NO. 93-127
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
BOZEMAN DAILY CHRONICLE,
Plaintiff, Respondent, and
Cross-Appellant,
-vs-
CITY OF BOZEMAN POLICE DEPARTMENT,
Defendant, Appellant, and
Cross-Respondent,
and
GALLATIN COUNTY SHERIFF‘S DEPARTMENT,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Plaintiff/Cross-Appellant:
James P. Reynolds and David K. W. Wilson, Jr.,
Reynolds, Motl, Sherwood & Wright, Helena, Montana
For Defendant/Appellant:
Paul J. Luwe, Bozeman City Attorney, Bozeman,
Montana
For Defendant/Respondent:
Mike Salvagni, Gallatin County Attorney, Bozeman,
Montana
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a Memorandum and Order of the
Eighteenth Judicial District Court. Defendant City of Bozeman
Police Department (City) appeals that portion of the judgment which
requires the City to pay the plaintiff's attorney's fees. The
plaintiff Bozeman Daily Chronicle (Chronicle) appeals that portion
of the judgment which denies its request for the release of
investigative documents. We affirm the award of attorney's fees
and remand with instructions to the District Court with respect to
the release of investigative documents.
The issues on appeal are as follows:
1. Must the investigative documents requested by the
Chronicle be released by the City and the Gallatin County Sheriff's
Department (Sheriff)?
2. Is the Chronicle entitled to an award of its attorney's
fees?
On or about March 8, 1992, a cadet at the Montana Law
Enforcement Academy (Academy) in Bozeman, Montana, made an
allegation of sexual intercourse without consent against an off-
duty Bozeman city police officer (police officer). The Sheriff
conducted an investigation and made a request for prosecution to
the Gallatin County Attorney's Office.
The Gallatin, County Attorney recused his office and referred
the case to the Montana Department of Justice, County Prosecutor
Services Bureau. That office referred the case to the Missoula
County Attorney. The police officer was placed on administrative
2
leave with pay pending the outcome of the investigation.
The Missoula County Attorney, Robert Deschamps, III, and two
of his deputies reviewed the file and conducted follow-up
interviews with the alleged victim. On April 20, 1992, Mr.
Deschamps sent a letter to John Connor, Chief of the County
Prosecution Services Bureau. Mr. Deschamps concluded that no
criminal charges should be filed. However, Mr. Deschamps stated
that it was the collective opinion of him and his deputies that
"[the police officer] should not be allowed to continue working as
a law enforcement officer because of inappropriate use of his
position in relation to his contacts with women." On April 21,
1992, the police officer resigned.
Approximately a week after the incident at the Academy which
prompted the investigation, Marlo Milliken, a Chronicle reporter,
was informed by Greg Noose, the administrator of the Academy, that
an "incident" had occurred. Ms. Milliken went to the Sheriff's
Office, where she was given some general information concerning the
incident and was shown the initial offense report.
MS. Milliken and the editor of the Chronicle, Bill Wilke,
attempted to obtain the police officer's name and the investigative
documents regarding the incident from the City and from the
Sheriff. The City and the Sheriff refused to turn over this
information to the Chronicle, claiming that it was confidential
criminal justice information.
On April 30, 1992, the Chronicle filed a Complaint and a
Petition for an Order to Show Cause (Petition) as to why the police
officer's name and the investigative documents should not be
3
released. The Complaint and Petition alleged that the failure to
release that information violated Article II, Section 9 of the
Montana Constitution. The Chronicle also requested its attorney's
fees incurred in enforcing its constitutional rights, pursuant to
5 2-3-221, MCA.
A hearing on the Petition was held on May 22, 1992. At the
close of the hearing, the District Court ruled from the bench that
the name of the police officer should be released, citing this
Court's decision in Great Falls Tribune v. Cascade County (1989),
238 Mont. 103, '775 P.2d 1267. The District Court took under
advisement the matter of the release of the investigative documents
and award of attorney's fees and~ordered the parties to file briefs
by May 29, 1992.
On July 31, 1992, the District Court entered a Memorandum and
Order requiring the City and the Sheriff to provide the Chronicle
with a copy of the initial offense report but denying the
Chronicle's request for investigative documents. The reason given
for this ruling by the District Court was that the demands of
individual privacy of the alleged victim and witnesses exceeded the
merits of public disclosure. This Memorandum and Order did not
address attorney's fees and, on September 3, 1992, the Chronicle
moved the District Court to amend its Order to include an award of
such fees.
