No. 05-290
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 262
_____________________________________
IN THE MATTER OF T.L.S.,
Respondent and Respondent,
v.
MONTANA ADVOCACY PROGRAM,
Intervenor and Appellant.
_____________________________________
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DI-92-1834,
The Honorable John W. Larson, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Beth Brenneman, Montana Advocacy Program, Helena, Montana
For Respondent State of Montana:
Leslie Halligan, Missoula County Attorney’s Office, Missoula, Montana
For Respondent T.L.S.:
Margaret L. Borg, Public Defender’s Officer, Missoula, Montana
For Amicus Curiae:
Andrew I. Huff, American Civil Liberties Union of Montana Foundation,
Helena, Montana
_____________________________________
Argued and Submitted: June 14, 2006
Decided: October 10, 2006
Filed:
____________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 The Montana Advocacy Program (MAP) appeals from the order of the Fourth
Judicial District Court, Missoula County, denying its motion for leave to release
documents from a sealed court file. We reverse and remand with instructions.
BACKGROUND
¶2 In September of 1992, the State of Montana (State) commenced involuntary
commitment proceedings pursuant to Title 53, Chapter 20 of the Montana Code
Annotated (MCA), alleging that T.L.S. was seriously developmentally disabled and in
need of placement in a residential facility. The District Court ordered that T.L.S. be
detained at the Montana Developmental Center (MDC) for evaluation and, subsequently,
in July of 1993, ordered that T.L.S. be committed to the MDC for an extended course of
treatment and habilitation for a period not to exceed one year. The State petitioned, and
the District Court ordered, that T.L.S. be recommitted to the MDC each year thereafter
through November of 2003. In October of 2003, as the last recommitment period was
nearing expiration, the State again petitioned the District Court to recommit T.L.S. to the
MDC.
¶3 Proceedings to recommit a developmentally disabled person—or “resident”—to a
residential facility are governed by § 53-20-128, MCA. If the qualified mental
retardation professional (QMRP) responsible for the resident’s habilitation while in the
facility determines that the resident continues to be seriously developmentally disabled
and in need of commitment, the QMRP must request the State to file a petition for
recommitment. Section 53-20-128(1), MCA. A person is “seriously developmentally
disabled” when he or she
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(a) has a developmental disability;
(b) is impaired in cognitive functioning; and
(c) has behaviors that pose an imminent risk of serious harm to self or
others or self-help deficits so severe as to require total care or near total
care and who, because of those behaviors or deficits, cannot be safely and
effectively habilitated in community-based services.
Section 53-20-102(15), MCA (2003).
¶4 In October of 2003, the QMRP in charge of T.L.S.’s habilitation at the MDC
prepared a recommitment report in which the QMRP specifically found that T.L.S. was
not currently exhibiting behaviors which were a danger to others or to himself, and that
his behaviors and needed level of care were not such he could not be safely and
effectively habilitated in a community-based program. In other words, the QMRP
determined that T.L.S. was no longer seriously developmentally disabled as defined by
the statute. Notwithstanding this determination, the State’s petition for recommitment in
October of 2003 alleged that the QMRP had requested that the petition be filed, and that
it was the QMRP’s opinion that T.L.S. continued to be seriously developmentally
disabled and in need of commitment.
¶5 After the State filed its petition, the District Court referred the matter to the
residential facility screening team (RFST) in accordance with §§ 53-20-128(4) and -133,
MCA. It is the RFST’s responsibility to determine, upon receipt of a petition for
commitment, “whether placement and habilitation in a residential facility are appropriate
for the respondent.” Section 53-20-133(1), MCA. A district court may not commit a
person to a residential facility unless the RFST determines the person is seriously
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developmentally disabled and that placement and habilitation in a residential facility is
appropriate. Section 53-20-133(2) and (3), MCA.
