Bryan v. Yellowstone County Elementary School District No. 2

No. 01-813

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 264

BARBARA D. BRYAN,

Petitioner and Appellant,

v.

YELLOWSTONE COUNTY ELEMENTARY
SCHOOL DISTRICT NO. 2 and BOARD OF
TRUSTEES OF YELLOWSTONE COUNTY
ELEMENTARY SCHOOL DISTRICT NO. 2,

Respondents and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Peter Michael Meloy (argued), Jennifer S. Hendricks, Meloy Law Firm,
Helena, Montana

For Respondents:

Laurence R. Martin (argued), Mary E. Duncan, Felt, Martin, Frazier, Jacobs
& Rapkoch, P.C., Billings, Montana

For Amicus Curiae:

Justin Starin, Montana School Boards Association, Helena, Montana
(for Montana School Boards Association)

Argued: May 21, 2002
Submitted: May 23, 2002
Decided: November 26, 2002
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 In anticipation of a projected budget shortfall for the 2001-

02 school year, Respondents Yellowstone County Elementary School

District No. 2 and Board of Trustees of Yellowstone County

Elementary School District No. 2 (collectively referred to

hereinafter as the “District”) elected to close three elementary

schools in Billings, Montana. Appellant Barbara Bryan filed a

petition in the Thirteenth Judicial District Court, Yellowstone

County, for a writ of prohibition precluding the District from

initiating the school closures and a writ of mandate directing the

District to comply with an adopted school closure policy. Bryan

cited violations of her constitutional right to know and

participate in support of her petition. The District Court denied

Bryan’s petition and Bryan appeals. We reverse and remand.

¶2 We address the following restated issues on appeal:

¶3 1. Is an advisory committee, established by a school board, subject to the

constitutional mandates prescribed in Article II, Section 9 of the Montana Constitution?

¶4 2. Did the District violate Bryan’s constitutional right to know and participate?

¶5 3. If the District violated Bryan’s constitutional right to

know and participate, to what remedy is Bryan entitled?

BACKGROUND

¶6 In the summer of 2000, in anticipation of a budget shortfall

for the 2001-02 school year, the District directed a group of

principals, referred to as the Principals’ Committee, to

investigate alternative methods of “delivering education,” aside

from the traditional K-6 model. The Principals’ Committee sought

to reduce operating expenses and maintain student-teacher ratios

2
without necessitating school closures. On February 12, 2001, the

Principals’ Committee, now referred to as the Reconfiguration

Committee, presented a report to the Billings Public School Board.

This report introduced three models to reduce expenditures and

maintain optimal student-teacher ratios: cluster schools,

kindergarten centers, and sister schools.

¶7 Following the submission of this report, the Reconfiguration

Committee was expanded to further investigate the viability of the

latter two models. This expansion added three teachers, a school

librarian, and the Billings Education Association president to the

committee. Nilo Cabrera, a member of the School Board, had also

joined this committee sometime in early February. From mid

February to the first week of March 2001, the Reconfiguration

Committee, the School Board, and the public exchanged ideas on

implementing the proposed reconfiguration models.
¶8 On March 5, 2001, the School Board established another

committee, the Facilities Committee, to review the reconfiguration

proposals and consider the option of school closures. The

Facilities Committee consisted of the principals from the

Principals’ Committee, Nilo Cabrera, two teachers, and four members

of the public from various geographical areas of town. The

Facilities Committee was to gather information and provide a

recommendation to the School Board on April 2, 2001.

¶9 The Facilities Committee first convened on March 19, 2001.

From that date to April 9, 2001, the Facilities Committee met

approximately eight times to synthesize a multitude of information

3
in support of its ultimate recommendation. Sometime between the

19th and 21st of March 2001, Cabrera, a computer professional by

trade, utilized a spreadsheet program to summarize information

regarding various schools in the district. The spreadsheet

contained, in part, information about each school’s: capacity; per

capita expenditures for gas, water, and electricity; square

footage; maintenance costs; projected cost of repairs; percentage

of students bused to school; special education requirements; growth

potential; and average class size.
¶10 Based on this and other information, Cabrera developed a

rating system which assigned points to each respective school.

Purportedly, the schools which received the highest point totals

were those which were the least cost-effective for the District to

operate. Between March 19 and April 9, 2001, Cabrera distributed

several copies of this spreadsheet to the Facilities Committee, the

public, and the School Board. However, the copies varied in format

and content. For instance, some versions contained the names of

the schools, others substituted an objective identification number

for the school names. Further, some versions did not incorporate

the rating system or explanation of the point allocation.

