Judge issues second order in Bitterroot Star vs. County Commissioners

By Michael Howell

Ravalli County District Court Judge Jeffrey Langton issued a second Opinion and Order in the lawsuit filed by the Bitterroot Star against the County Commissioners over the commissioners’ illegally made decision to settle a six-year-old lawsuit with Big Sky Development for $675,000 with inadequate public notice and no public involvement.
In his first Opinion and Order issued on July 21, 2015, Langton noted that although notice of the meeting was posted and disseminated to the media more than 48 hours in advance, “There is no statutory requirement that the county commissioners post notice of a regularly scheduled meeting 48 hours in advance. The standard is simply that the county commissioners must provide notice that it is adequate to ensure the public has the opportunity to participate in the decision-making process.”
He found that the commissioners’ notice of the settlement meeting was inadequate and the decision was in violation of both state law and the Montana Constitution.
The Commissioners also contended that even if it was inadequate notice, the case is moot because the money has been spent and cannot be retrieved, making no remedy available.
The Court recalled that the same argument was made in the Star’s previous case against the commission in 2012 over an inadequately noticed meeting in which “a mere $46,780” was authorized with no public input. Langton stated that, just like last time, he was going to disagree.
“As the commission has aptly shown, this issue falls within the ‘capable of repetition, yet evading review’ exception to the mootness doctrine…This exception is applied to situations where the challenged conduct invariably ceases before courts can fully adjudicate the matter.”
The court also awarded attorney fees to the Bitterroot Star in the case.
Following that ruling, however, the Commissioners raised objections to the award of attorney fees and filed a Rule 60(b) motion for relief from the judgment. They claimed that a summary judgment order is not proper when there are unresolved issues of fact and contend that Judge Langton misapprehended the facts in the case and this resulted in other mistakes of facts and law, including using an incorrect legal standard. They call his ruling that the case is not moot a mistake of law and claim the award of attorney fees was unjustified and inequitable.
Langton characterized the issue as “whether the ruling in the Opinion & Order was based on mistakes of fact and law that resulted in a wrong legal decision that should be corrected by reversing it.”
The Star argued that it was the Commissioners’ motion that was not proper because it is, in substance, a motion for reconsideration which does not exist under Montana law.
Although Langton found the Star’s argument “persuasive,” he nonetheless proceeded to address the commissioners’ claims, calling it the “most expedient route at this time” for both the parties and the Court to get a resolution.
He proceeds by pointing out that the Commission has failed to cite any legal authority that stands for the proposition that this subsection provides for relief from judgments based on a court’s mistake of fact or law
He notes that the law is not clear on the matter of mistakes made by a court rather than by the involved parties, and that the Court of Appeals remains divided on the issue. But, “in the interest of resolving all doubt in favor of the Commission,” he agrees to consider the motion.
The Commission argued that the Court misapprehended the deposition testimony of Administrative Assistant Glenda Wiles, by “reading something onto it that was never there” and ignoring deposition from Commissioner Greg Chilcott that clarified the glass box for public notices on the ground floor was outside the building.
The Commission contends that “because this mistake was ‘judicial error’ instead of a mistake by the commission, and because this misapprehension of the meaning of the testimony was the ‘principal reason’ for the Court’s determination that public notice of the meeting was inadequate, the Commission argues the Court must correct the mistake and amend the judgment in favor of the Commission.”
Judge Langton found that the Commission’s suggestion that summary judgment was not appropriate based on this alleged disputed issue of fact is misplaced. He notes that summary judgment is inappropriate where the parties dispute material issues of fact, but in this case, he said, “The Commission cannot create an issue of material fact sufficient to defeat summary judgment by submitting conflicting testimony between its own witnesses.” Judge Langton determined that any mistake of fact regarding the location of the bulletin board outside of the building was the Commission’s mistake, not the Court’s.
