                             No. 14908
               IN THE SUPREME COURT OF THE STATE OF MONTANA




BOARD OF TRUSTEES, HUNTLEY PROJECT
SCHOOL DISTRICT NO. 24, WORDEN, MONTANA,
                       Petitioner and Appellant,


BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF YELLOWSTONE, STATE OF MONTANA,
and M. E. McCLINTOCK, DUANE E. CHRISTIANSEN
and J. A. STRAW, Constituting the members of
said Board,
                       Respondents and Respondents.


Appeal from:   District Court of the Thirteenth Judicial District,
               Honorable Charles Luedke, Judge presiding.
Counsel of Record:
    For Appellant:
         Davidson, Veeder, Baugh & Broeder, Billings, Montana
         Doris M. Poppler argued, Billings, Montana
    For Respondents:
         Harold F. Hanser, County Attorney, Billings, Montana
         David W. Hoefer argued, Deputy County Attorney,
          Billings, Montana


                               Submitted:   January 17, 1980
                                 Decided:
                                            FEB S - 1980
Filed:   FEi, 6 - l
                  ja
Mr. Justice Gene B. Daly delivered the Opinion of the Court.



       his action arose from an application for a preemptory
writ filed on the 26th day of January, 1979 by the Board of
Trustees of Huntley Project School District No. 24, Worden,
Montana, asking the court to compel the Yellowstone County
Commissioners to void the meeting of December 28, 1978 and

all actions taken at said meeting.     This was based on peti-
tioner's contention that the said meeting was not held in
conformance with the laws of the State of Montana requiring
public boards and commissions to hold open meetings after
proper notice to the public whenever action is to be taken
or a decision is to be made by the public agency.
     The case was heard on stipulated facts without a jury
and submitted on briefs to the District Court.      The District
Court denied the application.     It is from this denial that
the Huntley Project School District No. 24 appeals.

     On December 26, 1978, a public meeting was held at the
Yellowstone County Courthouse for the purpose of hearing

testimony by the public and other interested parties in
regard to the preliminary plat of Pryor Creek Estates Sub-
division.   A number of people testified both for and against

the proposed subdivision.    The Board's public hearing on the
preliminary plat was then closed by the Chairman.       The
Commissioners announced that they would take the matter
under advisement and that a decision would be made in the
next day or two.
     On December 28, 1978, pursuant to adjournment, the
Board of Commissioners convened at 9:00 a.m.      The minutes
reflect that Commissioners Christensen, Kamp, ~ c ~ l i n t o cand
                                                                k
County Clerk Klundt were present.     The minutes indicate that
the subdivision was conditionally approved on the motion of
Mr. Kamp and seconded by Commissioner Christensen.   A foot-

note adds that Commissioner McClintock was not aware of the
meeting on this matter, nor that a vote was to be taken at
this time.
     The actual decision was made at approximately 2:30 in
the afternoon of December 28th, 1978.   The vote was conducted
by telephone.   Duane Christensen was on the phone in his
office; David Hoefer of the County Attorney's Office was on
a phone in the secretarial area of the Commissioners' office;

Bonnie Hudson, a Deputy Clerk and Recorder, was in the con-
ference room on an extension phone; and Leo Kamp was on a
phone at the Circle Inn.   Mr. McClintock was also at the
Circle Inn but was not notified of the call and was not at

that time aware that a vote was being taken on the matter.
However, Mr. McClintock, to the best of his recollection,
had on the morning of December 28th, 1978, participated in a
discussion with Commissioners Kamp and Christensen concerning
the Pryor Creek Estates Subdivision, with no decision being

made at that time.
     On January 9, 1979, Commissioner Christensen attempted
to have the December 28, 1978 action reconsidered, but
failed when his motion was not seconded.

