PETER ARNONE, DAVE BALDWIN, ROSS HARTMAN, DAWNETTE OSEN, and SHARON SWANSON, Petitioners and Appellants, v. CITY OF BOZEMAN, Bozeman City Commission and Jeff Kraus, Carson Taylor Chris Mehl, Cynthia Andrus and I-HO Pomeroy individually and as agents of the City of Bozeman, and DOES 1-10, inclusive, Respondents and Appellees.
No. DA 15-0618
Supreme Court of Montana
August 2, 2016
2016 MT 184 | 384 Mont. 250 | 376 P.3d 786
Submitted on Briefs May 11, 2016.
For Appellee: Michael J. Lilly, Berg, Lilly & Tollefsen, P.C., Bozeman.
JUSTICE SHEA delivered the Opinion of the Court.
¶1 Bozeman residents Peter Arnone, Dave Baldwin, Ross Hartman, Dawnette Osen, and Sharon Swanson (collectively, “Petitioners“), appeal three orders issued by the Eighteenth Judicial District Court, Gallatin County: (1) denying the Petitioners’ motion for summary judgment and dismissing their complaint; (2) denying the Petitioners’ motion for reconsideration;
- Whether the District Court erred in denying the Petitioners’ motion for summary judgment and dismissing their complaint.
- Whether the District Court abused its discretion in denying the Petitioners’ motion for reconsideration.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 In June 2014, the Bozeman City Commission (Commission) adopted Nondiscrimination Ordinance 1890 (Ordinance), which “prohibit[s] discrimination on the basis of actual or perceived sexual orientation or gender identity or expression” by landlords, providers of public accommodations, and parties engaged in residential real estate transactions. The Ordinance was codified as “Bozeman Ordinance Section 24.10.010 et seq.” and became effective in July 2014. The Ordinance creates a private cause of action for an aggrieved party claiming a violation of one of its provisions and authorizes the Bozeman Municipal Court to fashion civil remedies, including injunctive relief. The Ordinance defines an “aggrieved party” as “a person who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and who has been or is likely to be specifically and injuriously affected by a violation of this article.” The Ordinance contains an exception for landlords who rent “individual rooms in a private residence designed as a single dwelling unit in which the owner also resides.”
¶3 In August 2014, the Petitioners filed suit against the City of Bozeman (City), the Commission, and the Commissioners (collectively, “Respondents“), seeking a legal declaration that the Ordinance is invalid because it is preempted by State law and beyond the scope of the Respondents’ power or authority. In January 2015, the Petitioners filed a motion for summary judgment, again contending that the Ordinance is invalid as a matter of law. The Respondents opposed the motion, alleging that the Petitioners’ complaint failed to present a justiciable case or controversy. The District Court held oral argument and, on September 15, 2015, issued an order denying the Petitioners’ motion for summary judgment and dismissing their complaint on the ground that the Petitioners did not present a justiciable case or controversy. The District Court determined that the Petitioners were requesting an advisory opinion, lacked standing, and had not alleged a claim that was ripe for review. The Petitioners then filed a motion for reconsideration and to amend their pleadings, alleging that Osen‘s individual circumstances had materially changed since filing suit because although Osen—who was the only landlord among the Petitioners—was only renting out a room in her home at the time the Petitioners filed their complaint, she was now renting out her entire home. Therefore, the Petitioners argued that Osen was now subject to the Ordinance and had standing. The District Court denied the motion for reconsideration and to amend. The Petitioners appealed.
STANDARDS OF REVIEW
¶4 We review summary judgment orders de novo. Bailey v. State Farm Mut. Auto. Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary judgment is appropriate when the moving party demonstrates an absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
¶5 1. Whether the District Court erred in denying the Petitioners’ motion for summary judgment and dismissing their complaint.
¶6 The District Court dismissed the Petitioners’ complaint on multiple grounds. Although the Petitioners’ appeal focuses almost entirely on the District Court‘s determination that they lacked standing, the District Court also held that they were requesting an advisory opinion, and that the issue was not ripe for review. We find the District Court‘s advisory opinion analysis to be dispositive of both issues before us.
¶7 “The judicial power of Montana‘s courts is limited to justiciable controversies,” Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 19, 366 Mont. 450, 288 P.3d 193. We consistently have held that we will not render advisory opinions. Plan Helena, Inc. v. Helena Reg‘l Airport Auth. Bd., 2010 MT 26, ¶ 9, 355 Mont. 142, 226 P.3d 567. To fall within a court‘s adjudicatory power, a controversy must be “real and substantial ..., admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.” Plan Helena, ¶ 9 (quoting Chovanak v. Matthews, 120 Mont. 520, 526, 188 P.2d 582, 585 (1948)).