¶11 On March 29, 2001, the School Board hosted a public forum to

address the budget issues confronting the District for the 2001-02

school year. The School Board disseminated budget information to

Bryan and the rest of the general public in attendance, which

included one version of Cabrera’s spreadsheet. This version of the

spreadsheet did not reference the rating system or otherwise

4
indicate any prioritizing scheme regarding the schools in the

district. Following this meeting, the Facilities Committee

completed its deliberations and submitted its recommendation to the

School Board at another public meeting on April 2, 2001. The

Facilities Committee proposed two closure options–both proposals

contemplated the closure of Rimrock School and Beartooth School,

and recommended alternative options for the closure of at least one

other school.

¶12 On April 3, 2001, the School Board sent a letter to parents

which outlined the Facilities Committee’s recommendation. The

letter indicated that the School Board would hold another meeting

on April 9, 2001, for the public to attend and provide comment

before the School Board reached its final decision. Upon receiving

the letter, Bryan joined with a coalition of Rimrock parents to

rebut the recommendation to close Rimrock School. On April 4,

2001, one of the Rimrock parents, Lisa Schroeder, spoke with the

District’s superintendent and requested a “head-to-head comparison”

of the schools based on the criteria examined by the Facilities

Committee. The superintendent claimed that she did not have such a

comparison and was not certain whether one even existed.
¶13 On April 5, 2001, Schroeder observed Cabrera in a television

interview standing next to a stack of documents. According to

Schroeder, Cabrera stated that each of the local schools had been

itemized on a spreadsheet and compared to one another. Therefore,

on April 6, 2001, Schroeder called the superintendent’s office with

another request for the purported comparison. Again, the office

5
denied having any knowledge about such a comparison. Schroeder

also sent an email request for the comparison to a member of the

School Board but received no response.

¶14 On April 9, 2001, the School Board held its final meeting on

the school closure issue. Members of the public, including Bryan,

addressed the School Board about the recommendation and urged the

Board not to close Rimrock School. After the public comment period

concluded, the School Board began its discussion on the school

closure recommendation. At that point, Cabrera distributed

spreadsheets to the School Board which contained the rating system.

Cabrera then described the point allocation to the School Board

but did not distribute this version of the spreadsheet to the

public. The Rimrock parents did not obtain the spreadsheet

containing the rating system until the morning of April 10, 2001.

However, by that point, the School Board had already voted to

accept the Facilities Committee’s recommendation and close Rimrock,

Beartooth, and Garfield Schools.

¶15 On May 8, 2001, Bryan filed a complaint against the District

which requested that the District Court nullify the School Board’s

school closure decision and order disclosure of all documents

related to that decision. Bryan also requested that the District

Court issue a writ of prohibition precluding the District from

implementing the school closure decision and a writ of mandate

ordering the District to comply with a specified school closure

policy. On July 19, 2001, following an evidentiary hearing, the

6
District Court denied the relief requested by Bryan and dismissed

her complaint. Bryan appeals the District Court’s judgment.

STANDARD OF REVIEW

¶16 Bryan maintains that she is appealing the District Court’s “ruling as to the right to

know and the right to participate.” Our review of questions involving constitutional law is

plenary. Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 28, 303 Mont. 274, ¶ 28, 16 P.3d

1002, ¶ 28. A district court’s resolution of an issue involving a question of constitutional law

is a conclusion of law which we review to determine whether the conclusion is correct.

Schuff, ¶ 28.

DISCUSSION

ISSUE ONE

¶17 Is an advisory committee, established by a school board,

subject to the constitutional mandates prescribed in Article II,

Section 9 of the Montana Constitution?

¶18 Before we address the merits of this case, we must first

address whether Bryan had standing to file this suit against the

District. In a footnote in its response brief, the District

asserts that “Bryan cannot ‘represent’ Lisa Schroeder and claim Ms.

Schroeder’s ‘injury’ as her own. If Ms. Schroeder’s right to

examine documents was allegedly infringed, Ms. Schroeder is the

only one with standing.” Bryan notes that the District has raised

the standing argument for the first time on appeal in a footnote,

consisting of two sentences. Nevertheless, Bryan insists that we

should reject the District’s standing challenge.

7
¶19 As a general rule, this Court does not address issues raised

for the first time on appeal. Day v. Payne (1996), 280 Mont. 273,

276, 929 P.2d 864, 866. However, standing is a threshold,

jurisdictional requirement of every case. Matter of Paternity of

Vainio (1997), 284 Mont. 229, 235, 943 P.2d 1282, 1286. The

general rule does not pertain to jurisdictional issues. State v.

