No. 89-589 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE ASSOCIATED PRESS, BILLINGS GAZETTE, HELENA 

INDEPENDENT RECORD, MISSOULA MISSOULIAN, GREAT FALLS 

TRIBUNE, KALISPELL DAILY INTERLAKE, BOZEMAN DAILY 

CHRONICLE, HAVRE DAILY NEWS, LIVINGSTON ENTERPRISE, 

MILES CITY STAR, BUTTE MONTANA STANDARD, HAMILTON 

RAVALLI REPUBLIC, MONTANA NEWSPAPER ASSOCIATION, 

MONTANA CHAPTER OF THE SOCIETY OF PROFESSIONAL JOURNALISTS, 

Plaintiffs and Respondents, 

-vTHE BOARD OF PUBLIC EDUCATION, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marc Racicot, Attorney General, Helena, Montana 

Kim Kradolfer; Agency Legal Services Bureau; Helena, 

Montana (argued) 

For Respondents: 

James P. Reynolds; Reynolds, Molt & Sherwood; Helena, 

Montana (argued) 

Peter Michael Meloy; Meloy Law Firm; Helena, Montana 

Amicus : 

Bruce Moerer; Montana School Boards Assoc; Helena, 

Montana 

Stephen F. Garrison; Dept. of Highways, Helena, Montana 

Dal Smilie; Dept. of Admin.; Helena, Montana 

Martin Jacobsen; Public Service Com.; Helena, Montana 

Timothy J. Meloy; Dept. of Agriculture; Helena, Montana 

David J. Patterson, Montana Assoc. of Counties; Missoula, 

Montana 

Annie M. Bartos; Dept. of Commerce; Helena, Montana 

James R. Beck; Dept. of Highways; Helena, Montana 

David A. Scott; Dept. of Labor & Industry; Helena, 

Montana 

John F. North; Dept. of State Lands; Helena, Montana 

Donald D. MacIntyre; Dept. of Natural Resources and 

Conservation; Helena, Montana 

Brad Belke, Butte, Montana (for common cause) 

G. Steven Brown; Helena, Montana (for Mt. School Boards 

Association) 

John P. Poston; Helena, Montana (for Reporters Committee 

for Freedom of the Press) 

Jeffrey T. Renz; American Civil Liberties Union of 

JAN 4 - 1993 Montana; Billings, Montana 

Jim Madden; Reserved Water Rights Compact Comm.; Helena, 

&A 3;mitll Montana 

~~ZRM OF SUPREYE COURT 

STATE GF Usi4TCilllA , Submitted: November 27, 1990 

' 2 I ;. a Decided: January 4, 1991 

Filed: F,. . a a 

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'Clerk 
Justice R. C. McDonough delivered the Opinion of the Court.0 

Defendant, the Board of Public Education, appeals from an 

order granting summary judgment in favor of plaintiffs, the 

Associated Press and its member organizations. The District Court 

of the First Judicial District, Lewis and Clark County, held that 

the litigation exception contained in 5 2-3-203(4), MCA, which 

allows public agencies to close meetings when discussing litigation 

strategy, is unconstitutional because it violates Article 11, 

Section 9 of the Montana Constitution. We affirm. 

We frame the issues as follows: 

1. Whether the Board of Public Education can, under the 

authority of 5 2-3-203 (4) , MCA, validly close a meeting and exclude 

members of the public, in order to hold a private discussion 

concerning litigation strategy in a lawsuit to be asserted against 

the Governor; 

2. Whether the District Court erred in awarding attorney fees 

to plaintiffs, Associated Press, et al. 

Because the District Court decided this case on cross motions 

for summary judgment, the facts are not in controversy. 

The Board of Public Education (Board) is created by Article 

XI Section 9(3) of the Montana Constitution. Its primary purpose 

is to exercise general supervision over the public school system 

and other public educational institutions. The plaintiffs in this 

case, include the Associated Press and its member news 

organizations, the Montana Newspaper Association and the Montana 

Chapter of the Society of Professional Journalists. On February 

2 
8, 1989, the Board convened a meeting to consider a court challenge 

to an Executive Order, which required that the Board's 

administrative rules be submitted to the Governor for review and 

approval. The meeting took place in Claudette Morton's office, who 

is the Board's executive secretary. Attending in person were 

Morton, Board Chairperson Alan ~icholson, Morton's administrative 

assistant Patricia Admire and attorney W. William Leaphart. Six 

other Board members participated by speaker phone. Associated 

Press reporter Faith Conroy and ~arilyn Miller, an employee of the 

Governor's office of Budget and Program Planning were also present 

in Morton's office. 

