DA 19-0479 03/31/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 77N
Case Number: DA 19-0479
MISSOULA COUNTY,
Plaintiff and Appellee,
v.
MISSOULIAN, John Does 1-10, Jane Does 1-10,
Defendant and Appellant,
and
DOUGLASS HARTSELL, JR.,
Intervenor and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-18-344
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Martha Sheehy, Sheehy Law Firm, Billings, Montana
For Appellee:
Anna Conley, Matt Jennings, Missoula County Attorney’s Office, Missoula, Montana
For Intervenor Douglas Hartsell, Jr.:
Gregory A. McDonnell, Thomas C. Orr Law Offices, P.C., Missoula, Montana
Submitted on Briefs: March 11, 2020
Decided: March 31, 2020
Filed:
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__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 The Missoulian appeals the Fourth Judicial District Court’s order dismissing as
moot the underlying declaratory judgment action involving the Missoulian’s public records
request to Missoula County. We reverse and remand to the District Court for further
proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 This appeal arises from the Missoulian’s January and February 2018 public records
requests for documents regarding former Missoula County Deputy Sheriff Doug Hartsell.
The Missoulian first requested documents and video footage related to Hartsell’s
November 19, 2017 arrest of Brandon Shea and then sought disciplinary records for
Hartsell unrelated to the Shea arrest.1 Hartsell’s use of force during the Shea arrest
triggered an internal investigation by the Missoula County Sheriff’s Department. The
Department did not discipline Hartsell but found evidence that he had violated Missoula
County Sheriff’s Office policies and employee expectations. It referred the matter to the
Montana Department of Justice, Division of Criminal Investigation (DCI), for an
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The Missoulian also requested documents related to other Missoula County employees, but has
since either received them from the County or no longer seeks them.
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independent review of the incident to determine whether a criminal investigation was
warranted.
¶4 On March 21, 2018, the County filed a petition for declaratory relief seeking
“guidance from the Court on the release of documents that implicate both the public’s
right-to-know and individual rights of privacy” and asking the District Court to conduct an
in camera review of the requested documents. The Missoulian filed its answer on April 2.
On April 9, Hartsell filed a motion to intervene, asserting privacy rights in the requested
records; the court granted his motion two days later. On May 3, the Missoulian provided
the County with an affidavit of Brandon Shea in which Shea waived his right to privacy in
this matter. The following week, the County filed a motion for summary judgment stating
it had no objection to the release of the documents requested by the Missoulian. The
County did request that certain information be redacted, to which the Missoulian did not
object. Hartsell filed a response, opposing disclosure on the grounds that the DCI’s
investigation of his use of force during the Shea arrest was ongoing and that his privacy
interests outweighed the public’s right to know.
¶5 The District Court held a hearing on September 25, 2018. With respect to the
documents related to the Shea arrest, the court concluded that it would not order release of
any information at that time because of the pending DCI investigation. With respect to
documents unrelated to the Shea arrest, the court stated that it would issue a ruling soon
and directed the County not to disclose anything prior to that ruling.
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¶6 On November 28, 2018, Hartsell was charged criminally in Missoula County
Justice Court. He subsequently entered into a deferred prosecution agreement; on motion
of the State, the court dismissed the case on January 24, 2019.
¶7 The District Court did not issue its promised ruling. Rather, on July 19, 2019, nearly
six months after the State concluded its criminal proceedings against Hartsell, the
District Court entered an order stating, “At this point the issues in this matter are
Moot [sic],” and sua sponte ordered the case closed. This appeal followed.
STANDARDS OF REVIEW
¶8 “Mootness, as an issue of justiciability, presents a question of law.
We review questions of law de novo.” Montanans Against Assisted Suicide (MAAS) v.
Bd. of Med. Examiners, 2015 MT 112, ¶ 7, 379 Mont. 11, 347 P.3d 1244
(citing Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455). Likewise, when
a court’s ruling on a motion to dismiss is based on a conclusion of law, we review the ruling
for correctness. In re Estate of Glennie, 2011 MT 291, ¶ 11, 362 Mont. 508, 265 P.3d 654.
DISCUSSION
¶9 Did the District Court err in sua sponte issuing an order declaring that the matter
was moot and dismissing the case by closing the file?
¶10 The Missoulian, the County, and Hartsell all agree that the District Court erred in
dismissing the declaratory action as moot. “A matter is moot when, due to an event or
happening, the issue has ceased to exist and no longer presents an actual controversy.”
Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d
1150 (citation omitted). Stated differently, “[a] question is moot when a court cannot grant
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effective relief[]” or restore the parties to their original position, Shamrock Motors, Inc.,
¶ 19, or when a party asks the court to determine a question that is purely hypothetical or
academic. Dennis v. Brown, 2005 MT 85, ¶ 9, 326 Mont. 422, 110 P.3d 17. See also
MAAS, ¶ 11 (internal quotation and citation omitted) (“The fundamental question to be
answered in any review of possible mootness is ‘whether it is possible to grant some form
of effective relief to the appellant.’”).
¶11 We agree with the parties that the underlying action and the attendant issue of
disclosure of the requested records are not moot. Whether the Missoulian may obtain the
documents and video footage of the Shea arrest and Hartsell’s disciplinary files is a live
controversy—not a hypothetical question—and the declaratory action is the appropriate
means of obtaining relief. See Missoula Cty. Pub. Sch. v. Bitterroot Star, 2015 MT 95,
¶ 10, 378 Mont. 451, 345 P.3d 1035. See also § 44-5-303(5), MCA. The District Court
remarked at the hearing that “if charges are filed,” it was inclined to wait “until there’s
resolution, either by a conviction or dismissal or acquittal, and then I can take a look at
disseminating this stuff.” When the criminal matter concluded, the court still had before it
the Missoulian’s request for disclosure, Hartsell’s objection, and the County’s request for
the District Court to tell it what it permissibly could release. Dismissal of the criminal case
did not obviate the issue.
¶12 We thus conclude that the District Court erred when it declared moot the issues in
the declaratory action and dismissed the case.
¶13 The Missoulian and the County both request that we order release of the requested
documents or, in the alternative, remand to the District Court with instructions to order
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release. Hartsell argues that this determination must be made by the District Court and
urges us to remand. We agree and decline to entertain the merits of the Missoulian’s
request in the first instance. The District Court must conduct our well-established
balancing test and determine, from the record before it: (1) whether Hartsell has a
subjective or actual expectation of privacy; and (2) whether society is willing to recognize
that expectation as reasonable. Bozeman Daily Chronicle v. City of Bozeman Police Dep’t.,
260 Mont. 218, 225, 859 P.2d 435, 439 (1993).
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. The District Court’s
application of the law was incorrect. Accordingly, we reverse the order of the
District Court dismissing as moot the County’s declaratory action and remand with
instructions for that court to conduct an in camera review of the documents at issue and
determine whether the demands of Hartsell’s individual privacy exceed the merits of public
disclosure.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ DIRK M. SANDEFUR
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