Abe, 2001 MT 260, ¶ 14, 307 Mont. 233, ¶ 14, 37 P.3d 77, ¶ 14.

¶20 In the past we have stated that a complaining party must

satisfy the following criteria to establish standing: (1) the party

must clearly allege past, present, or threatened injury to a

property or civil right; and (2) the alleged injury must be

distinguishable from the injury to the public generally, but the

injury need not be exclusive to the complaining party. Armstrong

v. State, 1999 MT 261, ¶ 6, 296 Mont. 361, ¶ 6, 989 P.2d 364, ¶ 6.

Stated another way, to satisfy the standing requirement, a

plaintiff must have “such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens

presentation of issues.” District No. 55 v. Musselshell County

(1990), 245 Mont. 525, 528, 802 P.2d 1252, 1254.
¶21 The evidence presented at the evidentiary hearing indicated

that the Rimrock parents, including Bryan, worked in concert to

rebut the school closure recommendation. Toward this end, the

parents delegated duties amongst themselves to maximize the

collective efficiency. Although it was Schroeder who propounded

the request for information, and not Bryan, she did so on behalf of

the Rimrock parents’ common purpose. To conclude that Bryan did

8
not have a personal stake in the controversy simply because she did

not personally request the subject information would result in a

hypertechnical standing interpretation contrary to the broad

policies and protections afforded by Article II, Sections 8 and 9

of the Montana Constitution. As such, we conclude that Bryan had a

personal stake in the litigation and, thus, had standing to file

the present action. Having resolved this jurisdictional challenge,

we now turn to the merits of the appeal.

¶22 Bryan states that the delegates to the 1972 Montana

Constitutional Convention enacted Article II, Sections 8 and 9 of

the Montana Constitution to increase public involvement in the

decision making processes of unelected, bureaucratic entities.

Bryan argues that “[t]o allow a public body to evade the right to

know and the right to participate by delegating the bulk of its

work to committees . . . would be to sanction the abdication of

sovereignty and responsibility” that the delegates and Legislature

rejected. Bryan insists that the Facilities Committee was subject

to the mandates of Article II, Section 9 of the Montana

Constitution. Bryan does not address whether the Facilities

Committee was subject to the Article II, Section 8, right of

participation.
¶23 The Montana Constitution is to be given a broad and liberal

interpretation. SJL of Mont. Assoc. v. City of Billings (1993),

263 Mont. 142, 146, 867 P.2d 1084, 1086. While the Legislature is

free to pass laws implementing constitutional provisions, its

interpretations and restrictions will not be elevated over the

9
protections found within the Constitution. In re Lacy (1989), 239

Mont. 321, 325, 780 P.2d 186, 188. In resolving disputes of

constitutional construction, this Court applies the rules of

statutory construction. Under those rules, the intent of the

framers of the Constitution is controlling and that intent must

first be determined from the plain language of the words used.

Butte-Silver Bow Local Govern. v. State (1989), 235 Mont. 398, 403,

768 P.2d 327, 330.

¶24 Article II, Section 8 of the Montana Constitution provides:
Right of participation. The public has the right to

expect governmental agencies to afford such reasonable

opportunity for citizen participation in the operation of

the agencies prior to the final decision as may be

provided by law.

The Legislature has codified guidelines to protect the Article

II, Section 8, guarantees at § 2-3-101, et seq., MCA. Article

II, 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 Legislature has promulgated guidelines to protect the Article

II, Section 9, guarantees in Montana’s open meeting statutes,

codified at § 2-3-201, et seq., MCA. One of these open meeting

statutes, § 2-3-203(1), MCA, provides:

All meetings of public or governmental bodies,
boards, bureaus, commissions, agencies of the state, or
any political subdivision of the state or organizations

10
 or agencies supported in whole or in part by public funds
or expending public funds must be open to the public.

Further, § 2-3-203(5), MCA, provides that “[a]ny committee or

subcommittee appointed by a public body . . . for the purpose of

conducting business which is within the jurisdiction of that agency

is subject to the requirements of this section.”

¶25 As indicated in the language in the constitutional provisions,

Article II, Section 9, is broader in application than Article II,

Section 8. Article II, Section 9, applies to public bodies as well

as governmental agencies. In Common Cause v. Statutory Committee

(1994), 263 Mont. 324, 330, 868 P.2d 604, 608, we defined “public

or governmental body” as a group of individuals organized for a

governmental or public purpose.
¶26 The Legislature has instilled in the trustees of a school

district the authority to close schools in the district. See §§

20-3-324(7) and 20-6-509, MCA. Here, the District assembled a

group of individuals to research and prepare a recommendation on

the very closure issue which the Legislature assigned to the

District itself. Therefore, for purposes of the above described

duties, the Facilities Committee assumed the identity of the

District, albeit through a different composition of constituents.

