Billings High Sch. Dis. v. Billings Gazette
| Decision Date | 12 December 2006 |
| Docket Number | No. 05-406.,05-406. |
| Citation | 335 Mont. 94,149 P.3d 565,2006 MT 329 |
| Parties | In re the PETITION OF BILLINGS HIGH SCHOOL DISTRICT NO. 2, Yellowstone county, Petitioner and Respondent, v. The BILLINGS GAZETTE, Respondent and Cross-Appellant, and Billings Education Association, D.M. and P.G., Respondents and Appellants. |
| Court | Montana Supreme Court |
For Appellants: Richard A. Larson, Harlen, Chronister, Parish & Larson, P.C., Helena, Montana.
For Cross-Appellant The Billings Gazette: Martha Sheehy, Sheehy Law Firm, Billings, Montana.
For Respondent Billings High School District No. 2: Laurence R. Martin and Mary E. Duncan, Felt, Martin, Frazier, Jacobs & Rapkoch, P.C., Billings, Montana.
¶ 1 The Thirteenth Judicial District Court, Yellowstone County, directed Billings High School District No. 2 (School District) to release certain documents related to teachers D.M. and P.G. to the Billings Gazette (Gazette) pursuant to Montana's statutory and constitutional "right to know" provisions. The District Court also denied the Gazette's request for attorney fees.
¶ 2 The Billings Education Association (BEA), D.M. and P.G. appeal from the District Court's underlying determinations that D.M. and P.G. have no reasonable expectation of privacy in their conduct as public employees and, even if they did have a reasonable expectation of privacy, that privacy expectation did not clearly exceed the merits of public disclosure. They also appeal from the District Court's ultimate order requiring the School District to release the documents to the Gazette. We affirm.
¶ 3 The Gazette cross-appeals the issue of whether the District Court abused its discretion in denying its request for attorney fees. We affirm.
¶ 4 On September 22, 2004, the Gazette sent the School District a written request for copies of the employment records of two Billings high school teachers, D.M. and P.G., including records of any investigation and disciplinary action taken with regard to an incident which had occurred involving the two teachers. The Gazette relied on Article II, Section 9 of the Montana Constitution, which states that "[n]o person shall be deprived of the right to examine documents . . . except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure."
¶ 5 The School District notified D.M., P.G., and the BEA of the Gazette's request. The BEA, on behalf of D.M. and P.G., responded by letter dated September 23, 2004, that the teachers asserted privacy interests in the requested documents. It further stated the teachers did not waive their privacy interests in — or otherwise authorize the release of — the documents except as to information about their dates of hire, salary history, and teaching and coaching assignments.
¶ 6 On October 1, 2004, the School District filed a declaratory action requesting the District Court to review the relevant documents in camera and declare the parties' rights by determining which documents, if any, should be released to the Gazette pursuant to the Montana Constitution and law. The petition named the Gazette, the BEA, D.M. and P.G. as respondents. On October 12, 2004, the School District released documents to the Gazette relating to the teachers' hire dates, salary history, teaching and coaching assignments, and other documents not subject to the asserted privacy claims. On November 16, 2004, the School District delivered to the District Court for in camera inspection both the documents which had been released to the Gazette and those which had been withheld from the Gazette because of privacy concerns.
¶ 7 After full briefing and oral argument by the parties, the District Court determined that, as public school teachers, D.M. and P.G. occupy positions of public trust and their conduct during the incident underlying the investigative and disciplinary information at issue reflected directly upon their ability to perform their duties. Consequently, the District Court concluded that D.M. and P.G. did not have a reasonable expectation of privacy in the investigation of their conduct as public employees. The court further concluded that, even if the teachers had a reasonable expectation of privacy in the information, that expectation was outweighed by the merits of public disclosure. On that basis, the District Court ordered the School District to release twelve entire documents and one document with a specified redaction to the Gazette. Observing that the School District had not yet provided additional documents for its in camera review, the court declined to rule with regard to those documents and reserved ruling on the Gazette's request for costs and attorney fees.
