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Nelson v. City of Billings

Supreme Court of Montana

February 28, 2018

KEVIN NELSON, Petitioner and Appellant,
v.
CITY OF BILLINGS, MONTANA, and MONTANA MUNICIPAL INTERLOCAL AUTHORITY of Helena, Montana, Respondents and Appellees.

          Submitted on Briefs: October 18, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 14-1028 Honorable Michael G. Moses, Presiding Judge

          For Appellant: Kevin Nelson, Self-Represented, Billings, Montana.

          For Appellees: Harlan B. Krogh, Crist, Krogh & Nord, PLLC, Billings, Montana.

          OPINION

          BETH BAKER JUSTICE.

         ¶1 Kevin Nelson filed a Petition for Release of Documents with the Thirteenth Judicial District Court requesting "everything related to" a civil judgment the Montana Municipal Interlocal Authority[1] (MMIA) paid on behalf of the City of Billings (City). The City and MMIA released to Nelson all non-privileged documents and provided privilege logs describing those documents withheld on the ground of attorney-client or attorney-work-product privilege. The District Court granted summary judgment to the City and MMIA on the ground that Nelson had received all of the documents that he was entitled to examine. Nelson appeals, arguing that Montana's constitutional right to know forecloses the City's and MMIA's privilege claims. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Steven Feuerstein, a former Billings City police officer, secured a $1.6 million judgment in a 2006 civil rights lawsuit against the City. MMIA, an interlocal government agency that provides insurance coverage to the City, paid the full judgment to Feuerstein. MMIA determined, however, that the City's policy did not cover certain portions of the judgment and sought reimbursement from the City for $900, 000. The City's and MMIA's reinsurer, Specialty National, declared bankruptcy and did not participate in paying the judgment.

         ¶3 Sometime in 2009, the City and MMIA attempted to discuss the matter in a closed session. The Billings Gazette filed suit to enjoin the closed session, and a district court issued a preliminary injunction, prohibiting any non-public discussions about the matter. That case was dismissed as moot when the City and MMIA agreed not to engage in further discussions.

         ¶4 MMIA later filed suit in district court against the City and Specialty National for reimbursement. Nelson alleges that during the course of that litigation, the City held closed meetings-in violation of the Montana Constitution and Open Meeting laws-to discuss litigation strategy, including a work session on June 24, 2013, which Nelson had asked to attend. The City and MMIA eventually reached a settlement agreement in which the City agreed to pay MMIA $500, 000 to dispose of MMIA's lawsuit.

         ¶5 Nelson first requested documents from MMIA relating to the Feuerstein matter in August 2013. Nelson wrote a letter asking for "all documents in the matter of City of Billings/Feuerstien [sic]." He wrote that he would "pay any reasonable copying and postage fees of not more than $50.00" for the documents. MMIA responded to Nelson's letter and informed him that MMIA's files contained privileged documents that would need to be reviewed by general counsel and redacted before the documents could be given to Nelson. MMIA explained that, given Nelson's broad request, the costs of reviewing the documents and copying them would far exceed fifty dollars. MMIA sent another letter to Nelson a few weeks later that included copies of agendas and minutes for all MMIA meetings in which the Feuerstein case was discussed. In response, Nelson requested "all communication" "in the matter of MMIA/City of Billings/Feuerstein, " including all correspondence between the parties and their attorneys. Nelson again stated that he would pay copying and postage fees up to fifty dollars. MMIA responded with a letter again explaining that the documents Nelson requested may be protected from disclosure by privilege and that in order to fulfill Nelson's request general counsel would need to review thousands of documents at a cost far exceeding fifty dollars "in staff time and legal bills." MMIA requested that Nelson agree to pay these costs before MMIA proceeded. MMIA never received a response from Nelson.

         ¶6 Nelson also requested documents from the City in August 2013. His initial request to the City was for meeting minutes and agendas from three dates, including the June 24, 2013 meeting from which he was excluded. The City provided him with minutes and agendas from two of the meetings he requested, along with minutes and agendas from two other meetings that took place around the same time. The City informed him that there were no minutes from the June 24, 2013 meeting because at that time Montana law did not require minutes to be kept for closed litigation strategy sessions. In a follow-up letter, Nelson requested "access to and copy of in the matter of MMIA/City of Billings/Feuerstein, all communication." As in his correspondence to MMIA, Nelson wrote that he would pay copying and postage fees up to fifty dollars. The City responded that some of the requested documents may be protected by privilege and that given the broad request, the cost of searching for, reviewing, and copying the documents would exceed fifty dollars. The City requested Nelson to advise it on how he wished to proceed. The City never received a response from Nelson.