All parties briefed the issue of attorney's fees and, on
October 26, 1992, the District Court ordered that the City pay the
Chroniclets reasonable attorney's fees in bringing its action,
pursuant to 5 2-3-221, MCA. Thereafter, the Chronicle and the City
4
stipulated to a reasonable amount of attorney's fees, with the City
reserving the right to object to the award of attorney's fees
itself. On December 8, 1992, a final judgment in this case was
entered. The City appealed the award of attorney's fees and the
Chronicle cross--appealed the denial of the release of the
investigative documents.
Our standard of review relating to discretionary trial court
rulings, such as awarding attorney's fees, is whether the trial
court abused its discretion. Steer, Inc. v. Department of Revenue
(1990) I 245 Mont. 470, 474-75, 803 P.2d 601, 604. Our standard of
review relating to conclusions of law is whether the trial court's
interpretation of the law is correct. Steer, 803 P.2d at 603.
I - RELEASE OF INVESTIGATIVE DOCLJMENTS
In addition to the name of the police officer, the Chronicle
sought release of the investigative documents prepared in
connection with the alleged sexual assault by the police officer
against an Academy cadet. The District Court determined that such
documents were primarily confidential criminal justice information
and refused to release the same to the Chronicle.
Criminal justice information under the Montana Criminal
Justice Information Act of 1979 (the Act), 5s 44-5-101, et seq.,
MCA, is classified as public criminal justice information and
confidential criminal justice information.
Public criminal justice information means information:
made public by law:
i:i of court records and proceedings*
(cl of convictions, deferred sentekes, and deferred
prosecutions;
Cd) of postconviction proceedings and status;
5
(e) originated by a criminal justice agency, including:
(i) initial offense reports;
(ii) initial arrest records;
(iii) bail records: and
(iv) daily jail occupancy rosters;
(f) considered necessary by a criminal justice agency
to secure public assistance in the apprehension of
a suspect; or
(9) statistical information.
Section 44-5-103(12), MCA.
Confidential criminal justice information means:
criminal investigative information:
I;; criminal intelligence information:
(c) fingerprints and photographs:
Cd) criminal justice information or records made
confidential by law; and
(e) any other criminal justice information not clearly
defined as public criminal justice information.
Section 44-5-103(3), MCA.
With some qualifications, public criminal justice information
may be disseminated without restriction. Section 44-5-301, MCA.
The dissemination of confidential criminal justice information, on
the other hand, is restricted
to criminal justice agencies, to those authorized by law
to receive it, and to those authorized to receive it by
a district court upon a written finding that the demands
of individual privacy do not clearly exceed the merits of
public disclosure[.]
Section 44-5-303, MCA.
In this case, because the Chronicle is not a criminal justice
agency, the only way that the Chronicle can obtain access to the
confidential criminal justice information at issue is (1) if it is
authorized by law to receive such information; or (2) upon order by
a district court after the statutory written finding is made.
A. Authorized by Law
Article II, Section 9 of the Montana Constitution, the "Right
6
to Know" provision, provides:
No person shall be deprived of the right to examine
documents or to observe the deliberations 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 previously held that a person is "authorized by law" to
receive confidential criminal justice information on the basis of
that constitutional provision. Allstate Ins. Co. v. City of
Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188.
In Allstate, an insurance company sought police investigation
files relating to the death of its insured. The insured, who was
HIV positive at the time of his death, died of an intravenous drug
overdose. Allstate, 780 P.2d at 187. In his application with the
insurance company, the insured denied ever being treated for AIDS
and denied prior illegal drug use. Allstate, 780 P.2d at 186-87.
The insurance company believed that the investigative files would
assist it in determining whether the insured had misrepresented
facts in his insurance application, which would preclude coverage.
Allstate, 780 P.2d at 187.
The trial court interpreted 5 44-5-303, RCA, to mean that
"authorized by law" required specific authorization by statute. We
concluded that the trial court's interpretation was too narrow and
held that the word lIlaw'W includes constitutional law as well as
statutory law. Allstate, 780 P.2d at 188.
Accordingly, one is "authorized by law" to receive
criminal justice information by the Right to Know
provision of the Constitution. The only limitation on
the right to receive this information is the
constitutional right to privacy.
7
Allstate, 780 P.2d at 188.
