No. 14908 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BOARD OF TRUSTEES, HUNTLEY PROJECT 

SCHOOL DISTRICT NO. 24, WORDEN, MONTANA, 

Petitioner and Appellant, 

BOARD OF COUNTY COMMISSIONERS OF THE 

COUNTY OF YELLOWSTONE, STATE OF MONTANA, 

and M. E. McCLINTOCK, DUANE E. CHRISTIANSEN 

and J. A. STRAW, Constituting the members of 

said Board, 

Respondents and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Davidson, Veeder, Baugh & Broeder, Billings, Montana 

Doris M. Poppler argued, Billings, Montana 

For Respondents: 

Harold F. Hanser, County Attorney, Billings, Montana 

David W. Hoefer argued, Deputy County Attorney, 

Billings, Montana 

Submitted: January 17, 1980 

Decided: FEB S - 1980 

Filed: FEi, 6 - lja 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his action arose from an application for a preemptory 

writ filed on the 26th day of January, 1979 by the Board of 

Trustees of Huntley Project School District No. 24, Worden, 

Montana, asking the court to compel the Yellowstone County 

Commissioners to void the meeting of December 28, 1978 and 

all actions taken at said meeting. This was based on petitioner's contention that the said meeting was not held in 

conformance with the laws of the State of Montana requiring 

public boards and commissions to hold open meetings after 

proper notice to the public whenever action is to be taken 

or a decision is to be made by the public agency. 

The case was heard on stipulated facts without a jury 

and submitted on briefs to the District Court. The District 

Court denied the application. It is from this denial that 

the Huntley Project School District No. 24 appeals. 

On December 26, 1978, a public meeting was held at the 

Yellowstone County Courthouse for the purpose of hearing 

testimony by the public and other interested parties in 

regard to the preliminary plat of Pryor Creek Estates Subdivision. A number of people testified both for and against 

the proposed subdivision. The Board's public hearing on the 

preliminary plat was then closed by the Chairman. The 

Commissioners announced that they would take the matter 

under advisement and that a decision would be made in the 

next day or two. 

On December 28, 1978, pursuant to adjournment, the 

Board of Commissioners convened at 9:00 a.m. The minutes 

reflect that Commissioners Christensen, Kamp, ~c~lintock and 

County Clerk Klundt were present. The minutes indicate that 
the subdivision was conditionally approved on the motion of 

Mr. Kamp and seconded by Commissioner Christensen. A footnote adds that Commissioner McClintock was not aware of the 

meeting on this matter, nor that a vote was to be taken at 

this time. 

The actual decision was made at approximately 2:30 in 

the afternoon of December 28th, 1978. The vote was conducted 

by telephone. Duane Christensen was on the phone in his 

office; David Hoefer of the County Attorney's Office was on 

a phone in the secretarial area of the Commissioners' office; 

Bonnie Hudson, a Deputy Clerk and Recorder, was in the conference room on an extension phone; and Leo Kamp was on a 

phone at the Circle Inn. Mr. McClintock was also at the 

Circle Inn but was not notified of the call and was not at 

that time aware that a vote was being taken on the matter. 

However, Mr. McClintock, to the best of his recollection, 

had on the morning of December 28th, 1978, participated in a 

discussion with Commissioners Kamp and Christensen concerning 

the Pryor Creek Estates Subdivision, with no decision being 

made at that time. 

On January 9, 1979, Commissioner Christensen attempted 

to have the December 28, 1978 action reconsidered, but 

failed when his motion was not seconded. 

After the filing of the lawsuit, a letter was sent to 

Elmer Link, the developer of the subdivision, by Commissioner 

Christensen, which purported to be findings of fact and conclusions of law. The School District challenged these findings of fact on a procedural basis alleging they were not 

based on a resolution passed by the Board of County Commissioners as required by section 76-3-608, MCA. The District 
Court ruled that the requirements of section 76-3-608, MCA 

had been met. Apparently these alleged findings were never 

filed with the County Clerk and Recorder. Written findings 

of fact were, however, filed with the Yellowstone County 

Clerk and Recorder on March 22, 1979. These findings appear 

to comply with section 76-3-608, MCA. 

