IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 91-475
THE ASSOCIATED PRESS; BIGFORK
EAGLE; BILLINGS GAZETTE; BOZEMAN
DAILY CHRONICLE ; BUTTE MONTANA
STANDARD; CARBON COUNTY NEWS;
GREAT FALLS TRIBUNE; HAMILTON
RAVALLI REPUBLIC; HAVRE DAILY NEWS;
HELENA INDEPENDENT RECORD; HUNGRY
HORSE NEWS; KALISPELL DAILY INTER
LAKE; KECI-TV, MISSOULA; KFBB-TV,
GREAT FALLS; KPAX-TV, MISSOULA;
KRTV-TV, GREAT FALLS; KTVQ-TV,
BILLINGS; KULR-TV, BILLINGS; KXLF-
TV, BUTTE; LEWISTOWN NEWS-ARGUS;
LIVINGSTON ENTERPRISE; MILES CITY
STAR; MTSSOULA MISSOULIAN; MONTANA
BROADCASTERS ASSOCIATION; and
MONTANA NEWSPAPER ASSOCIATION; 1 .,,- D E p;R ? - . - +7L<.2
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Plaintiffs, 1 .
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THE STATE OF MONTANA,
Defendant.
On September 30, 1991, the plaintiff news organizations filed
with this Court an application for writ of supervisory control,
injunction pendente lite, and declaratory relief. They allege that
5 46-11-701(6), MCA, is an unconstitutional deprivation of the
public's right to know as guaranteed by Article 11, section 9, of
t h e Montana Constitution. The Attorney General has filed a written
response in which he concedes that 5 46-11-701(6), MCA, is
unconstitutional. The Criminal Defense Section of the State Bar of
Montana has filed an amicus curiae brief opposing the plaintiffs'
1
petition.
Rule 17(a), M.R.App.P., provides:
The supreme court is an appellate court but it
is empowered by the constitution of Montana to
hear and determine such original and remedial
writs as may be necessary or proper to the
complete exercise of its jurisdiction. The
institution of such original proceedings in
the supreme court is sometimes justified by
circumstances of an emergency nature, as when
a cause of action or a right has arisen under
conditions making due consideration in the
trial courts and due appeal to this court an
inadequate remedy, or when supervision of a
trial court other than by appeal is deemed
necessary or proper.
In this instance, the plaintiffs claim that § 46-11-701 (6), MCA,
which became effective on October 1, 1991, irreparably harms their
ability to gather and disseminate information about pending
criminal matters and that they have no adequate and speedy remedy
through the normal judicial process to correct this harm. They
seek a declaratory judgment that the statute is unconstitutional.
The Court agrees with plaintiffs that this is a constitutional
issue of statewide importance and that due consideration in the
trial courts and due appeal to this Court would be an inadequate
remedy because of the time necessarily involved. We therefore
accept original jurisdiction over this matter.
The statutory provision under challenge, subsection (6) of
§ 46-11-701, MCA, requires that
[a]n affidavit filed in support of a motion
for leave to file a charge or warrant must be
sealed unless the judge determines that dis-
closure of the information in the affidavit is
required to protect the health, safety, or
welfare of the public.
Subsection (6) was enacted as part of Senate Bill 51, now Ch. 800,
L. 1991, a voluminous package of amendments to Montana's criminal
procedure statutes. The House Judiciary Standing Committee report
of March 26, 1991, in which the Committee recommended that the
House concur in Senate Bill 51 as amended, added subsection (6) to
that bill. We note that copies of the House Judiciary Committee
minutes of March 19, 1991, set forth a lengthy discussion and
several amendments to Senate Bill 51; however, no mention is made
of subsection (6) of 5 46-11-701, MCA, or of a motion to add this
amendment. The Criminal Procedure Referral Committee of the State
Bar of Montana, which previewed the bill enacted as Ch. 800,
L. 1991, had earlier rejected a proposal like subsection (6). In
the words of one committee member, "it seemed an onerous restric-
tion on the public's right to know relevant facts about a pending
criminal matter."
Plaintiffs' key contention is that subsection (6) violates
Article 11, section 9, of the Montana Constitution:
Right to know. 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 subdivi-
sions, except in cases in which the demand of
individual privacy clearly exceeds the merits
of public disclosure.
We must first determine whether an affidavit filed in support of a
motion for leave to file a criminal charge or warrant is a document
of a public body or agency of state government or a subdivision
thereof, subject to the provisions of Art. 11, sec. 9, Mont. Const.
The provisions of Art. 11, sec. 9, Mont. Const., apply to
local government. V Mont. Const. Conv. Trans. 1670-71 (1972). The
clerk of district court is an office of local government. Art. XI,
sec. 3, Mont. Const. We conclude that an affidavit filed with the
clerk of a district court in support of a motion for leave to file
a criminal charge or warrant is a document of a public body or
agency of a subdivision of state government.
Next we consider whether sufficient reasons have been
presented to except the affidavits described under subsection (6)
from the public's right to know. The standard set forth under
Article 11, section 9, of the Montana Constitution is that the
right to know applies to all documents of a public body or agency
of a subdivision of state government "except in cases in which the
demand of individual privacy clearly exceeds the merits of public
discl~sure.~
The amicus curiae brief filed by the Criminal Defense Section
of the State Bar of Montana includes extensive argument that
subsection (6) is justified because a criminal defendant's right to
privacy outweighs the public's right to know the contents of
affidavits sealed under subsection (6). However, there is nothing
in the legislative record to indicate that the legislature
determined that, or even considered whether, individual privacy
requires that the affidavits described in subsection (6) must be
4
sealed. Nor does subsection (6) require such an evaluation by
district judges in individual cases. The standard under subsection
(6), that affidavits shall be sealed "unless the judge determines
that disclosure of the information in the affidavit is required to
protect the health, safety, or welfare of the public," is in fact
the antithesis of the standard required under the Montana Constitu-
tion.
In addition, subsection (6) represents the reversal of a
longstanding policy of allowing public access to such affidavits.
In Montana, from the days of territorial government until October
1, 1991, documents filed with clerks of court charging the
commission of a criminal offense have been open for public inspec-
tion. The perception of fairness in our judicial system, the
ability of the criminally accused to defend themselves, and the
public's knowledge about criminal proceedings all benefit from
allowing public access to affidavits filed in support of a motion
for leave to file a charge or warrant.
We hold that 5 46-11-701(6), MCA, violates the right to know
guaranteed by Article 11, section 9, of the Montana Constitution.
We therefore order that 8 46-11-701(6), MCA, be str.icken from the
laws of Montana.
Plaintiffs have requested that they be awarded their costs and
reasonable attorney fees incurred in this action, pursuantto 5 2-
3-221, MCA:
A plaintiff who prevails in an action brought
in district court to enforce his rights under
Article 11, section 9, of the Montana consti-
tution may be awarded his costs and reasonable
attorneysr fees.
Plaintiffs have chosen to bypass a district court action in this
case. Their request for costs and attorney fees is therefore
denied. fi
DATED this 27 c a y of October, 1991.
October 29, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
James P. Reynolds
Reynolds, Motl, Shenvood & Wright
401 No. Last Chance Gulch
Helena, MT 59601
Hon. Marc Racicot, Attorney General
Clay Smith, Solicitor
Justice Bldg.
Helena, MT 59620
MICHAEL J . SHERWOOD
Attorney at Law
P.O. Box 8142
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA