                                                                                          September 10 2013


                                           DA 12-0505

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 258



TAMMY ZUNSKI,

              Plaintiff and Appellant,

         v.

THE FRENCHTOWN RURAL FIRE
DEPARTMENT BOARD OF TRUSTEES,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV 11-1092
                        Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Daniel J. Flaherty, Attorney at Law, Great Falls, Montana

                For Appellee:

                        D. James McCubbin, Deputy County Attorney; Fred Van Valkenburg,
                        Missoula County Attorney, Missoula, Montana


                                                     Submitted on Briefs: June 26, 2013

                                                                 Decided: September 10, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Appellant Tammy Zunski (Zunski) appeals the decision of the Fourth Judicial District

Court, Missoula County, that granted summary judgment to the Frenchtown Rural Fire

Department Board of Trustees (Board) against Zunski’s right to know and right to participate

claims. We affirm.

¶2     We address the following issues on appeal:

¶3     Whether the District Court correctly determined that the Board’s actions at the

August 8, 2011, meeting rescinded the actions taken at the improper July 20, 2011, meeting

and thereby defeated Zunksi’s open meeting and public participation claims?

¶4     Whether the District Court correctly determined that the Board had responded to

Zunski’s document request in a reasonably timely manner?

                                           FACTS

¶5     The Board is a subdivision of the State of Montana. The Board’s duties include

providing personnel for the Frenchtown Rural Fire District (FRFD). The FRFD chief

resigned amidst controversy in February 2009. The Board initiated a search to hire a new

FRFD fire chief. The Board later considered whether to hire an interim fire chief after a

permanent chief applicant declined an offer.

¶6     Mitchell Hicks (Hicks), a trustee on the Board, expressed interest in serving as

interim FRFD chief. The Board requested on June 30, 2011, an opinion from a private law

firm to address “whether a [t]rustee of the Frenchtown Rural Fire District [sic] be hired as an

interim [f]ire [c]hief while the search for a full time [c]hief continues.” The Board received

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the opinion letter on July 1, 2011. The opinion letter concluded that “there is no statute, by-

law or policy that prohibits a [t]rustee from acting as a [t]emporary [f]ire [c]hief.” The

opinion letter further advised that “as long as the [t]rustee is hired as a [t]emporary

[e]mployee, exception to policies regarding selection of the employees based on merit and

qualifications need not be met.”

¶7     The Board held a special session on July 20, 2011. At the special session, the Board

voted to enter into a closed door “executive session.” The Board voted to create an interim

fire chief position during the executive session. The Board then voted during the executive

session to hire Hicks for the interim position and to set Hicks’s compensation at $5,000 per

month. Hicks became interim fire chief on August 1, 2011.

¶8     Zunski challenged the propriety of the July 20, 2011, meeting and the actions taken at

the meeting. Zunski filed a request for documents with the Board on August 3, 2011.

Zunksi also requested that the Board allow public comment before it hired an interim fire

chief. The Board accommodated Zunski’s request to revisit its decision.

¶9     The Board held a properly noticed meeting on August 8, 2011, with a pre-published

agenda that included “Hire Interim Chief – Action.” The Board accepted public comment

regarding the interim fire chief position. Zunski and others commented during the meeting.

The Board again voted to hire Hicks as the interim fire chief. Hicks served as the interim fire

chief from August 1, 2011, until March 31, 2012. The Board hired a permanent fire chief

who began serving on March 26, 2012.

¶10    The Board had not complied fully with Zunski’s document request by the August 8,
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2011, meeting. Zunski had made her formal request on August 3, 2011. The Board had

begun to compile Zunski’s requested information on August 5, 2011. The Board partially

had complied with Zunski’s document request by the August 8, 2011, meeting. The Board

made another partial production on August 16, 2011.

¶11    Zunski filed a complaint on August 19, 2011, in which she alleged that the Board’s

actions at the July 20, 2011, meeting contravened Montana’s open meeting law and her

rights to know and to participate. Zunski further alleged that the August 8, 2011, meeting

failed to comply with her rights to know and to participate. Zunski sought the production of

both the documents that she had formally requested on August 3, 2011, and additional

documents. Zunski asked the court to set aside Hicks’s hiring. Zunski also sought an award

for attorney fees and costs.

¶12    The parties filed cross motions for summary judgment. The District Court determined

that the Board’s August 8, 2011, meeting complied with the open meeting and right to

participate laws. The proceedings and decision made at the August 8, 2011, meeting “served

to rescind the prior decisions made on July 20, 2011.” The Board had begun to compile the

requested information for Zunski on August 5, 2011, and it had delivered partial responses

on August 8, 2011, and August 16, 2011. The court therefore concluded that the filing of

Zunski’s complaint on August 19, 2011, “did not affect the timing or substance” of the

Board’s responses. Zunski appeals.

                               STANDARD OF REVIEW

¶13    We review de novo a district court’s grant or denial of a motion for summary
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judgment. Sayers v. Choteau Co., 2013 MT 45, ¶ 21, 369 Mont. 98, 297 P.3d 312. We

apply the same standards the district court uses under M. R. Civ. P. 56(c). Sayers, ¶ 21.

