author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STUART STRINGER, Defendant and Appellant.
    No. 93-309.
    Submitted on Briefs November 18, 1993.
    Decided February 3, 1994.
    51 St.Rep. 63.
    263 Mont. 295.
    868 P.2d 588.

      For Defendant and Appellant: John Keith, Great Falls.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t Attorney General, Helena; Randy Winner, Ass’t City Attorney, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Eighth Judicial District Court, Cascade County. Appellant Stuart Stringer (Stringer) appeals from the denial of his motions to dismiss on grounds of double jeopardy and on failure of the State of Montana’s (State’s) witnesses to make an in-court identification of the perpetrator. We affirm.

The issues before this Court are:

1. Did the District Court err in denying Stringer’s motion to dismiss on grounds of double jeopardy?

2. Did the District Court err in denying Stringer’s motion to dismiss based on the failure of the State’s witnesses to make an in-court identification of the perpetrator?

On January 12, 1992, at approximately 3:00 a.m., police officers Paul Smith and Jack Allen responded to a disturbance in Great Falls, Montana. Upon arrival at Stringer’s residence, the officers could hear yelling and banging inside. Officer Allen went to the back of the house, while Officer Smith knocked on the front door, which was ajar. No one answered.

Officer Smith saw a woman, later identified as Stringer’s wife, Kathy, on the kitchen floor covering her head with her arms. He also heard Stringer, who stood over his wife, yelling he was going to kill her. Officer Smith entered the house and announced himself again. Stringer heard Officer Smith this time. Officer Smith advised Stringer he was under arrest. Stringer — who had been drinking — responded peaceably at first, offering his hands so that he could be handcuffed.

Stringer, 37, then became inexplicably violent, physically challenging the arrest. By that time, Officer Allen had returned from the back of the house, entered the front door, and assisted Officer Smith in restraining Stringer. Because Stringer resisted arrest so forcefully, Officer Allen radioed for back-up police support.

Officers Smith and Allen forcibly handcuffed Stringer, who, according to officers, was salivating and acting wildly. During the struggle, Stringer kicked Officer Allen in the head. The officers restrained Stringer until back-up help arrived. Because of Stringer’s kicking, the officers bound his legs. The officers then carried Stringer, whose arms were handcuffed behind his back, face down to a police car in front of the house. Stringer resisted continuously. He screamed profanities, threatened to kill the officers, and disturbed neighborhood residents.

Stringer was charged by complaint with two misdemeanors: disorderly conduct, in violation of § 45-8-101(l)(c), MCA, and resisting arrest, in violation of § 45-7-301(l)(a), MCA. After failing to appear on the date scheduled for trial in city court, Stringer was convicted of both charges. Stringer appealed to the District Court on June 19, 1992, whereupon trial was set for November 2,1992.

The November 2nd trial was vacated on the court’s motion due to a jury trial that was in progress. A new trial was set for November 24,1992. The State and Stringer, who was unrepresented by counsel, appeared on November 24th; however, the State was granted a continuance because Officer Smith, a material witness, was ill. The trial was reset for December 15,1992; however, Stringer was granted a continuance because he needed to get an attorney. At that time, the court appointed a public defender, and trial was reset for February 10, 1993.

At the February 10th trial, Stringer appeared without counsel. At the outset, the District Court Judge asked Stringer if he was ready to proceed. He replied, “I still don’t have a lawyer, sir.” Because the trial had already been delayed once to allow Stringer to retain counsel, the Judge determined that the trial should proceed.

After Officer Smith was sworn and testified, the District Court Judge interrupted the proceedings and asked Stringer about a letter in the court file which indicated that John Keith, a public defender for the City of Great Falls, was going to represent Stringer. Stringer responded that he had not contacted Mr. Keith, but that he still wanted a lawyer. The court recessed and unsuccessfully attempted to locate Mr. Keith. The court then vacated the trial to allow Stringer an opportunity to secure counsel.

The trial de novo was finally held on March 19,1993. At the trial, Stringer was represented by Mr. Keith, who moved to dismiss on the grounds that double jeopardy attached at the February 10th trial. The motion was denied. Mr. Keith later moved to dismiss on the basis that Stringer was never identified by the State’s witnesses as the perpetrator. That motion was denied as well.

Stringer was convicted on both charges and sentenced to two days in jail. He was ordered to pay a $300 fine for disorderly conduct and a $100 fine for resisting arrest. All but one day of the jail sentence was suspended, and Stringer was given credit for one day of jail time already served. The fines imposed were also suspended on the condition that Stringer obey all laws and perform forty hours of community service. Stringer appeals.

I

Did the District Court err in denying Stringer’s motion to dismiss on grounds of double jeopardy?

Stringer argues that double jeopardy attached at the February 10, 1993, trial, after the first witness was sworn. See § 46-11-503(l)(d)(ii), MCA. Section 46-11-503(2), MCA, provides in pertinent part that prosecution of the same transaction as a former prosecution is barred unless:

(a) the defendant consents to the termination or waives his right to object to the termination; or
(b) the trial court finds that the termination is necessary because:
(ii) there is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law;
(iii) prejudicial conduct makes it impossible to proceed with the trial without manifest injustice to either the defendant or the state;

In the present case, the District Court based its denial of Stringer’s motion to dismiss on this statute. First, the District Court found that Stringer waived his right to object to termination and consented to the discontinuance of the trial when he stated, “Yes, I do want a lawyer.” Second, the District Comb found that the termination was necessary because there would be a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. The court based this finding on the “possibility that jail time might be in the sentence if the defendant was found guilty” and that the case would have had built-in error because Stringer was not represented by counsel at the time. The court also found that allowing Stringer to continue without counsel would have resulted in manifest injustice to Stringer.

Stringer contends that the court’s findings were clearly erroneous, were unsupported by the record, and resulted from the District Court’s failure to promptly determine the propriety of appointing counsel for Stringer. Stringer argues, and the record shows, that Stringer twice expressed his desire to continue without counsel at the February 10th trial.

The waiver rule was designed to prevent defendants from alleging a double jeopardy bar to retrial where they, not the prosecutors, cause the mistrial or are otherwise responsible for terminating the proceedings: “Where the defendant has an active hand in arranging the disposition of the causes so he might benefit from the results, he waives any double jeopardy claims.” Boze v. State (Ind. 1987), 514 N.E.2d 275, 277 (citation omitted). Although Stringer did not explicitly request a mistrial or continuance, his request for counsel is what prompted the court to vacate the proceedings. The termination of the proceedings ultimately worked to Stringer’s advantage because it allowed him the opportunity to secure Mr. Keith’s representation.

The District Court determined that, pursuant to § 46-11-503(2)(b)(ii), MCA, this case would embody built-in reversible error if Stringer were allowed to proceed without counsel. Section 46-8-101, MCA, which governs the right to counsel in criminal trials, provides in pertinent part:

(2) If the defendant desires counsel, is unable to employ counsel, and is entitled to have counsel assigned, the court shall assign counsel to the defendant without unnecessary delay.
(3) The defendant, if unable to employ counsel, is entitled to have counsel assigned if:
(a) the offense charged is a felony;
(b) the offense charged is a misdemeanor and the court desires to retain imprisonment as a sentencing option; or
(c) the interests of justice would be served by assignment.

Once the District Court determined that Stringer had properly-preserved his right to counsel, the State asserts, it had an affirmative duty under this statute to determine whether Stringer qualified for court-appointed counsel, whether Stringer might be subjected to imprisonment, or whether appointment of counsel was required in the interests of justice. See State v. Skurdal (1988), 235 Mont. 291, 767 P.2d 304. Stringer contends, however, that no legal defect requiring reversal of the judgment would have occurred because the only consequence of the court’s failure to appoint counsel in this misdemeanor case would be to limit any jail sentence which could be imposed. See Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383.

