Common Cause of Montana v. Statutory Committee to Nominate Candidates for Com'r of Political Practices

• Decision Date: 03 March 1994
• Docket Number: No. 93-096,93-096
• Parties: COMMON CAUSE OF MONTANA, a state organization of Common Cause, a not-for-profit corporation; and Helena Independent Record, Plaintiffs and Appellants, v. STATUTORY COMMITTEE TO NOMINATE CANDIDATES FOR COMMISSIONER OF POLITICAL PRACTICES; and Marc Racicot, as Governor of the State of Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 604

868 P.2d 604

263 Mont. 324

COMMON CAUSE OF MONTANA, a state organization of Common

Cause, a not-for-profit corporation; and Helena

Independent Record, Plaintiffs and Appellants, v. STATUTORY COMMITTEE TO NOMINATE CANDIDATES FOR COMMISSIONER

OF POLITICAL PRACTICES; and Marc Racicot, as

Governor of the State of Montana,

Defendants and Respondents.

No. 93-096.

Supreme Court of Montana.

Submitted Dec. 7, 1993.

Decided Feb. 10, 1994.

Rehearing Denied March 3, 1994.

James P. Reynolds, Reynolds, Motl, Sherwood & Wright, Helena, for plaintiffs and appellants.

Joseph P. Mazurek, Atty. Gen., and Beth Baker, Asst. Atty. Gen., Helena, for defendants and respondents.

GRAY, Justice.

This case involves the effect of Montana's constitutional "right to know" and open meeting statutes on the selection and appointment of the Commissioner of Political Practices (Commissioner). Common Cause of Montana (Common Cause), a nonprofit organization that seeks to promote open, accessible and democratic government, challenged the appointment of Edward Argenbright (Argenbright) as Commissioner in the First Judicial District Court, Lewis and Clark County. Common Cause argued that the statutory committee whose function is to provide the governor with a list of names of possible candidates for the position had violated constitutional and statutory provisions guaranteeing the public a right to observe the deliberations of public bodies. Although we determine that the committee violated Montana's open meeting statutes, we conclude, under these unique circumstances, that the violation does not require Argenbright's removal from the office of Commissioner.

The facts surrounding this appeal are undisputed. Section 13-37-102, MCA, establishes a four-member committee to submit a list of names of possible candidates for the office of Commissioner to the governor for consideration. In 1992, the committee was comprised of Speaker of the House Hal Harper, President of the Senate Joseph Mazurek, Senate Minority Floor Leader Bruce Crippen, and House Minority Floor Leader John Mercer (the Committee). Due to an impending vacancy in the office in 1993, the Committee held several phone conversations in November of 1992 to discuss the qualifications of the individuals who had applied for the position. During a meeting held November 20, 1992, Mazurek, Crippen and Mercer discussed the individuals they would recommend for the position. Harper did not attend. The meeting was not announced to the public and was not attended by members of the public.

Following the meeting, three members of the Committee submitted a list of five names to Governor Stan Stephens. The list included Argenbright, two individuals recommended by Common Cause, and two others. Representative Harper submitted a separate list naming the two individuals recommended by Common Cause. Governor Stephens interviewed the five applicants and announced the appointment of Argenbright to the position on December 1, 1992.

On December 18, 1992, Common Cause, the Helena Independent Record, and the Great Falls Tribune filed suit against the Committee and Governor Stephens (collectively, the Committee). They sought to void the Committee's submission of the list and, on that basis, the governor's appointment of Argenbright. They asserted that the Committee's November 20 meeting violated Montana's open meeting statutes and Article II, Section 9, and Article V, Section 10(3), of the Montana Constitution. They also requested a temporary restraining order prohibiting Governor Stephens from submitting the appointment to the Senate for confirmation. The District Court declined to issue the temporary restraining order on December 22, 1992.