    After the filing of the lawsuit, a letter was sent to
Elmer Link, the developer of the subdivision, by Commissioner
Christensen, which purported to be findings of fact and con-
clusions of law.   The School District challenged these find-
ings of fact on a procedural basis alleging they were not
based on a resolution passed by the Board of County Commis-
sioners as required by section 76-3-608, MCA.   The District
Court ruled that the requirements of section 76-3-608, MCA
had been met. Apparently these alleged findings were never
filed with the County Clerk and Recorder.      Written findings

of fact were, however, filed with the Yellowstone County
Clerk and Recorder on March 22, 1979.      These findings appear

to comply with section 76-3-608, MCA.
       The following issues are presented for review:
       (1) Did the District Court err in determining that the

Commissioners' meeting of December 28, 1978 was improper but
that there existed insufficient grounds to nullify the
action taken by the commission?
       (2) Did the District Court abuse its discretion by not
compelling respondents to void the meeting of December 28,


       (3) Is mandamus a proper remedy in this matter?
       The Montana Constitution guarantees that "[nlo 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."      Article 11, section 9, 1972
Constitution of the State of Montana.
       Montana also has a number of statutes which protect
this right to an "open meeting", sections 2-3-201, MCA, et
seq.
       Section 2-3-201 provides:
       "The legislature finds and declares that
       public boards, commissions, councils, and
       other public agencies in this state exist
       to aid in the conduct of the peoples'
       business. It is the intent of this part
       that actions 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 shall be liberally
       construed."
Section 2-3-203, MCA provides:

     "(1) All meetings of public or governmental
     bodies, boards, bureaus, commissions, agen-
     cies of the state, or any political subdivi-
     sion of the state or organizations or agencies
     supported in whole or in part by public funds
     or expending public funds shall be open to
     the public.
     "(2) Provided, however, the presiding officer
     of any meeting may close the meeting during
     the time the discussion relates to a matter of
     individual privacy and then if and only if the
     presiding officer determines that the demands
     of individual privacy clearly exceed the merits
     of public disclosure. The right of individual
     privacy may be waived by the individual about
     whom the discussion pertains and, in that event,
     the meeting shall be open.
     " (3) However, a meeting may be closed to dis-
     cuss a strategy to be followed with respect
     to collective bargaining or litigation when
     an open meeting would have a detrimental effect
     on the bargaining or litigating position of
     the public agency.
     "(4) Any committee or subcommittee appointed
     by a public body for the purpose of conducting
     business which is within the jurisdiction of
     that agency shall be subject to the require-
     ments of this section."
    A "meeting" is defined as    ". . .   the convening of a
quorum of the constituent membership of a public agency,
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."
Section 2-3-202, MCA.
     "Appropriate minutes of all meetings required by 2-3-

203 to be open shall be kept and shall be available for
inspection by the public."   Section 2-3-212(1), MCA.    Such
minutes must include the:
     "(a) date, time, and place of meeting;
     " (b) a list of the individual members
     of the public body, agency, or organ-
     ization in attendance;
        " (c) t h e substance of a l l m a t t e r s pro-
        p o s e d , d i s c u s s e d , o r d e c i d e d ; and

        " ( d ) a t t h e r e q u e s t o f a n y member, a
        r e c o r d by i n d i v i d u a l members o f a n y
        v o t e s taken."       S e c t i o n 2-3-212 ( 2 ) , MCA.

        "Any d e c i s i o n made i n v i o l a t i o n o f 2-3-203               may b e

d e c l a r e d v o i d by a d i s t r i c t c o u r t h a v i n g j u r i s d i c t i o n .   A

s u i t t o v o i d a n y s u c h d e c i s i o n must be commenced w i t h i n 30

days of t h e decision."                 S e c t i o n 2-3-213,       MCA.

        "Each a g e n c y s h a l l d e v e l o p p r o c e d u r e s
        f o r p e r m i t t i n g and e n c o u r a g i n g t h e
        p u b l i c t o p a r t i c i p a t e i n agency d e c i -
        s i o n s t h a t a r e of s i g n i f i c a n t i n t e r e s t
        t o the public.             The p r o c e d u r e s s h a l l
        a s s u r e a d e q u a t e n o t i c e and a s s i s t
        public participation before a f i n a l
        agency a c t i o n i s taken t h a t i s o f
        significant i n t e r e s t t o the public."
        S e c t i o n 2-3-103 ( I ) , MCA.

