IN RE THE PARENTING PLAN FOR: N.C. D., a minor child, TIMOTHY KANE DAVIS, Petitioner and Appellee, and DEBORAH SUSAN SMITH, Respondent and Appellant.
Appellant Deborah Susan Smith (Debbie) moves this Court
"to file all briefs in a manner that protects
confidential information and preserves a right to
privacy." She submits copies of redacted and unredacted
declarations in support of her motion. Through counsel,
Appellee Timothy Kane Davis (Tim) responds in opposition.
Subsequently, Debbie has filed an "Emergency Motion to
Strike Appellee's Response, and for Sanctions, including
a Finding of Contempt of Court and Disqualification of
Counsel." Tim responds that the motion should be denied
because it is not an emergency, and only delays these
appeals a September 13, 2016 Lewis and Clark County District
Court Findings of Fact, Conclusions of Law, and Parenting
Plan Order. Last year, this Court addressed Debbie's
motions concerning sealing records. In a November 9, 2016
Order, this Court denied Debbie's three motions regarding
filing specific documents under seal with this Court and a
stay of certain portions of the parenting plan order on
appeal and a Supplemental Order, issued October 5, 2016. We
stated that "Debbie seeks to seal her filings and any
responses thereto in this Court, contending that the District
Court sealed the entire record below and closed the two-day
hearing in this matter to the public." In Re
Parenting of N.C. D., No. DA 16-0592, Or. (Mont. Nov. 9,
2016). We pointed out then that M. R. App. P. 10(7)(a)
defined confidential personal information and that
"Debbie provides no law to support an order denying
public access to any other information here." In Re
Parenting of N.C. D., No. DA 16-0592, Or. (Mont. Nov. 9,
returns citing several Montana cases in which we acknowledged
the balancing of a right to know with a right to privacy. She
moves for sealing "portions of the record that contain
information pertinent to issues on appeal in which [her] and
N.C. D.'s right to privacy clearly exceeds the merits of
public disclosure." She expresses her concern over
publicly-filed briefs and the details of her family's
life. She argues that there is no compelling state interest
in the "public display" of her life, and that upon
disclosure to her child, future embarrassment or harassment
could occur. She cites to Mont. Const. Art. II, § 9,
§ 10, and § 15 to promote her argument for briefing
to be filed: "under seal; or with non-innocuous
confidential information publicly redacted; or using the
initials of the parties; or a combination of these methods ..
.." She refers to a 2009 Order from this Court where we
sua sponte directed briefing to proceed under
initials to protect the minors and adults. In re
Parenting of J.D.B. And J.R.B., No. DA 08-0505, Or.
(Mont. Jan. 9, 2009).
responds that as litigants in this appeal, there is not a
constitutionally protected privacy interest which ensures
confidentiality of filed briefs and responses. Tim
distinguishes one of Debbie's cited cases because it
dealt with a release of criminal investigative material held
by the Sheriffs Office. Lincoln Co. Comm 'n v.
Nixon, 1998 MT 298, 292 Mont. 43, 968 P.2d 1141. Tim
concludes that Debbie's motion is another attempt to seal
these documents in this appeal, and that the motion should be
threshold matter, this Court previously denied such a motion
from Debbie, as stated above. We could deem Debbie's
instant motion as a petition for rehearing. Her motion,
however, has not been framed as a rehearing, and is untimely.
M. R. App. P. 20(2).
not a motion to reconsider because this Court does not
recognize such motion. Nelson v. Driscoll, 285 Mont.
355, 359, 948 P.2d 256, 259-60 (1997). Regardless of its
presentation, we will address it.
the 2009 Order to which Debbie refers is inapplicable here.
This Court's January 8, 2009 Order directed parties to
use initials instead of full names in an appeal of a
parenting decision because the Rules for Privacy and Public
Access to Court Records in Montana were in effect. This Court
has since suspended these privacy rules. In re the Matter
of Rules for Public Access to Court Records, No. AF
06-0377, Or. (Mont. Sept. 14, 2011).
M. R. App. P. 10(7)(a) provides that "[confidential
personal information includes complete social security
numbers, complete financial account and taxpayer
identification numbers, full birth dates of any person, and
information that is not to be accessible to the public
pursuant to state or federal law." Montana's family
law allows for a district court to seal specific documents.
See, e.g., § 40-4-202(6), MCA, a court must
seal a Qualified Domestic Restraining Order; §
40-4-216(5), MCA, a court may seal an interview with or an
evaluation of a child if determined to be in the child's
best interests; and § 40-4-234(7), MCA, a court may
order the parenting plan sealed. Here, the court issued a
one-page order to seal the entire record based upon the
parties' stipulated motion. Debbie presents no state law
to support her expectation that the facts in the sealed
District Court record would remain confidential upon
appellate review in this Court. Under our rules, even if we
were to order that a filing be made under seal without
redaction, we may later unseal this filing for the public
record. M. R. App. P. 10(7)(d).
Debbie's renewed request turns Montana's law about
the right to know and the right to privacy on its head. This
Court has explained the interplay between the right to know
under Mont. Const. Art. II, § 9 and the right to privacy
in Art. II, § 10. T.L.S. v. Mont. Advocacy
Program, 2006 MT 262, ¶¶ 23-26, 334 Mont. 146,
144 P.3d 818; see Krakauer v. State, 2016 MT 230,
¶¶ 39-40, 384 Mont. 527, 381 P.3d 524. It is a
balancing test in which '"the only limit on the
public's right to receive information is the
constitutional right to privacy.'" T.L.S.,
¶ 28 (internal citation omitted). "In evaluating
whether a protected privacy interest exists under Article II,
Section 10, courts generally must determine whether an
individual has a subjective or actual expectation of privacy,
and whether society is willing to recognize that expectation
of privacy as reasonable." T.L.S., ¶ 26,
referring to Yellowstone Co. v. Billings Gazette,
2006 MT 218, ¶ 20, 333 Mont. 390, 143 P.3d 135.
does not have an all-encompassing right to privacy when she
seeks appellate review of the District Court's
Orders based upon the District Court's
sealing of the entire record. The purpose of Mont. Const.
Art. II, § 9, is for transparency and accountability in
government. Krakauer, ¶ 15, n.2. She has a
subjective expectation of privacy. Her expectation of
privacy, however, is not reasonable in light of this
Court's appellate rules and cited case law. We decline to
extend this expectation in toto to the briefs in
"emergency" motion, Debbie requests that Tim's
previous response be stricken from the record, the imposition
of sanctions, and that Tim's counsel be disqualified.
Debbie points out that this response violates M. R. App. P.
11(2) by not using a proportionately-spaced font of 14 points
or more, and violates M. R. App. P. 16(3) because it fails to
state the number of words. Debbie requests its summary
rejection because Tim's counsel failed to abide with
responds that he is looking forward to the briefing stage of
this appeal. He requests that this Court deny Debbie's
motion because it is not an emergency, and seeks to
perpetuate "derogatory comments about the
unprofessionalism of [Tim's] undersigned counsel."
Tim points out that he has a right to respond to Debbie's
motions; that he does not set out any personal confidential
information; and that Debbie has provided no basis for the
striking of his response.
not persuaded by Debbie's motions. Debbie has not met her
burden to support her request for filing briefs under seal or
in a redacted form. Debbie is directed to file her documents
in conformance with M. R. App. P. 10(7)(a). Upon review of
the motions and responses, we decline to impose sanctions or
to disqualify counsel. Therefore, IT IS ORDERED that:
1. Debbie's Motion to File All Briefs In A Manner That
Protects Confidential Information and Preserves A Right To