No. 91-516
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
GEORGE BURNS,
Defendant and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Elizabeth L.
Griffing, Asst. Attorney General, Helena, Montana
Thomas R. Scott, County Attorney, Dillon, Montana.
For Respondent:
John S. Warren; Schulz, Davis & Warren, Dillon,
Montana.
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1
Submitted on Briefs: January 16, 1992
Justice John Conway Harrison delivered the Opinion of the Court.
This is an interlocutory appeal from an order of the Fifth
Judicial District Court, Beaverhead County, Montana, denying the
appellant's request to compel discovery of the respondent's
personnel files from the Catholic Diocese. We affirm.
The issue on appeal is whether the District Court abused its
discretion in refusing to grant the State's motion to discover the
Catholic Diocese's personnel records concerning the respondent in
a criminal case after the District Court conducted an b camera
inspection.
Defendant and respondent, George Burns (Burns) was charged
with Deviate Sexual Conduct under 6 45-5-505(1), MCA (1989), and
Deviate Sexual Conduct Without Consent under § 45-5-505(3), MCA
(1989). Burns pled not guilty and later presented the prosecution
with a list of approximately fifteen character witnesses. The
prosecution applied for an investigative subpoena to obtain Burns'
personnel records from the Catholic Diocese in Helena. The State
purportedly sought information regarding reports of similar
instances of misconduct, disciplinary actions, transfer records, as
well as witness names to use in rebutting and cross-examining
Burns1 character witnesses. The Honorable Dorothy McCarter issued
the subpoena which was served on Father John Robertson (Robertson),
Chancellor of the Catholic Diocese of Helena. On the advice of
counsel, Robertson refused to surrender the personnel records.
Judge McCarterlsorder dated September 27, 1991, indicated that the
parties agreed to an jt camera review of the records in question on
.~
2
September 23, 1991. Accordingly, Judge McCarter ordered the h
camera inspection by the presiding trial judge, the Honorable
Thomas A. Olson.'
Several telephone conferences ensued between Judge Olson and
the parties. Due to the dispute over whether to reveal the
contents of the personnel records maintained by the Catholic
Diocese, the District Court conducted an b camera inspection of
Burns' personnel file on September 25, 1991. After hearing oral
arguments, Judge Olson ruled that the information was not
discoverable since it contained personal and private information
and returned the records to the Diocese of the Catholic Church in
Helena.
The State initiates this interlocutory appeal alleging that
Judge Olson erred in barring discovery of the records. The State
maintains that unfair prejudice attaches because the file could
contain reports of other similar related acts and relevant
disciplinary proceedings against Burns which would qualify as other
crimes, wrongs or acts evidence. Further, the State alleges that
lack of access to Burns' personnel records is prejudicial since
they may contain the names of witnesses who can rebut Burns1
character witnesses.
An b camera review is a device often used at various stages
throughout discovery and trial. The purpose of the proceeding is
to balance the privacy interests of the parties and the need to
know. The b camera procedure can effectively offer protection to
'~udge Olson took over the case after the presiding District
Judge, the Honorable Frank M. Davis from Dillon, recused himself.
both parties by avoiding needless exposure of potentially harmful
information. In State v. Thiel (1989), 236 Mont. 63, 768 P.2d 343,
the b camera procedure was used to determine whether the contents
of a social worker's file should remain private. We determined
that the camera procedure protected privacy rights. u,236
Mont. at 67-68, 768 P.2d at 345-46. In State v. Mix (l989), 239
Mont. 351, 781 P.2d 751, the camera device was used to preview
potentially damaging information before it was released. In Mix,
medical records were sought for proof of character evidence. The
trial court refused the request for access to the medical records
after an camera inspection on the grounds that the subject
matter was irrelevant and too remote to the case. Mix, 239 Mont.
at 360, 781 P.2d at 756. In In re Lacy (1989), 239 Mont. 321, 780
P.2d 186, we determined that the camera procedure should be used
to decide what information could be properly discovered. Lacy, 239
Mont. at 326, 780 P.2d at 189.
Accordingly, we conclude in the case at bar, that the District
Court properly utilized the camera procedure to weigh the
effects of allowing discovery of the information contained in
Burns' personnel files maintained by the Catholic Diocese.
