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In re Parenting Plan for N.C.D.

Supreme Court of Montana

April 11, 2017

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.


         Self-represented Appellant Deborah Susan Smith[1] (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 proceedings.

         Debbie 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, 2016).

         Debbie 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).

         Tim 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 denied.

         As a 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).

         It is 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.

         First, 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).

         Second, 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).

         Lastly, 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.

         Debbie does not have an all-encompassing right to privacy when she seeks appellate review of the District Court's Orders[2] 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 this appeal.

         In her "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 appellate rules.

         Tim 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.

         We are 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 ...

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