Associated Press v. Montana Senate Republican Caucus

96-640

No. 96-640

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

THE ASSOCIATED PRESS; BIGFORK EAGLE; THE BILLINGS
GAZETTE; BOZEMAN DAILY CHRONICLE; THE MONTANA
STANDARD; GREAT FALLS TRIBUNE; HAVRE DAILY
NEWS; HELENA INDEPENDENT RECORD; THE DAILY
INTER LAKE; KECI-TV, MISSOULA; KFBB-TV, GREAT FALLS;
KXLF-TV, BUTTE; KRTV-TV, GREAT FALLS; KTVQ-TV,
BILLINGS; KULR-TV, BILLINGS; LIVINGSTON ENTERPRISE;
MILES CITY STAR; MISSOULIAN; MONTANA NEWSPAPER
ASSOCIATION; NEWS MONTANA, INC.; (as publishers of
BIGHORN COUNTY NEWS, CARBON COUNTY NEWS,
and STILLWATER COUNTY NEWS); RAVALLI REPUBLIC; and
THE SOCIETY OF PROFESSIONAL JOURNALISTS,
MONTANA CHAPTER,
Plaintiffs and Appellants,
v.

THE MONTANA SENATE REPUBLICAN CAUCUS; THE
MONTANA SENATE DEMOCRATIC CAUCUS; THE
MONTANA HOUSE OF REPRESENTATIVES REPUBLICAN
CAUCUS; and THE MONTANA HOUSE OF REPRESENTATIVES
DEMOCRATIC CAUCUS,
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 and Sherwood, Helena, Montana
For Respondent:
Stanley T. Kaleczyc, Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven,
Helena, Montana

Heard: October 23, 1997
Submitted: October 30, 1997
Decided: December 18, 1997
Filed:
__________________________________________
Clerk

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (1 of 11)4/17/2007 4:28:28 PM
 96-640

Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the District Court's November 16, 1995 order dismissing
the Appellants' complaint. The trial court held that the Respondent Senate and House
Republican and Democratic party in-session caucuses were not persons within the
meaning of Rule 4A, M.R.Civ.P., and that, therefore, the court did not have
jurisdiction
over them. Subsequently, on July 12, 1996, the court's order was converted into one
for
summary judgment, and this appeal followed. We reverse and remand for further
proceedings.
Issue
We address but one issue in this appeal: Under Montana law, are the Senate and
House caucuses of the Republican and Democratic parties "persons" within the meaning
of Rule 4A, M.R.Civ.P.? We answer this question in the affirmative.
Background
The Appellants (Plaintiffs in the underlying action) are twenty-two Montana
newspapers, television stations and trade and professional news organizations,
hereafter
collectively referred to as the media. The Respondents (Defendants in the underlying
action) are the State Senate and House caucuses of the Republican and Democratic
parties. The Respondents are hereafter collectively referred to as the caucuses.
The media filed their complaint on February 17, 1995, alleging that, for a
variety
of reasons, the caucuses are public bodies or agencies of state government performing
public functions in public facilities at public expense. The media further alleged
that the
proceedings and records of the caucuses were closed to the media and to the public in
violation of Montana's Open Meetings law, Title 2, chapter 3, part 2, MCA; in
violation
of Montana's Public Records law, Title 2, chapter 6, part 1, MCA; and in violation of
the Right-To-Know provision of Article II, Section 9 of the Montana Constitution.
The
media prayed for declaratory and injunctive relief and for costs and attorney fees.
Four legislators serving in the 1995 Legislature, Senate Majority Leader John
Harp, Senate Minority Leader Mike Halligan, Speaker of the House John Mercer and
then-House Minority Leader Ray Peck, were served with process. These four
legislators
entered a special appearance, by counsel, without admitting that they were the proper
persons to receive service of process on behalf of the caucuses. In due course they
filed
a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), M.R.Civ.
P.,
contending, among other things, that the caucuses were not "persons" within the
meaning
of Rule 4, M.R.Civ.P., and that the caucuses were, therefore, not subject to the
jurisdiction of the court.
Relying on our decision in Common Cause v. Statutory Committee (1994), 263
Mont. 324, 868 P.2d 604, the District Court effectively differentiated between the
pre-
session and the in-session party caucuses. The court held that, because pre-session

