NO. 95-307

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

RAYMOND G. BECKY and MARGE BECKY,

individually and in behalf of their

son ROBERT BECKY, and ROBERT BECKY,

as a Petitioner himself,

Petitioners and Appellants,

v.

BUTTE-SILVER BOW SCHOOL DISTRICT NO. 1,

ROBERT MILLER, and DAN PETERS, individually

and in their capacities as officers of

Butte-Silver Bow School District No. 1,

Respondents and Respondents.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Alan F. Blakley, Attorney at Law,

Missoula, Montana

For Respondent:

Patrick M. Sullivan, Poore, Roth & Robinson,

Butte, Montana

Filed:

Submitted on Briefs: October 26, 1995

Decided: November 21, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

Ray and Marge Becky, individually, and on behalf of their son,

Robert, filed a petition for a writ of mandate with the District

Court for the Second Judicial District in Silver Bow County in

which they sought an order directing Butte-Silver Bow School

District No. 1 to provide them with documents related to denial of

Robert's membership in the National Honor Society. The District

Court issued an alternative writ of mandate and scheduled a show

cause hearing. After the hearing, the District Court denied the

Beckys' petition and quashed the alternative writ of mandate. The

Beckys appeal the District Court's order. We affirm the order and

judgment of the District Court.

The issue on appeal is:

Did the District Court err when it denied the Beckys' petition

for a writ of mandate?

FACTUAL BACKGROUND

Robert Becky is a graduate of Butte High School. During his

senior year of high school (1994-19951, he became a candidate for

membership in the National Honor Society by virtue of his grade

point average.

The National Honor Society is an honorary organization

sponsored by the National Association of Secondary School

Principals to recognize outstanding high school students. It is a

nonmandatory organization in which students are selected for

membership by high school faculty who voluntarily evaluate the
students based on their academic achievements, leadership

abilities, character, and service to their school.

Students with grade point averages of 3.3 or above, out of a

possible 4.0, are eligible to become members of the National Honor

Society. The names of those students who qualify academically are

submitted to the participating faculty, who rate the applicants in

the nonacademic categories of character, leadership, and service to

the school. The teacher evaluations are submitted to a faculty

council, which combines the numerical faculty evaluations for each

student to arrive at a National Honor Society grade point average.

The council then combines the National Honor Society grade point

average with the student's academic grade point average, and offers

membership to those students who meet the National Honor Society

requirements.

The participation of Butte High's students and faculty in the

National Honor Society is voluntary, and the school's principal

does not consider these activities to be official business of the

school. The National Honor Society's faculty evaluation process is

done anonymously and confidentially, and the evaluation forms are

not maintained by the school. In fact, there are no records kept

by the school that pertain to the National Honor Society or that

indicate whether a student is a member of that organization.

Robert Becky's name was submitted to the faculty of Butte High

School for potential membership in the National Honor Society

during his senior year. However, four of the teachers who rated

Robert gave him low enough scores that he did not meet the

3
organization’s combined requirements. Therefore, he was not

selected for membership in the National Honor Society.

When Robert was not selected, his father, Ray, scheduled a

meeting with Butte High School Principal Dan Peters. During the

meeting, Mr. Peters explained the selection process to Ray and told

him that several teachers had rated Robert low in certain

categories. Mr. Peters did not release the names of those

teachers.

On May 1, 1995, Ray called Mr. Peters and demanded that he

release the names of the faculty members who rated his son low on

the Honor Society evaluations. Mr. Peters refused to comply with

the request. Also on May 1, the Beckys' attorney sent a letter to

Robert Miller, Superintendent of Schools for the Butte-Silver Bow

School District, in which he requested that all documents related

to Robert's candidacy for the National Honor Society be released,

including the names of the teachers who rated Robert and their

ratings.

On May 4, 1995, the Beckys filed this action in which they

requested the District Court to order the School District to

provide "each and every record documenting voting for or against

Robert's membership in the National Honor Society and including a

list of teacher voting and the vote given by each teacher as well

as the written procedures for voting."

On May 9, 1995, the School District mailed Robert's student

records to the Beckys' attorney. Those records included all

documents maintained by the school and subject to inspection

4
pursuant to School District policy. The records did not, however,

include the National Honor Society evaluation documents or the

names of the faculty members who rated Robert.