An agency s h a l l be c o n s i d e r e d t o have c o m p l i e d w i t h t h e

above n o t i c e p r o v i s i o n i f :

        " (3) a public hearing, a f t e r appropri-
        a t e n o t i c e i s given, i s held pursuant
        t o a n y o t h e r p r o v i s i o n o f s t a t e law o r
        a l o c a l ordinance o r resolution; o r

        " ( 4 ) a newspaper o f g e n e r a l c i r c u l a -
        t i o n w i t h i n t h e a r e a t o b e a f f e c t e d by
        a d e c i s i o n of s i g n i f i c a n t i n t e r e s t t o
        t h e p u b l i c h a s c a r r i e d a news s t o r y o r
        advertisement concerning t h e d e c i s i o n
        sufficiently prior t o a f i n a l decision
        t o p e r m i t p u b l i c comment on t h e m a t t e r . "
        S e c t i o n 2-3-104, MCA.

        T h e r e i s no q u e s t i o n t h a t t h e above s t a t u t e s a p p l y t o

t h e County Commissioners and t o t h i s " m e e t i n g " .

        I n a d d i t i o n , t h e r e a r e s t a t u t e s which s p e c i f i c a l l y

r e g u l a t e t h e m e e t i n g s o f County Commissioners.

        S e c t i o n 7-5-2122,        MCA p r o v i d e s :

       " ( 1 )The g o v e r n i n g body o f t h e c o u n t y
       s h a l l e s t a b l i s h by r e s o l u t i o n a r e g u l a r
       m e e t i n g d a t e and n o t i f y t h e p u b l i c o f
       t h a t date.
     " (2) The governing body of the county,
     except as may be otherwise required of
     them, may meet at the county seat of
     their respective counties at any time
     for the purpose of attending to county
     business. Commissioners may, by resolu-
     tiion and prior 2 days' posted public
     notice, designate another meeting time
     and place."
Section 7-5-2125, MCA provides that "[all1 meetings of the

board of county commissioners must be public."

     The outcome of this case rests on a determination of
whether the "meeting" held by the County Commissioners on
December 28, 1978 complied with the provisions of the above

statutes.
     Respondents argue that the "meeting" did not violate
the above statutes.     They submit that the "meeting" was a
continuation of a meeting properly held on December 26,
1978. They further submit that notice was given in the form
of a news story in the "Yellowstone County News" printed on

December 28, 1978 and indicating that the Commission was to
make its decision on the Pryor Creek Estates Subdivision
 today or tomorrow. "
     Additionally, the respondents argue that throughout the
entire decision making process, public meetings were held

and the public was kept informed.
     Appellant, on the other hand, questions whether or not

the telephone conversation constituted a valid meeting at
all. It submits that no notice was given of the "meeting's"
time or place as required by statute and questions the
validity of the individual action of one Commissioner in
calling a meeting to decide matters of this magnitude.
Appellant argues that the open meeting statutes must be
liberally construed and that it is inconceivable that an
open m e e t i n g c a n be h e l d w i t h o u t p u b l i c n o t i c e and s t i l l
a c c o m p l i s h t h e l e g i s l a t i v e p u r p o s e o f t h e Open Meeting Law.

        A review of t h e f a c t s i n t h e i n s t a n t c a s e l e a d s t o t h e

c o n c l u s i o n t h a t a " m e e t i n g " t o o k p l a c e a s d e f i n e d by s e c t i o n

2-3-202,       MCA.      A "quorum" o f         t h e County Commissioners ( 2 o f

3; see B l a c k ' s Law D i c t i o n a r y 1 4 2 1 ( 4 t h e d . 1 9 6 8 ) ) m e t "by

means o f e l e c t r o n i c e q u i p m e n t ( t e l e p h o n e ) t o a c t upon a

m a t t e r o v e r which t h e a g e n c y had s u p e r v i s i o n , c o n t r o l ,

jurisdiction,          o r a d v i s o r y power."        S e c t i o n 2-3-202,      MCA.