         ¶7 On July 23, 2014, Nelson filed with the District Court a Petition for Release of Documents against MMIA and the City, asking for the release of "everything" "related to the matter of Steve Feuerstein/The City of Billings/Montana Municipal Insurance Authority." His petition also alleged that the closure of meetings during the litigation was a violation of the Montana Constitution and open meeting laws. He asked the court to compel the release of all documents, order an investigation to determine whether his constitutional rights were violated, and order other remedies. MMIA and the City provided Nelson with over seven thousand pages of documents and a privilege log detailing the documents withheld. MMIA and the City then moved for summary judgment on the basis that all non-privileged documents had been released. Nelson did not file a response or opposition to that motion, but rather filed a one-page "Motion to Deny Summary Judgment" with no supporting brief. Following a hearing, the District Court granted summary judgment in favor of MMIA and the City and dismissed the petition.

         STANDARD OF REVIEW

         ¶8 This Court exercises plenary review over matters of constitutional interpretation. Cross v. VanDyke, 2014 MT 193, ¶ 5, 375 Mont. 535, 332 P.3d 215; Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 16, 312 Mont. 257, 60 P.3d 381.

         DISCUSSION

         ¶9 Nelson argues on appeal that Montana Constitution Article II, Section 9, protects his right to know and allows him to examine any documents of public bodies or agencies of state government with only one exception: when individual privacy clearly exceeds the merits of public disclosure. He argues that because neither the City nor MMIA can claim any right to individual privacy, they cannot refuse to produce any documents to him based on the attorney-client or attorney-work-product privileges.

         ¶10 MMIA and the City argue that privileged documents are not subject to disclosure under the Montana Constitution because they are not "documents . . . of . . . public bodies." Therefore, they reason, Article II, Section 9, does not require the City and MMIA to make documents protected by the attorney-client or attorney-work-product privileges available for Nelson's examination. Alternatively, the City and MMIA argue that the District Court's order can be affirmed summarily because Nelson failed to respond in a procedurally proper manner to their motion for summary judgment.

         ¶11 We first reject the City's and MMIA's argument that the District Court's grant of summary judgment can be affirmed in a summary manner due to Nelson's procedural deficiencies. Although Nelson failed to brief the issues before the District Court on summary judgment, this failure to respond did "not relieve the District Court of the duty to engage in a Rule 56 analysis when presented with a motion for summary judgment." Chapman v. Maxwell, 2014 MT 35, ¶ 11, 374 Mont. 12, 322 P.3d 1029. The District Court properly held a hearing and issued a judgment considering the claims under the standards set out in M. R. Civ. P. 56. Applying de novo review, we consider Nelson's claims under the same standards.

         ¶12 Montana Constitution Article II, Section 9, provides: "No person shall be deprived of the right to examine documents . . . 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." We have held that the language of Article II, Section 9, is unique, clear, unambiguous, and speaks for itself without requirement for "extrinsic aids or rules of construction." Great Falls Tribune Co. v. Great Falls Pub. Sch., 255 Mont. 125, 129, 841 P.2d 502, 504 (1992) (Tribune II); Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 391-92, 804 P.2d 376, 379 (1991); Great Falls Tribune v. Dist. Court of the Eighth Judicial Dist, 186 Mont. 433, 437-38, 608 P.2d 116, 119 (1980) (Tribune I). Pursuant to the plain meaning of the language of Article II, Section 9, we have construed the term "documents . . . of . . . public bodies or agencies" to mean documents "generated or maintained" by the bodies or agencies in relation to their "function and duties." Becky v. Butte-Silver Bow Sch. Dist. No. 1, 274 Mont. 131, 138, 906 P.2d 193, 197 (1995).

         ¶13 As a right expressly enumerated in the Montana Constitution, the right to know is a fundamental right subject to the highest degree of protection. Walker v. State, 2003 MT 134, ¶ 74, 316 Mont. 103, 68 P.3d 872; Butte Cmty. Union v. Lewis, 219 Mont. 426, 430, 712 P.2d 1309, 1311 (1986). Like other constitutional rights, however, the right to know is not absolute. See Great Falls Tribune v. Mont. Pub. Serv. Comm'n, 2003 MT 359, ¶ 39, 319 Mont. 38, 82 P.3d 876 (Tribune III); Worden v. Mont. Bd. of Pardons & Parole, 1998 MT 168, ¶¶ 33-37, 289 Mont. 459, 962 P.2d 1157; State ex rel. Smith v. Dist. Court of the Eighth Judicial Dist., 201 Mont. 376, 383, 654 P.2d 982, 986 (1982); Tribune I, 186 Mont. at 438-39, 608 P.2d at 119.