In researching the school closure proposition and submitting a

recommendation to the School Board, the Facilities Committee

performed a legislatively designated governmental function. This

function served a clear public and governmental purpose–to assist

the District in its school closure determination. Accordingly, we

hold that the Facilities Committee constituted a “public or

11
governmental body” subject to the strictures of Article II, Section

9 of the Montana Constitution.

ISSUE TWO

¶27 Did the District violate Bryan’s constitutional right to know

and participate?

¶28 The District Court’s conclusions of law contain four sections

entitled “Writ of Mandate,” “Writ of Prohibition,” “Right to

Participate,” and “Right to Know//Open Meetings.” In the “Right to

Know//Open Meetings” section, the District Court concluded that

the District did not violate Bryan’s constitutional right to know

because “it provided [Bryan] and the general public the right to

observe its deliberations and to access all public records

considered and generated in making its decision.” In the “Right to

Participate” section, the District Court concluded that the

District adequately notified the public regarding pertinent

meetings and sufficiently afforded Bryan “a reasonable opportunity

to submit data, views, or arguments orally and in written form.”

Therefore, the District Court denied Bryan the relief she requested

and dismissed her complaint.
¶29 Bryan maintains that the District Court erred at the outset

when it segregated its right to participate and right to know

analyses. Bryan contends that Article II, Sections 8 and 9, are

inextricably linked by way of Article II, Section 8's, “reasonable

opportunity” proviso. The District, on the other hand, insists

that the Article II, Section 8 and 9, rights “are separate and

distinct.” It argues that neither Article II, Section 8, nor its

12
implementing statutes, condition participation on a prior review of

documents.

¶30 The delegates’ discussions regarding the adoption of Article

II, Sections 8 and 9, do not appear to support the District’s

“separate and distinct” proposition. Admittedly, the delegates did

not often refer specifically to the two provisions’

interrelationship during their open discussions. However, there

are several references in the Constitutional Convention transcripts

which reveal the fundamental link between the right to know and

participate. In expressing reservations about the privacy

exception contemplated in the right to know, Delegate Martin

claimed that an exception “could close much of government to all

citizens, frustrating their ability to participate in the decision

making process . . . .” Montana Constitutional Convention, Vol. V

at 1672 (emphasis added). Later, Delegate Ask reiterated that “we

have in the Bill of Rights . . . that they want . . . to

participate in government–the right to know, the right to

participate.” Montana Constitutional Convention, Vol. VII at 2560.
¶31 Perhaps we find little discussion regarding the provisions’

interrelationship because of the resounding clarity in the comments

to Article II, Section 9. In the comments accompanying Article II,

Section 9, the Bill of Rights Committee stated:

The committee, with two dissenting votes, and after
considerable reflection, adopted this provision
explicitly establishing a public right to know. . . . It
is a companion to the preceding right of participation.
Both arise out of the increasing concern of citizens and
commentators alike that government’s sheer bigness
threatens the effective exercise of citizenship. The
committee notes this concern and believes that one step

13
 which can be taken to change this situation is to
Constitutionally presume the openness of government
documents and operations. [Emphasis added.]

Montana Constitutional Convention, Vol. II at 631. While the two

provisions do contain somewhat different language and prescribe

somewhat different rights, the above comment clearly indicates that

the Bill of Rights Committee, and subsequently the delegates as a

whole, acknowledged the inextricable association between the

“companion” provisions. For, as some commentators have noted,

“[t]o participate effectively and knowledgeably in the political

process of a democracy one must be permitted the fullest imaginable

freedom of speech and one must be fully apprised of what government

is doing, has done, and is proposing to do.” Larry M. and Deborah

E. Elison, Comments on Government Censorship and Secrecy, 55 Mont.

L. Rev. 175, 177 (1994). Therefore, we will not analyze the two

provisions in a vacuum, “separate and distinct” from one another,

as urged by the District. We now turn our attention to the

particulars of the purported violations.
A. Right to Know

¶32 As indicated above, Article II, Section 9, contains two

components: the right to examine documents and the right to observe

the deliberations of public bodies or agencies. Bryan argues that

the spreadsheet which contained the rating system was a public

document subject to public examination. Therefore, Bryan alleges

that the District violated her right

to examine documents when it failed to distribute the rating system

version of the spreadsheet following the Rimrock parents’ request.

