                                                                                              03/27/2018


                                          DA 17-0386
                                                                                          Case Number: DA 17-0386

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 58



KRISTINE RAAP,

              Petitioner and Appellant,

         v.

BOARD OF TRUSTEES, WOLF POINT
SCHOOL DISTRICT,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fifteenth Judicial District,
                       In and For the County of Roosevelt, Cause No. DV-16-1
                       Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Peter Michael Meloy, Attorney at Law, Helena, Montana

                For Appellee:

                       Mary E. Duncan, Jeffrey A. Weldon, Felt, Martin, Frazier & Weldon, P.C.,
                       Billings, Montana



                                                   Submitted on Briefs: November 1, 2017

                                                               Decided: March 27, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1     Kristine Raap (Raap) appeals from the judgment of the Montana Fifteenth Judicial

District Court denying her motion for summary judgment and granting summary judgment

to the Wolf Point School District Board of Trustees (Board) on her claim that the Board

unlawfully terminated her employment in violation of § 2-3-203, MCA (open meeting law)

and the Montana Constitution, Article II, Section 9 (right to know). We reverse and remand

for further proceedings, restating the issues as:

       1. Did the District Court erroneously grant summary judgment that the Board
          lawfully closed its meeting based on unspecified third-party privacy rights?

       2. Did the District Court erroneously grant summary judgment that the Board
          lawfully excluded Raap and her union representative from its “executive
          session” under the litigation strategy exception of § 2-3-203(4), MCA?

                                     BACKGROUND

¶2     The Wolf Point School District Board of Trustees hired Raap to work as a new

teacher under a one-year employment contract for the 2015-16 school year. Four months

into the school year, the school district superintendent recommended that the Board

prematurely terminate Raap’s contract. The Board set a meeting for December 22, 2015,

to consider the matter. Raap had previously filed an administrative complaint with the

United States Equal Employment Opportunity Commission (EEOC) in November 2015

alleging that the school district had unlawfully discriminated against her in the

administration of her employment. Upon EEOC referral of the complaint to the Montana

Human Rights Bureau (HRB), HRB issued a written notice on December 11, 2015,




                                              2
advising the Board of the complaint and resulting commencement of an HRB

investigation.1

¶3     On December 22, 2015, Raap and her union president appeared before the Board

for hearing on the school district superintendent’s recommendation to terminate her

employment. In addition to Board members, the only persons present were Raap, her union

representative, the superintendent, Raap’s supervising school principal, and the Board’s

lawyer via telephone. No one else appeared or otherwise sought admittance to the meeting

at any time. At the outset, the Board chair informed Raap that the meeting would be closed

to the public unless she waived her right to privacy. Raap then waived her right to privacy.

Despite Raap’s waiver, the Board’s meeting minutes reflect that the chair closed the

meeting to the public “to protect the rights of individual privacy of statements and

information for those not in attendance.” Raap expressed her intent to electronically record

the meeting but the Board chair precluded her from doing so.

¶4     After four hours of testimony, the Board chair re-opened the meeting to the public

at which time another trustee made a motion, seconded by yet another, for the Board to

terminate Raap’s employment. Without discussion or deliberation on the motion, and at

the request of another trustee, the chair again closed the meeting to allow the Board to

privately discuss unspecified litigation strategy at an “executive session” with the Board’s

lawyer. The Board excluded all from the executive session except for Board members, the


1
 The Montana Human Rights Act provides the exclusive remedy under Montana law for claims
against private and public employers alleging employment discrimination and retaliation. See
§§ 49-1-102, 49-2-205, -301, -303, -501, -504, -505, -512(1), 49-3-201, -209, MCA; Borges v.
Missoula Co. Sheriff’s Office, 2018 MT 14, ¶ 19, 390 Mont. 161, P.3d .

                                             3
school superintendent, and the Board’s lawyer. After an 11-minute executive session, the

Board allowed Raap and her union representative back into the room. Without deliberation

or discussion on the termination motion, the Board promptly voted to terminate Raap’s

contract. In a subsequent District Court affidavit, the Board’s lawyer asserted that the

Board did not discuss or deliberate whether to terminate Raap’s contract in the executive

session, to wit:

       The litigation strategy executive session was very short and focused solely
       on litigation strategy related to defense of the EEOC/HRB claim and my
       explanation of the claim and the process that would be followed. The bulk
       of the 11 minutes was taken up with my explanations.

The affidavit provided no explanation or indication of the Board’s need to exclude Raap

and her union representative from a discussion purportedly focused solely on an

explanation of the substance of her previously received complaint and “the process that

would follow.”

¶5     Following the termination of her employment and an unsuccessful union grievance,

Raap filed a complaint in the Montana Fifteenth Judicial District Court alleging that the

Board terminated her contract in violation of § 2-3-203, MCA, and Article II, Section 9, of

the Montana Constitution. Raap requested that the District Court vacate the Board’s

decision to terminate her employment and to award her attorney fees and costs incurred in

prosecuting the action.

¶6     Upon the parties’ cross-motions for summary judgment, and without legal citation

or analysis, the District Court summarily granted the Board summary judgment pursuant

to M. R. Civ. P. 56 on the stated grounds that: (1) an asserted violation of the § 2-3-203,



                                            4
MCA (open meeting law), was the sole legal basis of Raap’s claim; (2) the Board allowed

Raap to observe and participate in the portion of the meeting pertinent to its the decision

to terminate her contract; (3) the Board did not actually exclude anyone from the portion

of the meeting pertaining to the termination of Raap’s employment; and (4) the Board

properly excluded Raap from the portion of the meeting pertinent to “another litigation”

matter. Raap timely appeals.

                               STANDARD OF REVIEW

¶7     Summary judgment is proper only when no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. Citizens for Open Gov’t, Inc.

v. City of Polson, 2015 MT 55, ¶ 10, 378 Mont. 293, 343 P.3d 584; M. R. Civ. P. 56(c)(3).

We review summary judgment rulings de novo for correctness under the standards of M.

R. Civ. P. 56. Ternes v. St. Farm Fire & Cas. Co., 2011 MT 156, ¶ 18, 361 Mont. 129,

257 P.3d 352; Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200;

Svaldi v. Anaconda-Deer Lodge Cnty., 2005 MT 17, ¶ 12, 325 Mont. 365, 106 P.3d 548.

                                      DISCUSSION

¶8     As pertinent here, the Montana Constitution, Article II, Section 9, clearly and

unambiguously mandates that:

       No person shall be deprived of the right 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.

In conformance with Article II, Section 9, the Montana open meeting law similarly

provides that “[a]ll meetings of public or governmental bodies [or] boards . . . of . . . any



                                             5
political subdivision of the state . . . must be open to the public” except to the extent that

“the demands of individual privacy clearly exceed the merits of public disclosure.” Section

2-3-203(1) and (3), MCA.2 As defined by statute, a “meeting” is a “convening of a quorum

of the constituent membership of” the public or governmental body or board, “whether

corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over

which the [body or board] has supervision, control, jurisdiction, or advisory power.”

Section 2-3-202, MCA. As referenced in Article II, Section 9, the term “deliberations of . . .

public bodies or agencies” includes a “meeting,” as defined by § 2-3-202, MCA. Upon

timely petition, a district court may void “[a]ny decision made in violation” of § 2-3-203,

MCA. Section 2-3-213, MCA. The sole purpose of public bodies and agencies is “to aid

in the conduct of the peoples’ business.” Section 2-3-201, MCA. Courts must liberally

construe Article II, Section 9, and § 2-3-201, MCA, to the end that all deliberations of

public bodies and agencies remain open to the public except as otherwise clearly provided

under recognized exceptions to the constitutional right to know and § 2-3-203, MCA.

¶9     In analyzing a claimed right to observe deliberations under Article II, Section 9, the

pertinent issues are: (1) whether the subject entity is a public body or agency of state

government or a state government subdivision; (2) whether the proceeding or decision at

issue was a deliberation of that body or agency; and (3) whether the disputed deliberation

was nonetheless privileged from disclosure on the grounds of individual privacy or other

recognized exception to the right to know. See Mont. Const. art. II, § 9; Great Falls


2
  The Legislature originally enacted the open meeting law in 1963, nine years before adoption of
our 1972 Constitution. See § 82-3402, RCM (1947).

                                               6
Tribune v. Mont. Pub. Serv. Comm’n, 2003 MT 359, ¶¶ 38-39, 319 Mont. 38, 82 P.3d 876

(equal protection and due process rights exception); State ex rel. Smith v. Dist. Ct., 201

Mont. 376, 383-87, 654 P.2d 982, 986-88 (1982) (speedy and fair trial rights exception);

Great Falls Tribune v. Dist. Ct., 186 Mont. 433, 438-39, 608 P.2d 116, 119-20 (1980)

(speedy and fair trial rights exception). In this case, it is undisputed that the Board is a

public body or agency of a political subdivision of the State of Montana. It is further

undisputed that the subject proceedings of the Board constituted a “meeting,” as defined

by § 2-3-202, MCA, and thus a deliberation of a public body or agency as referenced in

Article II, Section 9. The dispositive issue is whether the Board lawfully closed the

disputed portions of the meeting.

¶10    Issue 1: Did the District Court erroneously grant summary judgment that the Board
       lawfully closed its meeting based on unspecified third-party privacy rights?

¶11    “The presiding officer of [a] meeting may close the meeting during the time the

discussion relates to a matter of individual privacy . . . if and only” upon “determin[ing]

that the demands of individual privacy clearly exceed the merits of public disclosure.”

Section 2-3-203(3), MCA. Under the express privacy exception to Article II, Section 9,

and § 2-3-203(3), MCA, the threshold question is whether disclosure of the disputed

portion of the deliberation or meeting would infringe on an individual’s right to privacy

under the Montana Constitution, Article II, Section 10. A right to privacy exists under

Article II, Section 10, when (1) an individual has an actual or subjective expectation in

non-disclosure of the disputed matter and (2) that subjective expectation is objectively

reasonable in society under the totality of the circumstances. State v. Goetz, 2008 MT 296,



                                             7
¶¶ 25-31, 345 Mont. 421, 191 P.3d 489; Great Falls Tribune v. Cascade Co. Sheriff, 238

Mont. 103, 105-07, 775 P.2d 1267, 1268-70 (1989).

¶12   Our caselaw recognizes that a complainant, third-party witnesses, and the subject of

a complaint or allegation of misconduct often have objectively reasonable, subjective

expectations of privacy in non-disclosure of their respective involvements prior to formal

adjudication of the matter. See, e.g., Moe v. Butte-Silver Bow Cnty., 2016 MT 103, ¶ 19,

383 Mont. 297, 371 P.3d 415; Goyen v. City of Troy, 276 Mont. 213, 221, 915 P.2d 824,

829-30 (1996); Bozeman Daily Chronicle v. Bozeman Police Dept., 260 Mont. 218, 227,

859 P.2d 435, 441 (1993). However, the questions of whether an individual has a

subjective expectation in non-disclosure of a particular subject matter and whether that

expectation is objectively reasonable in society are mixed questions of fact and law under

the totality of the circumstances of each case. See Moe, ¶ 19 (characterizing subjective

expectation of privacy as distinct question of fact dependent on “notice of possible

disclosure” and objective expectation of privacy as question of law dependent on “all

relevant circumstances”); Billings Gazette v. City of Billings, 2013 MT 334, ¶¶ 18, 21, 372

Mont. 409, 313 P.3d 129 (characterizing subjective expectation of privacy as distinct

question of fact dependent on “notice of possible disclosure” and objective expectation of

privacy as a question of law requiring “reasoned consideration of the specific facts” at

issue); Goetz, ¶¶ 25-31 (focusing on what a person exposes to others without distinction of

questions of fact and law); Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 21,

333 Mont. 331, 142 P.3d 864 (analysis of subjective and objective expectations of privacy

requires “fact-intensive inquiry” and “reasoned consideration of the specific facts” at


                                            8
issue); Great Falls Tribune, 238 Mont. at 105-07, 775 P.2d at 1268-70 (analysis of

subjective and objective expectations of privacy without distinction between questions of

fact and law).

¶13    In this case, the Board closed the meeting to the public based on the cursory

statement that closure was necessary “to protect the rights of individual privacy of

statements and information for those not in attendance.” On appeal, the only additional

rationale for closure offered by Board is a gauzy argument that “a mid-year termination of

a teacher . . . [is] extremely uncommon” and thus “raises the [specter] of student and

teacher complaints, conflicts between the teacher and staff, parents, and students, and other

serious allegations that involve other individuals’ private school records, performance, and

private communications.” (Emphasis added).        The Board thus asserts that it had no

obligation “to identify the names of the individuals whose privacy interests were at stake,

nor disclose” what information they would or could relate in regard to the matter at issue.

Raap recognizes that the withholding of the specific identities and details of statements

made by third-party complainants and witnesses of alleged misconduct is often objectively

reasonable. See, e.g., Moe, ¶¶ 19-24. Nonetheless, Raap asserts that Article II, Section 9,

and § 2-3-203(3), MCA, require an initially-stated rationale, and subsequent showing on

district court review, more substantial than a cursory reference to “statements and

information” of undescribed third parties.

¶14    Under Article II, Section 9, and § 2-2-203(1) and (3), MCA, meetings of public

bodies and agencies are presumptively open to all absent “a showing of individual privacy

rights” or other recognized exception “sufficient to override” the public right to know.


                                             9
T.L.S. v. Mont. Advocacy Program, 2006 MT 262, ¶ 28, 334 Mont. 146, 144 P.3d 818

(emphasis added). See also Bryan v. Yellowstone Cnty. Sch. Dist., 2002 MT 264, ¶ 31, 312

Mont. 257, 60 P.3d 381 (citing 1972 Constitutional Convention history). The burden of

overcoming the presumption of openness is squarely on the public body or agency, not the

public or persons seeking to observe government deliberations. T.L.S., ¶ 28. At the time

of closure, the burden is on the public body or agency to articulate a rationale for closure

that is sufficiently descriptive to afford reasonable notice to the public of the legal and

factual basis for closure without disclosing private information.        See T.L.S., ¶ 28;

§§ 2-3-203(3) and -212, MCA (burden of overcoming presumption of openness, required

“determination,” and required meeting minutes).

¶15    Though the initial burden at the time of closure does not necessarily require the type

of formal legal analysis and balancing required of reviewing courts, the law requires

something more than cursory reference to undescribed third-party privacy rights and mere

recitation of applicable constitutional or statutory language. Moreover, on subsequent

district court review, the public body or agency has the greater burden of overcoming the

presumption of openness by making a particularized showing of the asserted factual basis

for a meeting closure under the legal ground asserted for closure. Thus, on a motion for

summary judgment, once the complaining party satisfies its threshold burden of showing

the absence of any genuine issue of material fact that a public body or agency closed a

meeting subject to Article II, Section 9, and § 2-3-203, MCA, the burden shifts to the public

body or agency to show the absence of any genuine issue of material fact and that the public

body or agency is entitled to judgment as a matter of law that it lawfully closed the meeting


                                             10
under a recognized exception to the right to know and open meeting requirements. M. R.

Civ. P. 56(c)(3).

¶16    For example, in Moe, a local government chief-executive sought to terminate the

employment of a city-county human resource officer upon the advice and consent of the

governing council, as authorized under the consolidated city-county government charter.

Moe, ¶¶ 4-6. The chief-executive was acting on the basis of an internal investigation report

that referenced various allegations and substantiating witness statements of misconduct and

deficient performance made by numerous other city-county employees. Moe, ¶¶ 4-8. Upon

notice that the termination hearing before the council would be closed based on the nature

of the allegations against her, the human resource officer waived her right to privacy and

requested an open hearing. Moe, ¶ 8. However, without identifying the third parties or

affording them an opportunity to waive their rights, the presiding officer nonetheless closed

the meeting to the public by reference to (1) unidentified city-county employees who had

made allegations or witness statements adverse to the subject employee and (2) the officer’s

determination that the privacy interests of those third parties clearly outweighed the merits

of public disclosure. Moe, ¶ 9. After a detailed closed-session discussion of the adverse

investigation report as a ground for termination of the human resource officer’s

employment, the presiding officer re-opened the meeting to the public at which time the

council voted in open session to approve the recommended termination. Moe, ¶ 10.

¶17    On appeal of a subsequent district court grant of summary judgment to the local

government, the discharged employee asserted that the closed meeting violated Article II,

Section 9, and § 2-3-203, MCA, based on the city-county’s failure to: (1) specifically


                                             11
identify the third-party complainants and witnesses; (2) further explain how or on what

basis their privacy rights outweighed the merits of public disclosure; and (3) provide notice

and opportunity for the third parties to waive their rights. Moe, ¶ 16. We affirmed the

meeting closure on the grounds that the third-party employees had subjective and

reasonable expectations of privacy under the circumstances and that those expectations

clearly outweighed the merits of public disclosure, as offset by the public interest in

encouraging public employees to report misconduct. Moe, ¶¶ 21-25.3 Contrary to the

Board’s assertion here, we did not sweepingly hold that the expectations of third-party

complainants and witnesses in non-disclosure of their identities or the substance of their

statements will clearly outweigh the merits of public exposure in every case and

circumstance. Moe, ¶¶ 21-25. We merely recognized in Moe that such expectations of

privacy may be both actual and objectively reasonable under the circumstances at issue.

Moe, ¶¶ 21-25.




3
  We did not address the discharged employee’s additional argument, similar to Raap’s argument
here, that the county independently violated § 2-3-203, MCA, by failing to provide notice and
opportunity for the third-parties to waive their rights as contemplated by § 2-3-203(3), MCA.
Compare Goyen wherein we held that a city council violated § 2-3-203(3), MCA, by twice
conducting closed meetings to discuss alleged misconduct by its chief of police without providing
him advance notice and opportunity to waive his right to privacy and thereby keep the meeting
open to the public. Goyen, 276 Mont. at 218-19, 915 P.2d at 828. We held that, upon determining
that a person’s privacy interest outweighs the merits of public disclosure, the public bodies and
agencies “should simply defer any discussion of the issue until the individual whose privacy
interest is involved is notified and is given the opportunity to attend . . . or waive his or her right
of privacy and have the meeting conducted in open session.” Goyen, 276 Mont. at 219, 915 P.2d
at 828. We held further that a person whose privacy is involved has the “right to be
notified . . . regardless of whether” the public body or agency has an independent justification for
closing a meeting. Goyen, 276 Mont. at 219, 915 P.2d at 828. We need not address this apparent
discrepancy in light of our reversal of this case on other grounds.

                                                  12
¶18    In Moe, unlike here, the presiding government officer publicly stated a rationale at

the time of closure that was sufficiently descriptive to afford reasonable notice to the public

of the factual and legal basis for the closure without disclosing any private information.

As initially stated and subsequently shown on district court review, closure of the meeting

in Moe was actually necessary to protect the third-party privacy interests asserted. At the

time of closure, without specifically identifying the third parties at issue, the presiding

officer in Moe at least generally described their relationship to and their general

involvement in the matter, i.e., city-county employees who had made allegations and

adverse statements against the subject employee. Moe, ¶ 9. On subsequent judicial review,

the local government proved that it had sufficient factual grounds to overcome the

presumption of openness by making a particularized evidentiary showing that both

substantiated the asserted third-party privacy interests and showed that closure of the

meeting was reasonable and necessary to protect those interests in balance with the merits

of public disclosure. Moe, ¶¶ 12, 20-25.

¶19    In contrast here, the Board’s stated rationale at the time of closing the meeting to

the public was no more than cursory reference to “statements and information for those not

in attendance.” More significantly, the Board subsequently failed to support its originally

stated rationale on district court review. In the District Court, the Board presented no more

than the affidavit of counsel stating that the school principal “presented information

supporting the Superintendent’s recommendation to terminate” Raap and that the Board

questioned the principal about her testimony. The Board made no showing that any third

party testified at the hearing, that the superintendent’s recommendation for termination was


                                              13
based in whole or in part on third-party complaints or allegations against Raap, that the

superintendent or school principal gave testimony that identified any third party who made

complaints or allegations against Raap or otherwise referenced a matter in which a third

party had an expectation of privacy. Unlike in Moe, the Board failed to make any

particularized showing as to the nature of the third-party privacy interests asserted, much

less how they balanced out against public disclosure under the circumstances of this case.4

Thus, unlike in Moe, the Board failed to overcome the presumption of openness under

Article II, Section 9, and § 2-3-203, MCA.

¶20    A related matter warrants mention before moving on. The analyses of the Board

and the District Court appears to rely, in part, on the express or implied assertion that no

open meeting violation occurred because Raap and her union representative were present

and there is no evidence that the Board actually prevented any other interested person from

observing the hearing portion of the meeting. Tantamount to a standing argument, reliance

on this assertion is misplaced. Raap, like the public-at-large, had the right to expect that

the Board would comply with Article II, Section 9, and § 2-3-203, MCA, regardless of

whether anyone else was interested in observing the meeting. Schoof v. Nesbit, 2014 MT



4
   Regretfully, we would be remiss if we did not similarly point out that, in order to facilitate
justice, promote public confidence in the judiciary, and facilitate effective appellate review, district
courts have a duty to set forth sufficient legal and factual analysis to show the factual and legal
grounds for their decision under the applicable legal analysis. See Ihnot v. Ihnot, 2000 MT 77,
¶ 15, 299 Mont. 137, 999 P.2d 303 (cursory order based on undeveloped record without findings
of fact or conclusions of law precluded appellate review and constituted an abuse of discretion).
See also Beach v. State, 2009 MT 398, ¶ 26, 353 Mont. 411, 220 P.3d 667 (failure to undertake an
independent evaluation of the claims and arguments presented). Though the record was minimally
sufficient for our independent de novo review under M. R. Civ. P. 56, the District Court’s cursory
order was sorely lacking in this regard.

                                                  14
6, ¶¶ 17-18, 373 Mont. 226, 316 P.3d 831. On this basis alone, Raap had a “sufficiently

concrete injury” for standing to assert her alleged violations of Article II, Section 9, and

§ 2-3-203, MCA. Schoof, ¶¶ 23-25. Raap also had a more personal interest in an open

meeting—-she wanted to electronically record the meeting and the Board precluded her

from doing so. At the time, § 2-3-211, MCA (2015), expressly prohibited a public body

or agency from prohibiting “accredited press representatives” from photographing or

recording open meetings except to the extent the activity “interfere[s] with the conduct of

the meeting.”5 Though the statute obviously emphasized the right of the “accredited press”

to photograph and record open meetings, Article II, Section 9, affords the press no greater

right to observe, record, or report on open meetings than any member of the public. Accord

38 Mont. A.G. Op. 8 (1979). Thus, in addition to her general standing, Raap also had a

specific personal basis upon which to assert her open meeting claims in this case. We hold

that the District Court erroneously granted summary judgment that the Board lawfully

closed the hearing portion of the meeting based on third-party privacy rights.

¶21    Issue 2: Did the District Court erroneously grant summary judgment that the Board
       lawfully excluded Raap and her union representative from its “executive session”
       under the litigation strategy exception of § 2-3-203(4), MCA?