The following issues are presented for review: 

(1) Did the District Court err in determining that the 

Commissioners' meeting of December 28, 1978 was improper but 

that there existed insufficient grounds to nullify the 

action taken by the commission? 

(2) Did the District Court abuse its discretion by not 

compelling respondents to void the meeting of December 28, 

(3) Is mandamus a proper remedy in this matter? 

The Montana Constitution guarantees that "[nlo 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." Article 11, section 9, 1972 

Constitution of the State of Montana. 

Montana also has a number of statutes which protect 

this right to an "open meeting", sections 2-3-201, MCA, et 

seq. 

Section 2-3-201 provides: 

"The legislature finds and declares that 

public boards, commissions, councils, and 

other public agencies in this state exist 

to aid in the conduct of the peoples' 

business. It is the intent of this part 

that actions and deliberations of all 

public agencies shall be conducted openly. 

The people of the state do not wish to 

abdicate their sovereignty to the agencies 

which serve them. Toward these ends, the 

provisions of the part shall be liberally 

construed." 
Section 2-3-203, MCA provides: 

"(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 shall 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, in that event, 

the meeting shall be open. 

" (3) 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. 

"(4) Any committee or subcommittee appointed 

by a public body for the purpose of conducting 

business which is within the jurisdiction of 

that agency shall be subject to the requirements of this section." 

A "meeting" is defined as ". . . the convening of a 

quorum of the constituent membership of a public agency, 

whether corporal or by means of electronic equipment, to 

hear, discuss, or act upon a matter over which the agency 

has supervision, control, jurisdiction, or advisory power." 

Section 2-3-202, MCA. 

"Appropriate minutes of all meetings required by 2-3- 

203 to be open shall be kept and shall be available for 

inspection by the public." Section 2-3-212(1), MCA. Such 

minutes must include the: 

"(a) date, time, and place of meeting; 

" (b) a list of the individual members 

of the public body, agency, or organization in attendance; 
" (c) the substance of all matters proposed, discussed, or decided; and 

" (d) at the request of any member, a 

record by individual members of any 

votes taken." Section 2-3-212 (2), MCA. 

"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." Section 2-3-213, MCA. 

"Each agency shall develop procedures 

for permitting and encouraging the 

public to participate in agency decisions that are of significant interest 

to the public. The procedures shall 

assure adequate notice and assist 

public participation before a final 

agency action is taken that is of 

significant interest to the public." 

Section 2-3-103 (I), MCA. 

An agency shall be considered to have complied with the 

above notice provision if: 

" (3) a public hearing, after appropriate notice is given, is held pursuant 

to any other provision of state law or 

a local ordinance or resolution; or 

"(4) a newspaper of general circulation within the area to be affected by 

a decision of significant interest to 

the public has carried a news story or 

advertisement concerning the decision 

sufficiently prior to a final decision 

to permit public comment on the matter." 

Section 2-3-104, MCA. 

There is no question that the above statutes apply to 

the County Commissioners and to this "meeting". 

In addition, there are statutes which specifically 

regulate the meetings of County Commissioners. 

Section 7-5-2122, MCA provides: 

"(1) The governing body of the county 

shall establish by resolution a regular 

meeting date and notify the public of 

that date. 
" (2) The governing body of the county, 

except as may be otherwise required of 

them, may meet at the county seat of 

their respective counties at any time 

for the purpose of attending to county 

business. Commissioners may, by resolutiion and prior 2 days' posted public 

notice, designate another meeting time 

and place." 

Section 7-5-2125, MCA provides that "[all1 meetings of the 

board of county commissioners must be public." 

The outcome of this case rests on a determination of 

whether the "meeting" held by the County Commissioners on 

December 28, 1978 complied with the provisions of the above 

statutes. 

Respondents argue that the "meeting" did not violate 

the above statutes. They submit that the "meeting" was a 

continuation of a meeting properly held on December 26, 

1978. They further submit that notice was given in the form 

of a news story in the "Yellowstone County News" printed on 

December 28, 1978 and indicating that the Commission was to 

make its decision on the Pryor Creek Estates Subdivision 

today or tomorrow. " 

Additionally, the respondents argue that throughout the 

entire decision making process, public meetings were held 

and the public was kept informed. 

