No. 89-268
IN 7'HF.: SUPRE:ME: COURT OF' THE STATE OF MONTANA
1990
ROBERT FLESH,
P l a i n t j f f and Appel l a n t ,
-vs-
THE BOARD OF TRUSTE;ES OF JOINT SCHOOL
DISTF.ICT # 2 , MINERAL, AND MISSOTJ1,A COUNTIES
AND PAT' DAVIES,
Defendants and Respondents.
APPEAL FROM: District Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
T h e Hon. James R . W h e e l - i s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Robert F l e s h , P r o S e , M i s s o u l a , Montana
For Respondent:
Michael W. S e h e s t e d t , Deputy County A t t o r n e y , is sou la,
Montana
-* ---------- -------
Submitted on B r i e f s : Sept. 21, 1989
Decided: J a n u a r y 29, 1990
Filed:
justice John C. Sheehy delivered the Opinion of the Court.
The plaintiff, Robert Flesh brought this action alleging
improper clos.ure of various School Board meetings by the
defendant School District. The ~istrict Court, Fourth
Judicial District, Missoula County, entered summary judgment
in favor of the School District for all meetings occurring
more than 30 days prior to filing of the complaint and after
a bench trial entered findings of fact, conclusions of law an
order directing entry of judgment in favor of the defendant
School District on closure of the School Board meeting of
August 19, 1987.
Flesh raises a number of issues in his brief which we
summarize as follows:
1. Whether the District Court properly granted summary
judgment in favor of the School District for those meetings
which occurred more than 30 days prior to the filing of the
complaint.
2. Whether the District Court correctly held that the
School Board properly closed the Board meeting of August 19,
1987.
3. Whether the School Board's denial of Flesh's request
for an open meeting to discuss purely public questions was a
form of prior restraint forbidden by the united States and
Montana Constitutions.
As set out in his amended complaint, Flesh seeks relief
for meetings the Board closed on November 18, 1986, December
8, 1986, July 6, 1987, August 10, 1987, and August 19, 1987.
The relief sought for all meetings except the meeting of
A.ugust 19, 1987, is a declaration that the meetings were
improperly closed. As to the meeting of August 19, 1987,
Flesh requests an order voiding any decision made during or
resulting from the closed portion of the meeting. The
minutes of the School Board meetings indicate that Flesh
attended only the meetings of August 10 and 19, 1987.
On August 19, 1987, the Board of Trustees of Joint
School District No. 2, Mineral and Misso-ula Counties, held a
meeting of the School Board. On the agenda for the meeting
was a grievance filed by Flesh, alleging that Assistant
School Administrator Carl Dehne had maliciously made false
statements for the purpose of injuring Flesh's reputation in
the community. The grievance requested a written and public
apology and a severe reprimand for Dehne's "irresponsible,
malicio-us and political miscond.uct. '
I In addition, the
grievance also requested an open hearing in front of the
Board.
Flesh's grievance stemmed from an article written by
Dehne in the Alberton School Newsletter, in which Dehne was
critical of Flesh's accusation about Alberton School's use of
the "Scholastic Scope" magazine in certain classes.
At the grievance hearing, on August 19, 1987, the
presiding officer asked Dehne if he wanted to waive his right
to privacy. Dehne refused to waive his right to individ.ua1
privacy and the presiding officer determined that the right
of Dehne's individ.ua1privacy outweighed the merits of public
disclosure. Flesh requested to amend his grievance to delete
all requests for disciplinary action at the time of the
closure. The presiding officer denied Flesh's attempt to
amend his grievance. Subsequently, the Board closed the
meeting over the objections of Flesh. Flesh, Dehne, Dehne's
attorney, and the superintendent remained in the closed
meeting while Flesh presented his grievance.
After Flesh presented his grievance, the School Board
closed the deliberations portion of the meeting. Flesh
objected when the School Board excluded himself, Dehne, and
Dehne's attorney from the School Board's deliberation. The
Board took no action as a result of the grievance.
