                                          No. 04-295

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 387N


RICHARD MOTTA,

              Plaintiff and Appellant,

         v.

PHILIPSBURG SCHOOL BOARD TRUSTEES,
DISTRICT #1, CHARLIE GOFF, MARIE CONN,
ED DALLASERRA, TOM HOOD, WARREN ANDERS,

              Defendants and Respondents.



APPEAL FROM:         The District Court of the Third Judicial District,
                     In and For the County of Granite, Cause No. DV 2001-03,
                     Honorable Ted L. Mizner, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Richard A. Motta, Pro Se, Philipsburg, Montana

              For Respondents:

                     Blaine C. Bradshaw, County Attorney, Philipsburg, Montana



                                                       Submitted on Briefs: October 14, 2004

                                                                  Decided: December 28, 2004


Filed:



                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Richard A. Motta appeals from the District Court’s order denying his request to void

both the Philipsburg’s United States Department of Education (DOE) Goals 2000 Grant

(Goals Grant) and the District Court’s sanctions against him.

¶2     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

                                     BACKGROUND

¶3     Many of the facts of this case are the same as those in Motta v. Philipsburg Sch. Bd.

Trustees Dist. #1, 2004 MT 256, 323 Mont. 72, 98 P.3d 673 (Motta I). In addition to those

recited there, Dr. David Lee was, at the time of these incidents, the Superintendent of the

Philipsburg School District No. 1 (the School District). Larry Baldwin, then-Chairman of

the Philipsburg School Board of Trustees (the School Board), signed an affidavit declaring

that “our Board of Trustees had given him general authority to apply for such grant moneys;

this power is subject to the Board of Trustees formal approval; . . . .” The School Board had

given Lee general authority to apply for grant money. Lee used his authority to apply for

Federal Goals 2000 Grant money. After the DOE accepted his application, he entered into

an agreement with Northwest Research Educational Laboratories to provide workshops for

administrators, teachers, and other selected community members.


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¶4        By the time the School Board approved the Goals Grant on February 20, 2001, Lee

had already spent $15,720.81 on services furthering the Goals Grant. Motta was present for

many of the School Board meetings, but was unsatisfied with the resolutions. He brought

four cases in the District Court alleging, inter alia, the School Board violated open meeting

laws and this is one of those cases. See Motta I. After almost two years of litigation, the

District Court ordered Motta and the School Board engage in mandatory mediation.

¶5        Motta filed a Motion for Reconsideration of Mediation Order in which he stated to

the District Court that mediation “notifies pro se litigants that they are not going to be

afforded remedy in the courts and advises public agencies that they will be protected by the

courts from their illegal acts,” “Plaintiff’s understanding of mediation is that the court has

ruled on the findings of the case and is seeking a mediator to determine an equitable

monetary settlement,” and “Plaintiff fails to understand the ramification [sic] of sanctions.

From the Plaintiff’s prospective [sic], the message seems to be that pro se litigant’s [sic] are

not going to be afforded access to the courts without penalty.” Although Motta nonetheless

attended mediation, it failed to resolve the dispute. The District Court found that “Plaintiff

. . . has been given every opportunity to bring these matters to a conclusion. Instead,

Plaintiff has chosen to harass his community with demands that violate Montana Code.”

¶6        Motta raises the following issues on appeal:

¶7        1. Whether the school superintendent could have the authority to apply for federal

grants.




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¶8        2. Whether the District Court erred in holding Lee had general authority to apply for

grants.

¶9        3. Whether the District Court abused its discretion when it failed to void the Goals

Grant.

¶10       4. Whether § 2-3-203(4)(a), MCA (2001), allowing a school board to discuss

litigation strategy involving a private party outside public scrutiny is a unconstitutional

exception to the Right to Know provisions in Article II, Section 9, of the Montana

Constitution.

¶11       5. Whether the District Court properly assessed sanctions against Motta.

¶12       6. Whether Motta is entitled to his costs.

                                  STANDARD OF REVIEW

¶13       The decision to grant summary judgment is a matter of law that we review de novo.

If the non-moving party fails to provide substantial evidence raising a genuine issue of

material fact, the District Court must decide whether the moving party is entitled to judgment

as a matter of law. This Court reviews that decision “to determine whether the District Court

erred.” Motta I, ¶ 11.

                                         DISCUSSION

                                                I

¶14       Motta argues that § 20-9-603, MCA (2001), gives exclusive authority to the Governor

and Superintendent of Public Instruction to accept federal grants. That power does not

exclude the district superintendent from acting under § 20-3-208, MCA (2001) (giving the

county superintendent the authority to accept money on behalf of the school district). This


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case, however, concerns the power of a district superintendent accepting money on behalf

of a school district. These positions are all distinct and all have different obligations and

responsibilities. Section 20-1-101(6), (7), (16), MCA.

¶15    The Legislature has given the power to accept federal grants to the Governor,

Superintendent of Public Instruction, and county superintendents. Expressio unius directs

courts that the “expression of one thing suggests the exclusion of others.” William N.