14
¶33 As we stated in Becky v. Butte-Silver Bow Sch. Dist. 1 (1995),

274 Mont. 131, 136, 906 P.2d 193, 196:

Any review of Article II, Section 9, of the Montana
Constitution necessarily involves a three-step process.
First, we consider whether the provision applies to the
particular political subdivision against whom enforcement
is sought. Second, we determine whether the documents in
question are “documents of public bodies” subject to
public inspection. Finally, if the first two
requirements are satisfied, we decide whether a privacy
interest is present, and if so, whether the demand of
individual privacy clearly exceeds the merits of public
disclosure.

We have already determined that Article II, Section 9, applied to

the actions of the Facilities Committee. Further, this case does

not implicate the “privacy interest” prong of the three-part test,

nor does the District assert otherwise. Therefore, for purposes of

Bryan’s Article II, Section 9, allegation, we need only examine

whether the requested spreadsheet was a “document of a public body”

subject to public inspection.
¶34 The District and Amicus Curiae indicate that the Legislature

has promulgated statutes to implement an individual’s right to

examine documents at § 2-6-101, et seq., MCA. According to the

District and Amicus Curiae, the public is entitled to examine only

those documents which constitute “public writings,” pursuant to §

2-6-101(2), MCA. The District insists that “the spreadsheet did

not constitute a public writing until it was considered and relied

upon by Board members to make their decision at the April 9, 2001

meeting” and, therefore, not subject to the right of examination

until that time.

¶35 In Becky, 274 Mont. at 137, 906 P.2d at 196, this Court

acknowledged that “the Montana Constitution does not define

15
‘documents . . . of . . . public bodies.’” We noted that the

definition of “public writings,” contained in § 2-6-101(2), MCA,

proved useful in interpreting the constitutional language.

However, we then departed somewhat from the narrowly crafted

definition of “public writings” and stated:

Although “documents of public bodies” is not defined in
the Montana Constitution, it must reasonably be held to
mean documents generated or maintained by a public body
which are somehow related to the function and duties of
that body.

Becky, 274 Mont. at 138, 906 P.2d at 197. Therefore, while we did

discuss the “public writings” factors delineated in § 2-6-101(2),

MCA, we ultimately interpreted the constitutional “documents of

public bodies” much more broadly than the legislative construct.
¶36 As indicated above, the Facilities Committee was a public

body. Further, Cabrera generated the spreadsheet and rating system

to assist in the function of that body’s charge, while acting in

his capacity as a member of the Facilities Committee. Therefore,

we conclude that the spreadsheet was a document of a public body

subject to public inspection prior to the April 9, 2001, board

meeting.

¶37 In apparent anticipation of this conclusion, the District

claims that it did not violate Bryan’s right to know because the

Rimrock parents did not make an “intelligent request” for the

document. The District indicates that the Rimrock parents

contacted the superintendent’s office and requested a “head-to-head

comparison” of the schools which contemplated some thirty-five

various criteria. The District insists that no such document

existed. Therefore, as the parents did not submit an intelligent

16
request for the desired spreadsheet, the District maintains that it

did not violate Bryan’s right to examine public documents.

¶38 As indicated above, the Rimrock parents contacted the

District’s chief administrator on April 4, 2001, and requested a

head-to-head comparison of the affected schools. The District

denied knowledge of any information regarding such a comparison.

On April 6, 2001, the Rimrock parents again phoned the

superintendent’s office with a request for the purported

comparison. However, this time, the parents propounded a more

specific request–they requested a copy of the spreadsheet to which

Cabrera referred in his April 5, 2001, television interview.

Again, the District claimed ignorance but now implies that had the

parents framed their request in a different manner, they may have

achieved a better result.
¶39 When the delegates adopted Article II, Section 9, they

essentially declared a constitutional presumption that every

document within the possession of public officials is subject to

inspection. See Associated Press, Inc. v. Department, 2000 MT 160,

¶ 85, 300 Mont. 233, ¶ 85, 4 P.3d 5, ¶ 85 (Nelson, J., specially

concurring). Yet, the District would purport to temper the

constitutional right of inspection based on the gatekeeper’s

interpretation of the request. To impose such a hypertechnical

constraint on the lay public would frustrate the maxim of liberal

interpretation and subvert the constitutional mandate on open

government. Here, it certainly does not shock the bounds of reason

to consider that one might contact a school district’s chief

administrator in an effort to acquire information on school

17
closures. Further, the Rimrock parents’ request for “Cabrera’s

head-to-head comparison” is not so unintelligible that it justifies

nondisclosure. Therefore, we hold that the District violated

Bryan’s right to examine public documents when it failed to divulge

the rating system version of the spreadsheet for public inspection

upon request. Consequently, the District Court erred when it

concluded otherwise.

