THE ASSOCIATED PRESS, BOZEMAN DAILY CHRONICLE, THE MONTANA STANDARD, MISSOULIAN, GREAT FALLS TRIBUNE, MONTANA NEWSPAPER ASSOCIATION, MONTANA BROADCASTERS ASSOCIATION, THE BILLINGS GAZETTE, THE DAILY INTER LAKE, MONTANA TELEVISION NETWORK, EAGLE TELEVISION NETWORK, HAVRE DAILY NEWS, HELENA INDEPENDENT RECORD, and YELLOWSTONE NEWSPAPERS, Plaintiffs and Respondents, v. RICHARD A. CROFTS, in his official capacity as Montana Commissioner of Higher Education, Defendant and Appellant.
No. 03-239.
Supreme Court of Montana
Decided May 4, 2004.
2004 MT 120 | 321 Mont. 193 | 89 P.3d 971
Argued and Submitted September 25, 2003.
For Respondents: Ronald F. Waterman, Laura D. Vachowski (argued), Gough, Shanahan, Johnson & Waterman, Helena.
For Amicus Montana School Boards Association: Elizabeth A. Kaleva, Montana School Boards Association, Helena.
For Amicus State of Montana: Hon. Mike McGrath, Montana Attorney General; Chris D. Tweeten, Chief Civil Counsel; Brian M. Morris, Solicitor, Helena.
JUSTICE WARNER delivered the Opinion of the Court.
¶1 The Respondents, members of the print and television media, filed a complaint against Appellant Richard A. Crofts in the First Judicial District Court, Lewis and Clark County. The complaint alleged that meetings between Crofts and other employees of Montana‘s University System were subject to Montana‘s open meeting laws. Crofts and the Respondents filed cross-motions for summary judgment. The District Court granted the Respondents’ summary judgment motion, and awarded the Respondents their attorneys’ fees and costs. Crofts appeals. We affirm in part and reverse in part the judgment of the
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err when it concluded that meetings between senior employees of the University System were subject to
¶4 2. Did the District Court correctly award the Respondents their attorneys’ fees?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Montana‘s University System is a public education system supervised and controlled by the Board of Regents of Higher Education (the Board of Regents).
¶6 At all times relevant to the instant case, Crofts was Montana‘s Commissioner of Higher Education. During the period between June 30, 1999, and December 7, 2001, Crofts held fourteen meetings with a group of upper-level employees of the University System, such as University presidents and chancellors. For its first twelve meetings, this group referred to itself in its agendas as the Policy Committee. Then, the Committee‘s name was changed to the Senior Management Group. The meetings were called by Crofts to discuss issues directly related to the operation of the University System. Crofts also used the meetings to seek input from Committee members on proposed actions within the realm of his authority. The various members of the Policy Committee attended the meetings in their official capacity as upper-lеvel University employees and were compensated for their attendance with public funds.
¶7 The fifteenth meeting between Crofts and the Policy Committee was scheduled for February 1, 2002. However, before such meeting could commence, a reporter for the Associated Press entered the meeting room and requested to observe, and report on, the meeting. Crofts declined this request. The reporter refused to leave. Crofts then
¶8 On February 8, 2002, the Respondents filed a complaint against Crofts, in his official capacity as Montana‘s Commissioner of Higher Education. The complaint sought a declaration that the meetings between Crofts and the Pоlicy Committee were subject to Montana‘s open meeting laws. The complaint also sought an order enjoining Crofts from excluding the public from such meetings.
¶9 Crofts moved for summary judgment on the Respondents’ complaint on August 9, 2002. The Respondents filed a cross-motion for summary judgment that same day. The District Court conducted a hearing on the motions on November 13, 2002. On January 3, 2003, the District Court issued its order, granting the Respondents’ summary judgment motion, and denying Crofts’ summary judgment motion.
¶10 On January 9, 2003, the Respondents filed a motion requesting that they be awarded attorneys’ fees. The District Court conducted a hearing on the motion for attorneys’ fees on February 25, 2003. Crofts filed a notice of appeal on March 11, 2003. On April 3, 2003, the District Court granted the Respondents their attorneys’ fees and costs. Crofts then filed an amended notice of appeal on April 7, 2003.
STANDARD OF REVIEW
¶11 Our review of a district court‘s grant or denial of a motion for summary judgment is de novo. Hickey v. Baker School Dist. No. 12, 2002 MT 322, ¶ 12, 313 Mont. 162, ¶ 12, 60 P.3d 966, ¶ 12. Therefore, we apply the same
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a distriсt court as to whether the court erred.
