SJL of Montana Associates Ltd. Partnership v. City of Billings

• Decision Date: 01 March 1994
• Docket Number: No. 92-449,92-449
• Citation: 263 Mont. 142,867 P.2d 1084
• Parties: , 22 Media L. Rep. 1758 SJL OF MONTANA ASSOCIATES LIMITED PARTNERSHIP, d/b/a KTVQ, Petitioner and Respondent/Cross-Appellant, v. CITY OF BILLINGS, Respondent and Appellant/Cross-Respondent.
• Court: Montana Supreme Court

Page 1084

867 P.2d 1084

263 Mont. 142, 22 Media L. Rep. 1758

SJL OF MONTANA ASSOCIATES LIMITED PARTNERSHIP, d/b/a KTVQ Petitioner and Respondent/Cross-Appellant, v. CITY OF BILLINGS, Respondent and Appellant/Cross-Respondent.

No. 92-449.

Supreme Court of Montana.

Submitted Feb. 23, 1993.

Decided Dec. 28, 1993.

Rehearing Denied March 1, 1994.

James L. Tillotson, City Atty., Bonnie J. Sutherland (argued), Asst. City Atty., Billings, for respondent and appellant/cross-respondent.

William J. O'Connor, II (argued), O'Connor & O'Connor, Billings, for petitioner and respondent/cross-appellant.

HARRISON, Justice.

This is an appeal and cross-appeal from an order and memorandum of the Thirteenth 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:

1. Did the District Court err in holding that Article II, 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 KTVQ's request for attorney's fees pursuant to § 2-3-221, MCA?

3. Although the District Court determined that KTVQ's request for an injunction was moot, does the controversy continue under the standard "capable of repetition, yet evading review?"

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 public.

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 § 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. KTVQ's 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. KTVQ's request for attorney's fees must be denied.

We begin by pointing out that this case does not involve a "staff meeting" 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: Wasn't 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."

I

Does Article II, Section 9 of the Montana Constitution require that these particular meetings be open to the public?

Article II, 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...." Arps v. State Highway Comm'n (1931), 90 Mont. 152, 160, 300 P. 549, 553, quoted in Board of Regents v. Judge (1975), 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 II, Section 9 are implemented by the open meeting laws, §§ 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, §§ 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 II, Section 9.

Under the open meeting laws,

[a]ll 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 § 2-3-201, MCA, is that

[a]ctions 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 II, 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 § 2-3-102, MCA, 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...." 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 public's 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. Lacy, 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 II, Section 9 of the Montana Constitution.

The constitutional history reveals that Delegate Dorothy Eck introduced what ultimately became Article II, Section 9 of...