Stringer’s argument lacks merit. Stringer requested counsel, which triggered the court’s obligation to determine whether appointment was required. See § 46-8-101, MCA. Stringer now suggests that the District Court should have: 1) sacrificed its authority to consider whether the gravity of the offense warranted jail time — a result which the court acknowledged was an option in this case; and 2) disregarded Stringer’s request for counsel and allowed “the trial [to] proceed to its conclusion despite a legitimate claim of serious prejudicial error.” United States v. Dinitz (1975), 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275.

The District Court properly avoided reversible error by terminating the trial when it did. We hold, therefore, that no bar to retrial exists under § 46-ll-503(2)(b)(ii), MCA. Because we determine that the court properly avoided reversible error, no further inquiry into the double jeopardy issue is necessary.

II

Did the District Court err in denying Stringer’s motion to dismiss based on the failure of the State’s witnesses to make an in-court identification of the perpetrator?

At the conclusion of the State’s case, Stringer moved for dismissal of the charges because none of the State’s witnesses identified Stringer as the perpetrator. The State agrees that the officers who testified during the State’s case-in-chief did not specifically identify Stringer as the perpetrator or otherwise physically indicate Stringer’s presence in the courtroom.

While Stringer could find no Montana case law supporting this argument, he did find where the Wyoming Supreme Court dealt with this issue. See Capwell v. State (Wyo. 1984), 686 P.2d 1148. In Capwell, the court found that the burden of proof on the State to prove all elements of the offense includes identification of the defendant as the perpetrator. Capwell, 686 P.2d at 1157. While an in-court visual identification is not required, there must be some basis for establishing the identity of the defendant as the perpetrator. Capwell, 686 P.2d at 1157.

In Capwell, the court found that the witnesses testified from their personal knowledge of the identity of the defendant. Capwell, 686 P.2d at 1157. In the case before us, Stringer argues that the State’s witnesses, the officers, have no personal knowledge of Stringer’s identity. Merely calling him by name, Stringer asserts, fails to establish any basis for personal knowledge of Stringer’s identity.

The State agrees that the prosecution must prove all elements of the crime charged beyond a reasonable doubt, including the fact that the party charged was the person who committed the offense. See Capwell, 686 P.2d at 1157. However, as the State correctly asserts, Capwell stands for the proposition that the method of identification used in a criminal trial is largely within the discretion of the trial court. See Capwell, 686 P.2d at 1157.

According to the State, there is no requirement that the accused be identified in court as the perpetrator. Rather, it is only necessary that the person committing the crime be identified as the person charged in the information. See United States v. Capozzi (8th Cir. 1989), 883 F.2d 608, 617.

Courts have held that an in-court identification is not necessary where the evidence is sufficient to permit an inference that the defendant on trial is the person who committed the offense. United States v. Morrow (4th Cir. 1991), 925 F.2d 779, 781; Price v. State (Ga. Ct. App. 1986), 348 S.E.2d 740, 742. In fact, a state can satisfy its burden of proving identity through circumstantial evidence. State v. Mecum (Neb. 1987), 404 N.W.2d 431; Creech v. State (Tex. Ct. App. 1986), 718 S.W.2d 89.

Although there was no in-court identification of Stringer, the District Court could have drawn the inference from the evidence presented that Stringer was the perpetrator. When responding to the State’s question regarding the identity of the suspect, Officer Smith testified that the person was ££[l]ater identified as Stuart Stringer.” Furthermore, all the officers referred to the perpetrator as “Mr. Stringer.”

At no time dining the trial was there any question of misidentification. Stringer took the stand and gave his own version of the events which, were previously described by the police officers. Stringer’s brother, wife and daughter also testified on Stringer’s behalf. Nothing in their testimony raises any question that the perpetrator was someone other than Stringer.

No basis exists to reverse the District Court’s ruling denying Stringer’s motion to dismiss for failure to identify him as the perpetrator. The District Court was entitled to infer Stringer’s identity and — in light of the record — correctly determined that Stringer was, in fact, the perpetrator.

Affirmed.

JUSTICES GRAY, TRIEWEILER, HUNT and NELSON concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    WESTMORELAND RESOURCES, INC., Petitioner and Appellant, v. MONTANA DEPARTMENT OF REVENUE, Respondent and Respondent.
    No. 93-290.
    Submitted on Briefs December 2, 1993.
    Decided February 4, 1994.
    51 St.Rep. 67.
    263 Mont. 303.
    868 P.2d 592.

      For Petitioner and Appellant: W. Anderson Forsythe, Moulton, Bellingham, Longo & Mather, Billings.
    For Respondent and Respondent: David L. Nielsen, Tax Counsel, Office of Legal Affairs, Department of Revenue, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

In 1989, Westmoreland Resources, Inc., petitioned the State Tax Appeal Board (STAB) to review the Montana Department of Revenue’s (DOR) assessment of additional taxes imposed on Westmoreland for revenue received due to adjustment formulas found in four of its contracts for the sale of coal. After the STAB ruled in the DOR’s favor, Westmoreland petitioned the District Court for the Thirteenth Judicial District in Big Horn County pursuant to § 15-2-303, MCA, for review of this decision. The District Court concluded that the STAB correctly interpreted the applicable law and that its findings were not clearly erroneous. Therefore, by order dated April 15,1993, the court affirmed the decision of the STAB. Westmoreland appeals from the order of the District Court.

We affirm.

On appeal, Westmoreland raises the following issues:

1. Did the District Court err when it found that revenue received by Westmoreland pursuant to an adjustment formula in its sales contracts is part of the “contract sales price” for purposes of the assessment of coal severance and gross proceeds taxes?

2. Did the District Court err when it found that revenue received pursuant to the adjustment formula is properly considered in the assessment of the resource indemnity trust tax?

3. Does the taxation of this revenue violate the Commerce Clause of the United States Constitution?

Westmoreland produces coal in Rosebud County, Montana, and sells this coal to various midwest electric utility companies. At issue in this appeal are four sales contracts which Westmoreland negotiated in 1972 with Northern States Power in Minnesota, Dairyland Power and Light in Wisconsin, Wisconsin Power and Light in Wisconsin, and Interstate Power in Iowa.

The four contracts have a similar pricing structure and include a formula which is used to adjust the price of the coal to compensate for variations in its BTU content. BTU refers to British Thermal Units and is a measure of the heat energy contained in the coal.

The contract with Northern States Power (NSP) was the only contract entered into evidence and will be used as an example in this discussion. Each contract establishes a base price for the coal, which is $2.30 per ton in the NSP contract. This base price is “f.o.b. railroad cars” at Westmoreland’s mine in Montana. F.o.b. is a commercial acronym commonly defined as “free on board.” In this instance, where the contract establishes the price of coal f.o.b. railroad cars, it means that delivery to the customer is complete when the coal is loaded onto the railroad cars at the mine. The customer then independently negotiates with the railroad company for transportation of the coal to its electric utility sites.

The contracts also provide for various adjustments to the base price of the coal. First, certain adjustments are periodically made for changes in the cost of producing the coal. For example, the NSP contract provides for the base price to be adjusted periodically to reflect changes in administrative expenses, wages paid for labor, and cost of equipment.

Second, the contracts include a price adjustment to reflect variations in the quality of coal. Each contract includes a target rate or “warranted rate” for the BTU content of the coal that is sold. In the NSP contract, the warranted rate is 8450 BTU. If the weighted average BTU content is between 8350 BTU and 8550 BTU, no adjustment is made in the sale price. However, if the average BTU content is either higher or lower than these figures, the following calculation is made in order to standardize the price that the customer is paying for the coal based on its energy content:

(P + T) x (as received BTU - Warranted BTU)

(Warranted BTU)

P = base price, as adjusted, per ton

T = transportation rate, per ton

This formula establishes a fraction (the “BTU fraction”) which represents a comparison of the “as received BTU” to the “warranted BTU.” The BTU fraction is then multiplied by the sum of the base price per ton of coal and the average transportation rate per ton of coal, to yield an “adjustment factor.” To determine the amount by which the price of the coal which was purchased is adjusted, the adjustment factor is multiplied by the number of tons shipped to the respective customer annually.

