No. 14908 IN THE SUPREME COURT OF THE STATE OF MONTANA

BOARD OF TRUSTEES,HUNTLEY PROJECT SCHOOL DISTRICTNO. 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: ForAppellant: Davidson,Veeder, Baugh & Broeder,Billings, Montana DorisM. 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: 

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## - 1980

Filed: 

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## ljaMr. 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 DistrictNo. 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 DistrictNo. 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 thatthe subdivisionwas 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 thismatter, 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 Christensenwas on the phone in his office; David Hoefer of the CountyAttorney'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 findingsof 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 DistrictCourt ruled that the requirements of section 76-3-608,MCA had been met. Apparently these alleged findingswere never filed with the County Clerk and Recorder. Written findings of factwere, 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 insufficientgrounds 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) Ismandamus 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 "openmeeting", 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 organizationsor agencies supported inwhole 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 iswithin the jurisdiction of that agency shall be subject to the requirements of this section." A "meeting" is defined as 

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# . . 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 allmatters proposed, discussed, ordecided; and 

### "(d) attherequest of any member, a record by individualmembers of any votes taken." Section 2-3-212 (2),MCA. "Any decisionmade inviolation of 2-3-203 may be declared void by a districtcourthaving jurisdiction. A suittovoid any such decisionmust be commenced within 30 days of the decision." Section 2-3-213, MCA. "Each agency shalldevelop procedures forpermitting and encouraging the public toparticipate inagency decisions that areof significantinterest to the public. The procedures shall assure adequate notice and assist public participation before a final agency action istaken thatisof significant interest tothe public." Section 2-3-103 (I), MCA. An agency shallbe considered tohave complied with the above notice provision if: 

### "(3) a public hearing, afterappropriatenotice isgiven, isheld pursuant toany otherprovision of state law or a local ordinance orresolution; or "(4)a newspaper of general circulationwithin the area tobe affected by a decision of significantinterest to thepublic has carried a news storyor advertisement concerning the decision sufficiently prior toa finaldecision topermit public comment on the matter." Section 2-3-104, MCA. There isno question that the above statutes apply to the County Commissioners and tothis "meeting". In addition, there are statuteswhich specifically regulate themeetings of County Commissioners. Section 7-5-2122, MCA provides: "(1) The governing body of the county shallestablishby resolution a regular meeting date and notify the public of that date.

### " (2)The governing body of the county, except asmay 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. Commissionersmay, 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 thatnotice 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 decisionmaking process, public meetings were held and the public was kept informed. Appellant, on the other hand, questionswhether 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 decidematters of thismagnitude. Appellant argues that the open meeting statutes must be liberally construed and that it is inconceivable that anopen meeting can be held without public notice and still accomplish the legislativepurpose of the Open Meeting Law. A review of the facts inthe instantcase 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 (4thed. 1968))met "by

means of electronicequipment (telephone) to actupon a matter over which the agency had supervision, control, jurisdiction, oradvisory power." Section 2-3-202, MCA. The record also indicates that due tothe framework in which themeeting was held, i.e. by means of telephone conversation, and due to the factthat Commissioner McClintock

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

asrequired inMontana. InMontana, notice isrequired 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 storyprinted inthe "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 factsand the law ismistaken. The newspaper articledidnotprovide sufficientfacts concerning the "meeting's" timeand place toinform the public sufficiently prior tothe final decision topermit further public comment on thematter. Furthermore, this "meeting" violated the provisions that control the meetings of the Board of County Commissioners. A reading of section 7-5-2122 indicates thatbefore theCounty Commissioners can change the time, place and manner of their meetings or hold

a special meeting, two days posted public noticemust begiven. This notice must designate the new meeting timeand place. It isclear that thiswas 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 stillaccomplishes the legislative purpose of the Montana "open meeting" statutes. Without public notice, an open meeting isopen intheory only, not inpractice. This type of clandestinemeeting violates the spiritand the letterof theMontana Open Meeting Law. The question then becomes did the DistrictCourt act improperly innotvoiding the decision. Two statutesof similar effectgovern here. Section 2-3-114 provides: "The districtcourts of the statehave jurisdiction to setaside

an agency decision under thispartupon 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 decisionmade inviolation of 2-3-203 may be declared void by a districtcourthaving jurisdiction. A suitto void any such decision must be commenced within 30 days of the decision." The above provisions indicate that it is within the DistrictCourt's discretion tovoid the actions if there has been a violation of the "open meeting" law. The DistrictJudge here published a memorandum in support of his decision denying appellants' application for writof mandamus. In thismemorandum, the judge, while finding technical deficiencies inthe procedures employed, ruled that: "In thiscase it appears appropriate to assume that the 'open meeting' statute applies and has been violated. The criticalquestion then revolves about the consequences tobe imposed since the statutemakes the voiding of the Commissioner's action discretionary rather than mandatory (Section 2-3-213) 

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. .[A]s a matter of substance over form there is not sufficientground existing to nullify the action taken 11 

# ... The District Judge also discussed the ramifications of failing immediately to make public written findingsof fact in support of the Commissioners' conclusions. At the time of this opinion thosewritten findings and conclusions are properly on file in Yellowstone County. A discussion of this issue is thereforemoot. This should not be taken as an indication that this Court approves of the delay and deficientprocedure 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 findingsof fact and conclusions in subdivision matters as required by section 76-3-608, MCA and State ex rel. Florence-Carlton School Districtv. 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 followedwas improper. He went on to determine, however, that the decision involved an element of urgency. He also determined that the decisionwould 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 Courtwill not be reversed unless there is a clear abuse of discretion. However, the disregard shown for the statutes regulating the procedure of an openmeeting 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 followproper 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 illegalmeeting. 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 illegalmeeting. They cite Kadillak v. The Anaconda Co. (1979) r -Mont. 

## , 602P.2d 147, 36 St.Rep 1820,wherein

we stated: "State Lands contends thatmandamus cannot lie to correct'lorundo an act already performed



# . . . This is a correct statement of the law. What this Court ismandating, however, is not the undoing of an act. Rather,we are directing State Lands to perform an actwhich 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 41Awas 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.InMontana use of a writof mandate is specifically controlled by statute. Section 27-26-106 provides inpertinentpart that a writof mandamus: 

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# . . may be issued by the supreme court or the districtcourt orany judge of the district court toany inferior tribunal, corporation, board, orperson tocompel the performance of an actwhich the law specially enjoins asa duty resulting from an office, trust, or station ortocompel the admission of a party tothe use and enjoyment of a right oroffice towhich he isentitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, orperson 

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# . The writ must be issued inallcases where there isnot a plain, speedy and adequate remedy inthe ordinary course of law." Both section 2-3-213 and 2-3-114, MCA provide for suits tovoid actions taken inviolationof sections 2-3-203 and 2-3-103, respectively. While there isa specific remedy at law provided toappellants, the form of that remedy is unclear. Further, the appellant's contentionshere could fitunder the Kadillak rationale. Thus while the use of a writof mandamus isnot textbook law, it isappropriate here. In the future, however, it would seem the suit should take the form of a simple petition tovoid an action or a petition for declaratoryjudgment. In the interests of time and liberal construction, however, appellant's choice of remedy isadequate. As toattorneys fees, they are specifically provided for in section 2-3-221, MCA, therefore, the factthat they

areprovided inmandamus becomes unimportant and of no weight asto the propriety of the writ. We find the DistrictCourt abused itsdiscretion in finding an illegalmeeting but failing tonullify the actions taken by the Yellowstone County Commissioners. The judgment of the DistrictCourt isvacted and setaside 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.