        The r e c o r d a l s o i n d i c a t e s t h a t d u e t o t h e framework i n

which t h e m e e t i n g was h e l d , i . e . by means o f t e l e p h o n e con-

v e r s a t i o n , and d u e t o t h e f a c t t h a t Commissioner McClintock

was n o t i n f o r m e d o f t h e m e e t i n g , i t was n o t a n "open m e e t i n g "

a s r e q u i r e d i n Montana.

        I n Montana, n o t i c e i s r e q u i r e d by s e c t i o n s 2-3-103               and

7-5-2122,       MCA.      The c o n t e s t e d " m e e t i n g " h e r e f a i l e d t o

comply w i t h t h e n o t i c e r e q u i r e m e n t s o f b o t h t h o s e s e c t i o n s .

Respondents c o n t e n d t h a t t h e newspaper s t o r y p r i n t e d i n t h e

" Y e l l o w s t o n e County News" and t h e f a c t t h a t t h e y h e l d p u b l i c

m e e t i n g s u n d e r t h e Montana S u b d i v i s i o n and P l a t t i n g A c t

s u f f i c i e n t l y complied w i t h t h e above n o t i c e p r o v i s i o n s .

T h i s i n t e r p r e t a t i o n o f t h e f a c t s and t h e law i s m i s t a k e n .

The newspaper a r t i c l e d i d n o t p r o v i d e s u f f i c i e n t f a c t s

c o n c e r n i n g t h e " m e e t i n g ' s " t i m e and p l a c e t o i n f o r m t h e

public s u f f i c i e n t l y p r i o r t o the f i n a l decision t o permit

f u r t h e r p u b l i c comment on t h e m a t t e r .        Furthermore, t h i s

"meeting" v i o l a t e d t h e p r o v i s i o n s t h a t c o n t r o l t h e meetings

o f t h e Board o f County Commissioners.                       A reading of s e c t i o n

7-5-2122      i n d i c a t e s t h a t b e f o r e t h e County Commissioners c a n

change t h e t i m e , p l a c e and manner o f t h e i r m e e t i n g s o r h o l d

a s p e c i a l m e e t i n g , two d a y s p o s t e d p u b l i c n o t i c e must b e
given.        T h i s n o t i c e must d e s i g n a t e t h e new m e e t i n g t i m e and

place.        I t i s c l e a r t h a t t h i s was n o t done h e r e even t o t h e

e x c l u s i o n o f one o f t h e County Commissioners.                        It is d i f f i c u l t

t o e n v i s i o n a n open m e e t i n g h e l d w i t h o u t p u b l i c n o t i c e t h a t

s t i l l a c c o m p l i s h e s t h e l e g i s l a t i v e purpose of t h e Montana

"open meeting" s t a t u t e s .            Without p u b l i c n o t i c e , an open

meeting i s open i n t h e o r y o n l y , n o t i n p r a c t i c e .                This type
o f c l a n d e s t i n e meeting v i o l a t e s t h e s p i r i t and t h e l e t t e r o f

t h e Montana Open Meeting Law.

        The q u e s t i o n t h e n becomes d i d t h e D i s t r i c t C o u r t a c t

improperly i n n o t voiding t h e d e c i s i o n .                  Two s t a t u t e s o f

s i m i l a r e f f e c t govern h e r e .        S e c t i o n 2-3-114      provides:             "The

d i s t r i c t c o u r t s o f t h e s t a t e have j u r i s d i c t i o n t o s e t a s i d e

an agency d e c i s i o n under t h i s p a r t upon p e t i t i o n made w i t h i n

30 d a y s o f t h e d a t e of t h e d e c i s i o n o f any p e r s o n whose

r i g h t s have been p r e j u d i c e d . "        S e c t i o n 2-3-213,       MCA p r o v i d e s :

"Any d e c i s i o n made i n v i o l a t i o n o f 2-3-203              may be d e c l a r e d

v o i d by a d i s t r i c t c o u r t having j u r i s d i c t i o n .         A suit to

v o i d any such d e c i s i o n must be commenced w i t h i n 30 d a y s of

the decision."             The above p r o v i s i o n s i n d i c a t e t h a t i t i s

within the D i s t r i c t Court's d i s c r e t i o n t o void the a c t i o n s

i f t h e r e h a s been a v i o l a t i o n of t h e "open m e e t i n g " law.