The contracts provide that after the adjustment is calculated, “seller will issue a debit or credit.” In other words, if the customer overpaid for the coal because the BTU content was lower than the warranted rate, Westmoreland is responsible for issuing that customer a credit. However, if the customer did not pay enough for the coal because its BTU content was higher than the warranted rate, the customer must pay Westmoreland an additional amount of money for the higher quality coal that was purchased.

It is important to note that the adjustment formula results in either a transfer of money from Westmoreland to the customer, or from the customer to Westmoreland. Even though the formula takes into account an average transportation rate to arrive at the adjustment factor, the money the customer pays to the railroad is not affected by the adjustment formula. The cost of transportation remains the same for each ton of coal that is shipped regardless of its BTU content.

During the years in question, Westmoreland was able to achieve a higher average BTU content for the coal it produced and sold than what was warranted in the four contracts. This resulted in Westmoreland’s receipt of additional revenue from these four customers due to the adjustment formula.

Westmoreland negotiated these four contracts prior to the enactment of Montana’s current tax structure for the production of coal.

Three separate taxes are now imposed on coal produced in this state: the gross proceeds tax found at §§ 15-23-701 through -716, MCA; the coal severance tax found at §§ 15-35-101 through -122, MCA; and the resource indemnity trust tax (RITT) found at §§ 15-38-101 through -136, MCA.

The taxes assessed pursuant to the gross proceeds tax and the coal severance tax are calculated on the basis of what is termed “the contract sales price” of the coal. Contract sales price is defined in § 15-35-102(5), MCA, as follows:

“Contract sales price” means either the price of coal extracted and prepared for shipment f.o.b. mine, excluding that amount charged by the seller to pay taxes paid on production, or a price imputed by the department under 15-35-107.

The RITT is computed on the gross value of the coal at the time it is extracted from the ground. The DOR determines the gross value at the point of extraction by deducting from the contract sales price f.o.b railroad cars at the mine, the costs of hauling, crushing and preparing the coal for shipment.

In 1986, the DOR audited Westmoreland’s gross proceeds, severance, and RITT tax returns for tax years 1981 through 1984. The DOR determined that payments received pursuant to the adjustment formula had been improperly excluded from Westmoreland’s calculation of the “contract sales price” for the assessment of severance and gross proceeds taxes, and from the calculation of “gross value” for the assessment of RITT taxes. Based on this determination, the DOR imposed additional taxes on Westmoreland for the tax years 1981 through 1984. Westmoreland appealed this assessment of additional taxes to the STAB. Following an evidentiary hearing, the STAB ruled that the revenue received by Westmoreland pursuant to the adjustment formula was properly included by the DOR in the computation of taxes owed by Westmoreland. The STAB found that, for the years 1981 through 1984, Westmoreland had received additional revenue because the BTU content of the coal it had sold exceeded the rate warranted in the sales contracts. It noted that Westmoreland had paid taxes on the revenue it received due to the “price component” of the adjustment formula, but not on revenue received due to what Westmoreland called the “transportation component” of the formula. After considering the adjustment formula, the STAB found:

10. All freight or shipping costs from the mine to the various destinations of the coal are negotiated and paid by the purchasers, and not by [Westmoreland]. The freight rate is a per ton rate. The quality of the coal being shipped has no effect on the determination of the rate. Any adjustments made using the contractual formula, resulting in either an increase or decrease in the price of the coal would not result in a payment to, or from, the railroad. The transaction is entirely between the purchaser of the coal and [Westmoreland]. [Emphasis added].

In Finding No. 19, the STAB found that “the adjustment is seen as a protection of quality. The adjustment has no effect on the amount paid to the hauler.” Finally, the STAB found that there is “nothing done to the coal during transportation that modifies in any way, positively or negatively, the BTU content. Once loaded in the railcar, the BTUs contained in the coal are set.”

In its conclusions of law, the STAB concluded that, under the contracts in question, the final price per ton of coal is not established until all of the adjustments provided for in the contracts are made. It stated the following:

13. It is the opinion of this Board that the adjustment formula, in its entirety, found in the coal purchase contracts, as it affects the “contract sale price,” is a recognized contract modifier to the base price of the coal f.o.b. mine. As such, it is a proper inclusion in the process of determination of the price used to calculate the taxes due for the Montana Coal Severance Tax, 15-35-101, MCA, and the Montana Gross Proceeds Tax, 15-23-701, MCA. However, the determination ofthe Resource Indemnity Trust Tax, 15-38-101, MCA, for the period at issue before the Board, shall be valued at the “point of extraction,” prior to the hauling, crushing, and preparation for shipment.

Finally, the STAB concluded that, based on this Court’s decision in Commonwealth Edison Company v. State (1980), 189 Mont. 191, 615 P.2d 847, the calculation of coal production taxes in this manner did not conflict with the commerce clause of the United States Constitution.

Pursuant to § 15-2-303(2), MCA, Westmoreland appealed the STAB decision to the District Court. The court found the STAB’s findings to be supported by substantial evidence and concluded that all revenue received pursuant to the BTU adjustment formula is part of the contract sales price as negotiated by the parties. The court stated as follows:

When the coal which is delivered exceeds the BTU content specified in the contract, the purchaser, pursuant to the formula, pays a sum in addition to the contract base price represented by the percentage the BTU content of the delivered coal exceeds the contracted BTU content. ... When [the customer] has to transport fewer tons of coal to reach the number of BTU’s it desires, it pays the transportation costs that are saved to the mine operator, as part of the purchase price of the coal it received.

Therefore, in an order issued on April 15,1993, the District Court affirmed the decision of the STAB. From this order, Westmoreland appeals.

ISSUE 1

Did the District Court err when it found that revenue received by Westmoreland pursuant to an adjustment formula in its sales contracts is part of the “contract sales price” for purposes of the assessment of coal severance and gross proceeds taxes?

Westmoreland contends that both the STAB and the District Court made erroneous conclusions of law and fact when they held that the definition of contract sales price includes the transportation portion of the BTU adjustment formula.

The crux of Westmoreland’s argument is that the adjustment formula found in the four relevant contracts contains a price related component and a transportation related component. According to Westmoreland, the formula adjusts not only the mine head price of the coal but also the cost per ton of transporting the coal.

Westmoreland asserts that, during the years in question, it paid taxes on the additional revenue attributable to the price or “P” component of the formula, but not on revenue received pursuant to the transportation or “T” component. Taxes were paid on only part of the additional revenue because, according to Westmoreland, the transportation related revenue was not part of the contract sales price, which is the basis for the computation of taxes owed. This assertion is based on § 15-35-102(5), MCA, which defines contract sales price as “the price of coal extracted and prepared for shipment f.o.b. mine.” Consequently, Westmoreland asserts that transportation costs, which occur after the coal is delivered f.o.b. railroad cars at the mine, should not be included in the contract sales price.

In response, the DOR contends that the STAB and the District Court correctly found that revenue resulting from the BTU adjustment formula, which takes into account both the base price per ton and the average transportation rate per ton, constitutes the final contract price which each customer pays to Westmoreland for the coal it purchases. The DOR asserts that it was proper to find that the adjustment formula does nothing to alter actual transportation costs, but rather determines the final amount owed to Westmoreland for the purchase of coal.

The DOR further contends that there was substantial evidence to support the STAB’s finding that both the BTU content and the actual freight costs of each shipment of coal are known prior to shipment. Therefore, all the formula components are “known” and fixed at the time the coal is loaded for shipment. The DOR argues that the STAB correctly concluded that, although it is Westmoreland’s and its customers’ choice to calculate price adjustments only annually, the adjusted cost of each shipment of coal, payable by the customer to Westmoreland, is ascertainable at the time the coal is loaded for shipment f.o.b. railroad cars and does not change after shipment.