While discovery is meant to be a broad tool in facilitating
the resolution of lawsuits, it is not without restraint.
The ability to question adverse witnesses, however does
not include the power to require the pretrial disclosure
of any and all information that might be useful in
contradicting unfavorable testimony. Pennsylvania v.
Ritchie (1987), 408 U.S. 39, 53, 107 S.Ct. 989, 999, 94
L.Ed.2d 40, 54.
State v. Reynolds (1990), 243 Mont. 1, 8, 792 P.2d 1111, 1115.
The scope of discovery in criminal matters has been addressed by
the American Bar Association as follows:
In order to provide adequate information for informed
pleas, expedite trials, minimize surprise, afford
opportunity for effective cross-examination, and meet the
requiraments of due process, discovery prier to +rid.
should be as full and free as possible consistent with
protection of persons, effective law enforcement, the
adversary system, and national security.
ABA Discoverv and Procedure Before Trial, 5 1.2 (1974).
When discovery of documents such as personnel records are at
issue, privacy rights are undoubtedly at stake. Montana adheres to
one of the most stringent protection of its citizens' right to
privacy in the country. Mont.Const. Art. 11, 5 10. Montana's
treatment of privacy rights is more strict than that offered by the
Federal Constitution. Montana Human Rights Division v. City of
Billings (1982), 199 Mont. 434, 439, 649 P.2d 1283, 1286. It is
against this constitutional backdrop that we view the case at bar.
The privacy interest in Burns' personnel records at the
Catholic Diocese must be weighed against the State's need to
discover the same. On appeal we seek to review whether the
District Court adequately weighed and balanced these competing
interests. On September 25, 1991, during an on the record, &
camera review of the contents of Burns1 personnel records, Judge
Olson said:
I find a document that is marked confidential, to be
opened by the Bishop of the Diocese only. I open this
with reluctance. All right. The Court has in summary
fashion reviewed the documents. I will say on the
record, I consider these to be highly personal documents,
private documents of the Diocese. I will accord the
State and the defendant the hearing if the State pursues
that. And my impression here, which I state to the
representative of the Diocese, that these documents will
not be disclosed.
On September 27, 1991, after hearing oral arguments Judge Olson
stated:
The Court has heard the arguments of counsel and I make
the following ruling. The evidencz seize* by the
investigative subpoena, or which is the subject of the
investigative subpoena, is hereby returned to the Diocese
of Helena intact, without disclosure to the State or the
defendant. I do that upon the grounds that the Diocese
has compelling rights of privacy to its personnel files
and all of the documents contained therein. The file is
clearly marked to be private. . . . We have the
strongest privacy laws in this state of all of the
states, and I find that the State cannot show compelling
interest to crack open private church documents such as
these. So, they are suppressed -- returned to the
Diocese -- found to be off limits in this particular
matter.
In Montana, we have adopted a two-prong test to determine
whether issues of privacy are protected under our Constitution as
follows:
1) Whether the person involved had a subjective or actual
expectation of privacy; and,
2) Whether society is willing to recognize that
expectation as reasonable.
State ex rel. Great Falls Tribune Co. v. Eighth Judicial Dist.
Court (1989)' 238 Mont. 310, 318, 777 P.2d 345, 350, citing Montana
Human Rights Division v. City of Billings (1982), 199 Mont. 434,
This test was used in Missoulian v. Board of Regents (1984),
207 Mont. 513, 675 P.2d 962. In Missoulian v. Board of Reqents,
"the Board of Regents was required to balance the public's right to
know against the individual's right of privacy with respect to
employment evaluations. There the right of the individual privacy
was held to be paramount." Tribune, 238 Mont. at 319, 777 P.2d at
350.
While the two-prong test was not specifically set forth by
Judge Olson, it is apparent from his comments in the record that
the test is satisfied, barring discovery of Burns* personnel
records.
The case at bar is similar to Mix, in that the State seeks
leads relating to character evidence, as well as information about
prior acts of misconduct such as disciplinary proceedings. As in
m, an camera inspection was conducted to weigh the interests
of the parties. The record inclicates that Judge Olson reviewed the
personnel records and concluded that the right to privacy
outweighed the State's need for any information contained in the
records. Whether applying the two-prong test or the principles of
Mix to the case at bar, we find that the District Court acted
appropriately and did not abuse its discretion.