Eskridge, Jr. et al, Cases and Materials on Legislation: Statutes and the Creation of Public

Policy app. 19 (3rd ed. 2002); Harris v. Smartt, 2003 MT 135, ¶ 17, 316 Mont. 130, ¶ 17,

68 P.3d 889, ¶ 17. Thus, by directly granting power to accept federal grants to some offices,

expressio unius implies the legislature must have intended to exclude that power from all

other offices, including the district superintendent.

¶16    However, we cannot construe these statutes as precluding a school board from

delegating authority to a district superintendent to apply for grants. Montana Constitution

provides that “[t]he supervision and control of schools in each district shall be vested in a

board of trustees to be elected as provided by law.” This “supervision and control” includes

the power to delegate to the district superintendent the authority to apply for federal grants

on behalf of the respective school district.

                                               II

¶17    Larry Baldwin executed an affidavit stating that the School Board gave Lee general

authority to apply for grants. Motta has offered no evidence to the contrary, but has only

asserted this mere affidavit is insufficient proof. “‘Unsupported conclusory or speculative


                                               5
statements do not raise a genuine issue of material fact. The trial court has no duty to

anticipate possible proof.’” Nelson v. Montana Power Co. (1993), 256 Mont. 409, 412, 847

P.2d 284, 286 (quoting Benson v. Diehl (1987), 228 Mont. 199, 203, 745 P.2d 315, 317).

Motta has failed to raise a genuine issue of material fact. We affirm the District Court.

                                             III

¶18    Motta argues that the District Court abused its discretion by refusing to void the Goals

Grant. As noted earlier, no statute specifically gives district superintendents the authority

to apply for grants. Nevertheless, Baldwin’s affidavit declares that the School Board gave

Lee general authority only to apply for grants; it did not give Lee the authority to accept the

grants. Here, the School Board approved the grant only after Lee had spent almost $16,000.

The School Board would have a much more difficult time rejecting the grant after Lee spent

the money. Spending money on behalf of the school district exceeded Lee’s limited

authority to apply for grants.

¶19    In Motta I, the District Court found the School Board had violated § 2-3-103, 212,

MCA (2001). Despite those transgressions, we affirmed the District Court’s decision under

§ 2-3-213, MCA (2001), not to void the agreement of February 13, 2001, between the School

Board and the Philipsburg United Teachers Association because it was a discretionary

decision. We expressed our confusion in Motta I: “As a practical matter, we are at a loss

to determine what would be the legal effect, if any, were we to void an Agreement which has

run its course and has presumably expired.” ¶ 19.




                                              6
¶20     Section 20-3-208, MCA (2001) provides no specific remedy. Unlike Motta I, the

District Court here did not rule on whether to void the contract. Nonetheless, we have the

same dilemma as in Motta I: what is the legal effect, if any, of voiding an agreement that has

already run its course? Since this is a question more appropriately addressed by the District

Court, we reverse and remand this matter to the District Court to determine whether to void

the contract and to set forth its rationale for its decision.

                                               IV

¶21     Motta contends that § 2-3-203(4)(a), MCA (2001), allowing a school board to discuss

litigation strategy involving a private party outside public scrutiny is a unconstitutional

exception to the Right to Know provisions in Article II, Section 9, of the Montana

Constitution. That statute provides:

                (4)(a) However, except as provided in subsection (4)(b), a meeting may
        be closed to discuss a strategy to be followed with respect to litigation when
        an open meeting would have a detrimental effect on the litigating position of
        the public agency.
                (b) A meeting may not be closed to discuss strategy to be followed in
        litigation in which the only parties are public bodies or associations described
        in subsections (1) and (2).

Because he did not raise that issue in the court below, we refuse to address it here.

                                                V

¶22     Rule 11, M.R.Civ.P., sanctions are appropriate if a lawyer violates an element of the

rule:

               Signing of pleadings, motions, and other papers—sanctions. . . . A
        party . . . shall sign the party’s pleading, motion, or other paper . . . . The
        signature . . . of a party constitutes a certificate . . . that to the best of the
        signer’s knowledge, information, and belief formed after reasonable inquiry

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       it is well grounded in fact and is warranted by existing law or a good faith
       argument for the extension, modification, or reversal of existing law, and that
       it is not interposed for any improper purpose, such as to harass or to cause
       unnecessary delay or needless increase in the cost of litigation.

Motta should have researched the meaning of mediation before challenging the court’s

mediation order. Nevertheless, given his pro se nature, and meritorious contentions, we

conclude his actions fail to rise to the level of sanctionable behavior and, thus, we reverse

the imposition of sanctions.

                                             VI

¶23    As in Motta I, ¶ 23, the District Court did not address Motta’s request for costs of

suit. Since an award of costs is discretionary, we remand to the District Court to decide

whether to award Motta his costs pursuant to § 2-3-221, MCA (2001), and to set forth its

rationale if it refuses to award costs.


                                                         /S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE




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