It is DOR’s assertion that the contract sales price, as the term implies, includes every component of the contract that is used to determine the price which the buyer pays for the coal. Furthermore, the DOR contends that taxes are to be assessed on this final purchase price (the “contract sales price”) rather than on selective, internal components of a formula used to calculate that final price.

We note first that Westmoreland contends that the STAB made clear errors of both law and fact. When reviewing an administrative agency’s findings of fact, this Court will defer to the agency’s findings unless they are clearly erroneous. Findings of fact are clearly erroneous if they are not supported by substantial credible evidence. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Our standard for reviewing legal conclusions of an agency or a district court is simply to determine whether they are correct. Steer, 803 P.2d at 603.

In this instance, Westmoreland contends that the STAB erred factually when it found that all revenue received pursuant to the adjustment formula was part of the “contract sales price” for assessment of the coal severance and gross proceeds taxes. The alleged error of law is based on the STAB’s and the District Court’s conclusions that the statutory definition of contract sales price could include this revenue.

After considering the evidence in the record and reviewing the findings and conclusions entered by the STAB and affirmed by the District Court, we conclude that there was substantial evidence to support the STAB’s factual determinations. Furthermore, we conclude that the STAB’s and the District Court’s conclusions of law were correct.

The record contains sufficient evidence that each customer negotiates solely with the railroad company regarding transportation costs. Westmoreland is not responsible for paying any transportation costs and all of the revenue received after adjusting the contract price goes solely to Westmoreland, whose business is the sale of coal, rather than to the railroad.

Furthermore, the evidence demonstrated that the freight rate charged by the railroad is a constant rate per ton, the BTU content of the coal which is being shipped has no effect on the determination of that rate, and the BTU content of the coal does not change during shipping. Thus, the year-end adjustment, which takes into account the particular customer’s negotiated base price per ton and average transportation rate per ton, adjusts the cumulative sales price of the coal purchased during that year, but does nothing to alter the actual cost that was paid to the railroad to transport that coal. Instead, the year-end adjustment sets the final price of the coal to properly reflect the quality of the coal which was shipped as compared to that which was warranted in the contract.

A review of the record also supports the contention that, although price adjustments are made annually, which necessarily occurs after shipping, the adjusted cost of each shipment of coal, payable by the customer to Westmoreland, is ascertainable at the time the coal is loaded for shipment f.o.b. railroad cars, and does not change after shipment.

The evidence is undisputed that Westmoreland is not paid to transport the coal. Therefore, we conclude that the revenue in question does not constitute transportation costs incurred subsequent to delivery of the coal f.o.b. mine. In this case, the revenue received by Westmoreland represents the final, adjusted contract price of the coal which is determined by considering its BTU content and applying the formula agreed upon by the parties. Although a transportation rate is included in the formula, the formula adjusts the price payable to Westmoreland for the coal, and not the costs payable to the railroad for the transportation of that coal. The formula adjusts the final price of the coal at the time it is delivered to the customer f.o.b. railroad cars at the mine.

According to the STAB’s findings, application of the formula as provided for in the contract would result in an increased contract sales price when the BTU content of the coal is above the target rate, or conversely, a lower contract sales price when the BTU content is below the target rate. Therefore, if revenue decreases due to lower quality coal, the taxes assessed on the contract sales price would correspondingly decrease. We conclude that this would be the correct outcome. If Westmoreland or other coal producers had to reimburse their customers because the coal it extracted had a lower BTU content, the computation of taxes should consider this loss of revenue and the contract sales price should be adjusted accordingly.

We hold that there was sufficient evidence to support the STAB’s findings that the BTU adjustment formula in its entirety is part of the contract sales price, and that revenue resulting from the application of this formula represents the actual price paid by the customer for the coal it pinchases from Westmoreland. Furthermore, we conclude that the STAB and the District Court properly interpreted the statutory and regulatory definitions of contract sales price and f.o.b. mine price to include the final, adjusted price of the coal pursuant to these contracts. Therefore, we hold that the DOR properly included revenue resulting from the BTU adjustment formula in the assessment of coal severance and gross proceeds taxes.

ISSUE 2

Did the District Court err when it found that revenue received pursuant to the adjustment formula is properly considered in the assessment of the resource indemnity trust tax?

Westmoreland contends that the RITT tax is imposed on the gross value of the product at the time of extraction from the ground, and therefore, all transportation related revenue which is incurred after extraction from the ground should be excluded from the value of the coal for purposes of assessing the taxes due pursuant to the RITT.

The DOR agrees that the coal is to be valued at the point of extraction for the purposes of the RITT. To arrive at this gross value, the DOR starts with the contract sales price and then deducts the costs associated with hauling the coal from the mine to the railroad cars, and crushing and preparing it for shipment. Because the contract sales price is the starting point for assessing the RITT tax, the DOR contends that the STAB and the District Court correctly held that the adjusted contract sales price, which takes into account revenue received pursuant to the adjustment formula, is the starting point for determining the value of the coal for the assessment of the RITT taxes.

We have already decided that the adjustment formula yields a final contract sales price, which is the price paid for the purchase of coal exclusive of transportation costs incurred after the coal is delivered f.o.b. railroad cars. Thus, we conclude that the gross value of the coal is properly determined by deducting from the adjusted contract sales price the costs associated with preparing the coal for shipment and transporting it from the mine head to the railroad cars. Therefore, to the extent that the adjusted contract sales price is the starting point for calculating the gross value of the coal produced by Westmoreland, we hold that the court did not err when it upheld the STAB’s conclusion that revenue received pursuant to the adjustment formula is properly considered by the DOR for the purposes of assessing the RITT taxes.

ISSUE 3

Does the taxation of this revenue violate the Commerce Clause of the United States Constitution?

Westmoreland contends that the DOR’s taxation of the revenue received from the adjustment formula results in discriminatory taxation of transportation costs and that this violates the commerce clause of the United States Constitution. U.S.C.A. Const Art. I, § 8, cl. 3. We note that this constitutional challenge is based upon Westmoreland’s interpretation of the holdings in Commonwealth Edison Company v. Montana (1981), 453 U.S. 609, 101 S. Ct. 2946, 69 L.Ed.2d 884, and Commonwealth Edison Company v. State (1980), 189 Mont. 191, 615 P.2d 847, and its contention that the DOR is taxing transportation costs rather than the value of the coal.

The U.S. Supreme Court upheld the constitutionality of Montana’s coal severance tax in Commonwealth Edison, 453 U.S. at 609, 101 S.Ct. at 2949, on the basis that the severance tax does not discriminate against interstate commerce and is apportioned to activities occurring within the State, i.e., the production of coal, taxed at its value f.o.b. mine. In CTS Corporation v. Dynamics Corporation of America (1987), 481 U.S. 69,107 S. Ct. 1637, 95 L.Ed.2d 67, the Court reemphasized the principle that a state statute does not violate the commerce clause if it is evenhandedly applied without regard to whether the activity is interstate or intrastate in nature.

We have held that the BTU adjustment formula adjusts the contract sales price of the coal, and that revenue received pursuant to this adjustment formula does not constitute transportation related revenue. The Montana coal production taxes are assessed uniformly on the basis of the “contract sales price,” as determined by the parties’ contracts, without regard to whether the coal is to be shipped interstate or intrastate, and are not based on transportation costs. Therefore, taxation of the revenue received due to the BTU adjustment formula, which is part of the contract sales price, is nondiscriminatory and does not violate the commerce clause of the United States Constitution. We hold that the District Court correctly concluded that Westmoreland’s constitutional challenge was without merit.