¶12 On appeal, Crofts contests neither the fact that the Respondents incurred attorneys’ fees nor that the amount fixed by the District Court was reasonable. This Court generally reviews a district court‘s award of attorneys’ fees for an abuse of discretion. In re Marriage of Steinbeisser, 2002 MT 309, ¶ 18, 313 Mont. 74, ¶ 18, 60 P.3d 441, ¶ 18.
DISCUSSION
ISSUE 1
¶13 Did the District Court err when it concluded that meetings between senior employees of the University System were subject to
¶14 Crofts maintains that the District Court erred when it concluded that the Policy Committee‘s meetings were subject to Montana‘s open meeting laws. The Respondents counter that the District Court‘s decision was proper, as
¶15
No person shall be deprivеd 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 above provision, commonly referred to as the “Right to Know” provision of the Montana Constitution, has been implemented primarily through Montana‘s open meeting laws, located at
¶16
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[.]
¶17 We have previously determined that, in the context of
¶18 In pаst cases, this Court has concluded that various types of committees created by government entities to perform some type of function were public or governmental bodies required to open their meetings to the public. See Common Cause, 263 Mont. at 330, 868 P.2d at 608 (in which we held that a committee created by statute to assist in the governor‘s selection of a Commissioner was a public or governmental body subject to the open meeting laws); Bryan, ¶ 26 (in which we held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the “Right to Know” provisiоn of the Montana Constitution); and Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, ¶ 18, 289 Mont. 155, ¶ 18, 959 P.2d 508, ¶ 18 (in which we held that a committee created by the Department of Corrections to screen proposals for the construction of a private prison was a public body subject to the “Right to Know” provision of the Montana Constitution).
¶19 In this case, while the Policy Committee was not formally created by a government entity to accomplish a specific function, we agree with the District Court that the committee in question, whether it was called the Policy Committee or the Senior Management Group, was organized to serve a public purpose. The Policy Committee met fourteen times over two and а half years to discuss matters directly related to the governance of the University System. The Committee deliberated on issues relating to, inter alia: (1) policy changes; (2) tuition and fee changes; (3) budgeting issues; (4) contractual issues; (5) employee salaries; and (6) legislative initiatives. The Policy Committee also advised Crofts on matters related to his duties as the Commissioner of Higher Education. How the University System conducts its business, both academically and administratively, and the
¶20 Crofts admits that the meetings in quеstion are occasions where public officials gather for a public purpose. However, he argues that because the Policy Committee has no definite membership, no specific charter or goal to accomplish, is not created by a specific order of either the Board of Regents or Crofts, and neither votes on propositions nor takes any direct action, it is not a public body as contemplated by
¶21 The determination of whether advisory committees are public bodies subject to the open meeting laws has been recognized as presenting special problems for courts. Bradbury v. Shaw (N.H. 1976), 360 A.2d 123, 125 (superceded by stаtute). Moreover, the legislation enacted by the different states on this issue is so varied that decisions from other jurisdictions are of little help in resolving the instant question. Tribune Pub. Co. v. Curators of University of Missouri (Mo. 1983), 661 S.W.2d 575, 583. Many factors have been considered in deciding if a particular committee‘s meetings were required to be open to the public. Additionally, each situation must be examined in the context of the applicable constitutional and statutory provisions. ANN TAYLOR SCHWING, OPEN MEETING LAWS 2D § 4.42, at 89, § 4.44, at 94 (2000).
¶22 Consideration of Montana‘s particular constitutional and statutory schemes leads us to the conclusion that Crofts’ interpretation of what constitutes a public body is too narrow. We conclude that under Montana‘s сonstitution and statutes, which must be liberally interpreted in favor of openness, factors to consider when determining if a particular committee‘s meetings are required to be open to the public include: (1) whether the committee‘s members are public employees acting in their official capacity; (2) whether the meetings are paid for with public funds; (3) the frequency of the meetings; (4) whether the committee deliberates rather than simply gathers facts and reports; (5) whether the deliberations concern matters of policy rather than merely ministerial or administrative functions; (6) whether the committee‘s members have executive authority and experience; and (7) the result of the meetings. This list of factors is not exhaustive, and each factor will not necessarily be present in every instance of a meeting that must be open to the public. A proper consideration of these factors does not mandate that every internal
¶23 The Policy Committee is not merely a fact finding body, nor is it an ad hoc group which came together to consider a specific matter or to gather facts concerning a particular issue. It is a committee that was created and continued by Crofts, and it is not unlike the committee that the Director of the Depаrtment of Corrections appointed to advise him in Day, which was found to be a public body. Day, ¶¶ 5, 18. As was the case in Day, the Policy Committee was not appointed pursuant to a statute or regulation, but by the head of a department of the State of Montana to tender advice and make recommendations. See Day, ¶ 5.
