No. 92-449 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

SJL OF MONTANA ASSOCIATES 

LIMITED PARTNERSHIP, d/b/a KTVQ, 

Petitioner and 

Respondent/Cross-Appellant, 

CITY OF BILLINGS, 

Respondent and 

Appellant/Cross-Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant/Cross-Respondent: 

James L. Tillotson, City Attorney, Billings, 

Montana 

Bonnie J. Sutherland, Assistant City Attorney, 

Billings, Montana (argued) 

For Respondent/Cross-Appellant: 

William J. OIConnor, 11; OIConnor & OIConnor, 

Billings, Montana (argued) 

Filed: 

Submitted: February 23, 1993 

Decided: December 28, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal and cross-appeal from an order and 

memorandum of the ~hirteenth Judicial District Court, Yellowstone 

County, granting petitioner's motion for declaratory judgment, 

denying petitioner's request for attorney's fees, and finding 

petitioner's request to void certain actions and for an injunction 

moot. We reverse. 

Appellant City of Billings (City) raises the following issue: 

I. Did the District Court err in holding that Article 11, 

Section 9 of the Montana Constitution required that a meeting 

involving the Billings Public Works Director, the City Engineer, 

and individuals representing a private contractor and private 

engineering company be open to the public? 

Cross-appellant SJL of Montana Associates Limited Partnership, 

d/b/a KTVQ (KTVQ), raises the following issues: 

2. Did the District Court abuse its discretion in denying 

KTVQts request for attorney's fees pursuant to 5 2-3-221, MCA? 

3. Although the District Court determined that KTVQvs request 

for an injunction was moot, does the controversy continue under the 

standard "capable of repetition, yet evading review?ll 

Because of our resolution of issue one, we need not address 

issues two and three. 

On May 22, 1992, a meeting was held in the office of the 

Public Works Department for the City of Billings. City Engineer 

Kurt Corey (Corey), Public Works Director Ken Haag (Haag), and 
representatives of Empire Sand and Gravel and Engineering 

Incorporated attended. No members of the city council were 

present. The purpose of the meeting was to discuss the problems 

and concerns surrounding the delays in construction on 27th Street 

in Billings (the 27th Street project) and how to keep the 

surrounding property owners better informed. No new contracts were 

entered into and no amendments to the existing contracts were made. 

Brian Michael (Michael), a reporter from KTVQ, learned of the 

meeting on May 20th while following up on a tip that there was a 

dispute between the City and Empire Sand and Gravel. Corey told 

him that the press would not be allowed into the meeting because it 

was a "staff meeting," and that Empire Sand and Gravel did not want 

the media there. Michael was denied access because the City 

Attorney had advised Haag that the meeting need not be open to the 

pub1 ic . 

On May 22, 1992, KTVQ petitioned the District Court for a 

declaratory judgment and injunctive relief as follows: 1) 

declaring the right of a KTVQ reporter to attend the ongoing 

meetings concerning the 27th Street project; 2) requiring the City 

to release public records, including the plans and amendments for 

the 27th Street project; 3) voiding any actions taken at the May 

22nd meeting; 4) enjoining further meetings unless the reporter was 

allowed to attend; and 5) requiring the City to pay KTVQ's 

attorney's fees as provided for in 5 2-3-221, MCA. 

That afternoon the District Court granted a temporary 

restraining order enjoining the City and its subdivisions from 
prohibiting a KTVQ reporter from attending further meetings between 

the above parties, and the court set a hearing on the petition for 

June 3rd. Michael was allowed to attend a meeting between the same 

parties held on May 29th at a local restaurant. After the May 22nd 

meeting he was also given access to certain documents he had 

requested. 

After the hearing, the District Court allowed the parties time 

to brief the issues. On July 9th, the court entered an order and 

memorandum determining the following: 

1. KTVQ's request to void the acts taken at the May 22nd 

meeting was moot as no action was taken; 

2. KTVQ1s request to enjoin the City was moot because the 

reporter had been allowed to attend later meetings; 

3. KTVQ was entitled to a declaratory judgment that it had a 

constitutional right to attend meetings between the above 

individuals regarding the 27th Street project; and 

4. KTVQ1s request for attorney's fees must be denied. 

We begin by pointing out that this case does not involve a 

"staff meetingt1 as the City has attempted to characterize it in the 

proceedings in the District Court and in this Court. During a 

hearing on this matter, the District Court and the City Attorney 

engaged in the following discussion: 

MR. TILLOTSON: Certainly it was a scheduled meeting. We 

have many scheduled staff meetings. 

