August 24 2010
DA 10-0039
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 189N
ANDY JENSEN,
Plaintiff and Appellant,
v.
ABSAROKEE WATER & SEWER DISTRICT,
KARL GAUSTAD, MIKE BORSETH, MARY
ANNA ESPELAND, WENDY SCOTT and
DEANN GAUSTAD,
Defendants and Appellees.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV-09-57
Honorable Randal I. Spaulding, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael B. Anderson; Anderson & Liechty, P.C., Billings, Montana
For Appellees:
Michael W. Sehestedt; MACo Legal Services, Helena, Montana
Submitted on Briefs: July 28, 2010
Decided: August 24, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following decision shall not be cited as
precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 At the time the complaint was filed in this case in June, 2009, Andy Jensen was
the manager for the Absorokee Water and Sewer District. He sued the District and each
of its board members individually after an advertisement was published in the local
newspaper that appeared to solicit applicants for his job. Jensen sought injunctive relief;
production of board meeting tapes; damages for slander from one board member; a writ
of mandate directing future operations of the board; and attorney fees. The District Court
issued a temporary restraining order and held evidentiary hearings over several days in
August, 2009, covering more than 500 pages of transcript. Thereafter the District Court
dismissed the individual board member defendants and granted the Board’s motion for
judgment on the pleadings. Jensen appeals and we affirm.
¶3 Jensen’s employment was not terminated, no one was hired to replace him, and he
suffered no loss of wages. The gravamen of the complaint is that Jensen was
embarrassed and stressed by the newspaper ad and questions about it from people in
town. The District Court concluded that the individual defendants should be dismissed
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pursuant to § 2-9-305, MCA; that claims of open meeting law violations were time-
barred by § 2-3-213, MCA; that a writ of mandamus was not an appropriate enforcement
mechanism for the open meeting law; that the board had no clear legal duty to produce
the tapes; and that the slander claim was barred by § 27-1-804, MCA.
¶4 We have reviewed the District Court’s order and the record and it is based upon
the appropriate legal standards and upon sufficient evidence. We find no reason in fact
or law to disturb the District Court’s order.
¶5 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
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