For these reasons, the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF JANICE C. HAHN, f/k/a Janice Cladouhos, Petitioner and Respondent, and THOMAS P. CLADOUHOS, Respondent and Appellant.
    No. 93-359.
    Submitted on Briefs November 4, 1993.
    Decided February 8, 1994.
    51 St.Rep. 73.
    263 Mont. 315.
    868 P.2d 599.

      For Appellant: David N. Hull, Helena.
    For Respondent: Jacqueline Terrell Lenmark, Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the First Judicial District, Lewis and Clark County, regarding the enforcement of a dissolution agreement entered into by respondent Janice C. Hahn, f/k/a Janice Cladouhos, and appellant Thomas P. Cladouhos. The District Court found that under the terms of the dissolution agreement Thomas was obligated to pay Janice the maintenance payments which were part of the property settlement. The District Court denied Thomas’s motion to dismiss Janice’s motion to enforce the property settlement based on the doctrine of laches, and also denied both parties their attorney fees. Thomas appeals from the order of the District Court.

We affirm.

We restate the issues as follows:

1. Did the District Court err when it denied Thomas’s motion to dismiss Janice’s pleading to enforce the maintenance provision, based on the doctrine of laches?

2. Did the District Court err when it found that the maintenance payments were part of the property settlement that did not terminate upon Janice’s remarriage pursuant to § 40-4-208(4), MCA?

3. Did the District Court err by failing to award Thomas his reasonable costs and attorney fees incurred in enforcing the court’s prior order?

Thomas and Janice were married in June 1965. Two children were bom to the couple, with one minor child living at home at the time of the dissolution in 1990. The couple had a hostile and difficult period of negotiations before agreeing to the custody, support, and property settlement agreement which was incorporated into the decree of dissolution on October 2, 1990.

The agreement provides that the couple would pay specific amounts to each other as a distribution of the marital estate property. Paragraph 8 of the agreement provides that the family home be awarded to Janice with the requirement that Janice compensate Thomas for half of the estimated realtor fee of $4200 if Janice did not sell the family home within two years of the agreement. Paragraph 18(a) provides that Thomas pay to Janice monthly payments of $650 for 15 months, beginning November 1990 “for her own support, care and maintenance.” Also, paragraph 18(b) provides that the funds in 18(a) are in the nature of a property settlement. Paragraph 18(b) adds that the payments under 18(a) are considered maintenance for tax purposes.

On July 25, 1991, Janice remarried and Thomas immediately stopped making the maintenance payments, claiming that maintenance payments automatically discontinue upon her remarriage pursuant to § 40-4-208(4), MCA. Thomas demanded that Janice pay the required realtor fee of $4200 pursuant to paragraph 8 of the agreement because she did not sell the family home within two years of the agreement. Janice tried to resolve the matter by offering to offset the delinquent maintenance payments against the realtor fee. Thomas refused the offer.

On December 15, 1992, Thomas filed a motion with the District Court requesting that it hold Janice in contempt for failure to comply with the agreement and order her to pay him $4200 for half the realtor fees. Thomas also requested costs and attorney fees allowed by the agreement.

On January 15, 1993, Janice filed a cross-motion for contempt requesting the court hold Thomas in contempt for failure to pay maintenance as provided by the agreement, claiming that he owed her six property settlement payments totaling $3900. On February 16, 1993, Thomas filed a motion to dismiss Janice’s motion based on the doctrine of laches, that Janice, without adequate explanation, failed to timely pursue court action to enforce these payments, rendering the enforcement of her asserted rights inequitable.

On April 15,1993, the matter was heard by the District Court with both parties offering testimony and evidence. On April 16, 1993, the court issued its findings of fact, conclusions of law, and order and memorandum. The order denied both parties’ motions to hold each other in contempt, and denied Thomas’s motion to dismiss Janice’s motion based on laches. The court found that the maintenance payments were part of the property settlement, and that Thomas was delinquent on five payments and owed Janice $3250, and Janice owed Thomas $4200 for half the realtor fee. Thomas was entitled to $950, which was the difference between the $4200 Janice owed him, and the $3250 he owed Janice. The court also ordered that both parties pay their own costs and attorney fees.

On May 3, 1993, Thomas filed a motion to reconsider, which the court denied. Judgment was entered against Thomas, and he appeals.

ISSUE I

Did the District Court err when it denied Thomas’s motion to dismiss Janice’s pleading to enforce the maintenance provision, based on the doctrine of laches?

Section 1-3-218, MCA, provides that “[t]he law protects the vigilant before those who sleep on their rights.” Laches is a concept of equity that can apply when a person is negligent in asserting a right, and can apply where there has been an unexplained delay of such duration or character as to render the enforcement of the asserted rights inequitable. Fillner v. Richland (1991), 247 Mont. 285, 290, 806 P.2d 537, 540. Each case must be determined on its own unique facts. Fillner, 806 P.2d at 540.

This case involves a written dissolution agreement. Section 40-4-201(5), MCA, provides that marital or property settlement agreements are enforceable as contracts. See also, In Re Marriage of McKeon (1992), 252 Mont. 15, 18-19, 826 P.2d 537, 540. The statute of limitations to enforce a written contract is eight years. Section 27-2-202(1), MCA. When a claim is filed within the time limit set by the analogous statute, the defendant bears the burden to show that extraordinary circumstances exist which require the application of laches. McGregor v. Mommer (1986), 220 Mont. 98, 107, 714 P.2d 536, 542.

Here, Janice filed her claim to enforce the maintenance payments 15 months after Thomas stopped making the payments. Her filing was within the eight year statutory time limit. Therefore, Thomas bears the burden to show that extraordinary circumstances exist which require the application of laches.

Thomas argues that the maintenance payments to Janice automatically terminated upon Janice’s remarriage. Janice knew his position and she sat on her rights for 15 months and did not pursue court action to enforce the payments until January 15, 1993. He asserts that the District Court erred when it found that Janice had a reasonable explanation for the delay, and further, it was inequitable for the court to uphold her claim.

Thomas failed to provide facts to prove that Janice’s delay was unexplained. The District Court examined the circumstances surrounding the delay and in its findings stated the following:

13. When Tom ceased making the maintenance payments, Jan wrote Tom regarding this fact. She did not, however, commence court action. She testified that she did not start court action because it could be expensive; that their daughter Camille was having problems and that she thought the friction between the two parents was damaging their daughter; and that she did not want to damage their daughter further.

The District Court’s findings are supported by the record. The record shows that when Thomas stopped making payments, the couple was still involved in hostile conversations concerning custody and visitation. Additionally, the couple’s daughter was troubled about the friction between them and was seeing a counselor. The couple attended counseling sessions attempting to recover from the misunderstandings created from the dissolution process. Janice attempted to reconcile the disagreements, hoping to avoid litigation which would increase the friction between them. She discussed the delinquent payments personally with Thomas, and through additional conversations and written correspondence between the parties’ counsel. Because Thomas failed to allege facts that prove the delay was unexplained, the District Court properly found that Janice presented a reasonable explanation for the delay, especially in view of the daughter’s adjustment to a difficult and hostile dissolution that ended a 25-year marriage.

Thomas argues that the delay of 15 months was of such duration or character as to render the enforcement of Janice’s claimed rights inequitable. In support of his claim, Thomas contends that the delay “muddied the waters.” However, he offers no evidence as to what issues or circumstances were “muddied,” or what harm or inequity he suffered from the delay and the subsequent enforcement of Janice’s claim. Janice contends that the agreement explicitly authorizes delay, and provides that the failure to insist upon the performance of the agreement provisions does not constitute a waiver or relinquishment of that provision. Paragraph 24 of the agreement in pertinent part states:

Any waiver by either party of any provision of this agreement or any right of operation under it is not controlling, nor may it prevent or estop a party from later enforcing the provision, right, or option, and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party may not be construed as a waiver or relinquishment for the future of that term or provision, but rather the term or provision shall continue in full force and effect. Under the facts of this case, the District Court properly denied

Thomas’s motion to dismiss Janice’s pleading to enforce the maintenance provision based on the doctrine of laches. We affirm the District Court on this issue.