THE COURT: Well, now, define a staff meeting. 

MR. TILLOTSON: Staff meeting is a meeting attended by 

governmental employees. 

THE COURT: But not members of the public? 

MR. TILLOTSON: That's correct, Your Honor. 
THE COURT: Wasnlt this a meeting between staff and 

members of the public? 

MR. TILLOTSON: Yes, it was. 

By the City's own admission, this was not a "staff meeting." 

Does Article 11, Section 9 of the Montana Constitution require 

that these particular meetings be open to the public? 

Article 11, Section 9 of the Montana Constitution provides: 

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. 

The Montana Constitution is to be given a "broad and liberal 

interpretation . . . .It Arps v. State Highway Commgn (1931), 90 

Mont. 152, 160, 300 P. 549, 553, quoted in Board of Regents v. 

Judge (19751, 168 Mont. 433, 443, 543 P.2d 1323, 1329. In 

addition, this Court recently held that: 

While the legislature is free to pass laws implementing 

constitutional provisions, its interpretations and 

restrictions will not be elevated over the protections 

found within the Constitution. 

In re Lacy (1989), 239 Mont. 321, 325, 780 P.2d 186, 188. 

The provisions of Article 11, Section 9 are implemented by the 

open meeting laws, 55 2-3-201 et seq., MCA. Flesh v. Board of 

Trustees of Joint School Dist. #2 (1990), 241 Mont. 158, 164, 786 

P. 2d 4, 8. Thus, the initial question before us is whether the 

open meeting laws, 45 2-3-201 et seq., MCA, require the meeting at 

issue to be open to the public. If so, we need go no further 

because it will be clear that the City violated these laws in 
refusing Michael's request to attend. If not, we must examine 

whether the statutes implementing the constitutional right to know 

are unduly restrictive of Article 11, Section 9. 

Under the open meeting laws, 

[a111 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. 

Section 2-3-203, MCA. The legislature's intent, clearly expressed 

in 9 2-3-201, MCA, is that 

[alctions 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 

[open meeting laws] shall be liberally construed. 

The meeting at issue was attended by City Engineer Corey, 

Public Works Director Haag and private persons. It is clear that 

the meeting was not one of a public or governmental body, board, 

bureau or commission. Thus, the only manner in which the meeting 

might fit within the parameters of § 2-3-203, MCA, is if it can be 

properly construed as a meeting of a public agency. 

The term agency is defined in Part 1 of Title 2, Chapter 3, 

MCA. That part implements Article 11, Section 8 of the Montana 

Constitution, which provides for the public's right to participate 

in government operations. However, when a word is defined in the 

code, that definition is applicable to other parts of the code 

except where the contrary is plainly indicated. Section 1-2-107, 

MCA; Department of Revenue v. Gallatin Outpatient Clinic (1988), 

234 Mont. 425, 430, 763 P.2d 1128, 1131. 
Agency is defined in 5 2-3-102, MCA, as "any board, bureau, 

commission, department, authority, or officer ofthe state or local 

government authorized by law to make rules, determine contested 

cases, or enter into contracts . . . . " The City argues that 

neither Corey nor Haag is a board, bureau, commission, department, 

or authority. Further, neither is authorized to make rules, 

determine contested cases, or enter into contracts. KTVQ does not 

dispute these assertions and, indeed, the record before us is clear 

that Corey and Haag are City employees who are not authorized to 

make rules, determine contested cases or enter into contracts. We 

conclude, therefore, that Montana's open meeting statutes do not 

require the meeting between Corey, Haag and private persons to be 

open to the public. 

