By Martin Kidston

Several members of the Missoula City Council expressed disappointment Thursday in a lawsuit filed by a preservation group accusing them of acting in an arbitrary and capricious manner when they voted to approve the partial deconstruction of the downtown Mercantile.

The lawsuit, filed last month by Preserve Historic Missoula, names each member of the council individually and alleges they acted “arbitrarily and capriciously” in reaching their decision after more than a month of committee meetings and public testimony.

The suit offers no evidence supporting its claim.

“We spent dozens of hours in committee meetings and outside committee meetings educating ourselves on the back story and issues,” Ward 3 council member Emily Bentley said. “I'm disappointed they sued. They said they wouldn't and I took them at their word. But I feel very confident in our findings of fact.”

Bentley, who chaired the City Council's Land Use and Planning Committee, which handled the issue, also feels confident in the response filed this week by the City Attorney's Office, which asked Missoula County District Court to dismiss the case on nearly two dozen grounds.

Among other things, the response notes that the council held numerous public meetings and hearings, with 16 hours of testimony and debate. It also says the Montana Supreme Court has indicated that when individual members of the council act as a governing City Council body, they are immune from individual civil lawsuits.

Bentley said she has never been sued before, until now.

“It's the first time professionally and personally,” she said. “We hoped that through our deliberation, fairness and transparent process, they wouldn't do this. I'm disappointed, but I'm very confident that our findings of fact are accurate, thoughtful, and show that we listened to everybody.”

Ward 4 council member John DiBari agreed with the city's legal response to the suit. He also feels confident the City Council did its due diligence before rendering a decision.

“I feel confident in what the City Council did and how methodical and thoughtful it was, working through what the Historic Preservation Commission did and the facts associated with the case,” DiBari said. “I feel confident we did our job and that, if it does go forward, the substance of what we did would be upheld.”

Due to the brevity of the suit filed by the preservation group and the lack of facts supporting its claim, DiBari suggested the case may be thrown out on procedural grounds. A scheduling hearing is set for next week.

“There was a rich body of evidence to sort through and we did that,” DiBari said. “I do feel like we were thoughtful, asked good questions and were methodical, and what we did was a product of the evidence before us.”

Michael Doggett, the attorney representing Preserve Historic Missoula, hasn't responded to requests for comment regarding the lawsuit, nor has Preserve Historic Missoula.


Contact reporter Martin Kidston at