Judge finds commissioners violated the law in Woodchuck Road decision

 

Last Wednesday, August 8, District Court Judge Jeffrey Langton issued a judgment in favor of Ravalli County Watchdog, the Bitterroot Star and Bill LaCroix in their claims that the County Commissioners violated the public’s right to know and participate in government decisions when they held an inadequately noticed meeting on August 29, 2011 and decided to spend $46,780 on road repairs near Eight Mile Road and Woodchuck Road on the Woodchuck Road Repair Project.

The allegations were filed on November 7, 2011. In December the Board of Commissioners moved to dismiss the claims because the case was moot, since the money had already been spent and alleging that it was untimely because it was filed more than 30 days after the alleged infraction and did not meet the statutory limitation. The petitioners filed a timely response to the motion, but for some reason it was not delivered to the Court and on January 3, 2012, Langton issued an order dismissing the case since no arguments or refutations of the county’s arguments had been received. The petitioners asked for reconsideration and on February 8, 2012, Langton issued an order vacating the dismissal and converting the motion to dismiss into one for Summary Judgment.

Langton begins his lengthy 35-page summary judgment ruling by recounting some of the uncontested facts in the case. He notes that on October 7, 2011, Bitterroot Star reporter Michael Howell stopped by the Road Department seeking information about the Woodchuck Road Repair Project for a potential story, only to discover that Commissioner Ron Stoltz had removed the file from the Road Department office. Investigation of the story continued and in the second week of October, Howell discovered an archived agenda item and associated approved minutes of a meeting on August 29, advertised as an “On site visit to 8 Mile Road and Woodchuck – continued from Friday, August 26^th.”

Langton notes that the minutes of the August 26^th on-site meeting do not mention any continuation of that meeting. Not only that, but the first two agendas issued by the board for the next Monday, August 29^th, do not mention any meeting about the Woodchuck Road Project. In fact, Langton notes, it was not placed on the Commissioners’ agenda until 10:30 a.m. Monday morning, just a couple of hours before the 1 p.m. meeting. Langton noted that, based on the affidavit of Administrative Assistant Beth Perkins, the commissioners were told by her that what they were doing violated the laws concerning public notice. She was nonetheless instructed by Commissioner Stoltz to place it on the agenda and she did so.

Langton also notes that even if someone had tried to respond on such short notice to the agenda posting, they would have gone to the wrong place, since the decision was made in the Commissioners’ meeting room, but on the agenda it says it is an “on site visit.”

In his opinion, Langton addresses the County’s claim that the issue is moot because the road work was completed and all the funds spent and neither the work nor the funds can be recalled. He states that no evidence was ever submitted by the board to substantiate this claim in any of its briefs.

“Notwithstanding this omission, there has been high profile press coverage of the investigation and subsequent firing of Ravalli County’s road supervisor after the completion of Woodchuck Road Repair Project. In the interest of expediency, the Court deems it appropriate to take judicial notice of the facts that the project has been completed and the funds have been expended,” wrote Langton.

Langton rejects the County’s argument that this makes the matter moot, however. He notes a Supreme Court ruling in which the Court invokes an “exception to the mootness rule for those actions that are capable of repetition, yet evading review.” The Court ruled in that case that an issue was not moot if it met a two-part “burden of proof” with evidence showing that the challenged action was too short in duration to be fully litigated before cessation of the action and that there is reasonable expectation that the same complaining party would be subject to the same action again.

“Here,” wrote Langton, “the issue before the Court concerns government action that was allegedly carried out in violation of constitutional guarantees of the public’s right to participate and to know and Montana’s open meeting statutes. Petitioners argue that such violations are capable of recurring and they contend they have had continual problems with the Board’s failure to properly notify them of issues.”

Langton refers to Bitterroot Star publisher Michael Howell’s affidavit where he claims that this is not the only time he has had issues with the board’s failure to provide adequate public notice. Howell notes that he is involved in another lawsuit against the county over similar issues, has complained at meetings, and submitted written complaints to the board and had a letter sent from Montana Newspaper Association Attorney Peter Meloy in an attempt to encourage adequate public notice.

“Mr. Howell notes his concern that if petitioners’ petition is dismissed for mootness, the Board will only be encouraged to provide inadequate notice for a public meeting and then quickly spend the money approved in the illegal meeting before the public is made aware of the decision or allowed to challenge the decision in court,” wrote Langton.

Langton concludes, “based on the uncontested evidence before it, that the issue of whether the Board adheres to the legal requirement that it provide adequate notice of meetings to the public, and particularly notice of those meetings that are potentially controversial and/or wherein it makes decisions to expend large sums of taxpayer dollars, falls within the ‘capable of repetition, yet evading review’ exception to the mootness doctrine.”

After concluding that the matter was not moot, Langton turns to consideration of the merits of the case.

The petitioners asked the court to void the decision made by the Commissioners on August 29^th due to inadequate notice. The County claimed that the petition was filed too late because, for a decision to be voided, the law requires the challenge to be filed within 30 days. But Langton notes the statute of limitations requires the suit be brought “within 30 days of the date on which the petitioner learns, or reasonably could have learned, of the agency’s decision.” He notes in this case that the public notice was legally inadequate, depriving the public of any knowledge of the action. He concludes that the timeline should begin when Howell came to learn of the decision through his investigations. Based on that date of discovery, he finds the lawsuit was filed within the statutory deadline.

The Court’s determination that the basis on which the petition was timely filed was the inadequacy of the Board’s notice of the August 29, 2011 meeting, both to petitioners and to the public, necessarily renders the petitioners’ claims of constitutional and statutory violations by the Board meritorious.

“The Board, by violating Montana’s open meeting laws, violated Petitioners’ constitutional right to participate and to know,” wrote Langton.

Langton acknowledges that he cannot void the decision made by the commissioners because the work is done and the money spent. However, he notes the petitioners also asked for “such other and further relief as this court deems just” and made the suggestion that the court could order the Board to develop procedures to comply with the law.

Langton concludes that, based on the Board’s violation of the petitioners’ constitutional rights and Montana’s open meeting laws, Howell’s sworn statements that this incident of inadequate notice is not an isolated event, and the Board’s failure to address the issue of further relief, the appropriate remedy is to direct the Commissioners to develop, adopt and follow some guidelines for determining whether an issue is “of significant interest to the public,” and how the Board will notify the public of issues of special interest.

Langton also found, based on case law, that the petitioners should be awarded attorney fees for prevailing in an action to enforce their constitutional rights. He goes on to state that the fact that petitioners seek no damages or other form of relief personal to them makes an even stronger argument for full fee award.

“Petitioners have performed a service for the citizens of Ravalli County by enforcing a portion of the Montana Constitution that would otherwise be violated,” wrote Langton. He gave the Board 90 days from the date of his August 8 order to create, adopt, and publish guidelines for determining significant public interest and how the public will be notified.