         ¶14 In construing constitutional provisions, we apply the same rules used in construing statutes. Grossman v. Mont. Dep't of Natural Res., 209 Mont. 427, 451, 682 P.2d 1319, 1331 (1984). The intent of the Framers controls the Court's interpretation of a constitutional provision. Cross, ¶ 10; Butte-Silver Bow Local Gov't v. State, 235 Mont. 398, 403, 768 P.2d 327, 330 (1989); Keller v. Smith, 170 Mont. 399, 405, 553 P.2d 1002, 1006 (1976). Borrowing from the rules of statutory construction, we often declare that we must discern the Framers' intent from the plain meaning of the language used and may resort to extrinsic aids only if the express language is vague or ambiguous. See, e.g., Cross, ¶¶ 10, 21-28; State ex rel. Racicot v. Dist. Court of the First Judicial Dist., 243 Mont. 379, 386-88, 794 P.2d 1180, 1184-86 (1990); Butte-Silver Bow Local Gov't, 235 Mont. at 403-05, 768 P.2d at 330-31; Keller, 170 Mont. at 404-09, 553 P.2d at 1006-08. Even in the context of clear and unambiguous language, however, we have long held that we must determine constitutional intent not only from the plain meaning of the language used, but also in light of the historical and surrounding circumstances under which the Framers drafted the Constitution, the nature of the subject matter they faced, and the objective they sought to achieve. Rankin v. Love, 125 Mont. 184, 187-88, 232 P.2d 998, 1000 (1951); State ex rel. Hamshaw v. Justice Court of Union Twp., 108 Mont. 12, 15, 88 P.2d 1, 2 (1939); State ex rel. Hillis v. Sullivan, 48 Mont. 320, 325-26, 137 P. 392, 393-94 (1913); accord, e.g., Judicial Standards Comm'n v. Not Afraid, 2010 MT 285, ¶¶ 17, 25, 358 Mont. 532, 245 P.3d 1116; State v. Schneider, 2008 MT 408, ¶¶ 15, 18, 347 Mont. 215, 197 P.3d 1020; Tribune III, ¶¶ 33-37; Kottel v. State, 2002 MT 278, ¶¶ 9, 35-39, 312 Mont. 387, 60 P.3d 403; Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 1999 MT 248, ¶¶ 65-77, 296 Mont. 207, 988 P.2d 1236; Becky, 274 Mont. at 137, 906 P.2d at 196-97; Grossman, 209 Mont. at 433-34, 451-52, 682 P.2d at 1322-23, 1332; Sch. Dist. No. 12 v. Hughes, 170 Mont. 267, 272-74, 552 P.2d 328, 331 (1976); Great N. Utils. Co. v. Pub. Serv. Comm'n, 88 Mont. 180, 219-21, 293 P. 294, 304 (1930); State ex rel. Rankin v. Harrington, 68 Mont. 1, 21, 217 P. 681, 685 (1923); Davis v. Stewart, 54 Mont. 429, 434-37, 171 P. 281, 283-84 (1918); State ex rel. Fenner v. Keating, 53 Mont. 371, 378-80, 163 P. 1156, 1157-58 (1917); State v. Keeler, 52 Mont. 205, 216-18, 156 P. 1080, 1083 (1916); N. Pac. Ry. v. Mjelde, 48 Mont. 287, 296-97, 137 P. 386, 388 (1913); State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 191-93, 127 P. 94, 96 (1912); State ex rel. Jackson v. Kennie, 24 Mont. 45, 56-57, 60 P. 589, 593 (1900).

         ¶15 "In determining the meaning of the constitution, the Court must keep in mind that it is not the beginning of law for the state, but a constitution assumes the existence of a well understood system of law which is still to remain in force and to be administered, but under constitutional limitation." Grossman, 209 Mont. at 451-52, 682 P.2d at 1332. The constitution refers to many terms and concepts that it does not define. Hillis, 48 Mont. at 326, 137 P. at 394. The Court examines these concepts in the context of "'the previous history' of this community [and] 'the well-understood system' then in use." Hillis, 48 Mont. at 326, 137 P. at 394. We have not considered previously whether any privileges protected by statute or common law at the time of adoption survived enactment of the 1972 Constitution. Nelson's appeal presents that question.

         ¶16 As with statutory interpretation, constitutional construction should not "lead to absurd results, if reasonable construction will avoid it." Grossman, 209 Mont. at 451, 682 P.2d at 1332. The principle of reasonable construction "allows courts to fulfill their adjudicatory mandate and preserve the [Framers'] objective." 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction, § 45:12, 115 (7th ed. 2014) (hereafter Singer). Thus, a fundamental rule of constitutional construction is that we must determine the meaning and intent of constitutional provisions from the plain meaning of the language used without resort to extrinsic aids except when the language is vague or ambiguous or extrinsic aids clearly manifest an intent not apparent from the express language. See 2A Singer, supra, § 46:7, 267-73 (when interpreting statutes, courts may look beyond the literal text if it is inconsistent with legislative meaning or intent); see also Associated Press, Inc. v. Mont. Dep't of Revenue, 2000 MT 160, ¶¶ 105-08, 300 Mont. 233, 4 P.3d 5 (Nelson, J., specially concurring).