        The D i s t r i c t Judge h e r e p u b l i s h e d a memorandum i n sup-

p o r t of h i s d e c i s i o n d e n y i n g a p p e l l a n t s ' a p p l i c a t i o n f o r

w r i t of mandamus.            I n t h i s memorandum, t h e judge, w h i l e

f i n d i n g t e c h n i c a l d e f i c i e n c i e s i n t h e p r o c e d u r e s employed,

ruled that:

        "In t h i s case it appears appropriate t o
        assume t h a t t h e 'open m e e t i n g ' s t a t u t e
        a p p l i e s and h a s been v i o l a t e d .  The
        c r i t i c a l question then revolves about
        t h e consequences t o be imposed s i n c e t h e
        s t a t u t e makes t h e v o i d i n g of t h e Com-
        missioner's action discretionary rather
        t h a n mandatory ( S e c t i o n 2-3-213) "            .
     ". . .[A]s a matter of substance over
     form there is not sufficient ground
     existing to nullify the action taken
     ...    11




     The District Judge also discussed the ramifications of
failing immediately to make public written findings of fact
in support of the Commissioners' conclusions.        At the time
of this opinion those written findings and conclusions are
properly on file in Yellowstone County.     A discussion of
this issue is therefore moot.      This should not be taken as
an indication that this Court approves of the delay and
deficient procedure shown in this case.         In fact, we strongly

disapprove of such delays.     Any unreasonable delay as was
the case here will not be tolerated in the future.        We
strongly urge the various County Commissioners to file
written findings of fact and conclusions in subdivision
matters as required by section 76-3-608, MCA and State ex
rel. Florence-Carlton School District v. Board of County
Commissioners (1978), - Mont.           , 590   P.2d 602, 35

St.Rptr. 1836 immediately following their decision to ap-
prove, conditionally approve or disapprove a subdivision
proposal.

     In his memorandum, the District Judge correctly deter-

mined that the procedure followed was improper.        He went on
to determine, however, that the decision involved an element
of urgency.      He also determined that the decision would not
change simply because a public meeting was held.        He,
therefore, decided to look past the form to the substance
and uphold the decision.
     It is too familiar a concept of Montana law to require

citation that a discretionary decision of the District Court
will not be reversed unless there is a clear abuse of dis-
cretion.     However, the disregard shown for the statutes
regulating the procedure of an open meeting in terms of
notice and place and voting procedure placed a heavy duty
and burden on those who would prove the meeting legal. In

the absence of such proof, we must hold there was a clear
abuse of discretion on the part of the trial court.
     The failure here to follow proper statutory procedures
of notice has the effect of invalidating the Commissioners'
decision.    We would emphasize that our ruling here has no
bearing on the merits of the Commissioners' decision but

only reflects on the impropriety of the procedure used.
     There is one further issue raised by respondents as to
the proper remedy involved here.
     The appellants petitioned for a writ of mandate re-
questing the court to void the illegal meeting.     Respondent
correctly contends that mandamus is not a proper remedy to
correct action which has already taken place.     Melton v.
Oleson (1974), 165 Mont. 424, 530 P.2d 466.     Appellants
agree with this but contend they are not requesting the
undoing of an act, but rather that this Court void the
illegal meeting. They cite Kadillak v. The Anaconda Co.

