No. 95-491

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

WILL GOYEN and BONNIE GOYEN,

Plaintiffs and Appellants,

v.

CITY OF TROY, MONTANA, a body politic

and corporate; the CITY COUNCIL thereof;

and ROD JOHNSON, Mayor; JIM HAMMONS,

LORETTA JONES, RON PIERCE, and LAURA

SCHRADER, in the official capacity as

City Council members,

Defendants and Respondents.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Michael H. Keedy, Atherton & Keedy,

Kalispell, Montana

For Respondents:

Thomas R. Bostock, Warden, Christiansen,

Johnson & Berg, Kalispell, Montana

Filed:

Submitted on Briefs: March 14, 1996

Decided: April 22, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.

This is an appeal from an order of the Nineteenth Judicial

District Court, Lincoln County, denying Will and Bonnie Goyens'

petition and quashing their application for alternative writs of

mandamus and prohibition. We affirm.

The dispositive issues are as follows:

1 . Did the District Court err in concluding there was no

violation of the open meeting law in regard to the May 10, 1995,

meeting?

2 . Did the District Court err in concluding there was no

violation of the open meeting law in regard to the August 16, 1995,

hearing?

3 . Did the District Court err in quashing the writs of

mandamus and prohibition?

FACTS

Will Goyen was the Chief of Police in Troy. At the May 10,

1995, city council meeting, a number of citizens showed up to

question the mayor concerning Goyen's involvement in an incident

locally known as "gravel-gate." The gravel-gate incident involved

the removal of a significant quantity of gravel from a city gravel

pile by both Goyen and another individual. Apparently Goyen had

permission from a council member to use a city vehicle and remove

the gravel. However, while Goyen was removing the gravel, another

private citizen was also at the gravel pile and removed

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approximately seventy yards of gravel without any authority to do

so. Goyen took no action to stop or to report the violation.

The gravel-gate incident was not on the May 10 agenda and the

mayor and city council were not aware that it would be raised prior

to the meeting. Goyen was not present at the meeting. When the

issue was raised at the meeting, the mayor stated that the matter

was a personal problem and would not be handled at a public

meeting. Following the meeting, the council went into executive

session to discuss the allegations against Goyen. Goyen was not

notified that the council would be closing the meeting to discuss

matters that impacted on his individual privacy rights.

Before the council went into executive session, Crystal

Denton, a local woman, asked the mayor that she be permitted to

speak privately to the council. The mayor testified that he did

not know what she wanted to talk about. Denton informed the

council that she and Goyen had engaged in several voluntary acts of

sexual intercourse in or near the city patrol car while Goyen was

on duty and in uniform. The mayor and the council listened to

these allegations and informed Denton that she needed to file a

sworn statement before any action could be taken. Denton later

filed a sworn statement and the mayor confronted Goyen with the

allegations. Goyen denied the content of her allegations.

Members of the community raised a number of additional

allegations in regard to Goyen and as a result the mayor suspended

Goyen for five days. On August 1, 1995, a letter was prepared

3
recommending discharge and a pre-termination discharge hearing was

scheduled for August 16, 1995.

The August 16 hearing was held in open session and Goyen and

his attorney were given the right to cross-examine all witnesses.

At Denton's request, the meeting was closed during her testimony

although Goyen and his attorney were allowed to remain. During

Denton's testimony, the council was informed that another witness,

Sharon Anderson, needed to testify at that time due to her work

schedule. Since the council did not have subpoena power, they

interrupted Denton's testimony and allowed Anderson to testify.

The mayor was aware that Anderson's testimony concerned the

relationship between Denton and Goyen and therefore kept the

meeting closed. Goyen did not object to this closure. Anderson

testified as to her observations of physical contact between Denton

and Goyen while Goyen was on duty and in uniform. Following

Anderson's testimony, Denton continued with her testimony in closed

session.

The hearing took a total of nine and one-half hours and the

council conducted their deliberations in open session. The council

voted unanimously to fire Goyen, finding that he had not been

truthful in his response to the gravel issue and that a

preponderance of the evidence indicated that he had sexual

intercourse with Denton on at least two occasions while he was on

duty, in uniform, and using the patrol car. The council also found

that Goyen had wrongfully removed beer from the city police

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evidence locker and that he had improperly handled a traffic arrest

by permitting an obviously intoxicated minor to drive an uninsured

vehicle which resulted in damage to the vehicle.

Following his discharge, Goyen and his wife filed a petition

to void the city council's decision pursuant to the open meeting

law and also filed writs of mandamus and prohibition. These claims

were combined in a single action. The court initially issued the

alternative writs but following a hearing on a motion to quash,

subsequently quashed the writs and dismissed the petition. From

the court's denial of the Goyens' petition and writs, they appeal.