¶24 The Policy Committee came together at times that were noticed, and agendas were prepared. Moreover, while the record does not contain minutes of the Policy Committee‘s meetings, the agendas make it clear that the matters deliberated were somehow memorialized, as such matters were remembered, and re-discussed at successive meetings. The Policy Committee‘s meetings required substantial time, inconvenience and travel by the attendees, all of whom were expected to attend. Further, the various costs of conducting the meetings were paid with public funds.
¶25 A review of the record reveals that the District Court was correct that the meetings of the Policy Committee were more than simply staff meetings. The meetings in question were held for much more than mere fact gathering and reporting. Crofts used these meetings to seek input, opinions, and guidance from the Committee regarding the policy decisions he was required to make as Montana‘s Commissioner of Higher Education.
¶26 As we noted above, the Policy Committee was made up of upper-level employees of Montana‘s University System. These upper-level employees did not convene for the purpose of delivering the results of factual investigations to Crofts. Rather, the agendas indicate that the Policy Committee deliberated, discussed, and debated a wide variety
¶27 In addition, the record reveals that the Committee deliberated on legislative strategy; the extent to which the Board of Regents should be involved in campus planning; guidelines for determining what percentage of the cost of a college education should be covered by tuition; budget planning, including consideration of salary increases; tuition and fees; development of information technology policies; the fiscal and political implications of a retired school district administrator teaching at a unit of the University while drawing retirement pay; whether to use interest income arising out of non-resident tuition for scholarships for non-resident students; dental hygiene pre-admission course requirements and how to attract students to the program; the implementation of writing proficiency standards; the policy concerning continuous enrollment of transfer students; and policies concerning the transfer of class credits. The facts had been gathered when the members arrived at the meeting and once there they deliberated рositions and solutions. The function performed by the committee, as revealed by the record, was to make decisions on how to proceed.
¶28 Clearly, the Policy Committee met to deliberate on matters of substance. Accordingly, we hold that the Policy Committee is a public body within the meaning of
¶29 Crofts argues that even if the Policy Committee is deemed to be a public body, it does not hold “meetings,” as contemplated in the open meeting laws, because the Committee‘s membership is not fixed, no number of members were required to attend to constitute a quorum, and neither direct action nor votes were taken at its meetings.
¶30
[T]he convening of а quorum of the constituent membership of a public agency or association described in
2-3-203 , 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.
Nothing in the plain language of
¶31 In this case, the parties stipulated that each person who attended a meeting of the Policy Committee was invited because he or she was an employee of the University System that held а responsible position. It was also agreed that there were no established rules of procedure and no quorum requirements. Thus, a quorum of the Policy Committee consisted of the members who were in attendance at any particular meeting. The common law rule is that a quorum of any body of an indefinite number consists of those who assemble at any meeting thereof. Application of Havender (N.Y. 1943), 181 Misc. 989, 992. There being no statute, rule, or precedent to the contrary, this rule of common law applies in this instance to our interpretation of
¶32
ISSUE 2
¶33 Did the District Court correctly award the Respondents their attorneys’ fees?
¶34 The District Court granted the Respondents’ motion for summary judgment on January 3, 2003. On January 8, 2003, the Respondents
¶35 On appeal, Crofts contends that because the District Court failed to make a ruling on the Respondents’ motion for attorneys’ fees within 60 days, the motion was deemed denied. Therefore, Crofts alleges the District Court did not have jurisdiction to award the Respondents their attorneys’ fees on April 3, 2003. We agree.
¶36 The District Court‘s order granting the Respondents’ motion for summary judgment was a final determination of the rights of the parties to this action, and is the subject of the instant appeal. See
¶37 In this case, the Respondents filed their motion for attorneys’ fees on January 9, 2003. Pursuant to
¶38 For the foregoing reasons, the judgment of the District Court requiring the meetings of the Policy Committee to be open to the public is affirmed, and its award of attorneys’ fees to the Respondents is reversed.
JUSTICES NELSON, COTTER, REGNIER and RICE concur.
JUSTICE LEAPHART dissenting.
¶39 I dissent.
¶40 I would apply the “functional analysis” that has been urged by amicus curiae State of Montana. Under that analysis, the Court should
¶41 Commentators have divided the agency decision-making process into three stages: collective inquiry, deliberations, and decision. R. Berg & S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 9 (1978). Collective inquiry is triggered when an issue comes to the attention of the agency. Agency personnel and their staff gather information to define the issue, gather expertise and identify possible solutions without comparing them. See, e.g., Arkansas Gazette Company v. Pickens (Ark. 1975), 522 S.W.2d 350, 357 (Fogleman, J. concurring) (“[t]here is an appropriate investigative and exploratory stage preceding many actiоns by governmental bodies and agencies“). The so-called “fact-finding” stage includes seeking expert advice, creating study commissions, exploring issues or simply brainstorming. Berg & Klitzman, 9.