The District Court, on December 22, 1988, granted
summary judgment in favor of the School ~istrictfinding the
complaint untimely under 5 2-3-213, MCA, for those meetings
which occ.urred prior to August 15, 1987. Furthermore, the
court found that Flesh lacked standing to bring an action
regarding the School Board meetings prior to August 15, 1987,
in that he had no personal interest in those meetings beyond
the common interest of all citizens and taxpayers. Finally,
the District Court contended that "since Mr. Flesh sought no
relief for the meetings prior to August 15, 1987, there is no
justiciable controversy and any ruling by this Co-urton those
meetings would merely be advisory in nature."
Later, on January 20, 1989, after a bench trial, the
District Court held in favor of the School ~istrict'sclosure
of the meeting of August 19, 1987. The District Court found
Dehne's right to privacy exceeded the public's right to know,
and thus the School Board properly closed the meeting.
Whether the District Court properly qranted
in of the School District for those meetings
judqment - favor - - - -
which occ.urred more than 30 days prior - - filing - --
--- to the of the
complaint.
The ~istrictCourt in its opinion accompanying its order
granting summary judgment in favor of the School District
found :
Since these meetings occurred more than thirty days
prior to the filing of this action, this action is
untimely under Section 2-3-213, MCA. Further with
exception of the meeting of August 10, 1987, it is
clear that Plaintiff lacks standing to bring an
action regarding the meetings prior to Aug.ust 15,
1987, in that he has no personal interest in those
meetings beyond the common interest of all citizens
and taxpayers. Chovanak - Matthews, 120 Mont.
v.
520, 188 P.2d 582 (1948). ~ i n a l l vsince no relief
is sought for the meetings pridr to August 15,
1987, there is no justiciable controversy and any
r-ulingby this Court on those meetings would merely
be advisory in nature. Hardy 1. Krutzfeldt, 206
Mont. 521, 672 P.2d 274 (1983). (Opinion and
Order, December 22, 1980)
while the District Court properly granted summary
judgment to the School District, the court incorrectly relied
on $ 2-3-213, MCA, to find in favor of the School District.
Section 2-3-213, MCA, establishes the remedy for improperly
closed meetings and provides:
Any decision made in violation of 2-3-203 may be
declared void by a district court having
jurisdiction. A suit to void any such decision
must be commenced within 30 days of the decision.
In the present case, Flesh, however, did not seek to
"void" these meetings, but instead sought a declaratory
judgment and a writ of mandamus. Flesh asked the court to
declare those meetings in violation of ~ r t i c l e11, S 9 of the
Montana Constitution and $ 2-3-203, MCA. In addition, he
requested that the District Court issue a writ of mandamus,
ordering the defendant to conduct all meetings of the Board
of Trustees in accordance with Article 11, 5 9 of the Montana
Constitution and 2-3-203, MCA. Therefore, the District
Court incorrectly relied on S 2-3-313, MCA, because the
plaintiff did not seek to "void" the meetings.
Even though 2-3-213, MCA, does not apply to the
meetings before August 15, this Court affirms the District
Court's grant of summary judgment. The District Court was
correct in holding that Flesh's claim must fail both for lack
of justiciable controversy and for lack of standing.
In Hardy v. Krutzfeldt (1983), 206 Mont. 521, 524, 672
P.2d 274, 275, this Court stated:
It is true that the purpose of the uniform
Declaratory Judgment Act is remedial, to 'settle
and to afford relief from .uncertainty and
insecurity with respect to rights, status, and to
the legal relations'; section 27-8-102, MCA. It is
also true that the powers vested by the statute in
the courts to render declaratory judgments include
'power to declare rights, status and other legal
relations whether or not further relief is or co.uld
be claimed.' section 27-8-201, MCA.
Nevertheless, this Court has on occasion refused to
entertain a declarator judgment action on the
ground - -no controvErsy is pending whiyh
thac
;void
-
udgment would affect, - - Court attempts to
and this
rendering advisory opinlon. [~m~hasz
added. I
In the present case, Flesh seeks no relief for the
meetings prior to August 15, 1987. He is simply requestinu
an advisory opinion which will have no impact on the present
and future rights and duties of the parties. There is no
justiciable controversy, and therefore Flesh cannot maintain
a declaratory judgment action based on meetings prior to
August 15, 1987.
Flesh also argues that affirming the ~istrict Court's
order would encourage flagrant violations of the open meeting
laws. He contends that closed meetings discourage public
participation, and reward closed-door, backroom dealing.