“However, whether the Court misapprehended the testimony or the Commission failed to submit clear testimony regarding the location of the second bulletin board, the Court’s perception that both bulletin boards were located inside the building was not the principal reason for determining that notice was inadequate. The Court’s determination that notice of the early Monday morning meeting was inadequate was based on the timing of notice at the end of Friday’s workday, along with the lack of evidence of any prior notice through previous meetings or the media,” wrote Langton.
As to the claim that the Star has no right to object since it received notice of the meeting by email, Langton states, the issue before the Court was not whether the Star received actual notice, but whether notice was adequate, i.e., sufficient to be effective.
“Despite repeatedly relying on unproven claims that the Star had ‘actual notice,’ the Commission fails to acknowledge that actual notice might also constitute inadequate notice depending on when the notice is given,” wrote Langton.
Furthermore, he concludes, the Commission cites no case law that addresses actual notice in the context of the adequacy of public notice in complying with constitutional and statutory requirements.
Langton notes that the Commission presented no evidence that it discussed or provided any opportunity for public comment on the issue of settling the lawsuit with Big Sky Development Group prior to the May 12, 2014, meeting. Nor did it present any evidence that the media (newspaper, online newspaper, radio, or television) had previously reported on the issue of a possible settlement or that the Commission would be considering a proposed settlement agreement.
“On Tuesday, May 6, 2014, the Commission scheduled the meeting on the proposed settlement agreement for early the following Monday morning. Yet, despite the absence of any prior reporting of the issue by the media or discussion at a prior meeting regarding the potential for settling the lawsuit, the Commission waited until the end of Friday’s workday to provide notice of the meeting on its website, two bulletin boards, and by email to the media of the early Monday morning meeting. Moreover, the $675,000 amount of the proposed settlement that, if approved, would be assessed to the Ravalli County taxpayers, was not included in the public notice.”
The commission also criticized Langton for relying too much on the issue of 48 hours notice.
Langton responded stating, “The Commission fails to cite to any part of the Court’s Opinion & Order wherein it focused on or counted the number of hours of notice. On the contrary, it was the Commission who focused exclusively on the number of hours of posted notice.”
As to the commissioners’ claim that his ruling that the legal issue was not moot was also a mistake in the law and that fees should not have been awarded, Langton states, “The Court did not decide in the Opinion & Order that the issue of the settlement agreement was not moot; it decided that the ‘capable of repetition, yet avoiding review’ exception to the mootness doctrine applied to justify an award of costs and fees.”
“The Commission misses the point in its focus on the impact on the taxpayers of the assessment of the Star’s attorney’s fees and costs. As explained in its Opinion & Order on pages 18-21, the purpose of the fee-shifting statute codified at § 2-3-221, MCA, is to provide for reimbursement of attorney’s fees and costs to prevailing plaintiffs who seek to vindicate important civil and constitutional rights not only on their behalf but for the public benefit. By bringing this lawsuit (with its attendant attorney’s fees and costs) to vindicate the constitutional and statutory rights of the citizens of Ravalli County to participate in government, and by prevailing, the Star has performed a service for Ravalli County’s citizens. It is ironic that the Commission complains of the burden the relatively modest amount of attorney’s fees at issue will place on the County’s taxpayers after the Commission, upon ineffective notice to the public, entered into a settlement agreement in which $675,000 was assessed to the County’s taxpayers.”
He goes on to state, “This is the Star’s second lawsuit before this Court in three years on a claim of insufficient public notice against the Commission. The Star has prevailed in both. Just as it did in the prior case, the Commission has argued that a fee award should not be assessed because the deed complained of is done, the money has been paid out, and the issue is moot. This case underscores the rationale for the ‘capable of repetition, yet evading review’ exception to the mootness doctrine.” He found the Commission’s argument against assessment of fees “unpersuasive.”
In the end, Judge Langton denied the Commission’s request for relief from judgment under Rule 60(b). Although Langton did find the Commission’s objection to two line item expenses totaling $302.40 valid, he found the award of attorney fees (minus these line items) to be reasonable. He directed the Star to submit a revised itemized statement and to include those fees involved in responding to the Commissioners’ objection to fees.