Plaintiffs argue 'secret' doughnut meetings violated state law

Plaintiffs in the lawsuit against Whitefish over control of the planning “doughnut” around the city continue to argue that the city held illegal “secret” meetings regarding doughnut litigation.

In a brief filed Aug. 5, plaintiffs’ attorney Duncan Scott argues that the city violated state law when Whitefish City Councilors decided “behind closed doors and without pubic participation” to file a stay of motion and notice of appeal. Plaintiffs in the case are Lyle Phillips, Anne Dee Reno, Turner Askew and Ben Whitten.

Whitefish filed a motion July 10 that asked Flathead District Court Judge David Ortley to stay his ruling that gave control of the doughnut to Flathead County. The city would like to retain control until it has a chance to appeal to the supreme court Ortley’s decision.

The city also asked the judge to restore the court’s February 2012 injunction that prevented the county from implementing interim zoning in the doughnut.

Council’s 4-2 vote July 15 in favor of appeal and to approve the stay motion came after more than an hour of discussion in an executive session closed to the public and press.

Scott is asking the District Court for a second time to strike from record Whitefish’s stay motion and notice of appeal. He argues Whitefish City Council didn’t disclose to the public that it would vote on the matter prior to its regular July 15 meeting, and in doing so, violated the public’s Constitutional right to participate.

He also says Whitefish knowingly violated the public’s right to know when they discussed litigation between public bodies behind closed doors.

“Despite the enormity of this request and its countywide impact, Whitefish made this decision in secret,” Scott wrote in his brief.

City attorney Mary VanBuskirk argues the city is entitled to preserve its attorney-client privilege. She contends the city is following statute exemptions provided under the open meeting law that allows for closed executive sessions when all parties are not public.

Scott notes that while the case does involve private parties, the city’s motion seeks relief only against the county, not against private individuals.

“This is a public battle about whether Whitefish or Flathead County — two government entities — will have jurisdiction over about 5,000 parcels of land in the doughnut area... It is hard to imagine litigation more focused on the public’s business.”

Scott contends the statutory exemption cited by the city could be considered unconstitutionally over broad and in conflict with the Montana Constitution.

Any decision made in violation of the open meeting law, he argues, may be declared void.

“Whitefish has installed a virtual “Do Not Disturb” sign on the chamber door, and has conducted its judicial strategy and decision-making in secret,” Scott said. “Plaintiffs request that this court replace this sign with “the Public is Welcome,” as Montana law requires.

Scott is asking the court to order that future discussion and decisions by Whitefish about doughnut litigation can occur only in public meetings.

In a separate response to Whitefish’s stay motion, Scott argues the court should delay its ruling until it decides on the plaintiffs’ request to set aside the stay motion.

In the county’s response to Whitefish’s stay motion, attorneys for the Board of Commissioners acknowledged that a stay pending appeal is likely to be granted based on precedent. However, they argue the city is requesting “far more than is necessary to prevent irreparable harm.” Preliminary steps related to planning and zoning should be allowed until the appeal is decided, the county contends.

VanBuskirk says the city’s position is that it’s best for everyone if status quo is maintained until the appeal is decided.