We note that Judge Olson's final comment in the previous
recitations on the record is particularly informative. He stated
that the personnel records would be off limits "in this particular
matter. This is important since there is not blanket
unavailability of personnel records nor should the outcome of this
appeal point to that end. Personnel records may be discoverable
given the correct set of circumstances and after appropriate
balancing tests are considered which may include the & camera
procedure previously discussed. For instance, in Montana Human
Riqhts v. Billinqs, access to employment records was granted to the
Human Rights Division to investigate possible violations of
discrimination. However, when granting such access, we insisted on
7
specific protective measures to prevent dissemination of the
discovered information. Montana Human Rights v. Billings (1982),
199 Mont. 434, 446, 649 P.2d 1283, 1290. The right to know the
names of disciplined employees was greater than their right to
privacy in Great Falls Tribune v. Sheriff (1989), 238 Mont. 103,
775 P.2d 1267. In Tribune v. Sheriff we said:
When we balance the limited privacy interest of the law
enforcement officers against the public's right to know
which officers have been disciplined for unlawful acts,
we conclude that the District Court was correct. The
privacy interest of the officers does not clearly exceed
the public's right to know. We note that we are not
ruling that the entirety of any personnel files must be
revealed.
Tribune v. Sheriff, 238 Mont. at 107, 775 P.2d at 1269
We also mention that we fail to see how the State's alleged
prejudice is created particularly with regard to the discovery of
rebuttable character witnesses. Certainly, the State may research
and locate witnesses to rebut Burns' character bolstering witnesses
and while access to Burnsp personnel records maintained by the
Catholic Diocese may or may not expedite this process, the file is
not the only means of locating these witnesses.
Absent an abuse of discretion we will uphold the rulings of
the district court. "District courts have the discretionary power
to control discovery activities in cases pending before them. We
will overturn a district court order affecting discovery only if it
amounts to an abuse of discretion." State of Or. ex rel. Worden v.
Drinkwalter (l985), 216 Mont. 9, 12, 700 P.2d 150, 152. In the
case at bar, the District Court considered the possible effects of
releasing the Catholic Diocese's personnel records concerning Burns
and consequently, ordered an camera review of the file for
relevant information. After the camera review the District
Court heard arguments regarding exposing the contents of the file
and determined that such exposure was improper. Prohibiting
discovery of materials that are not probative is one of the
functions of trial judges which is within their discretionary
powers. In the case at bar, Judge Olson properly utilized his
discretionary powers to prohibit discovery of Burns' personnel
records. The competing interests of the parties were properly
weighed by the District Court.
We affirm.
Justice Karla M. Gray, dissenting.
I dissent from the opinion of the majority. I would at very
least reverse and remand for entry of the legal basis for the
privacy ruling and for a new camera review and entry of findings
sufficient to permit review by this Court. For reasons that are
completely beyond my understanding, this Court has decided to
permit a right of privacy improperly asserted by the Roman Catholic
Church to override all State interest in criminal investigation and
prosecution. The consequences will be vast and incalculably
damaging to law enforcement and prosecution efforts in Montana and
to victims of criminal sex offenses.
The majority's statement of the facts is conveniently
abbreviated; as a result, the total picture of the events which
occurred in two judicial districts is not clear. For that reason,
I restate at some length the facts of record which underlie the
issues before this Court.
The State of Montana charged defendant and respondent George
Burns (Burns) with Deviate Sexual Conduct and Deviate Sexual
Conduct Without Consent in Beaverhead County Cause No. DC-91-2378.
After Burns pled not guilty and furnished a list of character
witnesses to the prosecution, the prosecution applied for an
investigative subpoena duces tecum in the First Judicial District
Court, asserting that the administration of justice required the
issuance of the subpoena requiring the Catholic Diocese of Helena
to produce its employee files on Burns. The application was
supported by an affidavit enumerating in detail the bases for the
application.
