Arnone v. City of Bozeman , 384 Mont. 250 ( 2016 )

08/02/2016
DA 15-0618
Case Number: DA 15-0618
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 184
PETER ARNONE, DAVE BALDWIN,
ROSS HARTMAN, DAWNETTE OSEN,
and SHARON SWANSON,
Petitioners and Appellants,
v.
CITY OF BOZEMAN, Bozeman City
Commission and Jeff Kraus, Carson Taylor
Chris Mehl, Cynthia Andrus and I-HO Pomeroy
individually and as agents of the City of Bozeman,
and DOES 1-10, inclusive,
Respondents and Appellees.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 14-656C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael J. San Souci, San Souci Law Office, Bozeman, Montana
For Appellee:
Michael J. Lilly, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana
Submitted on Briefs: May 11, 2016
Decided: August 2, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Bozeman residents Peter Arnone, Dave Baldwin, Ross Hartman, Dawnette Osen,
and Sharon Swanson (collectively, “Petitioners”), appeal three orders issued by the
Eighteenth Judicial District Court, Gallatin County: (1) denying the Petitioners’ motion
for summary judgment and dismissing their complaint; (2) denying the Petitioners’
motion for reconsideration; and (3) granting a motion filed by City Commissioners Jeff
Krauss, Carson Taylor, Chris Mehl, Cynthia Andrus, and I-Ho Pomeroy (collectively,
“Commissioners”) to dismiss the Petitioners’ complaint against them in their individual
capacities. We address the following issues:
1. Whether the District Court erred in denying the Petitioners’ motion for
summary judgment and dismissing their complaint.
2. Whether the District Court abused its discretion in denying the Petitioners’
motion for reconsideration.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 In June 2014, the Bozeman City Commission (Commission) adopted
Nondiscrimination Ordinance 1890 (Ordinance), which “prohibit[s] discrimination on the
basis of actual or perceived sexual orientation or gender identity or expression” by
landlords, providers of public accommodations, and parties engaged in residential real
estate transactions. The Ordinance was codified as “Bozeman Ordinance Section
24.10.010 et seq.” and became effective in July 2014. The Ordinance creates a private
cause of action for an aggrieved party claiming a violation of one of its provisions and
authorizes the Bozeman Municipal Court to fashion civil remedies, including injunctive
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relief. The Ordinance defines an “aggrieved party” as “a person who can demonstrate a
specific personal and legal interest, as distinguished from a general interest, and who has
been or is likely to be specifically and injuriously affected by a violation of this article.”
The Ordinance contains an exception for landlords who rent “individual rooms in a
private residence designed as a single dwelling unit in which the owner also resides.”
¶3 In August 2014, the Petitioners filed suit against the City of Bozeman (City), the
Commission, and the Commissioners (collectively, “Respondents”), seeking a legal
declaration that the Ordinance is invalid because it is preempted by State law and beyond
the scope of the Respondents’ power or authority. In January 2015, the Petitioners filed a
motion for summary judgment, again contending that the Ordinance is invalid as a matter
of law. The Respondents opposed the motion, alleging that the Petitioners’ complaint
failed to present a justiciable case or controversy. The District Court held oral argument
and, on September 15, 2015, issued an order denying the Petitioners’ motion for
summary judgment and dismissing their complaint on the ground that the Petitioners did
not present a justiciable case or controversy. The District Court determined that the
Petitioners were requesting an advisory opinion, lacked standing, and had not alleged a
claim that was ripe for review. The Petitioners then filed a motion for reconsideration
and to amend their pleadings, alleging that Osen’s individual circumstances had
materially changed since filing suit because although Osen—who was the only landlord
among the Petitioners—was only renting out a room in her home at the time the
Petitioners filed their complaint, she was now renting out her entire home. Therefore, the
Petitioners argued that Osen was now subject to the Ordinance and had standing. The
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District Court denied the motion for reconsideration and to amend. The Petitioners
appealed.
STANDARDS OF REVIEW
¶4 We review summary judgment orders de novo. Bailey v. State Farm Mut. Auto.
Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary judgment is
appropriate when the moving party demonstrates an absence of a genuine issue of
material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A
district court’s ruling on whether a justiciable controversy exists is a conclusion of law
that we review for correctness. Northfield Ins. Co. v. Mont. Ass’n of Cntys. (Northfield),
2000 MT 256, ¶ 8, 301 Mont. 472, 10 P.3d 813. We review for abuse of discretion a
district court’s denial of a motion to alter or amend a judgment, Locke v. Estate of Davis,
2015 MT 141, ¶ 14, 379 Mont. 256, 350 P.3d 33, or a pleading, Farmers Coop. Ass’n v.
Amsden, LLC, 2007 MT 286, ¶ 12, 339 Mont. 445, 171 P.3d 690.