In accordance with Allstate, we reaffirm that a person -- in
this case, the Chronicle -- is "authorized by law" to receive
confidential criminal justice information under the Right to Know
provision of the Montana Constitution, qualified only by Article
II, Section 10, of the Constitution, the "Right to Privacy"
provision, which provides:
The right of individual privacy is essential to the well
being of a free society and shall not be infringed
without a showing of a compelling state interest.
While the Ch:ronicle has a right to know under the Constitution
and is, therefore, "authorized by law" to receive the investigatory
documents at issue, our inquiry must not stop there. We must, of
necessity, also consider the constitutional limitation of the right
to privacy on the Chronicle's right to know.
B. Proper Showing to Receive Information
The public's right to know and the individual's right to
privacy inevitably conflict in cases involving a request for
confidential criminal justice information under the Act.
Accordingly, in view of the purpose to protect individual privacy
underpinning the Act, as set forth in § 44-5-102, MCA, "it is
incumbent upon a party to make a proper showing in order to be
eligible to receive such specific confidential information."
Allstate, 780 P.2d at 189.
In this case, the Chronicle maintains that its right to the
confidential criminal justice information at issue exceeds the
privacy rights of the police officer because the police officer was
accused of improper sexual activity with an Academy cadet and by
8
-
reason of the conclusion of Mr. Deschamps that "because of [his]
inappropriate use of his position in relation to contacts with
women," the police officer should not be allowed to continue
working in law enforcement.
The Chronicle contends that it has not asked for the names of
the alleged victim or witnesses and that the privacy rights of
these people can be protected under a protective order.
In order to evaluate whether the Chronicle has met its burden
and has made a proper showing of entitlement to receive the
investigatory documents at issue, we looktotwo previous decisions
of this Court. In Great Falls Tribune, we utilized the now-
familiar two-part test to determine whether an individual has a
protected privacy interest under Article II, Section 10, of the
Montana Constitut.ion. This test requires answering two queries:
first, we determine whether the person involved has a subjective or
actual expectation of privacy: next, we evaluate whether society is
willing to recognize that expectation as reasonable. Great Falls
Tribune, 775 P.2d at 1268.
In Great Falls Tribune, holding that "[wlhatever privacy
interest the officers have in the release of their names as having
been disciplined . . . is not one which society recognizes as a
strong right," we stated that "it is not good public policy to
recognize an expectation of privacy in protecting the identity of
a law enforcement officer whose conduct is sufficiently
reprehensible to merit discipline." Great Falls Tribune, 775 P.2d
at 1269. We observed that:
law enforcement officers occupy positions of great
9
public trust . . _ [and] . . . the public has a right to
know when law enforcement officers act in such a manner
as to be subject to disciplinary action. The public
health, safety, and welfare are closely tied to an honest
police force. The conduct of our law enforcement
officers is a sensitive matter so that if they engage in
conduct resulting in discipline for misconduct in the
line of duty, the public should know. We conclude that
the public's right to know in this situation represents
a compelling state interest.
Great Falls Tribune, 775 P.2d at 1269.
In that case, we only required the release of the identities
of the police officers who were terminated and those who resigned,
declining to rule that the entirety of any personnel files need
also be revealed. Similarly, in the instant case, the District
Court required only the release of the police officer's name (along
with the initial offense report, which was public criminal justice
information).
It is important to point out, however, that in Great Falls
Tribune, the newspaper's petition only sought the release of the
names of the law enforcement officers. Additionally, since our
decision in that case, we have had occasion to consider and rule
upon a request for the release of a report detailing the results of
an investigation of a public official's alleged sexual harassment
of a city employee.
In Citizens to Recall Mayor v. Whitlock (1992), 255 Mont. 517,
a44 P.2d 74, the Hamilton City Judge filed a complaint with the
Human Rights Commission against the City of Hamilton and the mayor,
alleging that the mayor sexually harassed and discriminated against
her. The City hired an investigator to inquire into the
allegations, and the investigator prepared a report with his
10
findings. Whitlock, 844 P.2d at 76. Thereafter, the City entered
into negotiations and, ultimately, into a settlement with the City
Judge. The City, however, refused to release the investigative
report to the public. Whitlock, 844 P.2d at 76. A citizens group
in Hamilton filed a complaint in the district court, requesting the
district court to order the City to release copies of the
investigator's report. After a hearing, the district court held
that an elected official had no reasonable expectation of privacy
when accused of misconduct in office and ordered the release of the
investigator's report. Whitlock, 844 P.2d at 76.