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (2 of 11)4/17/2007 4:28:28 PM
 96-640

caucuses are required by õ 5-2-201, MCA, to meet and because they clearly perform a
governmental or public purpose these caucuses are subject to the Open Meetings law.
On the other hand, the court concluded that while the party caucuses are not the
legislature nor are they an official body or committee of the legislature, the
caucuses are
"a 'de facto' part of the legislative process where important public policy issues
are
discussed by legislators.þ The court then ruled that the caucuses are not "persons"
within
the meaning of Rule 4A, M.R.Civ.P., since the caucuses are neither unincorporated
associations nor groups of two or more persons having a joint or common interest nor
any other legal or commercial entity. Rather, the court concluded that the party
caucuses
are unofficial gatherings of legislators and not separate legal entities, and,
therefore, they
are not persons within the meaning of Rule 4A. On this rationale, the District Court
denied the motion to dismiss the media's complaint as to the pre-session caucuses,
but
granted dismissal, and later converted that to summary judgment, as to the in-session
caucuses.
The media timely appealed the court's grant of summary judgment dismissing their
complaint as to the in-session caucuses. No cross-appeal was filed by the caucuses,
however, as to the court's ruling on the pre-session caucuses.
Standard of Review
As stated above, the court dismissed the media's complaint for failure to state
a
claim and then converted the order of dismissal into one for summary judgment
concluding that it lacked jurisdiction because the in-session caucuses are not
persons
within the meaning of Rule 4A, M.R.Civ.P. Under these circumstances our review of
the trial court's decision, de novo, is clearly mandated.
A complaint should not be dismissed for failure to state a claim unless it
appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which
would entitle him to relief. Moreover, a motion to dismiss for failure to state a
claim
under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded
allegations
in the complaint. In considering the motion, the complaint is construed in the
light most
favorable to the plaintiff, and all allegations of fact contained therein are taken
as true.
The determination that a complaint fails to state a claim upon which relief can be
granted
is a conclusion of law which we review de novo. Common Cause of Montana v.
Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427 (citations omitted).
In like manner, a court's determination of its jurisdiction is a conclusion
of law
over which our review is plenary. See Lurie v. 8182 Maryland Associates (Mont.
1997),
938 P.2d 676, 678, 54 St. Rep. 429, 430; Agri West v. Koyama Farms, Inc. (Mont.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (3 of 11)4/17/2007 4:28:28 PM
 96-640

1997), 933 P.2d 808, 810, 54 St. Rep. 118, 119; Bird v. Hiller (1995), 270 Mont. 467,
470, 892 P.2d 931, 932. Finally, as to motions granting summary judgment, it is
well-
settled that we review a district court's grant of summary judgment de novo,
applying the
same Rule 56(c), M.R.Civ.P., criteria used by that court. Ash Grove Cement Co. v.
Jefferson County (Mont. 1997), 943 P.2d 85, 88, 54 St. Rep. 756, 758 (citation
omitted).
Discussion
The media argue, and we agree, that the word "caucus" has two related, yet
distinct meanings. On the one hand a "caucus" can be a group of persons sharing
common interests and attempting to influence the decision of a larger group. In this
context a caucus is "[a] group within a legislative or decision-making body seeking
to
represent a specific interest or influence a particular area of policy," American
Heritage
Dictionary 304 (3d ed. 1992), or "a group of people united to promote an agreed-upon
cause," Merriam-Webster's Collegiate Dictionary 182 (10th ed. 1997).
On the other hand, "caucus" can refer to the meetings of such groups. Under
this
usage of the word, caucus is variously defined as "a closed meeting of a group of
persons
belonging to the same political party or faction [usually] to select candidates or
to decide
on policy," Merriam-Webster's Collegiate Dictionary 182 (10th ed. 1997); "[a] meeting
of the legal voters of any political party assembled for the purpose of choosing
delegates
or for the nomination of candidates for office," Black's Law Dictionary 220 (6th ed.
1990); or "[a] closed meeting of party members within a legislative body to decide on
questions of policy or leadership," American Heritage Dictionary 304 (3d ed. 1992).
In their complaint, the media carefully differentiated between the two
definitions,
focusing their claims for purposes of this case on the first definition of caucus.
Specifically, the media defined each of the four defendant caucuses as consisting of
state
senators or representatives elected, respectively, to the state Senate or House on
either
the Republican or Democratic party ticket.
In determining that the media's complaint should be dismissed, the District
Court,
however, effectively adopted the argument of the caucuses and rejected the first
definition
--i.e., that a caucus is a group of people sharing a common interest and seeking to
promote a specific interest, policy or cause--and, instead, narrowed its
determination to
the second definition--i.e., that party caucuses are unofficial gatherings of
legislators and
not separate legal entities. While the court grounded its ruling on our decision in
Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d 604, we did
not address in that case the issue presented here, and, accordingly, we do not find
our
decision dispositive as to this issue.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (4 of 11)4/17/2007 4:28:28 PM
 96-640

