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And 3 v. Unidentified Police Officers 1

Supreme Court of Montana

December 31, 2019

UNIDENTIFIED POLICE OFFICERS 1, 2, AND 3; and THE CITY OF BILLINGS, Counterclaim and Cross-claim Respondents. THE CITY OF BILLINGS, Respondent and Appellant, THE BILLINGS GAZETTE and KTVQ COMMUNICATIONS, LLC, Intervenors and Counter-claim/Cross-Claim Petitioners and Appellees,

          Submitted on Briefs: December 11, 2019

          APPEAL 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 Judge

          For Appellant: Michael J. Lilly, Bridget W. LEFEBER, Berg Lilly, PC, Bozeman, Montana

          For Appellees: Martha Sheehy, Sheehy Law Firm, Billings, Montana



         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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."

         ¶5 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.

         ¶6 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.


         ¶7 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 ...

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