This Court disapproves of clandestine meetings of public
bodies which violate the spirit and the letter of the open
meeting laws, which is not the case here. Board of Trustees,
Huntley Project School ~istrictNo. 24, Worden v. Board of
County Commissioners of Yellowstone County (1980), 186 Mont.
Whether the District Court correctly found - -that the
School -
-.
- Board properly. closed -- Board meetinq -- -
-- -- the of August --
-
19,
1987.
Both the public right to know, from which the
requirement that the meetings of public bodies be open to the
public flows, and the right of privacy, which justifies the
closure of a public meeting, are firmly established in the
Montana Constitution. The Montana ~onstit.ution in ~ r t i c l e
11, 5 9, defines the right of the public to know:
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 disclose.
Furthermore, Article 11, 10 defines the right of
privacy:
~ i g h tof privacy. The right of individual privacy
is essential to the well-being of a free society
and shall not be infringed without the showing of a
compelling state interest.
The constitutional provisions are implemented b 7 the
l
Open Meeting Laws. section 2-3-203, MCA, provides in
pertinent part:
(1) All meetings of public or governmental bodies,
boards, bureaus, commissions, agencies of the
state, or any political subdivision of the state or
organizations or agencies supported in whole or in
part by public funds or expending public funds must
be open to the public.
(2) Provided, however, the 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, if that event, the meeting shall be
open.
Flesh contends that Dehne had no reasonable expectation
of privacy in the subject matter presented at the grievance
meeting, and thus, the District Court erred in holding that
the School District properly closed the meeting. Flesh
strongly urges this Court to enforce the public's right to
know. In contrast, the School District argues the presiding
officer, properly closed the meeting when Dehne refused to
waive his right of privacy.
In The Missoulian v. Board of Regents of Higher
Education (1984), 207 Mont. 513, 529, 675 P.2d 962, 971, this
Court adopted a balancing test to resolve the competing and
conflicting right-to-know and right-to-privacy provisions of
the Montana Constitution:
However, the right to know is not absolute. The
more specific closure standard of the
constitutional and statutory provisions requires
this Court to balance the competing constitutional
interests in the context of the facts of each case,
to determine whether the demands of individual
privacy clearly exceed the merits of public
disclos.ure. Under this standard, the right to know
may outweigh the right of individual privacy,
depending on the facts.
In The Missoulian, the Board of Regents was required to
balance the public's right to know against the individual's
right of privacy with respect to employment evaluations.
There the right of individual privacy was held to be
paramount. Similarly, the presiding officer of the School
Board of Trustees, in closing the grievance meeting to the
public, balanced the interest of public's right to
participate in the School Board meeting, and Dehne's right of
privacy. The presiding officer determined the grievance
meeting, d.ue to Flesh's request for disciplinary action,
might involve a review of Dehne's employment record. This
Court has previously held employment records are subject to
the state Constitutional right to privacy. Montana Human
Rights ~ivisionv. City of ~illings (1982), 199 Mont. 434,
442, 649 P.2d 1283, 1287-1288.
Whenever the Court must determine whether a privacy
interest is protected under the State Constitution, we apply
a two-part test: (1) whether the person involved had a
subjective or actual expectation of privacy; and,
(2) whether society is willing to recognize that expectation
as reasonable. Great Falls Tribune v. Judicial D. Court
(Mont. 1989), 777 P.2d 345, 350; The ~issoulianv. Board of
Regents of ~ i g h e r ducati ion (19841, 207 Mont. 513, 522, 675
P.2d 962, 967; Montana Human Rights ~ivision v. City of
Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287.
In this case the first part of the test-the subjective
or actual expectation of privacy, is clearly met. Flesh's
grievance specifically requested "Carl Dehne to be severely
reprimanded by the Board for his irresponsible, malicious,
and political misconduct." Dehne clearly had an expectation
that when his employer, the School Board, considered the
complaint against him it wo.uld do so in a closed session.
The second prong of the test is also met because society
is willing to recognize a privacy interest in a public
employer's consideration of allegations involving an
employee's character, integrity, honesty, and personality.