Appellant, on the other hand, questions whether or not 

the telephone conversation constituted a valid meeting at 

all. It submits that no notice was given of the "meeting's" 

time or place as required by statute and questions the 

validity of the individual action of one Commissioner in 

calling a meeting to decide matters of this magnitude. 

Appellant argues that the open meeting statutes must be 

liberally construed and that it is inconceivable that an 
open meeting can be held without public notice and still 

accomplish the legislative purpose of the Open Meeting Law. 

A review of the facts in the instant case leads to the 

conclusion that a "meeting" took place as defined by section 

2-3-202, MCA. A "quorum" of the County Commissioners (2 of 

3; see Black's Law Dictionary 1421 (4th ed. 1968)) met "by 

means of electronic equipment (telephone) to act upon a 

matter over which the agency had supervision, control, 

jurisdiction, or advisory power." Section 2-3-202, MCA. 

The record also indicates that due to the framework in 

which the meeting was held, i.e. by means of telephone conversation, and due to the fact that Commissioner McClintock 

was not informed of the meeting, it was not an "open meeting" 

as required in Montana. 

In Montana, notice is required by sections 2-3-103 and 

7-5-2122, MCA. The contested "meeting" here failed to 

comply with the notice requirements of both those sections. 

Respondents contend that the newspaper story printed in the 

"Yellowstone County News" and the fact that they held public 

meetings under the Montana Subdivision and Platting Act 

sufficiently complied with the above notice provisions. 

This interpretation of the facts and the law is mistaken. 

The newspaper article did not provide sufficient facts 

concerning the "meeting's" time and place to inform the 

public sufficiently prior to the final decision to permit 

further public comment on the matter. Furthermore, this 

"meeting" violated the provisions that control the meetings 

of the Board of County Commissioners. A reading of section 

7-5-2122 indicates that before the County Commissioners can 

change the time, place and manner of their meetings or hold 

a special meeting, two days posted public notice must be 
given. This notice must designate the new meeting time and 

place. It is clear that this was not done here even to the 

exclusion of one of the County Commissioners. It is difficult 

to envision an open meeting held without public notice that 

still accomplishes the legislative purpose of the Montana 

"open meeting" statutes. Without public notice, an open 

meeting is open in theory only, not in practice. This type 

of clandestine meeting violates the spirit and the letter of 

the Montana Open Meeting Law. 

The question then becomes did the District Court act 

improperly in not voiding the decision. Two statutes of 

similar effect govern here. Section 2-3-114 provides: "The 

district courts of the state have jurisdiction to set aside 

an agency decision under this part upon petition made within 

30 days of the date of the decision of any person whose 

rights have been prejudiced." Section 2-3-213, MCA 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." The above provisions indicate that it is 

within the District Court's discretion to void the actions 

if there has been a violation of the "open meeting" law. 

The District Judge here published a memorandum in support of his decision denying appellants' application for 

writ of mandamus. In this memorandum, the judge, while 

finding technical deficiencies in the procedures employed, 

ruled that: 

"In this case it appears appropriate to 

assume that the 'open meeting' statute 

applies and has been violated. The 

critical question then revolves about 

the consequences to be imposed since the 

statute makes the voiding of the Commissioner's action discretionary rather 

than mandatory (Section 2-3-213) . " 
". . .[A]s a matter of substance over 

form there is not sufficient ground 

existing to nullify the action taken 11 ... 

The District Judge also discussed the ramifications of 

failing immediately to make public written findings of fact 

in support of the Commissioners' conclusions. At the time 

of this opinion those written findings and conclusions are 

properly on file in Yellowstone County. A discussion of 

this issue is therefore moot. This should not be taken as 

an indication that this Court approves of the delay and 

deficient procedure shown in this case. In fact, we strongly 

disapprove of such delays. Any unreasonable delay as was 

the case here will not be tolerated in the future. We 

strongly urge the various County Commissioners to file 

written findings of fact and conclusions in subdivision 

matters as required by section 76-3-608, MCA and State ex 

rel. Florence-Carlton School District v. Board of County 

Commissioners (1978), - Mont. , 590 P.2d 602, 35 

St.Rptr. 1836 immediately following their decision to approve, conditionally approve or disapprove a subdivision 

proposal. 