The question remains, then, whether the statutes enacted by 

the Montana legislature to implement the publicls constitutional 

right to observe the deliberations of public bodies or agencies are 

unduly restrictive of that right. If so, those statutory 

interpretations will not be elevated over the protection found 

within the Constitution. m, 780 P.2d at 188. Based on a 

careful review of the constitutional history, we must conclude that 

the statutory definition of agency is not restrictive of the 

public's right to observe deliberations of public bodies and 

agencies as contained in Article 11, Section 9 of the Montana 

Constitution. 

The constitutional history reveals that Delegate Dorothy Eck 

introduced what ultimately became Article 11, Section 9 of the 
Montana Constitution. Delegate Eckls proposal, denominated 

Delegate Proposal No. 57, provided in pertinent part: 

No person shall be deprived of the right to . . . observe 

the actions and deliberations of all public officials or 

agencies . . . . 

Montana Constitutional Convention 1972-72, Volume I, p. 157. It is 

clear that Proposal No. 57 was very broad in scope. It applied to 

actions and deliberations of all public officials and asencies 

(emphasis added). 

Delegate Eck's proposal was not adopted. Instead, the Bill of 

Rights Committee proposed Section 9, Right to Know, as it was 

finally passed by the Constitutional Convention and the people of 

Montana. Montana Con. Con., Vol. 11, p. 621. There it was 

narrowed from the original scope so that it no longer applied to 

"actions1*--even actions of public agencies; nor did it include any 

reference to "public officialsn or any other individuals. 

Referring again to the constitutional history, we are given 

significant insight into precisely what the constitutional framers 

intended when utilizing the term "public agencyM in Article 11, 

Section 9. We note here for clarity that the floor debate in the 

Constitutional Convention on Article 11, Section 8, preceded the 

argument on ~rticle 11, Section 9, and that as a result most of the 

debate over the term I1public agenciesll is covered in that portion 

of the convention transcripts. 

The following remarks exemplify the thrust of the debate on 

"governmental agenciesn: 

DELEGATE DaHOOD: . . . I . . . urge all of the delegates 

to look at the term "governmental agencies1', which is the 
key to constructing that particular section. . . . Once 

again, I want to point out, we have in mind the 

governmental agenciesthatare miniature legislatures who 

put together rules and regulations that affect us all. 

Montana Con. Con., Vol. V, p. 1664. 

DELEGATE McNEIL: . . . I think . . . [governmental 

agencies] is what the committee intended to reach with 

this, and that is appointive commissions, bureaus, so 

forth . . . . 

DELEGATE DaHOOD: . . . [Glovernmental agencies that are 

not elected, that are appointed, that function to carry 

out the laws that are passed, are the ones, of course, 

that will enact rules and regulations and make the 

decisions that affect people . . . . 

Montana Con. Con., Vol. V, p. 1667. 

Nothing in these floor debate comments and explanations 

suggests that there was any intent to make "public agencies" 

synonymous with individual public employees. It is obvious from 

these and other remarks that the framers of the Constitution were 

concerned with governmental entities which had rule-making 

authority and regulatory powers 

This intent is even more clear when the Bill of Rights 

Committee's comments on Article 11, Section 9, are considered. The 

Committee specifically cited with approval then-existing 5 82.3401, 

RCM (1947), which states that the legislative intent regarding open 

meetings; namely "that actions and deliberations of all public 

agencies shall be conducted openly." Montana Con. Con., Vol. V, p. 

1670. Section 82.3401, RCM (1947), subsequently recodified as 5 2- 

3-201, MCA, also contained the legislative declaration of open 

meeting laws--as they existed both before and after the passage of 
the 1972 constitution--applied to "public boards, commissions, 

councils, and other public agencies." These are the kind of 

agencies that the delegates at the Montana Constitutional 

Convention included in Article 11, Section 9. 

We hold that, with regard to the meeting at issue here, 

Montana's open meeting statutes do not restrict the public's 

constitutional right to know. As a result, we hold that the 

District Court erred in ruling that Article 11, Section 9 of the 

Montana Constitution requires that a meeting involving the Billings 

Public Works Director, the City Engineer, and individuals 

representing a private contractor and a private engineering company 

be open to the public. This opinion does not address, and shall 

not be construed as interpreting, the public's right to examine 

documents as provided for in Article 11, Section 9 of the Montana 

Constitution. 