¶ 8 The BEA, D.M. and P.G. appealed the District Court's order and moved for a stay of proceedings pending the appeal. The District Court granted the stay. Following filing of the notice of appeal, the School District located additional documents relevant to the Gazette's original request and delivered those documents to the District Court for in camera review as they became available. On February 9, 2005, we dismissed the original appeal as interlocutory and premature.
¶ 9 On March 15, 2005, the District Court entered an order dissolving the stay of proceedings, amending its prior order regarding the disclosure of documents, ordering the School District to release all designated documents to the Gazette by the following day, and setting a briefing schedule on the attorney fees issue. The School District delivered the documents as ordered and the District Court subsequently denied the Gazette's request for attorney fees. As set forth above, the BEA, D.M. and P.G. (collectively, the Teachers) appeal and the Gazette cross-appeals.
¶ 10 Did the District Court err in determining that D.M. and P.G. have no reasonable expectation of privacy in their conduct as public employees and in ordering the School District to release documents to the Gazette?
¶ 11 The Teachers contend the District Court erred in concluding they have no reasonable expectation of privacy in the documents at issue and, as a result, also erred in ordering the School District to release the documents to the Gazette. They request reversal of the order requiring release. The Gazette contends, as a threshold matter, that the release of the disputed documents to — and dissemination of the information to the public by — the Gazette renders this issue moot.
¶ 12 Mootness is a threshold issue which must be addressed prior to resolving an underlying dispute. Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 17, 293 Mont. 188, ¶ 17, 974 P.2d 1150, ¶ 17. An issue "is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy." Shamrock Motors, ¶ 19. Stated differently, an issue is moot when a court cannot grant effective relief or restore the parties to their original position. Shamrock Motors, ¶ 19.
¶ 13 Here, the underlying dispute in the District Court was whether the School District should release various documents to the Gazette under Article II, Section 9 of the Montana Constitution, commonly referred to as the "right to know" provision. The School District released these documents to the Gazette pursuant to the District Court's order. We could reverse the District Court's legal conclusions regarding the Teachers' reasonable expectation of privacy and the "right to know" determination if we were to hold the court had erred, and we could require the return or destruction of the copies of the documents released to the Gazette. We could not, however, negate the Gazette's knowledge of the contents or retrieve any public dissemination made of the information in the documents. Consequently, we cannot restore the parties to their original positions. As the District Court aptly stated in its order granting a stay of proceedings pending the first appeal in this matter, "[o]nce the bell is rung, it cannot be un-rung." A decision by this Court in the Teachers' favor would not — indeed, could not — grant them effective relief.
¶ 14 Implicitly conceding that the issue is moot, the Teachers rely on Common Cause v. Statutory Committee, 263 Mont. 324, 868 P.2d 604 (1994), in arguing that we should address the merits of this issue under the exception to the mootness doctrine for constitutional questions which are capable of recurring but which could evade effective review.
This exception recognizes that the amount of time inherent in the litigation process renders it nearly impossible in some cases for a final judicial decision to be reached before the case is rendered moot. In such circumstances, because application of the mootness doctrine would effectively deny the remedy of appeal, a court will agree to issue a decision even after the actual controversy has been resolved.
Grabow v. Montana High School Ass'n, 2000 MT 159, ¶ 15, 300 Mont. 227, ¶ 15, 3 P.3d 650, ¶ 15 (citing Common Cause, 263 Mont. at 328, 868 P.2d at 606-07). A party seeking to invoke the "capable of repetition, yet evading review" exception to the mootness doctrine bears the burden of establishing both that the challenged action is too short in duration to be litigated fully before its cessation and that there is a reasonable expectation that the same complaining party would be subject to the same action again. Skinner v. Lewis and Clark, 1999 MT 106, ¶ 18, 294 Mont. 310, ¶ 18, 980 P.2d 1049, ¶ 18.
¶ 15 We recently discussed and clarified application of the "capable of repetition, yet evading review" exception to the mootness doctrine in Havre Daily News v. City of Havre, 2006 MT 215, 333 Mont. 331, 142 P.3d 864. We adopted this exception from federal jurisprudence, which has established that the exception "is properly confined to situations...
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