The Honorable Dorothy McCarter issued the subpoena on
September 23, 1991. In it, she found "that the administration of
justice requirest1the issuance of the subpoena; the subpoena went
on to command the Chancellor of the Diocese to produce immediately
all records of "employee files, employee records, disciplinary
proceedings, [and] transfer records" regarding Burns. The secrecy
and disclosure provisions relating to grand jury proceedings
specifically were made applicable to the subpoena. Failure to
comply with the subpoena "is punishable for contempt of court."
The Diocese orally moved Judge McCarter to quash the subpoena,
arguing church canons pertaining to confidentiality of the
documents sought. After discussion with the court, counsel forthe
Diocese agreed that the subpoena, pursuant to an active criminal
investigation and attendant compelling state interest, would reach
the documents held by the Diocese. Counsel also agreed that the
files would be reviewed b camera by the trial court. The First
Judicial District Court denied the motion to quash the subpoena on
September 27, 1991, and ordered the camera review by the
presiding trial judge, the Honorable Tom Olson. (The Honorable
Frank Davis had recused himself from the case.)
Between the time of Judge McCarter's order of September 23
issuing the subpoena and her subsequent order of September 27
denying the Diocese's motion to quash, the Diocese produced the
files in Judge Olsongscourt on September 25. Notwithstanding its
agreement in the First Judicial District that the subpoena would
reach the files because of the State's compelling interest, the
Diocese asserted privacy rights regarding the records. The
prosecution was not present. Judge Olson stated in advance that he
would review the files Itina summary fashion." He set September 27
"for the County Attorney to present whatever argument and documents
he may have concerning the personnel records."
Judge Olson reviewed the personnel file in the presence of the
Chancellor of the Diocese. He stated on the record that the
document was about one and one-half inches thick and that it was
"marked confidential, to be opened by the Bishop of the Diocese
only.lt He noted that it was clear that the State was seeking
"other actsw evidence in the file. He opened the file "with
reluctancen and reviewed it "in a summary fashion." He stated at
that time that he considered the documents to be "highly personal
documents, private documents of the Diocese." He went on to state
that he would accord the State the September 27 hearing if the
State pursued it. He pronounced his "impression" that the
documents "will not be disclosed ... But I guess I should not
pre-judge that until the hearing has taken place. For appearances
of fairness .. .It he went on to require the Chancellor's presence,
with the documents, at the September 27 hearing.
The September 27 hearing took place as scheduled for the
purpose of the State's motion "for release of the investigative
subpoena information." The State recounted for the court the
proceedings before Judge McCarter and asserted its compelling
12
interest in obtaining the information. Judge Olson ruled that the
evidence sought was to be returned to the Diocese intact, without
disclosure. He did so on the grounds that "the Diocese has
compelling rights of privacy to its personnel files," but without
providing any legal authority. He restated his original reluctance
in reviewing the file and the fact of his summary review. He also
noted the "separation of church and state in this country," a
position not argued. He specifically found "that the State cannot
show a compelling interest to crack open private church documents.s*
The State successfully moved for a stay of further proceedings
and appealed Judge Olson's ruling to this Court.
The majority states the issue as whether the District Court
abused its discretion in refusing to grant the State's motion to
discover the Catholic Church's personnel records concerning a
defendant in a criminal case after the District Court conducted an
- camera review, The majority's refusal to even mention the fact
in
that the First Judicial District Court, on the basis of compelling
State interest, had already ordered the Diocese to immediately make
the records available and denied the Diocese's motion to quash is
an early warning signal of the almost offhand manner in which the
majority approaches this case. It is my view that Judge Olson had
no authority to totally and completely override Judge McCarterrs
finding of compelling State interest and, indeed, to conclude that
the State "cannotm show a compelling State interest under the facts
of this case; in addition, the court's failure to enter detailed
findings or any legal authority whatsoever essentially renders
review by this Court impossible. The majority's willingness to put
its imprimatur on the events and proceedings which occurred in this
case is incomprehensible to me.
The majority begins its analysis with the b camera issue and
addresses the privacy issue thereafter. For ease of discussion, I
will follow suit. To begin, I do not disagree with the majority's
statements concerning the purpose and value of h camera reviews.
The cases on which it relies to affirm the actual camera
proceedings which occurred in this case, however, are inapposite.
If anything, those cases support a remand for further and
appropriate proceedings by the district court.
