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No. 96-640

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

THE ASSOCIATED PRESS; BIGFORK EAGLE; THE BILLINGS
GAZETTE; BOZEMAN DAILY CHRONICLE; THE MONTANA
STANDARD; GREAT FALLS TRIBUNE; HAVRE DAILY
NEWS; HELENA INDEPENDENT RECORD; THE DAILY
INTER LAKE; KECI-TV, MISSOULA; KFBB-TV, GREAT FALLS;
KXLF-TV, BUTTE; KRTV-TV, GREAT FALLS; KTVQ-TV,
BILLINGS; KULR-TV, BILLINGS; LIVINGSTON ENTERPRISE;
MILES CITY STAR; MISSOULIAN; MONTANA NEWSPAPER
ASSOCIATION; NEWS MONTANA, INC.; (as publishers of
BIGHORN COUNTY NEWS, CARBON COUNTY NEWS,
and STILLWATER COUNTY NEWS); RAVALLI REPUBLIC; and
THE SOCIETY OF PROFESSIONAL JOURNALISTS,
MONTANA CHAPTER,

Plaintiffs and Appellants,

v.

THE MONTANA SENATE REPUBLICAN CAUCUS; THE
MONTANA SENATE DEMOCRATIC CAUCUS; THE
MONTANA HOUSE OF REPRESENTATIVES REPUBLICAN
CAUCUS; and THE MONTANA HOUSE OF REPRESENTATIVES
DEMOCRATIC CAUCUS,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
James P. Reynolds, Reynolds, Motl and Sherwood, Helena, Montana
For Respondent:
Stanley T. Kaleczyc, Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven,
Helena, Montana

Heard: October 23, 1997
Submitted: October 30, 1997
Decided: December 18, 1997
Filed:

__________________________________________
Clerk

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-640%20Opinion.htm (1 of 11)4/17/2007 4:28:28 PM
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the District Court's November 16, 1995 order dismissing
the Appellants' complaint. The trial court held that the Respondent Senate and House

Republican and Democratic party in-session caucuses were not persons within the
meaning of Rule 4A, M.R.Civ.P., and that, therefore, the court did not have
jurisdiction

over them. Subsequently, on July 12, 1996, the court's order was converted into one

for
summary judgment, and this appeal followed. We reverse and remand for further
proceedings.

Issue
We address but one issue in this appeal: Under Montana law, are the Senate and
House caucuses of the Republican and Democratic parties "persons" within the meaning
of Rule 4A, M.R.Civ.P.? We answer this question in the affirmative.
Background
The Appellants (Plaintiffs in the underlying action) are twenty-two Montana
newspapers, television stations and trade and professional news organizations,

hereafter
collectively referred to as the media. The Respondents (Defendants in the underlying
action) are the State Senate and House caucuses of the Republican and Democratic
parties. The Respondents are hereafter collectively referred to as the caucuses.

The media filed their complaint on February 17, 1995, alleging that, for a
variety

of reasons, the caucuses are public bodies or agencies of state government performing
public functions in public facilities at public expense. The media further alleged
that the
proceedings and records of the caucuses were closed to the media and to the public in

violation of Montana's Open Meetings law, Title 2, chapter 3, part 2, MCA; in
violation
of Montana's Public Records law, Title 2, chapter 6, part 1, MCA; and in violation of
the Right-To-Know provision of Article II, Section 9 of the Montana Constitution.
The
media prayed for declaratory and injunctive relief and for costs and attorney fees.
Four legislators serving in the 1995 Legislature, Senate Majority Leader John
Harp, Senate Minority Leader Mike Halligan, Speaker of the House John Mercer and
then-House Minority Leader Ray Peck, were served with process. These four

legislators
entered a special appearance, by counsel, without admitting that they were the proper
persons to receive service of process on behalf of the caucuses. In due course they
filed
a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), M.R.Civ.
P.,
contending, among other things, that the caucuses were not "persons" within the
meaning
of Rule 4, M.R.Civ.P., and that the caucuses were, therefore, not subject to the
jurisdiction of the court.

Relying on our decision in Common Cause v. Statutory Committee (1994), 263
Mont. 324, 868 P.2d 604, the District Court effectively differentiated between the
pre

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Montana Law