The Missoulian v. Board of Regents of Higher ducati ion
(1984), 207 Mont. 513, 675 P.2d 962; Sonstelie v. Board of
Trustee (1983), 202 Mont. 414, 658 P.2d 413; Montana Human
Rights Division v. city of ~illings (1982), 199 Mont. 434,
649 P.2d 1283. his Court in ~onstelie,upheld the closure
of a meeting when the meeting involved matters of a "personal
nature" :
Appellant finally argues that the special meeting
was illegally closed in violation of the Open
Meeting Act. This contention is without merit.
The minutes of the meeting reflect that the
trustees went into executive session 'to discuss
and review teacher contracts for the 1981-82 school
year. ' When asked on direct examination why the
Board went into executive session, chairman Pine
replied that 'there was a lot of things that could
come up of a personal nature and privacy of the
matters could get really touchy and would really
outweigh the public need to hear what was said.'
The Open ~ e e t i n gAct allows a presiding officer to
close the meeting 'during the time the discussion
relates to a matter of individual privacy' where
the officer has determined that 'the demands of
individual privacy clearly exceed the merits of
public disclosure.' That right of individual
privacy may be waived 'by the individual about whom
the discussion pertains' and the meeting must then
remain open. Section 2-3-203 (2), MCA.
~onstelie,658 P.2d at 417.
Flesh argues society would not recognize a privacy
interest in a public agency's published, and widely
distributed newsletter article, or in questions pertaining to
its truth or falsity. Furthermore, he contends the author,
Dehne, could not have reasonably expected to acquire any
special privacy rights by writing and publishing the article.
Flesh is correct in his assertions that Dehne has no privacy
interest in the newsletter. However, Flesh's grievance
complaint not only called for a review of the newsletter, but
also a req.uest for disciplinary action against Dehne. This
request for disciplinary action would necessitate a review of
Dehne's personnel record. Clearly Dehne has the right to
keep his employment file private and away from public
scrutiny.
The public's right to know is not absolute but must be
balanced against the competing right to individual privacy.
In this case there is no showing of any public interest to be
served by a public meeting but a substantial showing of a
legitimate employee privacy interest to be protected by
closing the meeting.
Flesh contends the presiding officer failed to follow
the proper procedure in closing the meeting to the public.
We find little merit in plaintiff's contentions. section
2-3-203(3), MCA, provides that the meeting may be closed when
" . . . the presiding officer determines that the demands of
individual privacy outweighs the merits of public
disclosure." The minutes of the August 19, 1987 meeting
reflect the presiding officer properly followed the statute:
At the beginning of the personnel hearing the
chairwoman asked Mr. Dehne if he waived his right
to privacy. He did not waive it. Mr. Flesh
objected to the hearing being held in executive
session. The chairwoman after determining that in
this personnel matter, the individual's right to
privacy exceeded the public's right to know called
for executive session. After the executive
session, the chairwoman responded to Mr. Flesh's
grievance items. No board action was taken.
Clearly the presiding officer properly followed the
procedure set forth in $ 2-3-203, MCA, and the meeting was
properly closed to protect Dehne's individual privacy.
Finally, Flesh argues that the School Board improperly
closed the deliberations portion of the meeting.
Furthermore, Flesh contends the presiding officer failed to
give any reason for the closing of the deliberations to the
public. While the presiding officer failed to state the
reason for the closure of the deliberation portion of the
meeting, the record implicitly shows the deliberations, like
the grievance portion of the meeting, was closed to protect
Dehne's privacy interest.
Whether the School Board's denial - - plaintiff's
of the
- - - -form of prior restraint forbidden & the united States
was a
and Montana Constitution.
Flesh argues that the closure of the grievance hearing
constituted a prior restraint on his ~ i r s t
Amendment right of
Free Speech. We find no merit in this arg.ument. The Record
reveals the School Board did not prevent Flesh from saying
anything he wanted to say about Dehne or the School. Rather
what the record reflects is that Flesh requested and obtained
a hearing before the Board on his allegations that Dehne had
acted maliciously and dishonestly and on his request that
Dehne be reprimanded and a public apology made.
The ~ i r s tAmendment prohibition on prior restraint does
not require the School Board to conduct an open hearing on
allegations seeking disciplinary action against a school
administrator. Flesh's own testimony reveals that this
closure did not restrain him from speaking to the newspapers,
television stations, or other segments of the public.
Affirmed.
n
/ Chief Justice A' 1