                                         No. 04-296

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2005 MT 1N


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 2001-04,
                     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: January 3, 2005


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

the contract (Contract) between Northwest Research Educational Laboratories (NWREL) and

the Philipsburg School District No. 1 (the School District).

¶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.

¶4     In August 2000, after the United States Department of Education (DOE) accepted his

application, Lee entered into an agreement on behalf of the School District with NWREL to


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provide workshops for administrators, teachers, and other selected community members.

The Contract specifically provided that “[t]his is a contract between [the School District] .

. . and [NWREL] . . . for the performance of the work set forth below,” but, toward the end,

it allows that “[t]his agreement may be terminated by the mutual, written consent of the three

parties” (emphasis added). Lee never bid the contract, but awarded it directly to NWREL.

Before the DOE had paid the grant, Lee used money from the Miscellaneous Fund 215 to

pay NWREL and then reimbursed that fund when the federal grant money arrived.

¶5        At the February 27, 2001, meeting, the School Board approved the Contract. Motta

was present for many of the School Board meetings relating to the Goals 2000 Grant, 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 to ultimately unsuccessful mandatory mediation. A hearing on

summary judgment followed, and Motta appeals from the District Court’s Opinion and

Order.

¶6        He raises the following issues on appeal:

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

grants.

¶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 by failing to void the Contract.


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¶10    4. Whether the School District should have bid out the Contract.

¶11    5. Whether Lee misappropriated funds to pay for the Contract.

¶12    6. Whether the reference to “three parties” was a typographical error.

¶13    7. 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.

¶14    8. Whether Motta is entitled to his costs.

                               STANDARD OF REVIEW

¶15    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

¶16    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

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




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

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

¶17    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), 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.

¶18    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

¶19    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

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


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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

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

Contract. 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

grant and disburse money. Here, Lee signed the contract before obtaining the School Board’s

approval. That contract exceeded Lee’s authority.

¶21    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.

¶22    No statute provides a 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 remand this


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matter to the District Court to determine whether to void the contract and to set forth its

rationale for its decision.

                                              IV

¶23    Motta asserts that the Contract falls under § 20-9-204(3), MCA (2001), so the School

District should have let the bid for the contract to conduct the workshops for the teachers,

administrators, and other selected community members. The definition of contract in

subsection (2) applies only to subsection (1). Subsection (3) includes professional services

exceptions, so the Legislature must have intended to include professional services in

subsection (3). This is a professional services contract, so the School District was required

to let the contract “to the lowest responsible bidder after advertisement for bids.” Section

20-9-204(3), MCA (2001). As noted in Part II, since this is a question more appropriately

addressed by the District Court, we remand this matter to the District Court to determine

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

                                               V

¶24    By spending the federal grant money before the School District received it, Motta

argues Lee misappropriated funds for the Contract. Miscellaneous funds are nonbudgeted

funds, so a school district cannot spend more money than is in the fund. Section 20-9-201,

210, MCA (2001). A school district cannot create new nonbudgeted funds for grants, but

must, instead, use a miscellaneous fund and keep a separate balance for each grant project.

Section 20-9-201, MCA (2001) (limiting the type of funds, which does not include grant




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funds); § 20-9-507, MCA (2001) (requiring a school district to expend grant funds in

accordance with the terms of the grant).

¶25    Thus, the school board may spend grant money from the miscellaneous fund if (1) the

miscellaneous fund balance is always greater than or equal to zero and (2) the school board

maintains a separate balance for the grant project within the miscellaneous fund—even if the

balance for the grant project is negative. These elements were present, so Lee did not

misappropriate funds. We affirm the District Court.

                                             VI

¶26    The Contract mentions no other parties and provides space for only two entities’

signatures, so the “three parties” phrase must have been a typographical error. The

Contract’s plain wording specifically provides “[t]his is a contract between [the School

District] . . . and [NWREL] . . . for the performance of the work set forth below,” but,

toward the end, it allows that “[t]his agreement may be terminated by the mutual, written

consent of the three parties” (emphasis added). Assertions that the “three parties” phrase is

anything other than a typographical error are without merit. We affirm the District Court.



                                            VII

¶27    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:


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               (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.

                                             VIII

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

in its Order and that decision 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 them.


                                                          /S/ W. WILLIAM LEAPHART



We concur:

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




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