We concur: A 

Chief Justice 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Article 11, Section 9, of the Montana Constitution, is clear 

and self-executing. It does not require resorting to the extrinsic 

methods of construction relied on by the majority. It provides 

that : 

No person shall be deprived of the right to examine 

documents or to observe the deliberations of all public 

bodies or aqencies of state government and its 

subdivisions, except in cases in which the demand of 

individual privacy clearly exceeds the merits of public 

disclosure. [Emphasis added]. 

In this case, two members of the City's public works 

department, the city engineer and the public works director, met 

with representatives of corporations with whom the City had 

contracted to discuss and resolve problems that had arisen during 

the construction of North 27th Street in the City of Billings. 

Local governments can only act through their employees, and the 

city engineer and public works director clearly represented the 

public works department which was an agency of the City of 

Billings. A public agency is "[a] department or agency of 

government which has official or quasi official status." Black's 

Law Dictionary 1227 (6th ed. 1990). A public agent is "[aln agent 

of the public, the state, or the government; a person appointed to 

act for the public in some matter pertaining to the administration 

of government or the public business." Black's at 64. Ken Haag 

and Kurt Corey were clearly public agents acting on behalf of a 
public agency when they attended the meeting that KTVQ sought to 

observe and record. 

Furthermore, deliberations are defined as " [t] he act of 

weighing and examining the reasons for and against a contemplated 

act or course of conduct or a choice of acts or means." Black's at 

427. To deliberate means " [t] o weigh, ponder, discuss, regard 

upon, consider." Black's at 426. It is clear that Haag and Corey 

were engaged in government deliberations when they met with these 

contractors to resolve problems that had arisen on this 

construction project. 

The majority opinion ignores the plain language of Article 11, 

Section 9, Montana Constitution, in favor of suggestions from the 

convention history that what it states is not really what it means. 

However, this form of construction clearly flies in the face of our 

previous decisions. In Associated Press v. Board of Educatiort (1991.) , 246 

Mont. 386, 804 P. 2d 376, which was reaffirmed in Great Falls Tribune v. 

Great Falk Public Schook (1992), 255 Mont. 125, 841 P.2d 502, we held 

that: 

The language of [Article 11, Section 91 speaks for 

itself. It applies to all persons and all public bodies 

of 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 resort to extrinsic aids or rules of 

construction in determining the intent of the delegates 

to the Constitutional Convention. 
What was prohibited by our decision in Associated Press is exactly 

what was done in this case. How can the two approaches be 

reconciled? 

Furthermore, although there is extensive discussion of the 

definition of "agencyw set forth in Montana's open meeting laws, 

that definition is irrelevant. Any statutory definition which 

limits the scope of a constitutional provision is unconstitutional. 

As we stated in InreLncyv. CityofBillings (1989), 239 Mont. 321, 325, 

While the legislature is free to pass laws implementing 

constitutional provisions, its interpretations and 

restrictions will not be elevated over the protections 

found within the Constitution. 

Here, the statutory definition of agency clearly limits the 

plain and common interpretation that is required by our prior 

decisions. 

The majority decision is a substantial blow to the public's 

right to know guaranteed by our State Constitution. It allows 

public agencies and their officers to conduct public business in 

secret and without public scrutiny. This is not in the public's 

interest and is exactly what our constitutional right to know was 

designed to prevent. 

Neither can any public policy reason be constructed for 

denying members of the media the opportunity to observe this 

agency's meeting with other members of the public in a 

nondisruptive way. There is no serious argument which can be made 

that the public interest is better served by keeping from the 
citizens of Billings the most direct information of how their 

affairs are being handled. 

Therefore, I dissent from the majority opinion. I would 

affirm the District Court's conclusion that when members of the 

news media were excluded from this meeting between members of the 

Billings public works department and contractors with whom it did 

business, that Montana's open meeting law found at Article 11, 

Section 9, of the Montana Constitution was violated. However, 

because it was necessary to bring this court action to enforce that 

constitutional right, I believe that attorney fees should have been 

recoverable under § 2-3-221, MCA, and I would have reversed the 

District Court's decision to deny those fees. 

Justice William E. Hunt, Sr., joins in the foregoing dissent.