The majority relies primarily, and erroneously, on State v.
Mix and In re Lacy to support its affirmance of the & camera
proceedings which occurred in the instant case. In Mix, the trial
court reviewed a homicide victim's medical records b camera after
the defendant requested admissibility of the records to show the
victim's unstable personality and violent and turbulent character.
Ruling that the records would be excluded, the court "carefully
detailed its findings [of remoteness and irrelevance] with
counsel;" it later included those "clearly detailedn findings of
remoteness and irrelevance in its order denying a new trial. This
Court found no manifest abuse of discretion. Thus, while Mix can
be said to involve h camera proceedings, it certainly provides no
basis for the majority's affirmance in this case. Mix supports the
necessity of a trial court making detailed findings of its reasons
for excluding material after an h camera review. In this case, no
findings of any kind were made. Absent such findings, and with the
file at issue not available to us, there is absolutely nothing for
this Court to review. Yet the majority blithely ignores the
specifics of Mix, concluding that the District Court properly
utilized the b camera procedure and that there was no abuse of
discretio
also provides no support for the majority's conclusions.
The majority correctly states that in we determined that the
- camera procedure should be used to decide what information
in
properly could be discovered. Again, however, the majority does
not focus on the specifics in w and ignores its own analysis
therein. The issue in was an insurer's right to obtain police
department investigation records which the insurer believed would
aid it in determining whether a decedent made misrepresentations in
his policy application. The insurer filed an application for
production: the police department objected to a general release of
the information and requested an camera review to decide which
evidence should be released. The district court denied the
application altogether on the basis that the carrier was not
entitled to the information under the Criminal Justice Information
Act; the carrier appealed. We concluded that the insurer had met
its burden of showing eligibility to receive confidential police
information under the Right to Know provision of the Montana
Constitution, subject only to the privacy rights of those named in
the records. We remanded for an camera review by the district
court to determine what material could be released, noting that the
insurer "should be accorded the widest breadth of information
possible.
Analyzing the facts, procedure and law set forth in Lacy, it
is clear that in this case the State met its initial burden of
showing entitlement to the file at issue in its application for the
subpoena: Judge McCarter so ruled in issuing the subpoena
commanding production. The appropriate procedure thereafter would
have been an camera review to determine the extent to which the
information should be released. Here, the Diocese had made a
motion to quash on confidentiality grounds and subsequently agreed
that the State's overriding interest controlled. Judge McCarter
denied the motion to quash. As a result, all confidentiality bases
for nondisclosure should have been rejected by Judge Olson. The
file should have been disclosed to the State subject only to
relevance determinations and to the grand jury secrecy and
disclosure provisions previously made applicable by Judge McCarter.
In the event that it was in any way appropriate for the
District Court to consider the privacy right asserted, it should
have done so mindful of the State's entitlement to "the widest
breadth of information possible," according t o m . In ruling on
the privacy right, it should have done a legal analysis delineating
the extent to which the right existed under these circumstances.
Next, under m, it should have balanced the competing interests,
disclosing as much information as possible to the State. Finally,
it should have made detailed findings, as required by Mix, so that
this Court would have something to review.
Instead, the District Court obviously was extremely reluctant
even to open the file. Why? Because it was marked "confidentialm
and "private." The total irrelevance of such designations to a
legal analysis of an asserted right to privacy can hardly be
overstated. Barely overcoming its reluctance, the District Court
reviewed the file "in summary fashion" and concluded, without any
legal analysis whatsoever, that the file was a private, personal
document of the Diocese. And all of this not only outside the
presence of the prosecutor, but before he had had a chance to be
heard. This is the & camera procedure the majority concludes was
properly utilized in this case.
Finally, I am dismayed at the majority's analysis of the
privacy issue itself. The majority glosses over the fact that in
this case it is the Diocese which is held to have the right of
privacy. It states that the two-prong privacy test was met during
the proceedings before Judge Olson and that that test bars
discovery of the records at issue here, relying on Missoulian v.
Board of Reqents. It is a sad day for the state of the law in
Montana when this Court cannot distinguish between a case in which
the competing interests are the public's right to know and an
individual's expectation of privacy in personnel evaluations, and
one in which the interests are the State's compelling interest in
investigation and prosecutions of criminal sex offenses and the
Helena Diocese's interest in keeping its files safe from scrutiny.