¶42 In contrast to the fact-finding stage, deliberation is “to think about deliberately and often with formal discussion before a final decision.” Webster‘s Ninth Collegiate Dictionary (1991). The distinction between deliberative and fact-finding functions is best illustrated by contrasting our decisions in SJL of Mont. Assoc. v. City of Billings (1993), 263 Mont. 142, 867 P.2d 1084, and Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, 289 Mont. 155, 959 P.2d 508. In SJL, the Billings Public Works Director, the Billings City Engineer and individuals representing a private contractor and a private engineering company met “to discuss the problems and concerns surrounding the delays in construction” on a street project in Billings. SJL, 263 Mont. at 144, 867 P.2d at 1085. Noting that
¶43 This is in contrast to the decision in Day, where the Director of the Department of Corrections appointed a Private Prison Screening
¶44 The decision of the Maryland Court in Abell Publishing Co. v. Bd. of Regents (Md. Ct. App. 1986), 514 A.2d 25, is instructive in the context of the present dispute. Dr. John Slaughter, Chanсellor of the University of Maryland at College Park, appointed a task force charged with looking into “Academic Achievement of Student-Athletics.” The subcommittees of the task force refused to open their meetings to the public. Relying on the First Amendment and Article 40 of the Maryland Declaration of Rights, the Baltimore Sun sought a prohibitory injunction to prevent the subcommittees from holding closed meetings. The Sun contended that the task force was created by a rule, resolution or bylaw of the board of regents and that, since the board is a public body, the task force, as an arm of the board, was subject to the open-meeting requirements. In upholding the denial of the injunction, the court of appeals noted that Chancellor Slaughter had wide discretion in making policy decisions with respect to the campus and he was empowered to appoint task forces which report to him. The court found significant the fact that the task force was created by the chancellor, not the board of regents. The court held that meetings held by the subcommittees of the task force were not subject to the open meeting act.
¶45 In Bennett v. Warden (Fla. App. 1976), 333 So. 2d 97, 100, the Court of Appeals of Florida held that the open meeting law did not apply to meetings between a college president and a group of junior college employees, called the Career Employees Council (CEC). The CEC members were designated by the president as representatives of the career employees for the purpose of discussing with him various problems and suggestions relating to employees’ working conditions in general and wages and hours in particular. The court held that the
¶46 Although the Court here pays lip service to a distinction between deliberative decision-making and fact-finding, its conclusion that the Senior Management Group is a “deliberative” body does not withstand scrutiny. The Senior Management Group was not created by law, rule or regulation and thus has no legally imposed charge or mandate to decide anything. It has no definite membership and does not vote on propositions or take any direct action. Rather it is a group of upper-level university employees formed at the behest of the Commissioner of Higher Education with no specific charge to perform any function other than confer with the Commissioner. The Commissioner in turn makes recommendations to the Board of Regents, which, in open meetings, deliberates and makes final decisions. The management group is too far removed from the decision-making process to trigger the need for public access. Given that the Commissioner is free to disband the management group and dispense with any further meetings, it seems anomalous to hold that a group which has no collective authority, no constituent membership, and no legal obligation to meet in the first instance, must, if it does meet, give notice of its meeting, vote and maintain minutes pursuant to
¶47 The Court purports to set guidelines as to when meetings are required to be open to the public. These guidelines, however, are so broad that they provide no real guidance. First of all, the seven guidelines are addressed to when, where, and why “committees” meet. Although the Court does not define “committee,” it is apparent that
¶48 The Florida Court noted in concluding that meetings between an executive officer and employees or advisors under his direction are not subject to open meeting requirements:
Any other conclusion, carried to its logical extension, would in our view unduly hamper the efficient operation of modern government the administration of which is more and more being placed in the hands of professional administrators. It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting within the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law require it.
Bennett, 333 So. 2d at 99-100.
¶49
¶50 Clearly, the Constitution guarantеes the public access to the “deliberative” process whereby public agencies with governmental authority make decisions. See Great Falls Tribune (Director of the Department of Corrections delegated authority to Screening Committee) and Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d 604 (duties, size and membership of nominating Committee dictated by statute). The Court, however, needs to meaningfully define “deliberative” in such a manner that the open meeting requirements (quorums, minutes, voting and advance notice,
¶51 I would reverse the decision of the District Court.
CHIEF JUSTICE GRAY joins in the dissent of JUSTICE LEAPHART.