On May 10, 1995, the School District filed a motion to quash

the alternative writ of mandate which had been issued. On May 11,

1995, a show cause hearing was held, and on June 1, 1995, the

District Court issued a memorandum and order in which it denied the

Beckys' application for a permanent writ of mandate, quashed the

alternative writ of mandate, and dismissed the proceeding.

DISCUSSION

Did the District Court err when it denied the Beckys' petition

for a writ of mandate?

The grant or denial of a writ of mandate is a matter of legal

interpretation for a district court which we will review to

determine if it is correct. Phillips Y. City of Livingston (1994 ) , 268 Mont .

156, 161, 885 P.2d 528, 531. A two-part standard applies to the

issuance of a writ of mandate. State ex rd. Chisholm v. District Court ( 19 8 6 ) ,

224 Mont. 441, 443, 731 P.2d 324, 325. The writ is available where

the party who applies for it is entitled to the performance of a

clear legal duty by the party against whom the writ is sought. If

there is a clear legal duty, the district court must grant a writ

of mandate if there is no available speedy and adequate remedy in

the ordinary course of law. Section 27-26-102, MCA. See also State

exrel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d

495, 497
In this case, the Beckys petitioned the District Court for a

writ of mandate on the basis of Montana's constitutional "right to

know" provision which provides:

NO person shall be deorived of the riqht to examine

documents . of all public bodies or asencies of state

government and its subdivisions, except in cases in which

the demand of individual privacy clearly exceeds the

merits of public disclosure.

Mont. Const. art. II, § 9 (emphasis added).

The Beckys asserted that all records or documents kept by the

School District constitute public records pursuant to 5 Z-6-401(2),

MCA, and are thus subject to examination as provided by Article II,

Section 9, of the Montana Constitution.

The District Court based its order denying the Beckys'

application for writ of mandate on an Alabama case which was

initiated by the parent of a student who had been denied admission

to an honorary society and who sought to have his daughter admitted

to that society. The parent in that case filed his claim pursuant

to the Civil Rights Act, 42 U.S.C. 5 1983, and the Family

Educational Rights and Privacy Act of 1974 (FERPA) , 20 U.S.C.

§ 1232g. Moore v. Hynche (Ala. 1991), 761 F. Supp. 112. The Moore

court held that the appellant had no private cause of action under

FERPA, 20 U.S.C. 5 1232g, and that there was no property interest

in membership in an honorary society.

Although the District Court concluded that Moore is "on all

fours with the facts of the case at bar," we find Moore inapposite.

In this case, the Beckys did not file their petition on the basis

of any federal statute, and they did not claim that Robert had a

6
property interest in membership in the National Honor Society. The

Beckys merely claimed access to the National Honor Society records

pursuant to the "right to know" provision of the Montana

Constitution. Therefore, without addressing the merits of the

District Court's conclusion, we hold that the proper basis for

evaluating the Beckys' petition for writ of mandate is Article II,

Section 9, of the Montana Constitution. This Court will, however,

uphold a district court's decision, if correct, even though its

reason for that decision may have been incorrect. Norman v. City of

Whitefish (1993), 258 Mont. 26, 30, 852 P.2d 533, 535; DistrictNo.55v.

MusselshellCounty (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253.

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.

Article II, Section 9, of the Montana Constitution applies to

local government. AssociutedPressv.State (1991), 250 Mont. 299, 302, 820

P.2d 421, 422 (citing V Mont Const.Conv. Trans. 1670-71 (1972)). Section

2-6-401, MCA, includes "school district" within its definition of

"local government." Accordingly, the provisions of Article II,

7
Section 9, apply to the School District. Therefore, since the

School District is a public body for the purposes of the "right to

know" provision, we must determine whether the National Honor

Society documents at issue constitute public documents for purposes

of public inspection.