¶6 The RFST issued its report in November of 2003. It determined that T.L.S. was
no longer seriously developmentally disabled and recommended against recommitment to
the MDC. The State then moved the District Court to adopt the RFST’s
recommendations. On November 19, 2003, the District Court entered its order approving
and adopting the RFST’s recommendations. However, the District Court entered another
order on December 11, 2003, stating that the RFST had determined T.L.S. was seriously
developmentally disabled and commitment to the MDC was appropriate, and ordering
T.L.S.’s recommitment to the MDC for a period not exceeding one year. T.L.S.’s
appointed public defender did not appear on his behalf during the 2003 recommitment
proceedings. T.L.S. died on March 26, 2004, while residing at the MDC.
¶7 MAP is required by state and federal law to advocate for—and protect the rights
of—disabled individuals in Montana, including those with developmental disabilities.
Pursuant to these requirements, MAP investigates the death of any individual residing in
a publicly funded institution such as the MDC. Accordingly, on March 31, 2004, MAP
initiated an investigation of T.L.S.’s death, during which it reviewed the records
pertaining to T.L.S. maintained by the MDC.
¶8 Based on the MDC’s records, MAP became concerned that T.L.S.’s
recommitment to the MDC in December of 2003 was contrary to law. MAP then moved
the District Court to order its Clerk to provide MAP with copies of relevant documents
from the court file concerning T.L.S.’s last recommitment. MAP served its motion on
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both the State and T.L.S.’s appointed public defender. The District Court granted the
motion the following day.
¶9 After reviewing the court documents, MAP drafted an investigative report
identifying various legal inadequacies of T.L.S.’s 2003 recommitment. MAP intended to
use its report to advocate for legislative, administrative and judicial reforms in the
processes used to commit developmentally disabled individuals. MAP appended to the
report selected legal documents from the 2003 recommitment proceeding, redacted to
remove information which would identify T.L.S.
¶10 On July 29, 2004, MAP sent copies of the report to the District Court, the State
and T.L.S.’s appointed counsel, inviting responses, comments or concerns by August 6,
2004. Recognizing that the appended documents were part of a sealed court record, MAP
also informed the parties that,
[p]rior to any distribution of the report outside of those individuals involved
in the proceedings, we shall request that the district court grant MAP leave
to distribute the legal documents relevant to the December 2003
involuntary recommitment with the report after they are redacted to
preserve [T.L.S.’s] privacy.
No one responded to MAP regarding the report by the August 6, 2004, deadline. On
August 12, 2004, however, the District Court sua sponte entered an order staying further
distribution of MAP’s report until September 7, 2004, and giving the State and T.L.S.’s
counsel until September 3, 2004, in which to file responses to the report. On September
3, 2004, the State moved the District Court for an extension of time until September 13,
2004, in which to file its response.
¶11 On September 13, 2004, no responses having been filed, MAP moved the District
Court for leave to release the redacted documents from the court file pertaining to the
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recommitment proceeding initiated by the State in October of 2003. On September 16,
2004, the District Court granted the State’s earlier motion for extension of time, giving
the State until September 24, 2004, in which to respond to the report. Neither the State
nor T.L.S.’s appointed counsel responded to MAP’s report or its motion for leave to
release documents. Consequently, on October 12, 2004, MAP requested the District
Court to deem its motion for leave to release the documents well-taken, and grant the
motion.
¶12 On November 15, 2004, the State moved the District Court to void a conflicting
order. The motion recognized that the court’s December 11, 2003, recommitment order
conflicted with the court’s November 19, 2003, order adopting the RFST’s
recommendation against recommitment, and requested the court to declare the December
11, 2003, recommitment order null and void. The District Court entered an order on
February 2, 2005, addressing both the State’s motion to declare the recommitment order
null and void, and MAP’s motion for leave to release the redacted court documents.
¶13 With regard to the State’s motion, the District Court voided that portion of its
December 11, 2003, recommitment order which determined T.L.S. was seriously
developmentally disabled. It refused, however, to void its determination that T.L.S.
should be recommitted. The District Court denied MAP’s motion for leave to release the
redacted court documents. MAP appeals that portion of the District Court’s order
denying its motion for leave to release the court documents.