If the "group" definition of caucus (as opposed to the "gathering" or "meeting"
definition) is valid--and we have been cited to no authority that would lead us to
the
conclusion that it is not--then, the question simply becomes whether the caucuses as
"groups of persons sharing a common interest" fit within the definition of "persons"
within the meaning of Rule 4A, M.R.Civ.P. We conclude that they do.
At the outset, we note that while the parties have injected into this appeal
arguments which more properly go to the underlying merits of the case, in actuality,
the
narrow question of law at issue here is not particularly complex. We conclude that
this
legal issue is resolved on the plain language of Rule 4A itself and that we need not
resort
to the various out-of-state authorities cited in the briefs.
When we are called upon to interpret the Rules of Civil Procedure, we utilize
applicable rules of statutory construction. Thus in our interpretation of the
Rules, we are
required
simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted or to omit what has been
inserted [and][w]here there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all.

Busch v. Atkinson (1996), 278 Mont. 478, 483-84, 925 P.2d 874, 877 (citations
omitted).
Rule 4A, M.R.Civ.P., defines "person" as follows:
As used in this rule, the word "person," whether or not a citizen or
resident of this state and whether or not organized under the laws of this
state, includes an individual whether operating in the individual's own name
or under a trade name; an individual's agent or personal representative; a
corporation; a business trust; an estate; a trust; a partnership; an
unincorporated association; and any two or more persons having a joint or
common interest or any other legal or commercial entity. [Emphasis added].

Clearly, a party caucus, whether defined as a group or a gathering, is not an
individual, a corporation, a business trust, an estate, a trust or a partnership
within the
meaning of Rule 4A. Neither the media nor the caucuses argue to the contrary. If a
party caucus is a person within the meaning of Rule 4A, then the caucus must be
either
an "unincorporated association" or "any two or more persons having a joint or common
interest." We hold that the caucuses fit within both definitions.
In their brief to the trial court, while focusing on the "gathering" or
"meeting"
definition of caucus, the caucuses, nevertheless, defined themselves and their
activities
thus:
These caucuses are meetings of members of a political party who
periodically come together to discuss matters of common interest, including
matters related to their respective party meetings, their party's platform,
elections and election related activities, and personal matters, as well as
issues generally related to substantive or procedural matters at the Montana

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (5 of 11)4/17/2007 4:28:28 PM
 96-640

legislature, including matters previously proposed or considered, matters
which are currently pending, and matters which may be proposed in the
future.
These meetings provide an opportunity for individuals who are
elected to the Montana Senate or House and share a common political
philosophy by which they are known and elected, which philosophy is
identified by their political party affiliation, to gather together, think out
loud, formulate ideas, and discuss among other things, various political,
social, and public policy issues in private. This ability to associate and to
discuss political ends in a private setting is an integral part of the free flow
of political thought and ideas between and among members of the respective
political parties who are elected to the legislature.

While the term "unincorporated association" is not defined in either Montana's
statutory or case law, Black's Law Dictionary defines this term as, among other
things,
a "[v]oluntary group of persons, without a charter, formed by mutual consent for
[the]
purpose of promoting [a] common enterprise or prosecuting [a] common objective."
Blackþs Law Dictionary 1531 (6th ed. 1990). Comparing how the caucuses define
themselves and their activities with this definition of "unincorporated
association," it is
evident that the caucuses fit neatly within its parameters. The caucuses are
voluntary,
they are a group of persons, they do not have a charter, they are formed by mutual
consent, and they meet to discuss and promote common objectives.
The caucuses, nevertheless, argue that an "unincorporated association" is not an
entity and has no status distinct from the persons composing it, but is rather a
body of
individuals acting together for the prosecution of a common enterprise without a
corporate
charter but upon methods and forms used by a corporation. The short answer to this
argument is that nothing in Rule 4A, in Montana's statutes or in our prior case law,
so
restrictively defines an unincorporated association for purposes of determining
whether
it is subject to the jurisdiction of this state's courts and to service of process.
Regardless
of whether the powers and authority of an unincorporated association may be limited
in
one way or another by other specific statutes, rules or by the case law, we are not
persuaded that any good purpose is served by so narrowly defining the term
unincorporated association in the context of determining personal jurisdiction under
our
Rules of Civil Procedure. And, we are not cited to any compelling authority that
would
dictate a conclusion to the contrary.
More importantly, restricting those who can be sued in Montana's courts by
judicially adopting definitional restrictions not found in the plain, broad language
of our
statutes and procedural rules flies directly in the face of the open courts
provision of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (6 of 11)4/17/2007 4:28:28 PM
 96-640

