love11
v. State Comp. Mut Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d
10
95, 99. 0 [Ilt is fundamental that words and phrases are to be
given their plain, ordinary and usual meaning" when construing
statutes. Common Cause, 868 P.2d at 608. The plain meaning of
§ 2-3-203(3), MCA, does not limit its exception to the individual
who is the subject of the proceeding.
Furthermore, we have held that an accuser and witnesses to an
alleged incident have a subjective privacy interest which society
is willing to recognize as reasonable in an investigation focused
on the accused. See Bozeman Daily Chronicle v. Police Dept.
(19931, 260 Mont. 218, 230, 859 P.2d 435, 441. The exception
applies to the "individual" about whom the discussion pertains.
Denton's and Anderson's testimony pertained to the conduct of both
Denton and Goyen. Denton, as an individual about whom the
discussion pertained, could therefore assert her privacy interest
in closed session where that interest was determined to exceed the
merits of public disclosure.
Given that conclusion, Goyen contends the demands of Denton's
privacy interest did not exceed the merits of public disclosure.
Pursuant to our state constitution, the public has the right "to
observe the deliberations of all public bodies . . except in
cases in which the demand of individual privacy clearly exceeds the
merits of public disclosure." Mont. Const. art. II, § 9. The
District Court determined that Denton's privacy interest did in
fact clearly exceed the merits of public disclosure, and we will
11
review the court's determination for an abuse of discretion. &
State v. Burns (1992), 253 Mont. 37, 40-41, 830 P.2d 1318, 1321.
In Hastetter v. Behan (1982), 196 Mont. 280, 639 P.2d 510, we
set forth a two-prong test whereby a court may decide whether a
privacy interest is protected under the state constitution. First,
we must determine whether the person involved had a subjective or
actual expectation of privacy; and second, we must determine
whether society is willing to recognize that expectation as
reasonable. Hastetter, 639 P.2d at 512-13 (citing Smith v.
Maryland (19791, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220).
We have relied upon this test in subsequent cases. Flesh v. Board
of Trustees (1990), 241 Mont. 158, 165, 786 P.2d 4, 8; Great Falls
Tribune v. Dist. Court (1989), 238 Mont. 310, 318, 777 P.2d 345,
350; Missoulian v. Board of Regents of Higher Education (1984), 207
Mont. 513, 522, 675 P.2d 962, 967; Montana Human Rights Div. v.
City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287.
Goyen contends Denton had no expectation of privacy given the
fact that her charges against Goyen were common knowledge in the
local community. We have nonetheless recognized that even "harmless
or generally known information" is subject to constitutional
protection. Missoulian, 675 P.2d at 969. Denton requested that
her testimony be presented in private due to the fact she was
married, had two small children, and lived in the community. Her
relationship with Goyen, while allegedly known by others, was
certainly private in nature.
12
In Missoulian, we stated that the "'right of privacy turns on
the reasonableness of the expectation, which may vary, even
regarding the same information and the same recipient of that
information.'" Missoulian, 675 P.2d at 968 (quoting Montana Human
Riqhts, 649 P.2d at 1288). Considering the subject matter of
Denton's and Anderson's testimony and the surrounding
circumstances, we determine that Denton had a reasonable subjective
expectation of privacy and one which society is willing to
recognize. Having met both prongs of the test in Hastetter, we
conclude that the District Court did not abuse its discretion in
its determination that Denton's privacy interest exceeded the
merits of public disclosure.
ISSUE 3
Did the District Court err in quashing the writs of mandamus
and prohibition?
The Goyens filed alternative writs of mandamus and prohibition
in addition to their petition to void the council's decision. The
District Court concluded that mandamus will not lie to control the
discretion of a municipal body or officer, and that prohibition
will not lie where the defendants were not exercising judicial
functions. The court denied both writs in accordance with its
conclusions.
We will review a district court's grant or denial of writs of
mandamus and of prohibition for correctness of law. & Becky v.
Butte-Silver Bow School Dist No. 1 (Mont. 1995), 906 P.2d 193, 195,
13
52 St. Rep. 1154, 1155 (reviewing writs of mandamus); and Awareness
Group v. Board of Trustees (1990), 243 Mont. 469, 475, 795 p.2d
447, 451 (comparing writs of mandamus and prohibition). Generally,
the purpose of a writ of mandamus is to compel activity, while the
purpose of a writ of prohibition is to refrain from performing
certain activities. Awareness Grout, 795 P.2d at 451.
The Goyens rely upon Board of Trustees v. Board of County
Commissioners (1980), 186 Mont. 148, 606 P.2d 1069, where we held
that a writ of mandamus was appropriate to void a meeting that was
in violation of our open meeting statutes. Bd. of Trustees, 606
P.2d at 1074-75. In that case, the Court was concerned about the
unreasonable delay of the case and concluded that "[wlhile the use
of a writ of mandamus is not textbook law, it is appropriate here."
Bd. of Trustees, 606 P.2d at 1075. The Court then stated "[iIn the
future, however, it would seem the suit should take the form of a
simple petition to void an action or a petition for a declaratory
judgment." Bd. of Trustees, 606 P.2d at 1075. We take this
opportunity to reiterate that actions for violations of the open
meeting law are appropriately brought by a petition alleging
violation of the act pursuant to 5 2-3-203, MCA. Writs of mandamus
and prohibition are not appropriate for the enforcement of those
provisions.
There was no unreasonable delay in the present case and the
Goyens did in fact appropriately petition the court under
5 Z-3-203, MCA, to void the council's actions. We conclude the
14
writs are therefore not appropriate as a matter of law and the
District Court did not err in denying them, regardless of its
reasons. See Kephart v. Portmann (1993), 259 Mont. 232, 236, 855
P.2d 120, 122-23.
Affirmed.
azx Justice
15
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the majority's conclusion that the District
Court did not commit reversible error when it determined that there
was no violation of the open meeting law on May 10, 1995. I also
concur that the District Court did not abuse its discretion when it
denied the Goyens' petitions for writ of mandamus or writ of
prohibition.
I dissent from that part of the majority opinion which
concludes there was no violation of the open meeting law on
August 16, 1995, because of Crystal Denton's privacy interest. I
would conclude that someone who engages in voluntary acts of sexual
intercourse in a police car with a police officer who is on duty,
and then after the fact goes to a city council meeting to complain
about the experience, has no reasonable expectation of privacy
which society should be prepared to recognize, and therefore, that
the second prong of the Hastetter test cannot be satisfied. Since
there was no other basis for closing the city council's meeting to
the public, the city council violated the open meeting law when it
did so.
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April 22, 1996
CERTIFICATE OF SERVICE
I herebv certifv that -~- following certified order w& s sent by United States mail, prepaid, to the
the
following named:
Michael H. Keedv
Atherton & Keed;
735 Main Street
KaIispell, MT 59901
Thomas R. Bostock
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
KaIispell, MT 59903-3038
E:D SMITH
C :LERK OF THE SUPREME COURT
s TATE OF MONTANA
BY:- jT&,&,
h
Deputy n
”