         ¶17 The Framers drafted Article II, Section 9, in broad and general terms. In its report to the whole convention, the Bill of Rights Committee explained that the purpose of the provision was to "presume the openness of government documents and operations" to combat "government's sheer bigness[, which] threatens the effective exercise of citizenship." Montana Constitutional Convention, Committee Proposals, February 22, 1972, p. 631. The Bill of Rights Committee of the 1972 Constitutional Convention clearly modeled the language of Article II, Section 9, on Montana's 1963 open meeting law, which applied to "[a]ll meetings of public or governmental bodies, boards, bureaus, commissions [and] agencies of the state or any political subdivision." See § 82-3402, RCM (1947) (emphasis added); 1963 Mont. Laws ch. 159, § 2; Montana Constitutional Convention, Committee Proposals, February 22, 1972, pp. 631-32; Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1669-70. The Committee intended that Article II, Section 9, would expand the availability of government documents beyond the more narrow 1895 statutory definitions of public and private writings then codified at Title 93, chapter 1001, §§ 2-3, RCM (1947). See Montana Constitutional Convention, Committee Proposals, February 22, 1972, pp. 631-32; Montana Constitutional Convention, Verbatim Transcripts, March 7, 1972, p. 1670. We thus have construed Article II, Section 9, as creating "a constitutional presumption that every document within the possession of public officials is subject to inspection." Bryan, ¶ 39.

         ¶18 The Bill of Rights Committee cautioned, however, that the right to know is not absolute. Montana Constitutional Convention, Committee Proposals, February 22, 1972, p. 632 ("The committee intends by this provision that the right to know not be absolute."). Recognizing that they were defining a constitutional right and not drafting a statute, the Chair of the Bill of Rights Committee, Wade Joseph Dahood, explained to the other delegates that Article II, Section 9, is

stated in a broad principle form. It's the type of constitutional right that must necessarily be expressed in general terms; the specific guidelines that perhaps some of the critics would like cannot be stated within that particular section if it's to fall within the framework of a true constitutional principle. It's a principle that must endure for the decades and the ages. . . . [T]he court shall interpret within this particular doctrine.

         ¶19 Montana Constitutional Convention, Verbatim Transcript, March 16, 1972, p. 2489. Though largely focused on balancing with the individual right to privacy protected by Article II, Section 10-see Montana Constitutional Convention, Committee Proposals, February 22, 1972, p. 632; Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1670; Montana Constitutional Convention, Verbatim Transcript, March 16, 1972, p. 2484-the Framers understood that the right to know would be subject to interpretation and considered together with other constitutional rights and existing laws. See Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1679 (noting that "all rights have to be balanced against a police power" in accord with "that doctrine" of the U.S. Supreme Court in response to Delegate McDonough's question as to whether Article II, Section 9, would afford criminal defendants a broader right to examine confidential criminal justice information). The Framers recognized that, like other fundamental rights protected in the federal and state constitutions, the parameters of the right to know would be interpreted over time in the context of particular factual situations.

         ¶20 Importantly, during debate on Article II, Section 9, the delegates acknowledged instances, unrelated to individual privacy concerns, in which the right to know would not apply: when "necessary for the integrity of government." Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1678. For example, the delegates acknowledged the then-existing open meeting laws and existing exceptions to open meetings. Multiple delegates expressed the intention that Article II, Section 9, did not abrogate those laws; no delegate spoke to the opposite conclusion. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1677-78. Further, the delegates discussed multiple other instances in which they did not intend for Article II, Section 9, to change current law and practice. Montana Constitutional Convention, Verbatim Transcript, March 16, 1972, pp. 2494-2500. Of singular import here, convention deliberations clearly indicate that the Framers did not intend for Article II, Section 9, to abolish, supersede, or alter preexisting legal privileges applicable to government proceedings and documents.

         ¶21 For example, opposing a motion to revise the language of Article II, Section 9, to allow the Legislature to define privacy exceptions to the public's right to know as advocated by press interests, the Chairman of the Bill of Rights Committee stated:

How about the confidential relationships that are set by statute that are zealously guarded? Should they not be protected? Should not communication with respect to a private matter that deals with some governmental concern between attorney and client not be protected? Perhaps there's some disclosure between priest and penitent, doctor and patient, the sacred relationships that are ...

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