Article II, Section 16 of the Montana Constitution. Certainly, it will be of little
consolation to the Montana citizen or business injured by a body of individuals
acting
together for the prosecution of a common enterprise without a corporate charter that
such
citizen or business is deprived of access to our courts and to a remedy for the
wrong done
simply because this body perpetrated its mischief without methods and forms used by a
corporation. Worse, the likely consequence of our adopting such a narrow definition
of
unincorporated association under Rule 4A would be to effectively immunize the myriad
unincorporated hate groups and paramilitary organizations in this state--many of
which
pride themselves on their lack of formality and structure--from suit in our civil
courts.
We refuse to so lightly create such a safe harbor for tortfeasors and other
wrongdoers.
Accordingly, we hold that the caucuses are persons within the meaning of Rule 4A by
reason of their being unincorporated associations.
The media also maintain that the caucuses are persons for Rule 4A purposes
because these bodies are "two or more persons having a joint or common interest." As
to this argument we need pause only momentarily. Referring back to the manner in
which the caucuses have defined themselves and their activities, and for the same
reasons
that we rejected a narrowing interpretation of the term unincorporated association,
we
likewise conclude that the caucuses also fit within this definition of "person"
under Rule
4A. Without question, the caucuses are comprised of two or more persons; they have
a joint or common interest; and there is no requirement in our statutes, rules or
case law
that limits this definition to only legal entities for purposes of determining the
jurisdiction
of our courts and for service of process. We hold that the caucuses are "persons"
within
the meaning of Rule 4A by reason of their being "two or more persons having a joint
or
common interest."
Finally, having decided the issue on appeal on the basis of the plain language
of
Rule 4A, there remains to be mentioned, however, one further point that lends support
to our analysis. As mentioned above, the District Court refused to dismiss the
media's
complaint as to the pre-session caucuses but did grant dismissal of the complaint as
to the
in-session caucuses. In doing so, the court effectively held that the pre-session
caucuses
are persons for Rule 4A purposes--for if they are not, then the pre-session caucuses
would be no more subject to suit , subject to the jurisdiction of the court and
subject to
service of process than the in-session caucuses. This ruling--that the pre-session
caucuses

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (7 of 11)4/17/2007 4:28:28 PM
 96-640

are persons, but that the in-session caucuses are not--makes little sense.
While the pre-session caucuses have certain statutorily defined duties under õõ
5-2-
201, 202 and 203, MCA, there is nothing in these statutes that supports a conclusion
that
at twelve noon on the day appointed for the meeting of a regular session of the
legislature
the caucuses suddenly cease being or doing what they were and did before that magic
hour. In fact, the law directs the caucuses to perform certain duties during the
session
as well. See õ 5-2-221(4), MCA (the majority and minority floor leaders and the
majority and minority whips of the Senate and the House are elected by their
respective
caucuses).
Importantly, however, it is not the statutory duties that cause the pre-session
caucuses to be persons within the meaning of Rule 4A. Rather, it is because these
caucuses are groups of persons sharing common interests and attempting to influence
the
decision of a larger group; groups within a legislative or decision-making body
seeking
to represent a specific interest or influence a particular area of policy; and
groups of
people united to promote an agreed-upon cause, that brings them within the
definitions
of "unincorporated association" and "two or more persons having a joint or common
interest" and which, thus, renders them persons within the meaning of Rule 4A.
Likewise, and for these same reasons, the in-session caucuses are persons for Rule 4A
purposes as well.
We hold that the Republican and Democratic party Senate and House caucuses--the
Respondents in this appeal and the Defendants in the underlying action--are persons
within the meaning of Rule 4A, M.R.Civ.P. Accordingly, we reverse the order of
dismissal and order granting summary judgment entered by the District Court, and we
remand for further proceedings.
Reversed and remanded.