STANDARD OF REVIEW
¶14 MAP challenges various of the District Court’s conclusions based on the court’s
interpretation and application of statutory and constitutional law. We review a district
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court’s conclusions of law to determine whether those conclusions are correct. Great
Falls Trib. v. Mont. Public Ser. Com., 2003 MT 359, ¶ 18, 319 Mont. 38, ¶ 18, 82 P.3d
876, ¶ 18.
DISCUSSION
¶15 Did the District Court err in denying MAP’s motion for leave to release
documents from a sealed court file?
¶16 In its order denying MAP’s motion for leave to release the court documents, the
District Court observed that it had sealed the court record of T.L.S.’s involuntary
commitments pursuant to § 53-21-103, MCA, which requires a showing of “good cause”
before a court may open a record sealed thereunder. The court further observed that
MAP had moved for leave to release the documents pursuant to Article II, Section 9 of
the Montana Constitution—the “right to know” provision—which provides that
[n]o 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.
With regard to individual privacy, the court also observed that, pursuant to Article II,
Section 10 of the Montana Constitution, “[t]he right of individual privacy is essential to
the well-being of a free society and shall not be infringed without the showing of a
compelling state interest.” Finally, the court noted that MAP’s primary purpose for
disseminating its report and the appended redacted court documents “is to outline
recommendations for future reform of the involuntary commitment procedure in Montana
. . . .”
¶17 Applying the above legal and factual observations, the District Court concluded
that MAP’s purpose in disseminating the report and redacted court documents did not
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establish “good cause” under § 53-21-103, MCA, for the court to open the sealed record.
The court further concluded that MAP’s purported need to disclose the documents did not
rise to the level of a compelling state interest which would allow infringement upon
T.L.S.’s right to privacy and, consequently, the need for public disclosure did not
outweigh T.L.S.’s individual privacy rights. As a result, the District Court denied MAP’s
motion for leave to release the documents. MAP asserts error as to the District Court’s
legal conclusions.
¶18 We first address the District Court’s application of § 53-21-103, MCA, which
provides in its entirety as follows:
Records and papers in proceedings under this part shall be maintained
separately by the clerks of the several courts. Five days prior to the release
of a respondent or patient committed to a mental health facility, the facility
shall notify the clerk of the court, and the clerk shall immediately seal the
record in the case and omit the name of the respondent or patient from the
index or indexes of cases in the court unless the court orders the record
opened for good cause shown. [Emphasis added.]
By its terms, the statute applies only to proceedings brought under Title 53, Chapter 21,
Part 1 of the MCA, which is entitled “Treatment of the Seriously Mentally Ill.” The
purpose of that Part is to provide for the care and treatment of persons with mental
disorders. The term “mental disorder” is defined as “any organic, mental, or emotional
impairment that has substantial adverse effects on an individual’s cognitive or volitional
functions” and expressly excludes mental retardation. Section 53-21-102(9), MCA.
¶19 In contrast, all of the commitment and recommitment proceedings involving
T.L.S. were brought pursuant to Title 53, Chapter 20, Part 1 of the MCA, which governs
the treatment and habilitation of developmentally disabled individuals. “Developmental
disability” is defined, in part, as “a disability that is attributable to mental retardation,
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cerebral palsy, epilepsy, autism, or any other neurologically disabling condition closely
related to mental retardation and that requires treatment similar to that required by
mentally retarded individuals.” Section 53-20-102(5), MCA.
¶20 Consequently, § 53-21-103, MCA, by its terms, does not apply to the proceedings
initiated to recommit T.L.S. to the MCD pursuant to Title 53, Chapter 20, Part 1 of the
MCA. Nor do any statutes in Title 53, Chapter 20, Part 1 of the MCA—under which
T.L.S. was committed and recommitted—contain any provision similar to § 53-21-103,
MCA, relating to sealing and opening court records. Furthermore, while the part of the
MCA governing treatment and habilitation of developmentally disabled individuals
expressly incorporates by reference some provisions contained in Title 53, Chapter 21,
Part 1 of the MCA, governing the mentally ill (see, e.g., § 53-20-112(1), MCA), no
statute in Title 53, Chapter 20, Part 1 expressly incorporates § 53-21-103, MCA.
