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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)
Submitted: February 23, 1993

Decided: December 28, 1993

Filed:

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
KTVQtsrequest 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

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