                                     DISCUSSION

¶14    Whether the District Court correctly determined that the Board’s actions at the

August 8, 2011, meeting rescinded the actions taken at the improper July 20, 2011, meeting

and thereby defeated Zunksi’s open meeting and public participation claims?

¶15    Montana’s open meeting and public participation laws apply to the Board and its

activities . Mont. Const. art. II, § 8; Section 2-3-203, MCA. Nothing in § 2-3-203, MCA,

exempts a public body’s committee and subcommittee meetings from Montana’s open

meeting laws.

¶16    A district court may void a final decision made in a meeting that violates Montana’s

open meeting law. Goyen v. City of Troy, 276 Mont. 213, 219-20, 915 P.2d 824, 828-29

(1996); Section 2-3-213, MCA. The governing body can remedy the illegality of the

meeting without judicial involvement by making a new decision that is not based on

anything from the illegal meeting. Goyen, 276 Mont. at 219-20, 915 P.2d at 828-29. This

remedy requires at a minimum the re-adoption of the challenged action in a manner that

comports with the law. A successful remedy generally cures the previous violation and

thereby renders moot potential controversies about the illegality. Havre Daily News, LLC v.

City of Havre, 2006 MT 215, ¶¶ 30-31, 333 Mont. 331, 142 P.3d 864.

¶17    The District Court determined that the Board’s August 8, 2011, meeting complied

with the open meeting and right to participate laws. The actions that the Board took at its
                                            5
August 8, 2011, meeting correspondingly complied with the opening meeting and right to

participate laws. Havre Daily News, ¶ 30. The August 8, 2011, meeting’s compliance with

the open meeting and public participation laws remedied any earlier violations of those laws.

Havre Daily News, ¶ 30. The Board’s remedy rendered moot any actual controversies about

the actions taken at the July 20, 2011, meeting. Bryan v. Yellowstone Co. Elementary Sch.

Dist. No. 2, 2002 MT 264, 312 Mont. 257, 60 P.3d 381. The Board neither denied Zunski

access to any “hard data that was critical to the decision,” nor did it keep the public in the

dark about an imminent decision. Allen v. Lakeside Neighborhood Planning Committee,

2013 MT 237, ¶ 24, __ Mont. __, __ P.3d __.

¶18    Zunski nevertheless argues that the Court should analyze the merits of the Board’s

decision to hire Hicks at the July 20, 2011, meeting. Zunski contends that the Board’s illegal

action “is capable of repetition” despite the fact that the Board evaded review in this

instance. Zunski argues, in the alternative, that the Board’s “voluntary cessation” of its

illegal decision to hire Hicks at the July 20, 2011, meeting should not prevent judicial

scrutiny. The “voluntary cessation” and “capable of repetition yet evading review” doctrines

may resuscitate a claim otherwise mooted. Havre Daily News, ¶¶ 31-34.

¶19    The voluntary cessation doctrine applies when a defendant’s challenged conduct “is of

indefinite duration, but is voluntarily terminated by the defendant prior to completion of

appellate review.” Havre Daily News, ¶ 34. The doctrine provides that voluntary cessation

of a challenged action will moot a case only when it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” Havre Daily News, ¶ 38.
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¶20    Zunski suggests that the Board’s conduct will recur because the Board contravened

controlling legal doctrines. Zunski argues that by hiring Hicks, a board member, to serve as

interim fire chief that the Board violated the incompatible offices doctrine. State ex rel.

Klick v.Wittmer, 50 Mont. 22, 144 P. 648, 649-50 (1914). The doctrine provides that a

person cannot hold an office over which the person exercises supervisory control. Klick, 50

Mont. at 22, 144 P. at 649. Hicks’s employment for FRFD from August 1, 2011, until

March 31, 2012, violated the incompatible offices doctrine in that Hicks, as a member of the

Board, exercised supervisory control over the interim fire chief. Klick, 50 Mont. at 22, 144

P. at 649. Zunski’s claim nevertheless remains moot.

¶21    Zunski did not raise the issue of the incompatible offices doctrine until after the Board

already had eliminated the interim fire chief position. The Board insists that it would be

“doubly speculative to guess” that it would act in the future without considering the

incompatible offices doctrine. We agree. We have no reasonable expectation that the Board

again would attempt to hire a trustee in violation of the incompatible offices doctrine. We

expect the Board will adhere strictly to the doctrine, and to all other laws. We decline to

presume the Board’s bad faith. The Board has met its burden of persuasion that it will not

violate the incompatible offices doctrine again in the future. Havre Daily News, ¶ 34.

¶22    The capable of repetition yet evading review exception only applies “where the

challenged conduct invariably ceases before courts fully can adjudicate the matter.” Havre

Daily News, ¶ 33. A party can avail itself of this exception only when the time between the

challenged wrong and the occurrence rendering the case moot “is always so short as to evade
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review.” Havre Daily News, ¶ 33. The party that invokes the exception also must establish

that “there is a reasonable expectation that the same complaining party will be subject to the

same action again.” Havre Daily News, ¶ 34.