Argenbright took the oath of office and began performing his duties as Commissioner on January 1, 1993. Both parties moved for summary judgment. Following a February 9, 1993, hearing, the District Court granted summary judgment in favor of the Committee. The court determined that the governor's appointment was not subject to the open meeting laws and, therefore, could not be voided pursuant to § 2-3-213, MCA. The court also determined that the governor's appointment was not dependent on the actions of the Committee and, thus, could not be voided due to any flaw in the Committee's procedures.

Common Cause and the Helena Independent Record (collectively, Common Cause) filed a notice of appeal. On March 25, 1993, the Montana Senate began confirmation proceedings which concluded on April 13, 1993, confirming Argenbright's appointment as Commissioner.

Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the trial court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is appropriate when the pleadings, depositions, and other documents on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The parties have submitted stipulated facts and agree that only issues of law are before us. Therefore, our standard of review is whether the District Court's interpretation of the law is correct. Mooney v. Brennan (1993), 257 Mont. 197, 199, 848 P.2d 1020, 1022.

As a threshold issue, the Committee contends that Common Cause's claim of an alleged constitutional and statutory violation is moot because a change in circumstances prevailing at the beginning of the litigation now precludes meaningful relief. The changed circumstance, according to the Committee, is that Argenbright's appointment has been confirmed by the Senate, vesting Argenbright with title to the office. We disagree that the claim is moot.

When faced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised on appeal. Romero v. J & J Tire (1989), 238 Mont. 146, 148, 777 P.2d 292, 294; Butte-Silver Bow Local Gov't v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in Butte-Silver Bow:

[t]he exception to mootness for those actions that are capable of repetition, yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will be repeated.

Butte-Silver Bow, 743 P.2d at 567.

Here, the alleged violation of the open meeting statutes and the public's right to know is capable of recurring, in the context of both future selection and appointment procedures for the position of Commissioner and actions taken by other purely advisory entities. Further, to allow an alleged violation of the public's right to know escape judicial scrutiny, simply because legal proceedings are not always swift, would soon vitiate that important right guaranteed to the people of Montana by their constitution. Thus, we conclude that the issues raised by this appeal are not moot.

The remaining legal issues are whether the Committee's November 20, 1992, meeting violated the public's right to know and, if so, whether such a violation requires this Court to void the entire appointment process, resulting in Argenbright's removal from office. Regarding the first issue, Common Cause argues that the Committee's November 20 meeting violated Montana's open meeting statutes and Article II, Section 9 of the Montana Constitution. The District Court did not analyze this issue and, on appeal, the Committee does not address its merits.

The "right to know" is found at Article II, Section 9, of the Montana Constitution and 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.

This constitutional mandate is protected and implemented primarily through Montana's open meeting statutes, codified at §§ 2-3-201, et seq., MCA. SJL of Montana v. City of Billings (Mont.1993), 867 P.2d 1084, 1086; Jarussi v. Board of Trustees (1983), 204 Mont. 131, 138, 664 P.2d 316, 319; Board of Trustees v. Board of County Comm'rs (1980), 186 Mont. 148, 152, 606 P.2d 1069, 1071. Thus, the initial question before us is whether the open meeting statutes require the meeting at issue to be open to the public. SJL, 867 P.2d at 1086. If so, we need not proceed to constitutional analysis; it is elementary that courts should avoid constitutional questions if an issue can be resolved otherwise. Wolfe v. Montana Dep't of Labor and Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340.

The legislature's expressed intent that the open meeting laws be liberally construed, contained in § 2-3-201, MCA, guides our interpretation of these statutes. Section 2-3-203(1), MCA, provides, in pertinent part:

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.

None of the listed entities are further defined in the open meeting statutes. It is clear, however, that the committee statutorily established by § 13-37-102, MCA, is not a board, bureau, or commission of the state, under any common understanding of those terms.

Additionally, while the word agency is not defined in the open meeting statutes themselves, we determined in SJL that the definition of "agency" contained in § 2-3-102, MCA, applies to the term "agencies" used in § 2-3-203, MCA. SJL, 50 St.Rep. at 1728. Section 2-3-102, MCA, defines agency as any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts. It is evident that the statutory committee is not authorized to make rules, determine contested cases or...