Following roll call, the Board voted to close the meeting to 

discuss strategy to be followed with respect to potential 

litigation regarding the Governor's order. As a result of this 

vote, Faith Conroy was required, over her protest, to leave the 

room while this discussion took place. Marilyn Miller and Patricia 

Admire were also excluded from the closed portion of the meeting. 

The meeting was closed for approximately one-half hour. 

When the meeting was reopened Conroy, Miller and Admire were 

allowed to reenter the room. At this point, the Board unanimously 

passed a motion calling for a court challenge to the Governor's 

order. 

The next day the plaintiffs filed a complaint in District 

Court alleging that the Board met by telephone conference call and 

had closed its meeting to discuss litigation strategy. They 

maintained that the Montana Constitution does not authorize any 
public body or agency to close its meetings, even when the meeting 

is called for the sole purpose of discussing litigation strategy. 

They therefore asked the District Court to declare 5 2-3-203 (4) , 

MCA, unconstitutionally over broad and in conflict with Article 11, 

Section 9 of the Montana constitution. They further requested that 

the actions taken in the meeting be declared void and for it to 

award them attorney fees and costs. 

The parties stipulated to a statement of facts for purposes 

of cross motions for summary judgment. The matter was briefed and 

argued, and on August 4, 1989 the District Court entered summary 

judgment in favor of the plaintiffs, declaring 5 2-3-203(4), MCA, 

unconstitutional. This appeal followed. 

We hold that the issue presented by this case is narrow. 

Simply put, this case requires us to determine whether the citizens 

of the State of Montana have an absolute constitutional right to 

attend and observe a meeting held by a public body or state agency 

which is held to discuss litigation strategy to be used in 

potential litigation against another state governmental entity. 

The two legal provisions which are pertinent to our decision are: 

Article 11, Section 9 of the Montana Constitution which 

states: 

Section 9. 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. 

and 5 2-3-203, MCA, which states in pertinent part: 

4 
2-3-203. Meetings of public agencies and certain 

associates of public agencies to be open to public-- 

exceptions. (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. 

(4) However, a meeting may be closed to discuss a 

strategy to be followed with respect to collective 

bargaining or litigation when an open meeting would have 

a detrimental effect on the bargaining or litigating 

position of the public agency. 

The Associated Press maintains that Article 11, Section 9 is 

clear on its face. Its wording succinctly mandates that all 

meetings of public bodies and state agencies must be open to the 

public unless "the demand of individual privacy clearly exceeds the 

merits of public discl~sure.~' Therefore, the Associated Press 

argues 2-3-203 (4) , MCA, which purportedly allows a public agency 

to privately discuss litigation strategy, is violative of this 

constitutional mandate and must be struck down as unconstitutional. 

The Board, on the other hand, argues that this Court should 

balance other constitutional principles against the public's right 

to know. It maintains that the public, who is the true party in 

interest, has a right to due process which exceeds its right to 

know. The Board further argues that inherent in the right to due 

process is the right to confidentially confer with counsel. If 

state government is forced to open its meetings and publicly 

discuss litigation strategy, the right to speak to its attorneys 

in confidence will necessarily be lost. If this right is lost, 

state agencies, and consequently the public, will no longer retain 
their right to due process. 

The premise underlying the Board's argument is unsound. State 

agencies have never been included under the umbrella of the right 

to due process. The protections guaranteed by the constitutional 

right to due process were designed to protect people from 

governmental abuses. They were not designed to protect the 

government from the.people. See State v. Katzenbach (1966), 383 

U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769. This Court has generally 

followed this line of reasoning and has held that due process does 

not embrace the state or its political subdivisions. See 

Fitzpatrick v. State Board of Examiners (1937), 105 Mont. 234, 70 

P.2d 285. Because the Board's underlying premise fails, its 

argument based upon due process also fails. 

As further rationale, the Board argues that under Article VII, 

Section 2(3), this Court retains sole constitutional authority to 

make rules governing the conduct of members of the bar. Under this 

grant of authority, this Court has adopted rule 1.6 of the Rules 

of Professional Conduct which provides: 

A lawyer shall not reveal information relating to 

representation of a client unless the client consents 

after consultation. . . 