We first note that the Montana Constitution does not define

"documents . . of . . public bodies" and that the issue of what

constitutes such documents has not previously been addressed by

this Court. What constitutes a "public writing" has, however, been

addressed by the Montana Legislature. See §§ 2-6-101, -102. Seealso

§ 2-6-401(2) , MCA, which defines "public records." Although the

Montana Constitution is the supreme law of the state and preempts

contrary statutes or rules, Associated Press v. Board of Pub. Educ. ( 19 9 1) , 2 4 6

Mont. 386, 804 P.2d 376, this Court may look beyond the

Constitution's specific language to interpret a constitutional

provision when an existing state statute is relevant to, and does

not conflict with, the constitutional provision. Since we

determine that §§ 2-6-101 and -102, MCA, pertaining to the right to

inspection of public writings, are relevant to our determination

and do not conflict with Article II, Section 9, of the Montana

Constitution when applied to the facts in this case, we will

consider the statutes in our evaluation of whether the National

Honor Society records are "documents of public bodies" pursuant to

the Montana Constitution.

Section 2-6-101, MCA, defines "public writings":
(1) Writings are of two kinds:

(a) public; and

(b) private.

(2) Public writings are:

(a) the written acts or records of the acts of the

sovereign authority, of official bodies and tribunals,

and of public officers, legislative, judicial, and

executive, whether of this state, of the United States,

of a sister state, or of a foreign country;

(b) public records, kept in this state, of private

writings, except as provided in 22-l-1103 and 22-3-807.

(3) Public writings are divided into four classes:

(a) laws;

(b) judicial records;

Cc) other official documents;

(d) public records, kept in this state, of private

writings.

(4) All other writings are private.

Section 2-6-102(l), MCA, provides that "[elvery citizen has a

right to inspect and take a copy of any public writings of this

state . . . .'I

The documents sought by the Beckys relating to Robert's denial

of membership in the National Honor Society do not fit into any of

the categories of public writings or documents described by

§ 2-6-101, MCA, and thus, are not subject to inspection as provided

in § 2-6-102, MCA. The result would be the same pursuant to

§ 2-6-401, MCA, which defines "public records" in the context of

local governments, including school districts. The National Honor

Society documents are generated by an independent nongovernmental

organization for the purpose of determining membership in that

organization. The documents do not record an act or acts of the

School District. They do not contain information regarding school

matters or the duties of School District employees. Any teachers

who participate in the National Honor Society selection process and

who submit evaluations to the National Honor Society do so

9
voluntarily, and are not acting in their capacities as employees of

the School District. Furthermore, any private documents generated

by the National Honor Society which relate to its membership

selection are not maintained by the School District. In fact, the

School District maintains no records for or pertaining to the

National Honor Society and has no record indicating whether a

student is even a member of that organization.

Accordingly, the documents contain no information which would

make them "documents of public bodies," as set forth in the Montana

Constitution. 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. Since the

National Honor Society documents are neither created by nor

maintained by the Butte-Silver Bow School District, and since the

documents are not related to the function and duties of the School

District, we hold that the School District had no clear legal duty

to produce the documents for the Beckys' inspecti0n.l Since the

documents are not public documents for purposes of Article II,

1 We note that § 10.55.2002(l), ARM, lists the specific

documents that must be maintained by the School District:

Each school shall keep a permanent file of students'

records, which shall include the name and address of the

student, his/her parent or guardian, birth date, academic

work completed, level of achievement (grades, standardized achievement tests), immunization records . . . and

attendance data.

The School District did satisfy its clear legal duty of

providing these records to the Beckys.

10
Section 9, of the Montana Constitution, we need not proceed to the

third step of balancing the public's right to know with the right

of privacy. See e.g. Montana Health Care Assh v. Board of Directors of the State

CompensationMut. Ins.Fund (1993), 256 Mont. 146, 845 P.2d 113.

Because we find that the National Honor Society documents are

not "documents of public bodies" as set forth in Article II,

Section 9, of the Montana Constitution, we conclude that the

District Court's order which denied the Beckys' writ of mandate was

correct. We affirm the order and judgment of the District Court.

We concur:

r

ustice

I Chief Justice

11
November 21. 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Alan F. Blakley

Attorney At Law

218 East Front, Suite 208

Missoula MT 59802

Patrick M. Sillivan, Esq.

Poore, Roth & Robinson, P.C.

1341 Harrison Avenue

Butte MT 59701

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA