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Judge dismisses lawsuit against county


Petitioners ask for reconsideration

District Court Judge Jeffrey Langton issued an order on January 3 dismissing a lawsuit filed by the Bitterroot Star, Ravalli County Watchdog and Bill LaCroix against Ravalli County. The news organizations and LaCroix filed suit on November 7, asking the court to void a decision made by the County Commissioners to do some road repair work on Upper Woodchuck Road last August due to insufficient public notice. They claim the decision should be voided because the matter was not placed on the county’s agenda until three hours before the meeting took place in which the commission decided to spend $46,000 on road repairs. The agenda notice also listed the wrong meeting place, calling it an on-site visit, when, in fact, the meeting took place at the county administration building.

In his January 3 order, Judge Langton notes that the county, in its Motion to Dismiss, states the case should be dismissed because it was filed more than 30 days after the August 29, 2011 decision that petitioners are seeking to void and on the basis that the issue is moot since the work has been done and cannot be undone.

Langton found that the petitioners failed to respond to the motion to dismiss. “Failure to file an Answer Brief by the adverse party within ten days shall be deemed an admission that the motion is well taken.”

Langton ordered that the case be dismissed with prejudice, based on the county’s claims that “the Petition and request for Declaratory Relief was not timely filed and on the basis that this matter is moot.”

Attorney for the Petitioners, Dusty Gahagan, then filed a Motion for Reconsideration asking the judge to take another look. He notes that the brief submitted by the petitioners on December 30, 2011 in opposition to the motion to dismiss was not considered. The petitioners contend, he writes, that “the Court made a clerical mistake, oversight or omission in not considering said documents.”

Gahagan argues that since the county submitted, and the court considered, matters outside the pleadings, such as the affidavit of Commission Administrator Glenda Wiles, that the motion to dismiss must be treated as one of “summary judgment” in which case all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. He notes that, unless a court orders otherwise, a party is given 21 days to reply to a motion for summary judgment. He requests the court to vacate the January 3, 2012 order and consider the petitioners’ brief in response to the motion to dismiss, allow the county to respond if they so choose “and then make a decision only after considering all the materials which have been submitted in this matter.”

The county then submitted a brief in opposition to the Motion for Reconsideration.

“Typically, if the Court converts a motion to dismiss into a motion for summary judgment, it issues an order to that effect,” writes Attorney Howard Recht, for the County. He notes that this did not happen in this case. But if it were converted to a motion for summary judgment, he writes, then Petitioners would have met the deadline.

Nonetheless, he states, “the matter is still moot.”

He adds that, “only genuine issues of fact preclude summary judgment. Speculative and conclusory statements will not suffice… Here, petitioners suggest without proof that the Commissioners illegally noticed a meeting then rushed to spend County money hoping to pull off the whole endeavor without public scrutiny… But the incontrovertible facts are that the meeting of which the petitioners complain was a continuation of a meeting properly noticed to view a road that the County agreed to pave in a settlement of a highly publicized lawsuit. The minutes clearly show that the Board of Commissioners acted to meet its obligations under the settlement.”

“Nothing in the petitioners’ submission controverts the question of mootness,” wrote Recht. “There is no genuine issue of fact as to whether the work was completed, and no genuine issue of fact as to whether any remedy exists whereby the remedial work could be undone. Without such a question of fact, the issue is moot as a matter of law.”

The Petitioners, in their reply to the Motion to Dismiss, which they claim was overlooked by the Court, argue that, given the affidavits submitted by the county, the matter should be converted to a Motion for Summary Judgment. They argue, based on the affidavit of Bitterroot Star publisher and reporter Michael Howell, that they met the law by filing suit within 30 days of Howell finding out about the decision. He states that inadequate notice was the cause of his delay in finding out about the decision and that the problem of inadequate public notice by the County Commissioners “is an issue that continues to present itself as a problem.”

Petitioners note that the County’s claim that the work has been completed and all the money expended is not supported by any documentation.

Petitioners argue that it is impossible to participate in the operation of government if you are not properly notified of what the government agency is considering. Petitioners claim that the public notice for the meeting of August 29 stating, “On site visit 8 Mile Road and Woodchuck – Continued from Friday August 26th” was inadequate to convey that a decision of significant public interest, such as the expenditure of $46,780, might take place. They also note that the official minutes of the August 26 on-site road viewing do not state that the meeting was to be continued. On top of this, they claim the meeting actually took place at a location other than what was indicated on the agenda.

Petitioners also include an affidavit from then Administrative Assistant Beth Perkins in which she “makes it clear that the Commissioners waited until the morning of August 29, 2011 to make a change for that day’s agenda.”

“The change to the August 29, 2011 [agenda] which was made that same day made it impossible for the public to be aware of and participate in the decision to spend $46,780 on a matter that was previously settled. Moreover, even if a member of the public would have become aware of the change in the commissioners’ agenda in the less than three hours before they made the decision, one would have reasonably assumed the commissioners were on a site visit to 8 Mile Road and Woodchuck at the time they made their decision,” state the Petitioners.

They also claim that in their original suit they asked for more than simply the voiding of the decision, they also asked for “such other relief as this Court deems just.”

“Petitioners assert that this Court may deem just and appropriate other relief such as mandating that the Ravalli County Commissioners adopt guidelines for determining if an issue is ‘of significant interest to the public’ and guidelines for how they will notify the public of issues of significant public interest.”

They claim that the Supreme Court has recognized an exception to the mootness doctrine for controversies that are capable of repetition, but that may evade review. The Court also reserves the power to examine constitutional issues that involve the broad public concerns to avoid future litigation on a point of law, they claim.

“Petitioners have had continual problems getting the county commissioners to properly notify them of issues and it certainly appears that this problem is capable of repetition in the future. Accordingly, the court should not dismiss this matter as moot,” they state.

Petitioners also invoked the “federal exception to mootness”, called the “voluntary cessation exception”, which allows that a case can be mooted by the Respondent’s voluntary conduct only when “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

“While the case at hand presents a slightly different factual scenario than a typical voluntary cessation situation, a similar injustice can be prevented by applying this doctrine to prevent the County Commissioners from illegally noticing a meeting and then rushing to spend the money they approved in the illegal meeting before the public is made aware of the decision or allowed to challenge the decision in court,” they argue.

They ask the judge to deny the motion to dismiss and allow the matter to proceed through the discovery process and then to a hearing on the merits.

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