B. Right to Participate

¶40 Before we delve into the merits of the parties’ arguments on

Article II, Section 8, we find it useful to reference the

provision’s genesis and the delegates’ motivation for memorializing

such a protection. In its accompanying comments to the proposed

text of Article II, Section 8, the Bill of Rights Committee stated:
The committee unanimously adopted this section in
response to the increased public concern and literature
about citizen participation in the decision-making
processes of government. The provision is in part a
Constitutional sermon designed to serve notice to
agencies of government that the citizens of the state
will expect to participate in agency decisions prior to
the time the agency makes up its mind. In part, it is
also a commitment at the level of fundamental law to seek
structures, rules and procedures that maximize the access
of citizens to the decision-making institutions of state
government. The committee believes that this is
eminently proper and that it will have a salutary effect
not only on the quality of the final decisions, but more
important, on the deliberative and political capabilities
of the citizenry. It is hoped that this provision will
play a role in reversing the dissatisfactions
increasingly expressed regarding bureaucratic authority
insulated from public scrutiny and participation.

Montana Constitutional Convention, Vol. II at 630-31. Further, in

deliberations prior to the adoption of Article II, Section 8,

delegates offered the following insight into the scope of the right

of participation:

18
 Delegate Dahood: What is intended by Section 8 is
that any rules and regulations that shall be made and
formulated and announced by any governmental agency,
which of course are going to affect the citizens of this
state and the common welfare, shall not be made until
some notice is given so that the citizen will have a
reasonable opportunity to participate with respect to his
opinion, either for or against that particular
administrative action.

. . . .

Delegate Foster: . . . I think that we should be
very well aware of what this committee is attempting to
do. The continuing growth of bureaus has brought a new
dimension to our representative form of government. We
have drawn clearer lines of election for legislative
officials. We have devised a more responsive system of
selection and election for judicial officials. We have
retained an extensive elective process for our executive
officials. But what of the bureaus, the long arm of
government with which the average citizen most often
comes in contact; the long arm of government which is not
responsive to elective officials; the long arms of
government with which many, if not most, of our Montana
citizens have met frustrating resistance and/or
indifference? Elections do not materially affect the
bureaus. Political pressures are not sufficient to
juvenate [sic] response to public need. Public awareness
and access seem to be the only tools to remind the great
mass of public servants that their job is to serve the
needs of the public and no other; they are paid by tax
dollars to benefit the public above all else.
Montana Constitutional Convention, Vol. V at 1655, 1657.

¶41 Using the aforementioned directives as a backdrop, we now turn

to the parties’ Article II, Section 8, contentions. Since the

District failed to disclose the requested information, Bryan

insists that the District did not afford her a reasonable

opportunity to participate on April 9, 2001. In other words, Bryan

claims that she could not effectively exercise her Article II,

Section 8, right to participate on April 9, 2001, because the

District violated her Article II, Section 9, right to examine

public documents. The District concedes that a school board is an

19
agency subject to the provisions of Article II, Section 8.

However, the District suggests that an individual’s reasonable

opportunity to participate is satisfied when the “person succeeds

in submitting her views to the agency.” The District claims that

it fulfilled its obligations to Bryan as it distributed the

information considered by the School Board and provided her with an

opportunity to speak at its April 9, 2001, meeting.

¶42 Essentially, the parties’ dispute hinges on the interpretation

of the “reasonable opportunity” language found in Article II,

Section 8, and § 2-3-111, MCA. In discussions prior to the

provision’s adoption, Delegate Garlington expressed similar

concerns regarding the opportunity prescribed in Article II,

Section 8:
Mr. Chairman, I have said before, I think it is the
responsibility of this body to be–to deliberate carefully
and not to do things that are going to create a lot of
difficulty and confusion in the future. I am concerned
about what is meant by the phrase “opportunity for
citizen participation in the operation of government.” .
. . And I bring this up so that we can look at these
words and make sure that whatever we draft here really
states what our intention is and if there are limits to
what we’re authorizing.

Montana Constitutional Convention, Vol. V at 1654-55. While the

delegates did not specifically debate the definition of

“reasonable,” Delegate Dahood did offer this insight into the term:

Mr. Chairman, I do not experience any particular
problem in having the word “reasonable” substituted. I’m
sure that my committee would not have any particular
difficulty. I think, in our judgment, feasible was
synonymous with reasonable but somewhat more expansive;
but I think, as a lawyer, having been confronted with the
use of the word “reasonable” so many times, having seen
it defined so many times, that I think the definition
that the law would give it would certainly serve the
purpose that we intend to serve by Section 8.

20
Montana Constitutional Convention, Vol. V at 1653.

¶43 Black’s Law Dictionary defines “reasonable” as “1. Fair,

proper, or moderate under the circumstances . . . .” Black’s Law

Dictionary 1272 (7th ed. 1999). Within the context of Rule 12(c),

M.R.Civ.P., this Court has stated that a party has a “reasonable

opportunity” to act if he or she is “fairly apprised.” See

Rafanelli v. Dale, 1998 MT 331, ¶ 22, 292 Mont. 277, ¶ 22, 971 P.2d

371, ¶ 22. Other jurisdictions have expanded upon these equitable

notions to include a “meaningful” component to the “reasonable”

standard. See Schwartz v. Town Plan & Zoning Commission (Conn.

1975), 357 A.2d 495, 497 (conducting a just public hearing means

that the public is given the opportunity to participate “at a

meaningful time and in a meaningful manner . . . .”); Florida Power

& Light Co. v. United States (D.C.Cir. 1988), 846 F.2d 765, 771

(“The APA requires the Commission to provide notice of its proposed

rulemaking adequate to afford ‘interested parties a reasonable

opportunity to participate in the rulemaking process.’ Such notice

must not only give adequate time for comments, but also must

provide sufficient factual detail and rationale for the rule to

permit interested parties to comment meaningfully.”)
¶44 While we decline this opportunity to adopt some mechanical

formula interpreting “reasonable opportunity,” we conclude that, at

a minimum, the “reasonable opportunity” standard articulated in

Article II, Section 8, and § 2-3-111, MCA, demands compliance with

the right to know contained in Article II, Section 9. It is

evident from the comment to Article II, Section 8, that the

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delegates sought to expose the activities of those bureaucratic

authorities which were once isolated from public scrutiny.

However, if we adopt the District’s position, agencies could once

again invoke the autonomy of the long arm government structure

through delegation. Such a superficial interpretation of the right

to participate to simply require an uninformed opportunity to speak

would essentially relegate the right of participation to paper

tiger status in the face of stifled disclosure and incognizance.

Given the tenor of the delegates’ insistence upon open government

and citizen participation, we find it improbable that they

envisioned and subsequently memorialized such a hollow right.
¶45 Certainly, as the District suggests, Bryan was given the

opportunity to voice her concern regarding the school closure

recommendation. However, she participated under a distorted

perspective in light of the District’s partial disclosure of

information. At the evidentiary hearing, Bryan testified that upon

receiving the rating system, following the April 9, 2001, meeting,

she identified many serious flaws and errors in its analysis. She

claims that “she could have undermined the basis for the

committee’s recommendation if she had had the opportunity . . .

[and] might have swayed the one vote that was needed to keep her

children’s school from being closed.”

¶46 As the United States Supreme Court stated:

The right to a hearing embraces not only the right to
present evidence, but also a reasonable opportunity to
know the claims of the opposing party and to meet them.
The right to submit argument implies that opportunity;
otherwise the right may be but a barren one. Those who
are brought into contest with the Government in a
quasijudicial proceeding aimed at the control of their

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 activities are entitled to be fairly advised of what the
Government proposes and to be heard upon its proposals
before it issues its final command.

Morgan v. United States (1938), 304 U.S. 1, 18-19, 58 S.Ct. 773,

776, 82 L.Ed. 1129.

In essence, when the District violated Bryan’s right to know, it

reduced what should have been a genuine interchange into a mere

formality. Therefore, we hold that the District did not provide

Bryan with a “reasonable opportunity” to participate at the April

9, 2001, meeting. Consequently, the District Court erred when it

concluded that the District did not violate Bryan’s Article II,

Section 8, right of participation.
ISSUE THREE

¶47 If the District violated Bryan’s constitutional right to know and participate, to what

remedy is Bryan entitled?

¶48 In light of the constitutional violations referenced above,

Bryan requests that we void the School Board’s decision pursuant to

§ 2-3-114, MCA. In the alternative, Bryan requests that a

“declaratory judgment be entered that she was denied the right of

participation.” The District, relying upon Common Cause, claims

that if we determine the Facilities Committee violated Bryan’s

constitutional rights discussed herein, we should void the

Facilities Committee’s report and recommendation and not the School

Board’s final decision.

¶49 The District’s reliance on Common Cause is misplaced. In

Common Cause, a committee was established, pursuant to § 13-37-102,

MCA, to submit a list of candidates for the office of Commissioner

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of Political Practices to the governor for consideration.