/S/ JAMES C. NELSON

We Concur:

/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion because, in my view, the Court
has
adopted and applied the wrong definition of "caucus." Thus, while I also disagree
with
portions of the Court's discussion about the Rule 4A, M.R.Civ.P., terms

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (8 of 11)4/17/2007 4:28:28 PM
 96-640

"unincorporated
association" and "any two or more persons having a joint or common interest," I would
not reach those issues because applying the correct definition of "caucus" precludes
this
case from coming within the purview of Rule 4A's listing of "persons" subject to
suit in
Montana.
The Court states, and correctly so, that the word "caucus" has two separate and
distinct meanings. The first is the "group of persons" definition; the second is the
"meeting" or "gathering" definition. The Court then implicitly chooses the "group"
definition, apparently on two bases: first, that the media said it was so in its
complaint;
and second, that no authority had been cited to support the conclusion that the
"group"
definition is not valid. I disagree.
With regard to the complaint, I agree that the media carefully phrased its
allegations to meet the "group" definition of caucus. The caucuses just as carefully
phrased their pleadings and briefs to satisfy the "meeting" definition, as the
Court's quote
of the caucuses' self-definition points out. The question before us is not,
however, one
of "artful pleading." The question is which definition of "caucus" applies here. I
submit
that Montana statutes provide the dispositive answer and thus preclude the Court from
merely choosing among competing definitions.
Caucuses are referenced in statutes concerning the organization of the Montana
Legislature. Section 5-2-201, MCA, provides for presession caucuses via its mandate
that, by December 1 of each year in which legislative elections are held, the
parties of
each legislative house "shall hold a presession caucus. . . ." (Emphasis added.)
The
purposes of "the caucus" also are specified. It is clear that "the parties" cannot
"hold"
a "group of persons." Thus, I submit that this statute clearly expresses the
legislature's
intent that a "caucus" is a meeting or a gathering, rather than a group of persons.
Section 5-2-202, MCA, also references caucuses and further buttresses the
conclusion that, in Montana, a legislative caucus is a meeting or gathering rather
than a
group of persons. That statute addresses legislators nominated to leadership
positions
"during the presession caucus." It simply is not reasonable to interpret the
language in
õ 5-2-202, MCA, as addressing legislators nominated during the presession "group of
persons."
I acknowledge that the quoted statutes address only presession caucuses and that
the issues before us relate to caucuses held during legislative sessions. It is my
view,
however, that the legislature has provided the applicable definition of caucuses via
these
statutes and that this Court cannot properly just choose the alternative definition
for

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (9 of 11)4/17/2007 4:28:28 PM
 96-640

purposes of this case.
Because application of the proper definition renders a caucus a "meeting," it is
clear that a "meeting" cannot be sued. As a result, it is unnecessary to reach the
question
of whether a caucus is a "person"--that is, an unincorporated association or two or
more
persons having a joint or common interest--under Rule 4A.

/S/ KARLA M. GRAY

Chief Justice J. A. Turnage dissenting.

I join in the dissent of Justice Karla M. Gray.
I further respectfully dissent to the majority opinion holding that a
legislative
caucus is an "unincorporated association." This holding is totally unnecessary to
the
majority holding that, for the purpose of Rule 4A, M.R.Civ.P., a caucus is "any two
or
more persons having a joint or common interest."
Notwithstanding that Rule 4A, in its attempt to define persons for jurisdiction
and
service of process, has included in a long list of recognizable legal entities "an
unincorporated association," such inclusion is neither logical or practical for the
purpose
of jurisdiction and service of process. The inclusion of "unincorporated
associations"
should be deleted from Rule 4A.
Rule 4D(e), M.R.Civ.P., requires service of process upon "an incorporated
association" by delivery of a copy of the summons and complaint to an office,
director,
superintendent, managing or general agent or partner or associate or with a person in
charge of such office or by delivery to the registered agent or other agent
designated by
statute. Undoubtedly in Montana there are hundreds of "unincorporated associations,"
none of which have any structure that would allow service, as a practical matter,
under
Rule 4D(e), ranging from volunteers who participate in such worthwhile endeavors as
gray ladies, hospice volunteers, community watch, altar societies, bridge clubs and
many
other such "associations" unincorporated and without officers, agents, or offices.
Further, in the not unlikely event such entities are named as a party in
litigation
and damages are awarded, what defendants must pay the judgment? Upon whose
property would a judgment lien attach? In the event the "association" should be
awarded
judgment, who shares in the award and who can lawfully satisfy the judgment of
record?

If the majority fears that some one or some association would escape liability
for

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (10 of 11)4/17/2007 4:28:28 PM
96-640

a tort, they need have no fear--some real live person or persons must by necessity
have
committed the wrong, can be identified, and properly named a party.

/S/ J. A. TURNAGE

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (11 of 11)4/17/2007 4:28:28 PM