Submitted on Briefs: December 11, 2019
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause Nos. DV 18-0556, DV
18-0557, and DV 18-0558 Honorable Donald L. Harris, Presiding
Appellant: Michael J. Lilly, Bridget W. LEFEBER, Berg Lilly,
PC, Bozeman, Montana
Appellees: Martha Sheehy, Sheehy Law Firm, Billings, Montana
The City of Billings appeals the Thirteenth Judicial District
Court's award of attorney's fees to the Billings
Gazette and KTVQ Communications, LLC ("media
companies"), after they secured for public release the
names of three Billings police officers who were disciplined
for having sexual relations with a city clerk. Applying our
deferential standard of review to decisions on recovery of
fees under § 2-3-221, MCA, we affirm.
AND PROCEDURAL BACKGROUND
In April 2018, a Gazette reporter learned that City of
Billings police officers had been investigated and
disciplined for having sexual relations with a City employee.
The reporter contacted Billings Police Chief Rich St. John,
who confirmed the story and named the female employee
involved. Chief St. John declined at that time to name the
three officers. The Gazette ran a story on April 19, 2018,
reporting that three City police officers had been suspended
without pay for having sex on City property. The article
reported that one of the incidents, involving an on-duty
officer, occurred in a police car in a private lot, and the
other two incidents-involving both an on-duty and an off-duty
officer-occurred in the area of the police department records
storage in the City Hall basement. The Gazette chose not to
identify the female employee.
Gazette Editor Darrell Ehrlick contacted City Attorney Tom
Pardy the same day, requesting documents about the
investigation and demanding the identities of the three
involved officers. After review and discussion with other
City personnel, Pardy agreed to disclose the dates of the
sexual contact and the names of the three disciplined
officers. Pardy agreed further to release additional
information about the discipline after redacting pertinent
documents to protect other privacy interests. Pardy advised
Ehrlick that he would have the information available for
pickup on April 23, 2018, at 3:00 p.m.
On April 20, a Friday, each of the three officers filed a
separate motion for temporary restraining order
("TRO") with the District Court late in the
afternoon, seeking protection of his identity. Each petition,
though, identified the officer by name in the caption. The
officers simultaneously filed motions to seal their
identities from the public pending court proceedings on their
TRO requests. The motions advised that the City Attorney had
been contacted and did not object. The Gazette learned the
following Monday, April 23, that the District Court had
issued the TROs that morning, prohibiting the City from
releasing the officers' identities. The court set a
show-cause hearing for May 3 (later continued to May 14). It
entered a separate order of protection at the same time,
sealing the files "to be opened only upon Court order
after good cause is shown."
The media companies moved to intervene in the officers'
TRO actions and filed a counterclaim and cross-claim against
the City, seeking a declaration that the public's right
to know clearly outweighed the alleged privacy interests the
officers asserted and an order making the requested documents
available for inspection to the media companies. The media
companies also sought immediate release of all redacted
documents the City provided to the court for in camera
review. They requested attorney's fees and costs for
enforcing the public's right to know pursuant to both
§§ 2-3-221 and 27-8-313, MCA.
After several recusals and substitutions of judge, the
District Court held the show-cause hearing on May 14, 2018,
at which time it ordered release of the officers'
identities. Following its subsequent in camera review, the
court ruled on the disclosure of documents the City had
provided. It thereafter granted the media companies'
request for fees and costs, awarding a total of $10, 052.70.
The court declined to award any fees or costs the media
companies incurred to recover their fees and costs.
When reviewing a decision on attorney's fees under §
2-3-221, MCA, "[w]e will not substitute our judgment for
that of a district court unless that court 'clearly
abused its discretion.'" Friedel, LLC v.
Lindeen, 2017 MT 65, ¶ 5, 387 Mont. 102, 392 P.3d
141 (quoting Billings High Sch. Dist. No. 2 v. Billings
Gazette, 2006 MT 329, ¶ 23, 335 Mont. 94, 149 P.3d
565). A district court abuses its discretion if the court
acts arbitrarily, without employment of ...