In his memorandum, the District Judge correctly determined that the procedure followed was improper. He went on 

to determine, however, that the decision involved an element 

of urgency. He also determined that the decision would not 

change simply because a public meeting was held. He, 

therefore, decided to look past the form to the substance 

and uphold the decision. 

It is too familiar a concept of Montana law to require 

citation that a discretionary decision of the District Court 
will not be reversed unless there is a clear abuse of discretion. However, the disregard shown for the statutes 

regulating the procedure of an open meeting in terms of 

notice and place and voting procedure placed a heavy duty 

and burden on those who would prove the meeting legal. In 

the absence of such proof, we must hold there was a clear 

abuse of discretion on the part of the trial court. 

The failure here to follow proper statutory procedures 

of notice has the effect of invalidating the Commissioners' 

decision. We would emphasize that our ruling here has no 

bearing on the merits of the Commissioners' decision but 

only reflects on the impropriety of the procedure used. 

There is one further issue raised by respondents as to 

the proper remedy involved here. 

The appellants petitioned for a writ of mandate requesting the court to void the illegal meeting. Respondent 

correctly contends that mandamus is not a proper remedy to 

correct action which has already taken place. Melton v. 

Oleson (1974), 165 Mont. 424, 530 P.2d 466. Appellants 

agree with this but contend they are not requesting the 

undoing of an act, but rather that this Court void the 

illegal meeting. They cite Kadillak v. The Anaconda Co. 

(1979) r - Mont. , 602 P.2d 147, 36 St.Rep 1820, wherein 

we stated: 

"State Lands contends that mandamus cannot lie 

to correct'lor undo an act already performed . . . This is a correct statement of the law. 

What this Court is mandating, however, is not 

the undoing of an act. Rather, we are directing State Lands to perform an act which they 

have not done and which they had a clear 

legal duty to do. They are to return the 

Permit 41A application to Anaconda as inadequate and incomplete. Because the application was not returned Permit 41A was void 

from the beginning and Anaconda may not continue the mining activities on the Permit 

41A area until a valid permit is granted by 

State Lands." 602 P.2d at 157. 
In Montana use of a writ of mandate is specifically 

controlled by statute. Section 27-26-106 provides in pertinent part that a writ of mandamus: 

". . . may be issued by the supreme court or 

the district court or any judge of the district court to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins 

as a duty resulting from an office, trust, or 

station or to compel the admission of a party 

to the use and enjoyment of a right or office 

to which he is entitled and from which he is 

unlawfully precluded by such inferior tribunal, 

corporation, board, or person . . . The writ 

must be issued in all cases where there is not 

a plain, speedy and adequate remedy in the ordinary course of law." 

Both section 2-3-213 and 2-3-114, MCA provide for suits 

to void actions taken in violation of sections 2-3-203 and 

2-3-103, respectively. While there is a specific remedy at 

law provided to appellants, the form of that remedy is 

unclear. Further, the appellant's contentions here could 

fit under the Kadillak rationale. Thus while the use of a 

writ of mandamus is not textbook law, it is appropriate 

here. In the future, however, it would seem the suit should 

take the form of a simple petition to void an action or a 

petition for declaratory judgment. In the interests of time 

and liberal construction, however, appellant's choice of 

remedy is adequate. 

As to attorneys fees, they are specifically provided 

for in section 2-3-221, MCA, therefore, the fact that they 

are provided in mandamus becomes unimportant and of no 

weight as to the propriety of the writ. 

We find the District Court abused its discretion in 

finding an illegal meeting but failing to nullify the actions 

taken by the Yellowstone County Commissioners. 

The judgment of the District Court is vacted and set 
aside and the cause remanded with instructions to enter 

judgment nullifying the proceedings of the Yellowstone 

County Commissioners which are the subject of this appeal. 

,' . , 

4 

L&-u. 

fl Justice 

We concur. 

Mr. Justice John C. Sheehy, deeming himself disqualified, did 

not participate in this case.