¶23    A party who asserts this exception must establish both that the challenged conduct

inherently is of limited duration and that there is a reasonable expectation that “the same

complaining party will be subject to the same action again.” Havre Daily News, ¶ 34.

Zunski has failed to establish a reasonable expectation that the Board will again appoint a

trustee to an illegal interim position. The “incompatible offices” doctrine would bar the

Board from hiring a trustee as an interim fire chief. Klick, 50 Mont. at 22, 144 P. at 649.

The Board has given no indication that it would not follow the incompatible offices doctrine

or other applicable law. Zunski counters with general statements that “the offending conduct

will likely be repeated.” The absence of more concrete evidence prevents the Court from

forming a reasonable expectation that the Board again would hire an employee in violation

of the incompatible offices doctrine.

¶24    Zunski lastly argues that the District Court failed to address the legality of Hicks’s

appointment. Section 2-3-213, MCA, provides that a district court may void any decision

made at a noncompliant meeting. The Board’s decision to hire Hicks at the July 20, 2011,

noncompliant meeting no longer was in effect by the time that Zunski commenced this action

on August 19, 2011. The Board’s August 8, 2011, meeting’s compliance with the open

meeting law had abrogated the challenged hiring of Hicks at the July 20, 2011, meeting. The

Board already had performed Zunski’s requested remedy of re-visiting its decision from the
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noncompliant July 20, 2011, meeting. Havre Daily News, ¶ 30.

¶25    Whether the District Court correctly determined that the Board had responded to

Zunski’s document request in a reasonably timely manner?

¶26    Montana’s constitutional right to know gives citizens the right to examine documents

of “state government and its subdivisions, except in cases in which the demand of individual

privacy clearly exceeds the merits of public disclosure.” Mont. Const. art. II, § 9. The

District Court determined that the Board had delivered to Zunski all documents responsive to

Zunski’s August 3, 2011, right to know request by the time that the parties had filed motions

for summary judgment. The District Court further determined that Zunski’s lawsuit had not

affected the timing or substance of the Board’s responses to Zunski’s request. The District

Court concluded that Zunski “does not dispute that partial responses were made to her

requests prior to the filing of the complaint, that FRFD’s responses were reasonably timely,

and that all document requests described in the [c]omplaint have been responded to in full.”

¶27    Zunski filed her right to know request on August 3, 2011. The Board partially

fulfilled the request on August 5, 2011. The Board made further partial deliveries on August

5, 2011, and August 16, 2011. The Board also provided documents to Zunski after she

commenced this action on August 19, 2011. The District Court determined that Zunski’s

requests have “been very extensive” and were amended and broadened “numerous times.”

¶28    Zunksi argues that material facts exist as to whether the Board produced all requested

documents in a reasonable and timely manner. Zunski claims that “[t]he Board did not

disclose the Frank Stanley documents, the sub-committee minutes, or the undisclosed
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meeting prior to the [sic] August 8, 2011.” Zunski further argues that the Board withheld

and failed to identify documents until Zunski conducted depositions.

¶29    The District Court determined that no dispute existed regarding the delivery of

responsive documents to Zunski based on Zunski’s own admission. Zunski qualifiedly

admitted before the Board had filed its motion for summary judgment that no outstanding

requests for public documents remained. Zunski qualified her admission on the basis that the

Board “certify that all agendas, emergency sessions, & budgets have been produced.” The

Board responded, that to the best of its knowledge, “all documents responsive . . . have been

delivered to Plaintiff.” Zunski’s admission removed from dispute any remaining right to

know claim that she may have possessed.

¶30    Zunski unsuccessfully attempts on appeal to refute her admission. To substantiate her

assertions, Zunski offers only vague directions such as “documents, including committee

minutes were not produced until the depositions of Sayler.” Upon inspection of the directed

documents we cannot locate any basis for Zunski’s claims. Zunski fails to inform the Court

when and through what means she had requested or obtained these documents. For others,

Zunski offers no evidence as to what specifically she had requested. Zunski asks that we

assume that the Board provided these documents only through means enabled by this action.

The undisputed facts and Zunski’s own admission foreclose that assumption.

¶31    We will not fault the District Court for relying on Zunski’s admission. See M. R. Civ.

P. 36(b). Zunski admitted that the Board had provided all documents responsive to her right

to know request. The District Court determined that the Board had provided all responses in
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a reasonable and timely manner. The District Court properly found that no further

controversy existed regarding Zunski’s right to know claims. Havre Daily News, ¶ 31. We

are left with no reasonable expectation that the Board would fail to comply with any future

right to know requests made by Zunski. The District Court correctly resolved Zunski’s right

to know claims. Sayers, ¶ 21.

¶32   Affirmed.

                                             /S/ BRIAN MORRIS


We Concur:

/S/ JIM RICE
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




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