ISSUE 1

Did the District Court err in concluding there was no

violation of the open meeting law in regard to the May 10, 1995,

meeting?

Section 2-3-203, MCA, provides that all meetings of

governmental bodies be open with the following exception:

[Tlhe 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, in that event, the meeting must be open.

Section 2-3-203(3), MCA.

In its conclusions of law, the District Court determined that

The closure of the May 10 meeting to the public by the

Mayor was made for the individual privacy of Will Goyen,

and the Mayor had made a determination that the demands

of individual privacy clearly exceeded the merits of

public disclosure; the continued closure while Crystal

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Denton addressed the council still involved the

individual privacy of Will Goyen, and it also included

Denton's right to privacy, apart from the fact that there

was no one else there anyhow; and, nothing was done by

the council, so there is nothing to void.

While the District Court's conclusion upheld a discretionary

decision to close the meeting on May 10, our review is based upon

the District Court's interpretation of § 2-3-203, MCA, and so we

will review the court's conclusion for correctness of law. See Day

v. Child Support Enforcement Div. (1995), 272 Mont. 170, 175, 900

P.2d 296, 299.

Goyen asserts he did not attend the May 10 meeting because he

had no notice that he was going to be discussed. Without notice,

Goyen argues he was in no position to either assert or waive his

right of individual privacy. Therefore, he claims any discussion

pertaining to him should have transpired in open session pursuant

to § 2-3-203, MCA, so that the public could adequately evaluate

whether the resulting action by the council--Goyen's discharge--was

fair and appropriate. Goyen contends his discharge should be void

as a result of the council's violation in closing the May 10

meeting.

As noted, 5 2-3-203, MCA, allows an individual about whom the

discussion pertains to waive his or her right of individual

privacy. That right is ineffectual where the individual had no

notice of the closure. A right granted is presumed to include

whatever rights are essential to its use. Section 1-3-213, MCA.

Therefore, the statutory right to waive individual privacy implies

6
that notice must be given to the individual discussed so that he or

she has the opportunity to waive this right.

In the present case, the council discussed the allegations

against Goyen concerning gravel-gate in executive session because

the mayor, as the presiding officer, determined the demands of

Goyen's privacy interests clearly exceeded the merits of public

disclosure. Once the demands of individual privacy were found to

predominate, the council was obligated to notify Goyen so that he

could exercise his right to waive that interest. Goyen was not

notified. As a result, the council's discussion of Goyen's privacy

interest in executive session violated 5 2-3-203, MCA, of the open

meeting statutes.

It must be noted, however, that once the mayor determined that

Goyen's privacy interest outweighed the public's right to know, the

council could not discuss the matter in open session without

subjecting themselves to a potential action for invasion of Goyen's

privacy. In these situations, public bodies subject to the open

meeting law should simply defer any discussion of the issue until

the individual whose privacy interest is involved is notified and

is given the opportunity to attend the meeting and/or waive his or

her right of privacy and have the meeting conducted in open

session. Thus, without notice to Goyen the discussion of the

gravel-gate incident during an open meeting on that date would have

been inappropriate as well.
As for the May 10 Denton allegations, Goyen's privacy interest

was again the topic of discussion. Consequently, Goyen had a right

to be notified of that discussion, regardless of whether Denton's

assertion of her own privacy interest was reason enough to close

the meeting. While the council asserts they took no action in

executive session other than to recommend to Denton that she

provide them with a sworn statement, the meeting was still subject

to the open meeting laws set forth in §§ 2-3-201through -221, MCA.

In State v. Conrad (1982), 197 Mont. 406, 643 P.2d 239, we reviewed

the legislative history of the open meeting law and said, "while

the original section [now § 2-3-203, MCAI required that meetings at

which action was taken be open, the section as amended required

that all public meetings be open, whether action was taken or not."

Conrad, 643 P.2d at 242. Accordingly, the May 10 meeting was

subject to the requirements for open meetings regardless of whether

any action was taken.

Nevertheless, no adverse action was taken against Goyen at the

May 10 meeting and the subsequent hearing on August 16 provided

Goyen with notice and the opportunity to confront those testifying

against him and to observe, in open session, the council's

deliberations before any action was taken. We have held that a

meeting in violation of § 2-3-203, MCA, will not result in the

voidance of a final decision where that final decision was not

based upon actions taken at the illegal meeting. Common Cause v.

Statutory Committee (1994), 263 Mont. 324, 333-34, 868 P.2d 604,

8
609 (comparing a governor's appointment which considered but was

not bound by a list of candidates developed at a meeting held in

violation of § 2-3-203, MCA, with the Board of Trustees v. Board of

County Commissioners (1980), 186 Mont. 148, 606 P.2d 1069, where

the Court voided a decision based solely upon a meeting held in

violation of § 2-3-203, MCA.) The council took no action at the

May 10 meeting and the decision to discharge Goyen was based upon

testimony and evidence presented at the August 16 hearing. Under

this factual situation the illegal May 10 meeting did not taint the

August 16 hearing and the council's ultimate decision cannot be

voided for the earlier violations.