DISCUSSION
¶5 1. Whether the District Court erred in denying the Petitioners’ motion for
summary judgment and dismissing their complaint.
¶6 The District Court dismissed the Petitioners’ complaint on multiple grounds.
Although the Petitioners’ appeal focuses almost entirely on the District Court’s
determination that they lacked standing, the District Court also held that they were
requesting an advisory opinion, and that the issue was not ripe for review. We find the
District Court’s advisory opinion analysis to be dispositive of both issues before us.
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¶7 “The judicial power of Montana’s courts is limited to justiciable controversies,”
Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 19, 366 Mont. 450, 288 P.3d 193.
We consistently have held that we will not render advisory opinions. Plan Helena, Inc. v.
Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 9, 355 Mont. 142, 226 P.3d 567. To fall
within a court’s adjudicatory power, a controversy must be “real and substantial . . . ,
admitting of specific relief through decree of conclusive character, as distinguished from
an opinion advising what the law would be upon a hypothetical state of facts, or upon an
abstract proposition.” Plan Helena, ¶ 9 (quoting Chovanak v. Matthews, 120 Mont. 520,
526, 188 P.2d 582, 585 (1948)).
¶8 The District Court concluded that the Petitioners sought an advisory opinion
because “[t]he hypothetic facts are posited by [the Petitioners] as if they were currently
subject to a complaint alleging a violation of the [Ordinance] filed in Municipal Court. In
fact, none of the [Petitioners] are susceptible to such an action.” The Petitioners have not
substantively addressed the District Court’s determination that they seek an advisory
opinion, though that analysis is dispositive in this case.
¶9 Violation of the Ordinance requires third-party action. Specifically, the Petitioners
must receive an application from an “aggrieved party”—i.e., someone the Ordinance was
designed to protect—then reject that application for reasons the Ordinance was designed
to address, and then be sued by the aggrieved party, in order for the Ordinance to be
enforced. None of the Petitioners have alleged that he or she has experienced or engaged
in any of these actions. Nor is it even possible for any of the Petitioners to engage in
actions that would precipitate a conflict under the Ordinance of their own volition,
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because of the need for an independent aggrieved party to initiate both the interaction that
would provide the basis for a legal action under the Ordinance and then to pursue the
legal action itself.
¶10 Although the Uniform Declaratory Judgment Act (UDJA) “is to be liberally
construed and administered,” Lee v. State, 195 Mont. 1, 6, 635 P.2d 1282, 1284 (1981)
(citing § 27-8-102, MCA), it “does not license litigants to fish in judicial ponds for legal
advice,” Mont. Dep’t of Natural Res. & Conservation v. Intake Water Co.,
171 Mont. 416, 440, 558 P.2d 1110, 1123 (1976) (citation omitted). See also Northfield,
¶ 10 (“[L]iberal interpretation of the [UDJA] is tempered by the necessity that a
justiciable controversy exist before courts exercise jurisdiction.”). In Northfield,
secondary insurers sought a declaratory judgment as to their contractual duty to
indemnify a primary insurer, even though the primary insurer had not yet sought
indemnification. Northfield, ¶ 16. We held: “the judicial determination [the secondary
insurers] seek involves a contractual duty which has not yet arisen and which may, in
fact, never arise. A determination of the issue, therefore, would constitute an advisory
opinion and courts have no jurisdiction to issue such opinions.” Northfield, ¶ 18. In
reaching this conclusion, we cited Hardy v. Krutzfeldt, 206 Mont. 521, 672 P.2d 274
(1983). Northfield, ¶ 18. In Hardy, the plaintiffs sought a judicial declaration that
several preemptive rights of first refusal pertaining to their real property were
unreasonable restraints on alienation. Hardy, 206 Mont. at 523, 672 P.2d at 275. We
held that there was no justiciable controversy because there was no pending sale or offer
for sale of the properties that would be affected by the rights of first refusal, and no third
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party was seeking relief from the contractual provisions providing for the refusal rights.
Hardy, 206 Mont. at 524-25, 672 P.2d at 275-76.
¶11 Here, the Petitioners have not alleged facts indicating that they have engaged or
are about to engage in any concrete transaction that would violate the Ordinance, or that a
potential aggrieved party has sued or threatened to sue them under the Ordinance. It is
entirely possible that none of the Petitioners will ever be confronted with a situation in
which they must decide whether to refuse accommodation to a person the Ordinance was
designed to protect.