On appeal, we found that the investigator's report did not
discuss protected information such as personnel records or job
performance evaluations. Whitlock, 844 P.2d at 78. Rather, the
report, while not generated by a criminal justice agency (5 44-5-
103(7), MCA), and while not criminal justice information (5 44-5-
103(8), MCA), was the result of an investigation into the mayor's
alleged misconduct related to the performance of his official
duties. Applying the two-part test, we held that the mayor's
expectation of privacy was unreasonable as a matter of law.
Whitlock, 844 P.2d at 77-78. We also stated that the merits of
public disclosure were great because public funds were used to
settle the dispute. Whitlock, 844 P.2d at 78. Therefore, we held
that the public's right to know outweighed the mayor's right to
privacy. Whitloclc, 844 P.2d at 78.
Our decision in Whitlock was based on two reasons that apply
equally to police officers, given our discussion in Great Falls
Tribune regarding the position of great public trust which law
11
-.
enforcement officers occupy. Specifically, the nature of the
office [job] mandates that the office holder [officer] be properly
subject to public scrutiny in the performance of his duties, and
the public has the right to be informed of the actions and conduct
of such office holders [officers]. Whitlock, 844 P.2d at 77. In
Whitlock, we pointed out that allegations of sexual misconduct went
directly to the official's ability to properly carry out his duties
and, therefore, should not be withheld from public scrutiny.
Whitlock, 844 P.2d at 78.
Similarly, in the instant case and notwithstanding that the
police officer was off-duty at the time of the alleged incident,
the nature of the alleged misconduct ran directly counter to the
police officer's sworn duty to uphold the law, to prevent crime,
and to protect the public. We note the allegations of sexual
misconduct by the police officer; the fact that, before he
resigned, the City planned to take further disciplinary action
against the police officer regardless of whether he was criminally
charged; and the conclusion of Mr. Deschamps that the police
officer should not have been allowed to continue working as a law
enforcement officer because of inappropriate use of his position in
relation to his contacts with women. We hold that, notwithstanding
the police officer's resignation, such alleged misconduct went
directly to the police officer's breach of his position of public
trust; that, therefore, this conduct is a proper matter for public
scrutiny; and that, accordingly, the Chronicle has met its initial
burden to make a proper showing to receive the confidential
criminal justice information at issue.
C. Right to Privacy
12
OIK-2 a party authorized by law to receive confidential
criminal justice information has met his initial burden to make a
proper showing .to receive that information, it then becomes
incumbent upon the agency or person in possession of the
information to demonstrate why all or portions thereof should not
be released because the rights of individual privacy outweigh the
merits of public disclosure.
In Allstate, we required the district court to balance the
competing right to know and right to privacy to determine what, if
any, information should be given to the party requesting the
information from the government. Allstate, 780 P.2d at 189.
While, as indicated above, the police officer's right to
privacy in the investigative documents at issue does not clearly
exceed the public's right to know, we must, nevertheless, also
consider the competing privacy rights of other persons involved in
the investigation of the alleged sexual assault. The alleged
victim and possibly witnesses and other persons have constitutional
privacy rights that must be considered in the release of the
investigative documents at issue. As we pointed out in Allstate:
Obviously in certain situations investigatory material
must be shielded from public review. Victims of sex
crimes, for example, may have a legitimate expectation of
privacy. On the other hand, suspects may have such an
expectation in certain circumstances because criminal
investigations occasionally result in the designation of
the innocent as suspects, particularly in the early
stages of investigation.
Allstate, 780 P.2d at 188.
Similarly, in Engrav v. Cragun (1989), 236 Mont. 260, 769 P.2d
1224, we reemphasized that the public's right to know is not
13
absolute and that the privacy rights of individuals, which, in
Montana, are more substantial than such rights guaranteed in the
United States Constitution, must be fully respected. Enarav, 769
P.2d at 1229. In that case, applying the two-part test, we held
that a student's, request for a broad category of confidential
criminal justice information for a research project was beyond the
reach of the public sector and that the public's right to know was
outweighed by the right of privacy protected by the Act and the
Montana Constitution. Enqrav, 769 P.2d at 1227-29.