¶21 For the reasons set forth above, we conclude that § 53-21-103, MCA, did not
apply to the proceedings to recommit T.L.S. to the MDC brought pursuant to Title 53,
Chapter 20, Part 1 of the MCA. Therefore, we further conclude the District Court erred
in determining that MAP was required to establish “good cause” under § 53-21-103,
MCA, before the court could order the record be opened.
¶22 We turn, then, to the District Court’s application of Article II, Sections 9 and 10 of
the Montana Constitution. That court determined MAP did not establish that the merits
of public disclosure of the sealed court documents exceeded T.L.S.’s privacy interest in
those documents.
¶23 As stated above, Article II, Section 9 of the Montana Constitution guarantees all
persons the right to examine documents of all public bodies or agencies of the Montana
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State government and its subdivisions except where “the demand of individual privacy
clearly exceeds the merits of public disclosure.” Applying Article II, Section 9 involves a
three-step process. First, does the constitutional provision apply to the particular public
body or political subdivision against whom enforcement of the provision is sought?
Second, are the documents at issue documents of public bodies subject to public
inspection? Third, if the first two requirements are met, is an individual privacy interest
involved and, if so, does the demand of that individual privacy interest clearly exceed the
merits of public disclosure? Yellowstone County v. Billings Gazette, 2006 MT 218, ¶ 18,
333 Mont. 390, ¶ 18, ___ P.3d ___, ¶ 18.
¶24 Here, the District Court determined—and the parties do not dispute—that the
documents at issue were filed with the Clerk of the District Court—which is a county
entity and, therefore, a subdivision of state government—and that filings with a clerk of
court are subject to public inspection under the constitutional “right to know” provision.
Consequently, the first two requirements of the Article II, Section 9 three-step process are
met here.
¶25 The next step is to determine whether an individual privacy interest is at issue and,
if so, whether that privacy interest clearly exceeds the merits of public disclosure of the
documents. At this point in the analysis, the right to privacy guaranteed by Article II,
Section 10 of the Montana Constitution comes into play and the competing interests of
the “right to know” and the right to privacy must be balanced in light of the facts of each
case. Yellowstone County, ¶¶ 19-20. The Article II, Section 10 right to privacy protects
not only personal—or “autonomy”—privacy, but also “informational” privacy which
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“extends to the details of a patient’s medical and psychiatric history.” State v. Nelson,
283 Mont. 231, 241, 941 P.2d 441, 448 (1997).
¶26 In evaluating whether a protected privacy interest exists under Article II, Section
10, courts generally must determine whether an individual has a subjective or actual
expectation of privacy, and whether society is willing to recognize that expectation of
privacy as reasonable. See Yellowstone County, ¶ 20. Again, the District Court
determined in the present case—and the parties do not dispute—that T.L.S. had an actual
and subjective expectation of privacy in the court documents relating to his involuntary
commitment which society is willing to recognize as reasonable. Thus, we need only
determine whether T.L.S.’s individual privacy interest clearly exceeds the merits of
public disclosure of the court documents at issue.
¶27 At this point in its analysis, the District Court combined the language contained in
Article II, Sections 9 and 10, and required MAP to establish a compelling state interest in
releasing the sealed court documents sufficient to outweigh T.L.S.’s privacy interests in
those documents. It then determined that MAP had not established such a compelling
state interest and denied the motion for leave to release the documents. MAP contends
the District Court erred in applying the “compelling state interest” language from Article
II, Section 10 to the balancing test under Article II, Section 9, and in requiring MAP to
establish that the merits of public disclosure outweigh T.L.S.’s privacy interests. We
agree.
¶28 The Article II, Section 9 right of persons to examine documents of all public
bodies and agencies of State government is guaranteed “except” where “the demand of
individual privacy clearly exceeds the merits of public disclosure.” In applying this
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language, “[t]his Court has held that the only limit on the public’s right to receive
information is the constitutional right to privacy.” Montana Health Care v. Bd. Of
Directors, 256 Mont. 146, 150, 845 P.2d 113, 116 (1993). In other words, the
constitutional right to examine documents of public bodies is presumed in the absence of
a showing of individual privacy rights sufficient to override that right. Thus, once it is
determined that requested documents are documents of public bodies subject to public
inspection pursuant to Article II, Section 9, it is incumbent upon the party asserting
individual privacy rights to establish that the privacy interests clearly exceed the merits of
public disclosure. See, e.g., Bozeman Daily Chronicle v. City of Bozeman, 260 Mont.