ISSUE 2

Did the District Court err when it found that the maintenance payments were part of the property settlement that did not terminate upon Janice’s remarriage pursuant to § 40-4-208(4), MCA?

Thomas argues that the District Court erred when it found that § 40-4-208(4), MCA, does not apply because the agreement provided that the payments owed to Janice were not considered maintenance, but were part of the property settlement. Section 40-4-208(4), MCA, provides that:

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

As proof that the couple agreed that his maintenance obligation would stop upon Janice’s remarriage, Thomas refers to correspondence exchanged between counsel before the final agreement was reduced to writing. Further, he argues that § 40-4-208(4), MCA, requires specific language in the agreement that maintenance will not terminate upon Janice’s remarriage, and that the final agreement did not contain this specific language. Therefore, the statute automatically terminated the maintenance payments upon her remarriage.

Contract law requires that whenever the terms of an agreement have been reduced to a writing, and if the written agreement is unambiguous, the content of the written agreement is evidence of the terms. Section 28-2-905(1), MCA. The District Court, in its findings, considered the following correspondence proposed by Janice’s counsel before the final agreement:

Jan will agree to accept $650.00 a month maintenance for a period of 15 months. Additionally, she will agree that the maintenance will terminate upon her death or remarriage. Based on my advice, however, she will not agree that the maintenance be modifiable. The period of time over which Tom will be paying maintenance is only slightly more than a year. It is part of the property settlement that the parties are negotiating. In view of the fact that Jan is willing to reduce her request for maintenance from five years to 15 months, it seems a fair compromise on Tom’s part to agree that it not be modifiable for those 15 months, especially in view of the fact that he is receiving a significant tax benefit as a result of characterizing this portion of the monthly support payments as maintenance.

The District Court, also considered in its findings, the following response from Thomas’s counsel:

On August 16,1990, counsel for Tom responded to Jan’s proposal. With respect to the provision on maintenance he stated: “Tom agrees with this provision as stated in your August 15th letter.”

The District Court rejected Thomas’s argument that the letters prove that the payments are maintenance which were terminated by § 40-4-208(4), MCA. The court looked to the final agreement for the contract terms. The court, in its findings, quoted the following paragraphs of the agreement:

18. MAINTENANCE AND DISTRIBUTION OF ASSETS: (a) THOMAS shall pay to JANICE for 15 months commencing on the 1st day of [the] month following the execution of this Agreement, the sum of $650.00 monthly for her own support, care, and maintenance.
(b) The sums agreed to in paragraph 18(a) are in the nature of a property settlement and are not modifiable by any subsequent court order following the dissolution of marriage, except on express written acknowledged consent of the parties. The parties further agree, however, that the payments under subparagraph 18(a) are to be considered maintenance for tax purposes.

Also, paragraph 24 of the agreement in pertinent part states:

Except as to provisions involving child custody, support, and visitation, this Agreement may not be modified by any subsequent court order following the dissolution of marriage, except on express written acknowledge^] consent of the parties.

The District Court found that § 40-4-208(4), MCA, applies to maintenance payments and does not apply in this case because the agreement, in paragraph 18(b), specifically states that the maintenance payments “are in the nature of a property settlement” that cannot be modified without the couple’s consent. Further, although the parties agreed that the payments would be considered maintenance for tax purposes, that compromise does not negate the clear language in 18(b) that the payments are part of the property settlement.

The District Court found that the language concerning termination of maintenance was not included in the final agreement, and that the final agreement controls.

We affirm the District Court’s finding that the payments were a part of the property settlement to Janice that did not terminate upon her remarriage.

ISSUE 3

Did the District Court err by failing to award Thomas his reasonable costs and attorney fees incurred in enforcing the court’s prior order?

Thomas asserts that the District Court erred in failing to award him his costs and attorney fees because he was the successful party by obtaining an opinion requiring Janice to pay the realtor fee, and that Janice was the unsuccessful party because the District Court refused her calculation of the number of payments due her. Therefore, because the agreement provides that the court shall award attorney fees to the successful party, he should have received the award. Paragraph 28 of the agreement states:

28. FUTURE ATTORNEY’S FEES: Should any action be commenced to enforce, modify, or interpret any provision of this agreement, the court, as a cost of suit, shall award a reasonable attorney’s fee to the successful party.

Janice contends that she never disputed the realtor fee. She argues that Thomas was in prior breach of the agreement when he refused to pay the maintenance payments, and that she was entitled to suspend her performance by not paying the realtor fee; therefore, he was not entitled to enforce the contract against her. She cites Liddle v. Petty (1991), 249 Mont. 442, 446, 816 P.2d 1066, 1068, which holds that a contract party is entitled to suspend performance when the other party materially breaches the contract. Janice contends that she was the successful party because the court required Thomas to pay the remaining maintenance payments as part of the property settlement, although the court disagreed with her calculations of the number of payments due.

The District Court denied Thomas’s motion to dismiss Janice’s motion for contempt, and further, found that neither Janice nor Thomas should be held in contempt. The court directed Janice to pay Thomas the realtor fee, and directed Thomas to pay Janice the unpaid property settlement payments that he owed her. Finding that under these circumstances neither party was totally successful, the District Court ordered that each party should pay its own attorney fees and costs. We affirm the District Court on this issue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


author: JUSTICE GRAY JUSTICE HUNT

text:
    COMMON CAUSE OF MONTANA, a state organization of COMMON CAUSE, a not-for-profit corporation; and HELENA INDEPENDENT RECORD, Plaintiffs and Appellants, v. STATUTORY COMMITTEE TO NOMINATE CANDIDATES FOR COMMISSIONER OF POLITICAL PRACTICES; and MARC RACICOT, as Governor of the State of Montana, Defendants and Respondents.
    No. 93-096.
    Submitted December 7, 1993.
    Rehearing Denied March 3, 1994.
    Decided February 10, 1994.
    51 St.Rep. 77.
    263 Mont. 324.
    868 P.2d 604.

      JUSTICE HUNT filed a dissenting opinion in which JUSTICE TRIEWEILER concurred.
    For Plaintiffs and Appellants: James P. Reynolds, Reynolds, Motl, Sherwood & Wright, Helena.
    For Defendants and Respondents: Joseph P. Mazurek, Attorney General, Beth Baker, Ass’t Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

This case involves the effect of Montana’s constitutional “right to know” and open meeting statutes on the selection and appointment of the Commissioner of Political Practices (Commissioner). Common Cause of Montana (Common Cause), a nonprofit organization that seeks to promote open, accessible and democratic government, challenged the appointment of Edward Argenbright (Argenbright) as Commissioner in the First Judicial District Court, Lewis and Clark County. Common Cause argued that the statutory committee whose function is to provide the governor with a list of names of possible candidates for the position had violated constitutional and statutory provisions guaranteeing the public a right to observe the deliberations of public bodies. Although we determine that the committee violated Montana’s open meeting statutes, we conclude, under these unique circumstances, that the violation does not require Argenbright’s removal from the office of Commissioner.

The facts surrounding this appeal are undisputed. Section 13-37-102, MCA, establishes a four-member committee to submit a list of names of possible candidates for the office of Commissioner to the governor for consideration. In 1992, the committee was comprised of Speaker of the House Hal Harper, President of the Senate Joseph Mazurek, Senate Minority Floor Leader Bruce Crippen, and House Minority Floor Leader John Mercer (the Committee). Due to an impending vacancy in the office in 1993, the Committee held several phone conversations in November of 1992 to discuss the qualifications of the individuals who had applied for the position. During a meeting held November 20, 1992, Mazurek, Crippen and Mercer discussed the individuals they would recommend for the position. Harper did not attend. The meeting was not announced to the public and was not attended by members of the public.