While the District Court erred in concluding that the May 10

meeting did not violate the open meeting law, we have determined

this error is harmless given the subsequent events of August 16.

We have stated that "a district court's decision will not be

reversed or remanded when the eventual result of the case would be

the same without the error." In re S.C. (1994), 264 Mont. 24, 30,

869 P.2d 266, 269. We therefore conclude the District Court did

not commit reversible error when it determined there was no

violation of the open meeting law in regard to the May 10 meeting.

ISSUE 2

Did the District Court err in concluding there was no

violation of the open meeting law in regard to the August 16, 1995,

hearing?

9
Goyen was provided notice of the August 16 meeting and he

waived his privacy interest in favor of an open meeting. Denton,

however, requested closure of the meeting during her testimony.

Anderson's testimony pertained to Denton and the council continued

its closed meeting throughout her testimony as well.

In its conclusions of law, the District Court determined the

council did not violate § 2-3-203, MCA, due to the fact that

[tlhere was a specific request by Denton for a closed

meeting on August 16, 1995, and again, the demand for

individual privacy of Denton clearly exceeded the merits

of public disclosure; the request of Anderson to be heard

out of order was unexpected, but the nature of her

testimony was known to the Mayor, and it involved matters

personal to Will Goyen and Crystal Denton;

notwithstanding Goyen had waived his right to privacy,

Denton had expressly demanded hers.

We will review the District Court's conclusion of law for its

correctness. See m, 900 P.2d at 299.

Goyen contends Denton's privacy interest was not at issue, and

therefore, the District Court erred in concluding that the council

did not violate § 2-3-203, MCA, when it closed the meeting to the

public given that Goyen had waived his privacy interest.

Section 2-3-203(3), MCA, provides that 'I [tl he right of

individual privacy may be waived by the individual about whom the

discussion pertains and, in that event, the meeting must be open."

In interpreting statutes, our role is to ascertain what is

contained in the statute, not to insert what has been omitted nor

to omit what has been inserted. Section l-2-101, MCA; see Love11

v. State Comp. Mut Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d

10
95, 99. 0 [Ilt is fundamental that words and phrases are to be

given their plain, ordinary and usual meaning" when construing

statutes. Common Cause, 868 P.2d at 608. The plain meaning of

§ 2-3-203(3), MCA, does not limit its exception to the individual

who is the subject of the proceeding.

Furthermore, we have held that an accuser and witnesses to an

alleged incident have a subjective privacy interest which society

is willing to recognize as reasonable in an investigation focused

on the accused. See Bozeman Daily Chronicle v. Police Dept.

(19931, 260 Mont. 218, 230, 859 P.2d 435, 441. The exception

applies to the "individual" about whom the discussion pertains.

Denton's and Anderson's testimony pertained to the conduct of both

Denton and Goyen. Denton, as an individual about whom the

discussion pertained, could therefore assert her privacy interest

in closed session where that interest was determined to exceed the

merits of public disclosure.

Given that conclusion, Goyen contends the demands of Denton's

privacy interest did not exceed the merits of public disclosure.

Pursuant to our state constitution, the public has the right "to

observe the deliberations of all public bodies . . except in

cases in which the demand of individual privacy clearly exceeds the

merits of public disclosure." Mont. Const. art. II, § 9. The

District Court determined that Denton's privacy interest did in

fact clearly exceed the merits of public disclosure, and we will

11
review the court's determination for an abuse of discretion. &

State v. Burns (1992), 253 Mont. 37, 40-41, 830 P.2d 1318, 1321.

In Hastetter v. Behan (1982), 196 Mont. 280, 639 P.2d 510, we

set forth a two-prong test whereby a court may decide whether a

privacy interest is protected under the state constitution. First,

we must determine whether the person involved had a subjective or

actual expectation of privacy; and second, we must determine

whether society is willing to recognize that expectation as

reasonable. Hastetter, 639 P.2d at 512-13 (citing Smith v.

Maryland (19791, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220).

We have relied upon this test in subsequent cases. Flesh v. Board

of Trustees (1990), 241 Mont. 158, 165, 786 P.2d 4, 8; Great Falls

Tribune v. Dist. Court (1989), 238 Mont. 310, 318, 777 P.2d 345,

350; Missoulian v. Board of Regents of Higher Education (1984), 207

Mont. 513, 522, 675 P.2d 962, 967; Montana Human Rights Div. v.

City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287.