The majority concludes its discussion of the privacy issue by
suggesting that its actions and those of the District Court in this
case should not be interpreted as blanket unavailability of
personnel records. Given the state of the record before us, this
statement is disingenuous at best. Perhaps the majority means to
limit application of this case to other cases involving the
Catholic Church and apply the law properly to all other employers.
If so, an insupportable thing has happened in Montana: the Catholic
Church has been placed both above and outside the reach of the law
with regard to the investigation and prosecution of the very
criminal offenses which people of values and morality find so
disturbing. If not, the majority provides no analysis of how it
plans to distinguish this case from one involving any other
employer.
Yet, in this final section, the majority comes closest to
admitting what the law requires it to do in this case. The
majority discusses Montana Human Riahts Division v. Billincis and
Great Falls Tribune v. Cascade Countv Sheriff with approval,
suggesting that in other cases, presumably cases not involving the
Church, it will apply those precedents. In Billinas, access to
employment records was granted to the Human Rights Division to
investigate possible violations of anti-discrimination laws;
protective measures were mandated to prevent dissemination of the
discovered information. Those results were appropriate in Billincis
and they are appropriate here. Apparently the majority believes it
is more important and, somehow, more legally permissible to
discover violations of anti-discrimination laws than to discover
and prosecute criminal acts of deviate sexual conduct. I am
unwilling to subscribe to such an ordering of priorities, Billinqs
makes it even more clear to me that the State's interest in this
case must override any right to privacy asserted by an entity--
whether that entity is the City of Billings, XYZ Corporation or the
Helena Diocese. Adequate protective measures are available in this
case as they were in Billinas; indeed, here Judge McCarter included
protective measures in the subpoena when it was issued.
In Great Falls Tribune, the public's right to know which
officers had been disciplined for unlawful acts was held to
override the limited privacy interest of those officers. I can
conceive of no explanation, nor is one offered, for the majority's
conclusion in this case that the State's interest in prosecuting
sex offense cases and, indeed, in protecting Montanans from
perpetrators of such offenses, must give way to the privacy
interests of the Helena Diocese of the Roman Catholic Church.
In its final paragraph, the majority performs its last
reconstruction of the record in this case to match the result it is
determined to reach. Contrary to the majority's statement, the
District Court did not order the camera review as a result of
"consider[ing] the possible effects of releasing the Catholic
Diocese's personnel records concerning Burns. . . . Judge
McCarter ordered the Church to immediately produce the files after
finding that the State had a compelling interest, denied the
Church's motion to quash, and ordered an camera review. The
record does not suggest why the camera review was ordered and
the majority's statement constitutes creative speculation. If we
are to base our opinions on speculation, I submit that it is more
likely that the review was ordered so that irrelevant and/or remote
information could be withheld, based on specific findings as
required by a.
The majority's next statement, that the District Court heard
arguments after the review and determined that disclosure of the
information was improper, is true but misleading. The facts that
the review was made and a decision announced two days before the
prosecution even appeared and was allowed to make argument are
conveniently omitted.
Finally, the majority tosses in a non seauitur by mentioning
that prohibiting discovery information which is not probative is
one of the discretionary functions of trial courts. The record is
clear that no review was conducted from a probity perspective and
no findings regarding probity were made in this case; indeed,
neither this Court nor anyone other than the Church and Judge Olson
will ever know whether information probative of the offenses with
which Burns is charged is contained in the files.
Law enforcement personnel will be severely hampered by this
Court's action today. More important, at least to me, Montanans
will suffer. I dissent.
CERTIFICATE OF SERVICE
I hereby certify that the Following order was sent by United States mail, prepaid, to the following
named:
Hon. Marc Racicot, Attorney General
Elizabeth L. Griffing, Assistant
Justice Bldg.
Helena, MT 59620
Thomas R. Scott
County Attorney
2 So. Pacific St., CI, No. 2
Dillon, MT 59725
John S. Warren
Schulz. Davis & Warren
P.O. Box 28
Dillon, MT 59725
ED SMlTH
CLERK OF THE SUPREME COURT
STATE OF MONT.4NA