(1979)r - Mont.        ,   602 P.2d 147, 36 St.Rep 1820, wherein
we stated:
    "State Lands contends that mandamus cannot lie
    to correct'lorundo an act already performed
    . . . This is a correct statement of the law.
    What this Court is mandating, however, is not
    the undoing of an act. Rather, we are direct-
    ing State Lands to perform an act which they
    have not done and which they had a clear
    legal duty to do. They are to return the
    Permit 41A application to Anaconda as inad-
    equate and incomplete. Because the applica-
    tion was not returned Permit 41A was void
    from the beginning and Anaconda may not con-
    tinue the mining activities on the Permit
    41A area until a valid permit is granted by
    State Lands." 602 P.2d at 157.
        I n Montana u s e o f a w r i t o f mandate i s s p e c i f i c a l l y

c o n t r o l l e d by s t a t u t e .   S e c t i o n 27-26-106        provides i n per-

t i n e n t p a r t t h a t a w r i t o f mandamus:

        ". . .       may be i s s u e d by t h e supreme c o u r t o r
        t h e d i s t r i c t c o u r t o r a n y judge o f t h e d i s -
        t r i c t c o u r t t o any i n f e r i o r t r i b u n a l , c o r p o r -
        a t i o n , b o a r d , o r p e r s o n t o compel t h e p e r f o r -
        mance o f a n a c t which t h e l a w s p e c i a l l y e n j o i n s
        a s a d u t y r e s u l t i n g from a n o f f i c e , t r u s t , o r
        s t a t i o n o r t o compel t h e a d m i s s i o n o f a p a r t y
        t o t h e u s e and enjoyment o f a r i g h t o r o f f i c e
        t o which h e i s e n t i t l e d and from which h e i s
        u n l a w f u l l y p r e c l u d e d by s u c h i n f e r i o r t r i b u n a l ,
        corporation, board, o r person                      . . .       The w r i t
        must be i s s u e d i n a l l c a s e s where t h e r e i s n o t
        a p l a i n , s p e e d y and a d e q u a t e remedy i n t h e o r -
        d i n a r y c o u r s e of law."

        Both s e c t i o n 2-3-213          and 2-3-114,           MCA p r o v i d e f o r s u i t s

t o v o i d a c t i o n s t a k e n i n v i o l a t i o n o f s e c t i o n s 2-3-203        and

2-3-103,       respectively.             While t h e r e i s a s p e c i f i c remedy a t

law p r o v i d e d t o a p p e l l a n t s , t h e form o f t h a t remedy i s

unclear.        Further, t h e a p p e l l a n t ' s contentions here could

f i t under t h e K a d i l l a k r a t i o n a l e .       Thus w h i l e t h e u s e o f a

w r i t o f mandamus i s n o t t e x t b o o k law, i t i s a p p r o p r i a t e

h e r e . I n t h e f u t u r e , however, i t would s e e m t h e s u i t s h o u l d

t a k e t h e form o f a s i m p l e p e t i t i o n t o v o i d a n a c t i o n o r a

p e t i t i o n f o r d e c l a r a t o r y judgment.        I n t h e i n t e r e s t s of t i m e

and l i b e r a l c o n s t r u c t i o n , however, a p p e l l a n t ' s c h o i c e o f

remedy i s a d e q u a t e .

       A s t o a t t o r n e y s f e e s , they a r e s p e c i f i c a l l y provided

f o r i n s e c t i o n 2-3-221,         MCA,    t h e r e f o r e , t h e f a c t t h a t they

a r e p r o v i d e d i n mandamus becomes u n i m p o r t a n t and o f no

weight a s t o t h e p r o p r i e t y of t h e w r i t .

       W e f i n d t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n i n

f i n d i n g an i l l e g a l meeting b u t f a i l i n g t o n u l l i f y t h e a c t i o n s

t a k e n by t h e Y e l l o w s t o n e County Commissioners.

        The judgment o f t h e D i s t r i c t C o u r t i s v a c t e d and s e t
aside and the cause remanded with instructions to enter

judgment nullifying the proceedings of the Yellowstone

County Commissioners which are the subject of this appeal.


                                                ,
                                                '   .,
                                              4
                                             L&-u.
                                        fl     Justice
We concur.




Mr. Justice John C. Sheehy, deeming himself disqualified, did
not participate in this case.