218, 227, 859 P.2d 435, 441 (1993); Worden v. Montana Bd. Of Pardons and Parole,
1998 MT 168, ¶¶ 31-32, 289 Mont. 459, ¶¶ 31-32, 962 P.2d 1157, ¶¶ 31-32.
¶29 We conclude, therefore, that the District Court erred in requiring MAP to establish
a compelling state interest warranting public disclosure of the sealed court documents
under the third step of the Article II, Section 9 analysis outlined above. Rather, the
question is whether T.L.S.’s individual privacy rights clearly exceed the merits of public
disclosure of the documents under the circumstances of this case.
¶30 MAP contends—as it did in the District Court—that the merits of public
disclosure of the sealed court documents are substantial in light of the need to inform the
public regarding the actions of the public officials and employees involved in T.L.S.’s
recommitment proceedings, and to effectively advocate for legislative, administrative and
judicial reforms for the protection of developmentally disabled persons subject to such
commitment proceedings. MAP also reasserts here its position in the District Court that,
while T.L.S. does have a reasonable expectation of privacy in the documents, his privacy
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right is lessened in this instance because MAP has redacted those documents to eliminate
private information about T.L.S., including his name, the names of professionals involved
in his care and habilitation at the MDC, and other identifying information.
¶31 However, it is the party asserting individual privacy rights which carries the
burden of establishing that those privacy rights clearly exceed the merits of public
disclosure. See Bozeman Daily Chronicle, 260 Mont. at 227, 859 P.2d at 441; Worden,
¶¶ 31-32. On appeal, the State and T.L.S.’s appointed counsel raise various arguments
supporting their respective contentions that T.L.S.’s privacy rights clearly exceed the
merits of disclosing the documents to the public and that MAP’s redactions of those
documents do not sufficiently protect T.L.S.’s privacy rights. As set forth above, neither
the State nor T.L.S.’s appointed counsel responded to MAP’s motion in the District Court
for leave to release the documents after redaction. Consequently, their arguments here
are raised for the first time on appeal. We do not address arguments raised for the first
time on appeal. See, e.g., In re Estate of Kindsfather, 2005 MT 51, ¶ 34, 326 Mont. 192,
¶ 34, 108 P.3d 487, ¶ 34; American Music Co. v. Higbee, 2004 MT 349, ¶ 25, 324 Mont.
348, ¶ 25, 103 P.3d 518, ¶ 25.
¶32 We observe that MAP’s arguments regarding the merits of disclosing the
requested sealed court documents—as redacted—are strong. Furthermore, we have held
that an individual’s Article II, Section 10 privacy interest in public documents often can
be protected by redacting names and other identifying characteristics from the
documents, and thereby still allow disclosure of relevant public information under Article
II, Section 9. See, e.g., Worden, ¶ 36. We conclude, therefore, that the redactions to the
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documents at issue suggested by MAP sufficiently protect T.L.S.’s privacy interests such
that those privacy interests do not clearly exceed the merits of public disclosure.
¶33 In summary, we conclude the District Court erred in requiring MAP to establish
“good cause” under § 53-21-103, MCA, and a “compelling state interest” under Article
II, Section 10 of the Montana Constitution in order to establish that the merits of
disclosing the sealed court documents to the public outweighed T.L.S.’s privacy rights in
those documents. As a result, we hold that the District Court erred in denying MAP’s
motion for leave to release the sealed court documents.
¶34 Reversed and remanded with instructions that the District Court immediately
vacate its order denying MAP’s motion and enter an order releasing for public disclosure
those sealed court documents requested, and as redacted, by MAP.
/S/ KARLA M. GRAY
We Concur:
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ PATRICIA COTTER
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