Submitted on Briefs: October 18, 2017
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
Appellant: Kevin Nelson, Self-Represented, Billings, Montana.
Appellees: Harlan B. Krogh, Crist, Krogh & Nord, PLLC,
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 (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
AND FACTUAL BACKGROUND
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.
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
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
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.
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.
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
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.
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
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.
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.
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).
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.
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).
"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.
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).
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.
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.
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.
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.
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 ...