Ultimately, the governor interviewed all five of the recommended

candidates and announced the appointment of one of the nominees.

The plaintiffs filed suit against the committee and governor and

sought to void the committee’s submission of the list and the

governor’s appointment. The plaintiffs asserted that, in compiling

the list of candidates, the committee violated Montana’s open

meeting statutes and Article II, Section 9 of the Montana

Constitution.
¶50 This Court held that the committee did in fact violate the

open meeting statutes. Common Cause, 263 Mont. at 331, 868 P.2d at

609. However, as to the remedy for the violation, we concluded:

[B]ecause 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. . . .

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 any 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.

Common Cause, 263 Mont. at 333-34, 868 P.2d at 610. Therefore, we

clearly limited the effect of our holding in Common Cause to the

“unique circumstances” of that case, i.e., the statutory

independence of the committee and its recommendation. This case

simply has not presented similar circumstances. Further, unlike

Bryan, the plaintiffs in Common Cause did not allege a violation of

their right of participation. For the foregoing reasons, Common

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Cause proves inapposite to our consideration of an appropriate

remedy in the case at bar.

¶51 Section 2-3-114, MCA, provides:

Enforcement. The district courts of the state have
jurisdiction to set aside an agency decision under this
part upon petition made within 30 days of the date of the
decision of any person whose rights have been prejudiced.
There is no dispute in this case that Bryan filed the petition

within thirty days of the School Board’s decision. Further,

Bryan’s rights have clearly been prejudiced as indicated in our

analysis of the constitutional violations. Therefore, the question

presented becomes one of redress, i.e., should we void the School

Board’s decision and force the parties to start anew or should we

simply issue a declaratory judgment and permit the decision to

stand?

¶52 We conclude that the facts in this case and its implications

on future conduct compel the former remedial measure. While the

District did notify the public about the April 9, 2001, meeting and

allow for public comment prior to reaching its decision, the public

was not provided all of the information presented to the School

Board for its consideration. Therefore, the constitutional

violation “taint[ed] the entire process from start to finish.”

See Common Cause, 263 Mont. at 334, 868 P.2d at 610 (Hunt, J.,

dissenting). To simply declare a constitutional violation and yet

allow the decision to stand would set a regrettable precedent. In

the future, we presume that the prospect of negligible consequences

would invoke concomitantly negligible deterrence. Here, we simply

are not prepared to sacrifice Bryan’s constitutionally prescribed

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right to know and participate for the sake of convenience.

Therefore, we declare the School Board’s closure decision null and

void and hold that the District Court erred when it failed to do

so.

¶53 We in no way mean to insinuate that a devious intent mobilized

the District to appoint the Facilities Committee for the designated

task. Likewise, we do not intend to suggest that the District

deliberately concealed information or disingenuously evaded the

Rimrock parents’ requests. To the contrary, the record indicates

that the District undertook extraordinary measures to reach a

thoughtful, albeit difficult, determination. However, regardless

of the inadvertent nature of the omission, the procedure to which

Bryan was subjected did not comport with the constitutional

safeguards prescribed by Article II, Sections 8 and 9 of the

Montana Constitution. This actuality leaves us with no viable

option other than voiding the District’s decision. While the

circumstances of this case compel an unfortunate result, the

vigilant protection of one’s constitutional rights warrants such a

disposition.
¶54 So as to obviate the likely alarm generated by our holding, we

believe it is important to articulate what this Opinion does and

does not require of the parties on remand. This Court in no way

intends to express an opinion about the school closure

determination, or impose our will regarding the same upon the

District. Therefore, this Opinion does not command the District to

reopen those schools it has already closed. In fact, Bryan has not

requested such relief on appeal.

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¶55 At oral argument, this Court inquired of Bryan, “What happens

if we agree with your argument here, and agree with your remedy

which is to void that order? In a practical sense, what happens?”

Bryan responded as follows:

In a practical sense, we go back to the Board . . .
and make the argument that she made in court . . . on the
merits . . . with this [new] information. The Board can
then decide whatever they want to do. . . . If they want
to reaffirm the decision, that is their prerogative. But
at least then she will have had the opportunity to say
her piece with the information that she needed.

Therefore, per Bryan’s request, this Opinion effectively voids the

School Board’s April 9, 2001, closure decision. On remand, the

School Board shall allow Bryan another opportunity to rebut the

closure recommendation. It is then within the School Board’s

discretion to reexamine the closure determination, in light of

Bryan’s fully informed presentation, and affirm or modify its prior

decision.

¶56 Accordingly, the District Court’s judgment is reversed and

remanded for entry of judgment consistent with this Opinion.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE

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