In the instant case, the District Court ruled that the alleged
victim and witnesses have an expectation of privacy which exceeds
the merits of public disclosure. We agree. In this case,
especially in view of the fact that criminal charges were not
filed, the victim of the alleged sexual assault and the witnesses
involved in the investigation have a subjective or actual
expectation of privacy which society is willing to recognize as
reasonable. Accordingly, the privacy rights of the alleged victim
and of the witnesses outweigh the public's right to know and must
be accorded adequate protection in the release of any of the
investigative documents at issue.
While not directly related to privacy concerns, we also
pointed out in Encrrav that public exposure of law enforcement files
relating to ongoing criminal investigations would have a disastrous
effect upon law enforcement agencies in the performance of their
duty to protect the lives, safety and property of persons within
their jurisdictions and would have the potential effect of allowing
criminals and their allies to track the progress of investigations
14
-.
into their activities. Enurav, 769 P.2d at 1227. Here, a criminal
investigation will not be compromised as the investigation of the
alleged incident is not ongoing. It was determined that no
criminal action would be pursued against the police officer; the
investigation has terminated and he has resigned.
D. InCamera Inspection and Protective Order
Given our holding that the Chronicle is authorized by law and
has made a proper showing to receive the investigative documents at
issue: that the privacy rights of the police officer in such
information do not outweigh the public's right to know; and that
the privacy rights of the alleged victim and witnesses in such
information do outweigh the public's right to know, we must also
address the proper method of giving effect to the public's right to
know about the conduct of the police officer, while, at the same
time, protecting the rights to privacy of the alleged victim and
witnesses involved in the investigation of this case.
In Allstate, we spelled out the proper procedure to effect the
protection of the privacy rights of persons who are legitimately
entitled to such protection under the Constitution and under the
Act while, at the same time, balancing the public's competing right
to know as set forth above. Specifically, we required the district
court to conduct an in camera inspection of the documents at issue
in order to determine what material could properly be released,
taking into account and balancing the competing interests of those
involved, and conditioning the release of information upon limits
contained within a protective order. Allstate, 780 P.2d at 189.
While the Chronicle has not requested the names of the alleged
15
-
victim and witnesses, the above procedure should, nevertheless, be
utilized in this case. Here, there is no indication from the
record that the District Court reviewed the investigative documents
requested by the Chronicle. The District Court simply ruled that
the investigative documents could not be released.
A review of such documents is, however, essential in
determining whether or not the privacy interests of the victim and
witnesses can be protected while disseminating the remainder of the
information. The District Court's failure to review the documents
at issue and its subsequent refusal to release any of them to the
Chronicle, while understandable because of the limited information
requested and released in Great Falls Tribune, was, nevertheless,
error, given our discussion in that case of the unique position of
police officers and our subsequent holding in Whitlock.
Accordingly, we remand this case to the District Court with
instructions to conduct an in camera inspection of the
investigative documents at issue in order to determine what
material can be released to the Chronicle. To the extent that they
have not already had an opportunity to do so, and while keeping in
mind our application of Great Falls Tribune and Whitlock to this
case, the City and the Sheriff should be given the opportunity to
demonstrate why all or portions of the investigative documents
should not be released because the rights of individual privacy
outweigh the merits of public disclosure. The Chronicle should be
given as much information as possible while maintaining the privacy
rights of the alleged victim and witnesses. If, on remand, the
District Court determines that the privacy rights of other persons
16
involved in this case, besides the police officer, also merit
protection under the two-part test, then those persons' privacy
rights should be protected, as well. To the extent the District
Court deems necessary, the release of any information should be
conditioned upon limits contained within a protective order,
II - AWARD OF ATTORNEY'S FEES
The District. Court awarded the Chronicle its attorney's fees
against the City. This award was based upon 5 2-3-221, MCA, which
provides:
A plaintiff who prevails in an action brought in district
court to enforce his rights to know under Article II,
Section 9 of the Montana Constitution may be awarded his
costs and reasonable attorney fees.
This section is discretionary. See Associated Press v. Bd. of Pub.
Educ. (1991), 246 Mont. 386, 804 P.2d 376.
In the instant case, the Chronicle's complaint alleged that
the refusal of the City and Sheriff to release the police officer's
name and the investigative documents violated Article II, Section
9 of the Montana Constitution. The Chronicle prevailed in
obtaining the name of the police officer involved, and therefore an
award of attorney's fees is within the purview of 9 2-3-221, MCA.