Following the meeting, three members of the Committee submitted a list of five names to Governor Stan Stephens. The list included Argenbright, two individuals recommended by Common Cause, and two others. Representative Harper submitted a separate list naming the two individuals recommended by Common Cause. Governor Stephens interviewed the five applicants and announced the appointment of Argenbright to the position on December 1,1992.

On December 18, 1992, Common Cause, the Helena Independent Record, and the Great Falls Tribune filed suit against the Committee and Governor Stephens (collectively, the Committee). They sought to void the Committee’s submission of the list and, on that basis, the governor’s appointment of Argenbright. They asserted that the Committee’s November 20 meeting violated Montana’s open meeting statutes and Article II, Section 9, and Article V, Section 10(3), of the Montana Constitution. They also requested a temporary restraining order prohibiting Governor Stephens from submitting the appointment to the Senate for confirmation. The District Court declined to issue the temporary restraining order on December 22, 1992.

Argenbright took the oath of office and began performing his duties as Commissioner on January 1,1993. Both parties moved for summary judgment. Following a February 9, 1993, hearing, the District Court granted summary judgment in favor of the Committee. The court determined that the governor’s appointment was not subject to the open meeting laws and, therefore, could not be voided pursuant to § 2-3-213, MCA. The court also determined that the governor’s appointment was not dependent on the actions of the Committee and, thus, could not be voided due to any flaw in the Committee’s procedures.

Common Cause and the Helena Independent Record (collectively, Common Cause) filed a notice of appeal. On March 25, 1993, the Montana Senate began confirmation proceedings which concluded on April 13,1993, confirming Argenbright’s appointment as Commissioner.

Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the trial court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is appropriate when the pleadings, depositions, and other documents on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The parties have submitted stipulated facts and agree that only issues of law are before us. Therefore, our standard of review is whether the District Court’s interpretation of the law is correct. Mooney v. Brennan (1993), 257 Mont. 197, 199, 848 P.2d 1020, 1022.

As a threshold issue, the Committee contends that Common Cause’s claim of an alleged constitutional and statutory violation is moot because a change in circumstances prevailing at the beginning of the litigation now precludes meaningful relief. The changed circumstance, according to the Committee, is that Argenbright’s appointment has been confirmed by the Senate, vesting Argenbright with title to the office. We disagree that the claim is moot.

When faced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised on appeal. Romero v. J & J Tire (1989), 238 Mont. 146, 148, 777 P.2d 292, 294; Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in Butte-Silver Bow:

[t]he exception to mootness for those actions that are capable of repetition, yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will be repeated.

Butte-Silver Bow, 743 P.2d at 567.

Here, the alleged violation of the open meeting statutes and the public’s right to know is capable of recurring, in the context of both future selection and appointment procedures for the position of Commissioner and actions taken by other purely advisory entities. Further, to allow an alleged violation of the public’s right to know escape judicial scrutiny, simply because legal proceedings are not always swift, would soon vitiate that important right guaranteed to the people of Montana by their constitution. Thus, we conclude that the issues raised by this appeal are not moot.

The remaining legal issues are whether the Committee’s November 20, 1992, meeting violated the public’s right to know and, if so, whether such a violation requires this Court to void the entire appointment process, resulting in Argenbright’s removal from office. Regarding the first issue, Common Cause argues that the Committee’s November 20 meeting violated Montana’s open meeting statutes and Article II, Section 9 of the Montana Constitution. The District Court did not analyze this issue and, on appeal, the Committee does not address its merits.

The “right to know” is found at Article II, Section 9, of the Montana Constitution and provides:

Right to know. No person shall be deprived of the right to examine documents or 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.

This constitutional mandate is protected and implemented primarily through Montana’s open meeting statutes, codified at §§ 2-3-201, et seq., MCA. SJL of Montana v. City of Billings (Mont. 1993), 867 P.2d 1084, 1086, 50 St.Rep. 1726, 1727; Jarussi v. Board of Trustees (1983), 204 Mont. 131, 138, 664 P.2d 316, 319; Board of Trustees v. Board of County Comm’rs (1980), 186 Mont. 148, 152, 606 P.2d 1069, 1071. Thus, the initial question before us is whether the open meeting statutes require the meeting at issue to be open to the public. SJL, 867 P.2d at 1086, 50 St.Rep. at 1727. If so, we need not proceed to constitutional analysis; it is elementary that courts should avoid constitutional questions if an issue can be resolved otherwise. Wolfe v. Montana Dep’t of Labor and Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340.

The legislature’s expressed intent that the open meeting laws be liberally construed, contained in § 2-3-201, MCA, guides our interpretation of these statutes. Section 2-3-203(1), MCA, provides, in pertinent part:

All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds must be open to the public.

None of the listed entities are further defined in the open meeting statutes. It is clear, however, that the committee statutorily established by § 13-37-102, MCA, is not a board, bureau, or commission of the state, under any common understanding of those terms.

Additionally, while the word agency is not defined in the open meeting statutes themselves, we determined in SJL that the definition of “agency’ contained in § 2-3-102, MCA, applies to the term “agencies” used in § 2-3-203, MCA. SJL, 50 St.Rep. at 1728. Section 2-3-102, MCA, defines agency as any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts. It is evident that the statutory committee is not authorized to make rules, determine contested cases or enter into contracts. Accordingly, the Committee is not an “agency” under § 2-3-203, MCA. Therefore, unless the Committee properly can be characterized as a “public or governmental body” under § 2-3-203, MCA, its November 20, 1992, meeting does not fall within the purview of the open meeting statutes.

As stated above, the legislature did not define “public body” or “governmental body” in the open meeting statutes. When interpreting statutes, it is fundamental that words and phrases are to be given their plain, ordinary and usual meaning. Watson & Assoc. v. Green (1992), 253 Mont. 291, 293, 833 P.2d 199, 200; Jarussi, 664 P.2d at 319. Webster’s Third International Dictionary defines “body” as a group of individuals organized for some purpose. “Public” is defined in Black’s Law Dictionary, 4th Ed. 1968, as pertaining to a state, nation or community, while “governmental” is defined similarly as pertaining to government. Thus, the common understanding of the phrase “public or governmental body” would include a group of individuals organized for a governmental or public purpose.

Section 13-37-102, MCA, which establishes the committee, provides, in pertinent part:

[a] four-member selection committee comprised of the speaker of the house, the president of the senate, and the minority floor leaders of both houses shall submit to the governor a list of not less than two or more than five names of individuals for his consideration.

Here, the Committee has a clear public and governmental purpose — to assist in the governor’s selection of a Commissioner by providing a slate of names of possible candidates for consideration. This group of individuals is statutorily organized for that specific governmental task. We conclude, therefore, that under the plain meaning of § 2-3-203, MCA, the Committee is subject to the requirements of the open meeting statutes because it is a public or governmental body.

We find support for this conclusion in case law of sister states. Laws requiring that meetings of governmental or public bodies be open to the public have been enacted in some form in every state. Delaware Solid Waste Authority v. News-Journal (Del.Supr. 1984), 480 A.2d 628, 631; Annot. 33 A.L.R.3d 1070 (1971 & Supp.1993). A common thread throughout the statutory definitions in most states is that the entity have a governmental or state function and that the entity is supported in whole or in part by public funds. See News and Observer Pub. Co. v. Poole (N.C. 1992), 412 S.E.2d 7, 15; American Soc. for the Prevention of Cruelty to Animals v. Board of Trustees (N.Y. 1992), 591 N.E.2d 1169, 1170; Carroll County Educ. Ass’n v. Board of Educ. (Md. 1982), 448 A.2d 345, 347.