¶8 The District Court concluded that the Petitioners sought an advisory opinion because “[t]he hypothetic facts are posited by [the Petitioners] as if they were currently subject to a complaint alleging a violation of the [Ordinance] filed in Municipal Court. In fact, none of the [Petitioners] are susceptible to such an action.” The Petitioners have not substantively addressed the District Court‘s determination that they seek an advisory opinion, though that analysis is dispositive in this case.
¶9 Violation of the Ordinance requires third-party action. Specifically, the Petitioners must receive an application from an “aggrieved party“—i.e., someone the Ordinance was designed to protect—then reject that application for reasons the Ordinance was designed to address, and then be sued by the aggrieved party, in order for the Ordinance to be enforced. None of the Petitioners have alleged that he or she has experienced or engaged in any of these actions. Nor is it even possible for any of the Petitioners to engage in actions that would precipitate a conflict under the Ordinance of their own volition, because of the need for an independent aggrieved party to initiate both the interaction that would provide the basis for a legal action under the Ordinance and then to pursue the legal action itself.
¶10 Although the Uniform Declaratory Judgment Act (UDJA) “is to be liberally construed and administered,” Lee v. State, 195 Mont. 1, 6, 635 P.2d 1282, 1284 (1981) (citing
¶11 Here, the Petitioners have not alleged facts indicating that they have engaged or are about to engage in any concrete transaction that would violate the Ordinance, or that a potential aggrieved party has sued or threatened to sue them under the Ordinance. It is entirely possible that none of the Petitioners will ever be confronted with a situation in which they must decide whether to refuse accommodation to a person the Ordinance was designed to protect.
¶12 In Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), and Mont. Immigrant Justice Alliance v. Bullock (MIJA), 2016 MT 104, 383 Mont. 318, 371 P.3d 430, we held that the plaintiffs could challenge a law in court before it was enforced against them. The critical distinction between those two cases and the present case, however, is that in Gryczan and MIJA there existed at least a putative dispute between the plaintiffs and the defendants. In Gryczan, the plaintiffs were three homosexual couples who acknowledged their past violations of
¶13 In contrast to both Gryczan and MIJA, the Respondents in this case are not promising to withhold enforcing the Ordinance as a basis to render the Petitioners’ claims “hypothetical, speculative, or illusory,” see MIJA, ¶ 26, because the Respondents in this case have no basis to enforce the Ordinance against the Petitioners, in any event. The plaintiffs in both Gryczan and MIJA either had violated, or possessed the unilateral power to violate, the laws being challenged. Likewise, in both Gryczan and MIJA, the parties being sued—the State of Montana and various public officials—had the power to prosecute those violations. However, the Petitioners in this case do not have the power to unilaterally violate the Ordinance, and the Respondents do not have the power to prosecute violations of the Ordinance even if they wanted to. The only enforcement mechanism under the Ordinance is a private suit, brought by a private individual who meets the Ordinance‘s definition of an “aggrieved party.” Notably, such an “aggrieved party” is not a Respondent in this case, nor has a potential aggrieved party been identified, precisely because no such individual exists, and such individual may never exist. In short, the Petitioners in this case ask us not only to resolve a hypothetical dispute, they seek resolution of a hypothetical dispute with an entirely hypothetical opponent.
¶14 As in Northfield and Hardy, the Petitioners are asking this Court to speculate about a transaction “which has not yet arisen and which may, in fact, never arise.” Northfield, ¶ 18; see also Hardy, 206 Mont. at 525, 672 P.2d at 276. We have held that “[t]he courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, ... deal with theoretical problems, give advisory opinions, ... provide for contingencies which may hereafter arise, or give abstract opinions,” Intake Water Co., 171 Mont. at 440, 558 P.2d at 1123 (citations omitted), yet that is exactly what the Petitioners ask us to do. The District Court correctly concluded that the Petitioners were requesting an advisory opinion and properly dismissed the case on summary judgment.
¶15 2. Whether the District Court abused its discretion in denying the Petitioners’ motion for reconsideration.
¶16 The Petitioners allege that, because Osen began renting out her entire home during the course of the proceedings,
CONCLUSION
¶17 We affirm the District Court‘s order denying the Petitioners’ motion for summary judgment and dismissing their complaint, and its order denying the Petitioners’ motion for reconsideration and to amend. Because our resolution of these two issues is dispositive of the issue of whether the District Court erred in granting the Commissioners’ motion to dismiss the complaint against them in their individual capacities, we decline to address this issue.
CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and RICE concur.