¶12 In Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), and Mont. Immigrant
Justice Alliance v. Bullock (MIJA), 2016 MT 104, 383 Mont. 318, 371 P.3d 430, we held
that the plaintiffs could challenge a law in court before it was enforced against them. The
critical distinction between those two cases and the present case, however, is that in
Gryczan and MIJA there existed at least a putative dispute between the plaintiffs and the
defendants. In Gryczan, the plaintiffs were three homosexual couples who acknowledged
their past violations of § 45-5-505, MCA, and their intent to violate the statute in the
future. Gryczan, 283 Mont. at 439, 942 P.2d at 115-16. In MIJA, the plaintiffs met the
definition of “illegal alien” set forth in LR 121 “because they entered the United States
unlawfully, and . . . accordingly they will be deprived of state services even though they
now are considered documented, lawful immigrants by the Department of Homeland
Security.” MIJA, ¶ 8. In both cases, the State defendants contested the plaintiffs’
standing on the grounds that the challenged statutes had not been enforced and the State
was not threatening enforcement. We rejected this argument in both cases, noting in
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MIJA that “[t]he State’s assurance that LR 121 will not be enforced against them under
the current administration is insufficient to render MIJA’s claims hypothetical,
speculative, or illusory.” MIJA, ¶ 26 (citation and internal quotation marks omitted).
¶13 In contrast to both Gryczan and MIJA, the Respondents in this case are not
promising to withhold enforcing the Ordinance as a basis to render the Petitioners’ claims
“hypothetical, speculative, or illusory,” see MIJA, ¶ 26, because the Respondents in this
case have no basis to enforce the Ordinance against the Petitioners, in any event. The
plaintiffs in both Gryczan and MIJA either had violated, or possessed the unilateral power
to violate, the laws being challenged. Likewise, in both Gryczan and MIJA, the parties
being sued—the State of Montana and various public officials—had the power to
prosecute those violations. However, the Petitioners in this case do not have the power to
unilaterally violate the Ordinance, and the Respondents do not have the power to
prosecute violations of the Ordinance even if they wanted to. The only enforcement
mechanism under the Ordinance is a private suit, brought by a private individual who
meets the Ordinance’s definition of an “aggrieved party.” Notably, such an “aggrieved
party” is not a Respondent in this case, nor has a potential aggrieved party been
identified, precisely because no such individual exists, and such individual may never
exist. In short, the Petitioners in this case ask us not only to resolve a hypothetical
dispute, they seek resolution of a hypothetical dispute with an entirely hypothetical
opponent.
¶14 As in Northfield and Hardy, the Petitioners are asking this Court to speculate
about a transaction “which has not yet arisen and which may, in fact, never arise.”
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Northfield, ¶ 18; see also Hardy, 206 Mont. at 525, 672 P.2d at 276. We have held that
“[t]he courts have no jurisdiction to determine matters purely speculative, enter
anticipatory judgments, . . . deal with theoretical problems, give advisory opinions, . . .
provide for contingencies which may hereafter arise, or give abstract opinions,” Intake
Water Co., 171 Mont. at 440, 558 P.2d at 1123 (citations omitted), yet that is exactly
what the Petitioners ask us to do. The District Court correctly concluded that the
Petitioners were requesting an advisory opinion and properly dismissed the case on
summary judgment.
¶15 2. Whether the District Court abused its discretion in denying the Petitioners’
motion for reconsideration.
¶16 The Petitioners allege that, because Osen began renting out her entire home during
the course of the proceedings, she was no longer subject to the Ordinance’s exception for
landlords renting a room in their residence, and the District Court should have granted
their motion for reconsideration or allowed them to amend their pleadings. In making
this argument, the Petitioners again focus entirely on the District Court’s determination
that they lacked standing. Irrespective of her changed circumstances, Osen nevertheless
seeks an opinion from this Court advising her as to what would be the legal outcome if
she received an application from someone who meets the Ordinance’s definition of an
“aggrieved party,” and if she rejected that application for reasons the Ordinance was
designed to address, and if the aggrieved party then relied upon the Ordinance to seek
redress in court. This is a situation that may never arise, and presents precisely the
“hypothetical facts and abstract propositions” we previously have refused to address. See
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Northfield, ¶ 14. A determination of the issue would constitute an advisory opinion, and
the District Court did not abuse its discretion in denying the Petitioners’ motion to amend
their pleadings.
CONCLUSION
¶17 We affirm the District Court’s order denying the Petitioners’ motion for summary
judgment and dismissing their complaint, and its order denying the Petitioners’ motion
for reconsideration and to amend. Because our resolution of these two issues is
dispositive of the issue of whether the District Court erred in granting the
Commissioners’ motion to dismiss the complaint against them in their individual
capacities, we decline to address this issue.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE
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