Goyen contends Denton had no expectation of privacy given the

fact that her charges against Goyen were common knowledge in the

local community. We have nonetheless recognized that even "harmless

or generally known information" is subject to constitutional

protection. Missoulian, 675 P.2d at 969. Denton requested that

her testimony be presented in private due to the fact she was

married, had two small children, and lived in the community. Her

relationship with Goyen, while allegedly known by others, was

certainly private in nature.

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In Missoulian, we stated that the "'right of privacy turns on

the reasonableness of the expectation, which may vary, even

regarding the same information and the same recipient of that

information.'" Missoulian, 675 P.2d at 968 (quoting Montana Human

Riqhts, 649 P.2d at 1288). Considering the subject matter of

Denton's and Anderson's testimony and the surrounding

circumstances, we determine that Denton had a reasonable subjective

expectation of privacy and one which society is willing to

recognize. Having met both prongs of the test in Hastetter, we

conclude that the District Court did not abuse its discretion in

its determination that Denton's privacy interest exceeded the

merits of public disclosure.

ISSUE 3

Did the District Court err in quashing the writs of mandamus

and prohibition?

The Goyens filed alternative writs of mandamus and prohibition

in addition to their petition to void the council's decision. The

District Court concluded that mandamus will not lie to control the

discretion of a municipal body or officer, and that prohibition

will not lie where the defendants were not exercising judicial

functions. The court denied both writs in accordance with its

conclusions.

We will review a district court's grant or denial of writs of

mandamus and of prohibition for correctness of law. & Becky v.

Butte-Silver Bow School Dist No. 1 (Mont. 1995), 906 P.2d 193, 195,

13
52 St. Rep. 1154, 1155 (reviewing writs of mandamus); and Awareness

Group v. Board of Trustees (1990), 243 Mont. 469, 475, 795 p.2d

447, 451 (comparing writs of mandamus and prohibition). Generally,

the purpose of a writ of mandamus is to compel activity, while the

purpose of a writ of prohibition is to refrain from performing

certain activities. Awareness Grout, 795 P.2d at 451.

The Goyens rely upon Board of Trustees v. Board of County

Commissioners (1980), 186 Mont. 148, 606 P.2d 1069, where we held

that a writ of mandamus was appropriate to void a meeting that was

in violation of our open meeting statutes. Bd. of Trustees, 606

P.2d at 1074-75. In that case, the Court was concerned about the

unreasonable delay of the case and concluded that "[wlhile the use

of a writ of mandamus is not textbook law, it is appropriate here."

Bd. of Trustees, 606 P.2d at 1075. The Court then stated "[iIn the

future, however, it would seem the suit should take the form of a

simple petition to void an action or a petition for a declaratory

judgment." Bd. of Trustees, 606 P.2d at 1075. We take this

opportunity to reiterate that actions for violations of the open

meeting law are appropriately brought by a petition alleging

violation of the act pursuant to 5 2-3-203, MCA. Writs of mandamus

and prohibition are not appropriate for the enforcement of those

provisions.

There was no unreasonable delay in the present case and the

Goyens did in fact appropriately petition the court under

5 Z-3-203, MCA, to void the council's actions. We conclude the

14
writs are therefore not appropriate as a matter of law and the

District Court did not err in denying them, regardless of its

reasons. See Kephart v. Portmann (1993), 259 Mont. 232, 236, 855

P.2d 120, 122-23.

Affirmed. azx

Justice

15
Justice Terry N. Trieweiler concurring in part and dissenting in

part.

I concur with the majority's conclusion that the District

Court did not commit reversible error when it determined that there

was no violation of the open meeting law on May 10, 1995. I also

concur that the District Court did not abuse its discretion when it

denied the Goyens' petitions for writ of mandamus or writ of

prohibition.

I dissent from that part of the majority opinion which

concludes there was no violation of the open meeting law on

August 16, 1995, because of Crystal Denton's privacy interest. I

would conclude that someone who engages in voluntary acts of sexual

intercourse in a police car with a police officer who is on duty,

and then after the fact goes to a city council meeting to complain

about the experience, has no reasonable expectation of privacy

which society should be prepared to recognize, and therefore, that

the second prong of the Hastetter test cannot be satisfied. Since

there was no other basis for closing the city council's meeting to

the public, the city council violated the open meeting law when it

did so.

16
I herebv certifv that the

CERTIFICATE OF SERVICE

-~- following certified order w&

following named:

Michael H. Keedv

Atherton & Keed;

735 Main Street

KaIispell, MT 59901

Thomas R. Bostock

s sent by United States mail, prepaid, to the

April 22, 1996

Warden, Christiansen, Johnson & Berg

P.O. Box 3038

KaIispell, MT 59903-3038

E:D SMITH

C

s

:LERK OF THE SUPREME COURT

TATE OF MONTANA

jT&,&,

n

BY: -h

Deputy ”