Moreover, in a factually similar case, the Michigan Supreme Court determined that a selection committee and its advisory subcommittees organized to select a university president were “public bodies” under Michigan’s Open Meetings Act. Booth Newspapers v. University of Michigan (Mich. 1993), 507 N.W.2d 422, 429. The Michigan definition of “public body” focused on the entity’s ability to exercise governmental or proprietary authority. The Michigan Supreme Court held that the selection of a public university president constituted the exercise of governmental authority regardless of whether the authority was exercised by the nominating committee, the board or even the advisory subcommittees. Booth, 507 N.W.2d at 429. The same reasoning applies to the selection of the Commissioner in Montana. The “public or governmental” nature of the Committee’s purpose is obvious. Further, the Committee is created and organized by state statute to perform its governmental function.

Having determined that the Committee is subject to the requirements of the open meeting statutes, we focus on whether its November 20,1992, meeting violated those statutes. Section 2-3-202, MCA, defines a “meeting” as a convening of a quorum of the constituent membership of an entity described in § 2-3-203, MCA, to hear, discuss or act upon a matter over which that entity has supervision, control, jurisdiction or advisory power. On November 20,1992, three of the four members met to discuss the candidates and the transmission of the list of names to the governor. Thus, by definition, a “meeting” was held. See Board of Trustees, 606 P.2d at 1073.

Additionally, Montana law requires that public notice be given of meetings subject to the requirements of the open meeting statutes. Board of Trustees, 606 P.2d at 1073. Without public notice, an “open” meeting is open in theory only, not in practice. Board of Trustees, 606 P.2d at 1073. In this case, the parties stipulated that no public notice was given of the Committee’s November 20, 1992, meeting. We conclude, therefore, that the Committee violated § 2-3-203, MCA, of the open meeting statutes.

Having concluded that the open meeting statutes apply and were violated by the Committee, we turn to the effect of that violation on Argenbright’s appointment. Common Cause contends that the Committee’s decision to submit the names to the governor should be voided pursuant to § 2-3-213, MCA, which allows a court to void a decision made in violation of § 2-3-203, MCA. Based on the nexus between the Committee’s recommendations and the governor’s appointment of Argenbright, Common Cause argues that Argenbright’s appointment is tainted by the Committee’s statutory violation. Thus, Common Cause contends that the entire appointment process should be voided and Argenbright removed from office, relying on Board of Trustees.

The Committee argues, on the other hand, that voiding the Committee’s decision and submission of its list to the governor would not affect the governor’s appointment of Argenbright. It argues that the governor’s appointment is statutorily independent of the Committee’s recommendations, as indicated by the language of § 13-37-102(1), MCA. Because no legal nexus exists between the Committee’s recommendations and the governor’s appointment, the Committee asserts that any flaw in its recommendation does not require Argenbright’s appointment to be voided.

Section 2-3-213, MCA, provides that any decision made in violation of § 2-3-203, MCA, may be declared void by a district court. We have concluded that the Committee’s November 20,1992, meeting violated § 2-3-203, MCA. However, in this unique situation, we conclude that the District Court did not abuse its discretion in refusing to void the entire appointment and confirmation process based on the Committee’s violation of the open meeting laws.

In Board of Trustees, the county commissioners held an unannounced meeting at which a controversial subdivision was approved. We determined that the failure to give notice of the meeting had the effect of invalidating the decision made there; we concluded that the district court clearly abused its discretion under § 2-3-213, MCA, in deciding to “look past form to the substance” and in refusing to void the commissioners’ approval of the subdivision. Board of Trustees, 606 P.2d at 1074.

Unlike the commissioners’ approval of the subdivision in Board of Trustees, the Committee’s submission of a slate of names to the governor is not directly linked to the eventual action taken — Argenbright’s appointment by the governor and senate confirmation. The commissioners’ decision in Board of Trustees was the only official act required for approval of the subdivision. Here, while required by statute, the Committee’s decision is not in any way, or to any extent, binding on the governor’s ultimate choice of a candidate to fill the office of Commissioner.

Section 13-37-102, MCA, states:

There is a commissioner of political practices who is appointed by the governor, subject to confirmation by a majority of the senate. A four member selection committee ... shall submit to the governor a list of not less than two or more than five names of individuals for his consideration. ...

The language “for his consideration” illustrates the advisory role of the Committee. Under § 13-37-102, MCA, the governor is free is disregard entirely the list of names submitted by the Committee. In direct contrast, §§ 3-1-1011 and 2-15-1813(2), MCA, (relating to appointment of Montana’s judges and the coordinator of Indian affairs, respectively) both require the governor to choose an appointee from the list of names submitted by an advisory committee. If the legislature had desired a similar result in § 13-37-102, MCA, similar mandatory language would have been added.

Therefore, although the Committee violated the open meeting statutes by holding its November 20, 1992, meeting without public notice, the only “decision” that could be voided under § 2-3-213, MCA, is the Committee’s choice of the names to submit to the governor. No statutory violations occurred in the governor’s appointment of Argenbright or the Senate’s confirmation of that appointment. As explained, § 13-37-102(1), MCA, establishes that the two critical steps in the selection of the Commissioner are “the appointment and confirmation” of the Commissioner. Those steps, properly performed, are sufficient to vest Argenbright with title to the office of Commissioner.

In effect, Common Cause is challenging Argenbright’s right to hold the position of Commissioner. Three statutory provisions provide the exclusive means by which Argenbright can be removed from his office. First, under the quo warranto provisions found at §§ 27-28-101, et seq., MCA, either the attorney general or an individual claiming to be entitled to the public office can commence a quo warranto proceeding against a person unlawfully holding public office. Sections 27-28-103 and -301, MCA. Second, § 13-37-102(2), MCA, provides for removal of the Commissioner prior to the expiration of the term of office for incompetence, malfeasance, or neglect of duty. Finally, the Commissioner could be removed from office by impeachment or if prosecuted for official misconduct. Section 37-13-105, MCA. None of those procedures is involved in this case.

The District Court did not find a statutory or constitutional violation in the Committee’s November 20, 1992, meeting, and we have determined that the meeting did in fact violate § 2-3-203, MCA. Thus, the District Court erred in this regard. However, because the Committee’s submission of the names is statutorily independent of the governor’s choice and not in any way binding on that choice, we also conclude that the Committee’s statutory violation does not require that the entire appointment process be voided. Thus, in this case, the District Court’s ultimate refusal to void Argenbright’s appointment pursuant to § 2-3-213, MCA, was not an abuse of discretion.

Notwithstanding the unique circumstances of this case, open meetings violations remain of utmost concern to this Court. Nothing in this opinion should be interpreted to suggest that violations of open meeting laws by any entity subject to those laws will not result in voiding decisions so reached. We will not hesitate to affirm a district court’s determination to void such decisions or reverse a court’s refusal to do so.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE HUNT

dissenting.

I dissent. Like the majority, I determine that the committee violated Montana’s open meeting statutes, but reach a different conclusion about what the result should be. I do not find, as the majority did, that the unique circumstances of the violation do not taint the entire process from start to finish. I conclude that it does and the only cure is to commence the proceedings again.

This dissent is not intended as a reflection upon the qualifications of the incumbent, nor his performance in the job from the time he accepted the appointment. On the contrary, there is nothing in the record to indicate anything but competence on his part.

This dissent is aimed at the idea that a process can be tainted from the start, but somehow or other cured en route because the committee which held the meeting without giving notice recommended a person acceptable to the Governor who, if he had found the nominee unacceptable, could have selected another person, even if that second person was not recommended by the nominating committee. While there may be better ways to process a nomination, this is the one provided by statute, and is the one that put the present office holder in the office. It was tainted from the start because of a violation of the open meeting law.

I think the warning at the end of the majority’s opinion that this Court will not “hesitate to affirm a district court’s determination to void such decisions or reverse a court’s refusal to do so” rings hollow in view of this Court’s conclusion in this case.

I would hold that the process should be started over and conducted in accordance with Montana’s Constitution and statutes.

JUSTICE TRIEWElLER joins in the foregoing dissent.