The City, nevertheless, argues that it should not have to pay
attorney's fees because it complied with 5 44-5-303, MCA, and the
directive of Allstate. The City states that it is faced with
Hobson's choice: if it releases investigative documents upon
request, it runs the risk of invasion of privacy lawsuits, whereas
if it does not release the demanded documents, it faces paying
attorney's fees if a plaintiff prevails in obtaining such
17
information under the Right to Know provision of the Constitution.
The City bases its argument on the proposition that the
Chronicle is not "authorized by law" to receive confidential
criminal justice information and that it becomes eligible to
receive such information only when so authorized by a district
court upon a written finding that the demands of individual privacy
do not clearly exceed the merits of public disclosure. The City
argues that the latter language was added to 5 44-5-303, RCA, by
the 1991 Legislature in response to our decision in Allstate.
In effect, the City maintains that the amendment to that
statute requires a lawsuit and order from the district court each
time there is a request for confidential criminal justice
information under the Act, and that, in having to comply with the
statutorily mandated procedure, it should not, thereafter, be
required to pay attorney's fees if a requesting party prevails in
obtaining the information demanded.
While we appreciate the damned-if-you-do, damned-if-you-don't
choice which criminal justice agencies face in these types of
cases, nevertheless, the City's argument must fail. We held in
Allstate, and reaffirm in this case, the principle that one is
"authorized by law" to receive criminal justice information by the
Right to Know provision of the Constitution. As we pointed out in
the former case, the Right to Know provision of the Constitution is
"self-executing" -- that is, legislation is not required to give it
effect.
The clear language contained within Article II, Section
9, indicates that there was no intent on the part of the
drafters to require any legislative action in order to
18
effectuate its terms.
The legislature does not have the power to provide
through the passage of statute who can exercise this
right unless it finds that such curtailment is necessary
to protect the right of individual privacy. Accordingly,
any interpretation of § 44-5-303, MCA, which requires
specific legislative authorization to review criminal
justice information would render the statute
unconstitutional.
Allstate, 780 P.2d at 188-89.
We have reviewed the legislative history associated with the
1991 amendment to § 44-5-303, MCA, and are unable to locate any
direct reference to our Allstate decision. We do note that one
proponent of the bill, John MacMaster, stated that "[wlithout this
[the amendment] in there, the District Court cannot allow someone
to look at [the information]."
While the legislature may have determined that it was
necessary or advisable to provide a classification of persons
eligible to receive criminal justice information, i.e., those
authorized by court order and a written finding, the fact remains
that one is still "authorized by law 'I to receive criminal justice
information by the Right to Know provision of the Constitution, and
no further statutory authority is required to give that
constitutional right effect. The Chronicle premised its request on
its right to know under Article II, Section 9, and not on the
provision of § 44-5-303, RCA, requiring a court order and written
finding. Although the legislature amended § 44-5-303, MCA, it
nevertheless did not repeal or modify the district court's
discretionary authority to award attorney's fees under § 2-3-221,
MCA.
19
Furthermore, and recognizing that the City and the Sheriff
acted conservatively in a good faith effort to comply with the Act
and our decision in Allstate, we nevertheless held in Associated
Press that such motives will not preclude a discretionary award of
attorney's fees under § 2-3-221, MCA. Associated Press, 804 P.2d
at 380. As in that case, here, the public benefits from receiving
full disclosure of relevant information, and will benefit because
of the Chronicle"s efforts. By awarding attorney's fees against
the City, the cost of litigation is properly spread among the
beneficiaries.
Finally, the City urges us to limit 5 2-3-221, MCA, to actions
under the Open Meetings Law, codified at Title 2, Chapter 3, Part
2, MCA. While that argument has some superficial appeal given the
fact that § 2-3-221, MCA, is found in the Open Meetings Law,
nevertheless, the plain language of the statute militates against
the City's position.
Section 2-3-221, MCA, allows a discretionary award of
attorney's fees when a plaintiff prevails in its rights under
Article II. Section 9 of the Constitution. That Article and
Section guarantee the right of the public to observe deliberations
and examine documents. Accordingly, unless and until the
legislature repeals or modifies 5 2-3-221, MCA, we decline to limit
the plain meaning of that statute to the interpretation urged by
the City.
Because the Chronicle's complaint was grounded in the Montana
Constitution, and because the Chronicle prevailed in this action,
the District Court's award of attorney's fees is affirmed.
20
Attorney's fees on appeal are also allowable and should be
determined and awarded on remand.
REMANDED to the District Court for further proceedings
consistent with this opinion.
21