                                          No. 01-352

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 165N


MICHAEL S. ROGERS,

              Plaintiff and Appellant,

         v.

WORDEN BALLANTINE YELLOWSTONE
COUNTY WATER AND SEWER DISTRICT and
JACK TOOGOOD,

              Defendants and Respondents.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     The Honorable Gregory R. Todd, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Michael S. Rogers, Pro Se, Worden, Montana

              For Respondents:

                     (No Respondents' brief filed)


                                                     Submitted on Briefs: May 9, 2002

                                                               Decided: July 25, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but 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.

¶2    Michael S. Rogers (Rogers) appeals from the order entered by

the Thirteenth Judicial District Court, Yellowstone County, denying

his petition for a writ of mandamus.               We affirm.

¶3    The issue before the Court is whether the District Court erred

in denying Rogers’ petition for a writ of mandamus.

                                     BACKGROUND

¶4    In February and March of 2001, Rogers sent several letters to

Jack Toogood (Toogood), the chairman of the board of directors of

the Worden Ballantine Yellowstone County Water and Sewer District
(District), requesting copies of various bank statements and a loan

document relating to the District’s financial business.                      Rogers

requested the documents pursuant to § 2-6-102, MCA, and Article II,

section 9 of the Montana Constitution, which provide citizens with

the right to inspect and copy public documents.                   Toogood responded

to Rogers’ requests via a letter dated March 23, 2001,                  stating the

District’s policy that all requests for information be discussed at

District board meetings and informing Rogers that his requests had


                                           2
been placed on the agenda for the next board meeting to be held on

April 9, 2001.

¶5     On March 28, 2001, Rogers filed in the District Court a

petition for a writ of mandamus alleging that the District had

violated § 2-6-102, MCA, and Article II, section 9 of the Montana

Constitution by refusing to provide him with the documents and

requesting the court to order the District to comply with his

requests.    The District Court denied the petition, observing that

the District had placed Rogers’ requests on the agenda for the next

board meeting and, as a result, Rogers had failed to establish the

absence of a plain, speedy and adequate legal remedy other than

mandamus.    Rogers appeals.
                         STANDARD OF REVIEW

¶6     A district court’s decision to grant or deny a petition for a

writ of mandamus is a conclusion of law which we review to

determine whether the conclusion is correct.       Common Cause of

Montana v. Argenbright (1996), 276 Mont. 382, 390, 917 P.2d 425,

429.

                               DISCUSSION

¶7     Did the District Court err in denying Rogers’ petition for a

writ of mandamus?

¶8     A writ of mandamus is available where the requesting party is

entitled to the performance of a clear legal duty by the party

against whom the writ is sought and there is no other plain, speedy

and adequate remedy available in the ordinary course of law.

Section 27-26-102, MCA; Common Cause of Montana, 276 Mont. at 390,



                                   3
917 P.2d at 430.     Generally, the party seeking the writ must demand

the performance of the act sought to be compelled before the writ

will issue and a petition for such a writ filed prior to making a

demand for performance must be denied as premature.                Liebman v.

Brunell (1984), 212 Mont. 459, 460, 689 P.2d 248, 248.                 A logical

corollary to the proposition that a party seeking a writ of

mandamus must have made a demand for the performance of the clear

legal duty is that the party to be compelled to perform must have

refused--explicitly or implicitly-- to perform.                Indeed, we have

stated that parties “should not be subjected to the harsh remedies

of mandamus, including the payment of attorney fees, unless they

refused to take action after a request had been made.”                  Liebman,

212 Mont. at 460, 689 P.2d at 249.

¶9    It is clear that Rogers has demanded the District to perform

an act by requesting it to provide him with various documents.

However, there is no evidence that the District failed or refused

to comply with Rogers’ requests.             Rather, the District timely

placed Rogers’ requests on the agenda to be discussed at the next

scheduled board meeting and notified him of the time and place of

the   meeting   so   he   could   attend    if   he   chose.     The   District

subsequently was not given the opportunity to comply with Rogers’

requests because he petitioned for a writ of mandamus before the

board meeting was held.      Thus, it cannot be said that the District

would have refused to perform.             As a result, we conclude that

Rogers’ petition for a writ of mandamus was properly denied as




                                      4
being premature.   We hold that the District Court did not err in

denying Rogers’ petition for a writ of mandamus.

¶10   Affirmed.



                                        /S/ KARLA M. GRAY


We concur:


/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART




                                5
Justice Terry N. Trieweiler dissenting.

¶11    I dissent from the majority Opinion.

¶12    Our   constitution       and   statutory      law    give   the    Petitioner,

Michael S. Rogers, the right to examine public documents on demand.

 They do not require that he wait several months for a meeting at

which local officials discuss the merits of disclosure.                      Contrary

to the majority's conclusion, the Respondent Water Sewer District

(District) did refuse to take the action they were obligated to

take following Rogers' request and he was entitled to a writ of

mandamus.
¶13    Rogers first wrote to the chairman of the Board of the

District on February 9, 2001.              In that letter, he pointed out that

he    was    disabled    and     that      because    of    his    disability,     his

participation in a number of activities was limited.                          He also

requested that he be sent a copy of the District's most recent bank

statement.        On March 4, 2001, Jack Toogood, the chairman, responded

to several of Rogers' inquiries but did not provide the requested

bank statement.

¶14    On March 7, 2001, Rogers wrote to Toogood again and requested

a    copy    of   the   Water    Pollution        Control   Revolving      Fund    Loan

Agreement.        The document was not provided by the date on which

Rogers requested it and he renewed his request for both the loan

agreement and two bank statements on March 19, 2001.                     At that time,

he    also    advised    Toogood      of    his    obligation      to    provide    the

information pursuant to § 2-6-102(1), MCA, and Article II, Section

9 of the Montana Constitution.

¶15    Finally, on March 23, 2001, Toogood responded to Rogers that

his letters would be placed on the agenda of the April 9, 2001,

                                            6
District meeting.      However, even if Rogers was physically capable

of attending, there was no guarantee based on Toogood's letter that

the information would be provided.

¶16   On March 28, 2001, Rogers filed his petition for a writ of

mandamus.    Without requiring a response, it was denied by order of

the District Court on April 4, 2001, based on the District Court's

conclusion that Rogers had an adequate remedy at law.          The majority

Opinion seems to mirror the District Court order.

¶17   I conclude that Rogers' right to examine public documents upon

demand was violated, and that giving him an opportunity to attend a

meeting where he could discuss with board members the merits of

public disclosure was not an adequate alternative to and did not

satisfy     the    Board's   obvious       statutory   and   constitutional

obligations.
¶18   Article II, Section 9 of the Montana Constitution provides, in

relevant part, that: "No person shall be deprived of the right to

examine documents . . . of all public bodies or agencies of state

government and its subdivisions . . . ."

¶19   Section 2-6-102(2), MCA, provides in relevant part as follows:

           (2) Every public officer having the custody of a
      public writing that a citizen has a right to inspect is
      bound to give the citizen on demand a certified copy of
      it, on payment of the legal fees for the copy, . . . .

¶20   The Board of the District did not respond to Rogers' petition

in the District Court.       Nor has it filed a brief in opposition to

his appeal.       Therefore, it is uncontested that the District is a

public body, Toogood is a public officer, and the written documents

requested are public writings.         No one denies that Rogers had a

right to the documents that he requested and it is undisputed that


                                       7
Rogers   was   not   given      the   documents     "on     demand"   as    the    "law

specifically enjoins."           Under the circumstances, the conclusion

that Rogers was entitled to a writ of mandamus is a no brainer.

¶21   Section 27-26-102, MCA, provides that:

           (1) A writ of mandamus may be issued by the supreme
      court or the district court to any . . . board, or person
      to compel the performance of an act that the law
      specifically enjoins as a duty resulting from an office,
      . . . .

           (2) The writ must be issued in all cases in which
      there is not a plain, speedy, and adequate remedy in the
      ordinary course of law.

¶22   Rogers   had   no   plain,       speedy   and    adequate   remedy      in   the

ordinary course of law.               He was entitled to the records he

requested "on demand."          He first made demand on February 9, 2001.

He demanded more information on March 7, 2001.                    He renewed his

demands on March 19, 2001.            Finally, on March 23, he was told that

by April 9, 2001, the Board would meet and consider his request.

Merely   considering      his    request      did     not   satisfy   the    Board's

obligation to provide him with the documents he was entitled to "on

demand."   The majority's suggestion to the contrary simply ignores

the Board's statutory and constitutional obligations.
¶23   The majority concludes that there is no evidence the District

failed to comply with Rogers' request.                 As set forth above, the

District clearly did fail to comply with Rogers' request and he had

no obligation to go to a meeting two months after the request was

first made and negotiate with them to recover documents that should

have been provided two months earlier.

¶24   For these reasons, I dissent from the majority Opinion.                        I

would reverse the District Court and grant Rogers' uncontested

petition for a writ of mandamus.

                                          8
    /S/ TERRY N. TRIEWEILER




9