¶22    A public body or agency may close a meeting “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.” Section 2-3-203(4)(a), MCA. Though we have



5
 In 2017, the Legislature amended § 2-3-211, MCA, to more broadly preclude public bodies or
agencies from prohibiting a “person” from photographing or recording open meetings. Section
2-3-211, MCA.

                                            15
not considered whether this statutory exception comports with Article II, Section 9, when

a public body or agency is engaged in litigation with a private party, see Associated Press

v. Bd. of Pub. Educ., 246 Mont. 386, 391-92, 804 P.2d 376, 379-80 (1991) (narrowly

invalidating the statutory litigation strategy exception as applied to litigation between

public entities), Raap does not challenge the constitutionality of § 2-3-203(4)(a), MCA.

We therefore confine our review to whether the District Court correctly concluded that the

Board complied with § 2-3-203(4)(a), MCA.

¶23    Raap asserts that the Board failed to overcome the presumption of openness under

Article II, Section 9, and § 2-3-203, MCA, by showing compliance with § 2-3-203(4)(a),

MCA.     Without addressing Raap’s threshold challenge to the threshold evidentiary

competency of the affidavit of the Board’s counsel, there is no genuine issue of material

fact on the summary judgment record that the Board discussed anything in its 11-minute

executive session other than as described in the affidavit of its counsel.

¶24    Nonetheless, other than labeling the executive session as a “litigation strategy

session,” the Board made no showing on district court review explaining or indicating how

its pending decision on whether to terminate Raap’s employment at least generally related

to its strategy for defending against a previously filed discrimination complaint regarding

school district conduct alleged to have occurred prior to the termination hearing. The

Board made no showing that it requested or received advice of counsel regarding its

ongoing or contemplated defense against the discrimination complaint, the potential effect

of terminating Raap’s employment on its defense strategy in that matter, or the potential

for its termination decision to result in additional litigation with Raap. The Board made


                                             16
no showing that Board members communicated facts to counsel pertinent to the Board’s

defense strategy in any pending or future litigation.

¶25    The summary judgment record is wholly devoid of any factual showing as to how

or why concealment of counsel’s self-described, non-descript explanation of the substance

of Raap’s previously filed discrimination complaint, and the process that would follow,

was necessary to avoid “a detrimental effect on the [Board’s] litigating position” in that or

any other pending or contemplated litigation. The Board may well have had cause for

closing its executive session under § 2-3-203(4)(a), MCA, but failed to show the reasons

for closure on district court review. Therefore, we conclude the Board failed to satisfy its

burden of overcoming the presumption of openness under Article II, Section 9, and

§ 2-3-203, MCA, by demonstrating that it conducted its 11-minuted executive session in

compliance with § 2-3-203(4)(a), MCA. We hold that the District Court erroneously

granted summary judgment that the Board lawfully excluded Raap and her union

representative from its “executive session” under the litigation strategy exception of

§ 2-3-203(4), MCA.

                                     CONCLUSION

¶26    We hold that the District Court erroneously granted summary judgment that the

Board lawfully closed the termination hearing portion of the subject meeting based on

third-party privacy rights. We hold further that the District Court erroneously granted

summary judgment that the Board lawfully excluded Raap and her union representative

from its “executive session” under the litigation strategy exception of § 2-3-203(4), MCA.

Raap raised no issue on appeal under § 2-3-221, MCA (discretionary attorney fees on


                                             17
successful enforcement action under Mont. Const. art. II, § 9), and we make no comment

thereon. The Board did not cross-appeal. We reverse the judgment of the District Court.

Pursuant to § 2-3-213, MCA, and without comment on its merits, the decision of the Board

terminating Raap’s employment is hereby reversed and remanded for consideration in

compliance with § 2-3-203, MCA, and Article II, Section 9, of the Montana Constitution.

¶27   Reversed and remanded.


                                               /S/ DIRK M. SANDEFUR


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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