Taking this argument further, the Board correctly maintains 

that this rule applies to all attorneys, including those employed 

by state agencies. Therefore, the argument goes, Rule 1.6 prevents 

them from discussing matters in public with their public agency 

clients. 

This argument fails for at least two reasons. First and 
foremost, is the realization that the Constitution is the supreme 

law of this State. Its mandate must be followed by each of the 

three branches of government. Therefore, while this Court is 

authorized to adopt rules governing the practice of law, it may not 

enact any rule which violates express guarantees contained in the 

Constitution. The interpretation of such rules is limited by the 

confines of the Constitution. 

Second, we note that while an attorney must protect the 

confidences of his client, he is also directed to act within the 

law. As such this provision supersedes Rule 1.6, relative to 

public boards or agencies. 

Next, the Board argues that both the constitutional history 

of Article 11, Section 9 and applicable law from other states 

provide compelling reasoning which mandates reversal of the 

District Court's order. However, we have noted that this provision 

is unique, clear and unequivocal. Therefore as in the past we 

refuse to resort to law from other forums in interpreting our own 

Constitution. See e.g. Yellowstone Pipeline Co. v. State Board of 

Equalization (1960), 138 Mont. 603, 358 P.2d 55. 

The language of Article 11, Section 9 is clear as applied to 

this case. We are precluded, by general principles of 

constitutional construction, from resorting to extrinsic methods 

of interpretation. As we stated in a prior case: 

The language of [Article 11, Section 91 speaks for 

tself. It applies to all persons and all public bodies 

f the state and its subdivisions without exception. 

Under such circumstances, it is our duty to interpret the 

intent of the framers from the language of the provision 

alone and not to resort to extrinsic aids or rules of 
construction in determining the intent of the delegates 

to the Constitutional Convention. 

Great Falls Tribune v. District Court (1980), 186 Mont. 433, 437- 

Applying the language of the provision to the agreed facts of 

this case we conclude that the Board wrongfully closed its meeting, 

which was held to discuss potential litigation between two 

governmental entities, in violation of the State Constitution. 

The Board argues however, that public policy considerations 

mandate closure of meetings convened for the sole purpose of 

discussing litigation strategy. It maintains that if the State is 

required to open its meetings it will be severely disadvantaged in 

litigation against private parties because it will be forced to 

reveal all strategy to the opposing party. The opposition on the 

other hand will not be under such constraints and therefore 

litigation involving the State will not be played on a level field. 

However, this argument really doesn't apply to the facts of 

this case. The potential litigation in this case involved a 

dispute over rule making authority between the Governor and the 

Board of Public Education. The Board's reasoning for filing the 

lawsuit may have been well taken. However, this fact does not 

overcome the realization that the dispute between the Board and the 

Governor was essentially a turf battle which should be given public 

scrutiny in all its particulars. In short, it is the public's 

business. 

I1 

Having upheld the District Court's order voiding the Board's 

8 
actions, we must now determine whether it correctly awarded 

plaintiffs their attorney fees. The Board maintains the award of 

attorney fees was inappropriate in this case, because the Board 

acted in good faith and under the presumption that their actions 

were constitutional under 5 2-3-203(4), MCA. 

The District Court awarded fees under 5 2-3-221, MCA, which 

states: 

A plaintiff who prevails in an action brought in district 

court to enforce his rights under Article 11, section 9, 

of the Montana constitution may be awarded his costs and 

reasonable attorney fees. 

The award of attorney fees in cases brought under Article 11, 

Section 9 are discretionary with the court The Board argues that 

the court incorrectly exercised this discretion because the action 

was not taken frivolously or in bad faith. 

We disagree. By awarding plaintiffs their fees, the District 

Court obviously recognized the import of its decision and spread 

the cost of the litigation among its beneficiaries. Due to the 

particular advantages of enforcement of the right in this case, as 

well as the resultant public benefits gained by plaintiffs1 efforts 

it was not an abuse of discretion to reimburse them from the public 

coffers. That is the intent of the statute. 

The award of attorney fees is affirmed and pursuant to the 

plaintiffs1 request fees incurred on appeal are also granted and 

this case is remanded for determination of attorney fees. A 
We Concur: