Krakauer v. State
| Decision Date | 19 September 2016 |
| Docket Number | DA 15-0502 |
| Citation | 384 Mont. 527,2016 MT 230,381 P.3d 524 |
| Parties | Jon Krakauer, Petitioner and Appellee, v. State of Montana, by and through its Commissioner of Higher Education, Clayton T. Christian, Respondent and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Vivian V. Hammill (argued), Jessica M. Brubaker, Special Assistant, Attorneys General, Helena, Montana.
For Appellee: Peter Michael Meloy (argued), Meloy Law Firm, Helena, Montana.
For Amici Student Press Law Center, et al.: David K. W. Wilson, Jr., Morrison, Sherwood, Wilson & Deola, PLLP, Helena, Montana.
For Amicus United States: Phillip H. Rosenfelt, Deborah Friendly, Rahul Reddy, U.S. Department of, Education, Washington, DC, Joyce R. Branda, Alisa B. Klein, Tara S. Morrissey, U.S. Department of, Justice, Washington, DC, Michael Cotter, Victoria Francis, U.S. Attorney's Office, Billings, Montana.
delivered the Opinion of the Court.
¶ 1 The Commissioner of Higher Education, Clayton Christian (Commissioner), challenges the summary judgment order entered by the First Judicial District Court, Lewis and Clark County, in favor of Petitioner Jon Krakauer (Krakauer), which ordered the release/inspection of certain student disciplinary records. We affirm in part, reverse in part, and remand for further proceedings. The Commissioner raises several issues, which we restate as follows:
1. Does Krakauer, a Colorado resident, have standing to avail himself of the right to know granted under Article II, Section 9 of the Montana Constitution
?
2. Is the release of records responsive to Krakauer's request prohibited by the Family Educational Rights and Privacy Act of 1974 (FERPA), as amended, and/or by § 20–25–515, MCA ?
3. How does Article II, Section 9 of the Montana Constitution apply to the request for release of the subject student records?
4. Did the District Court abuse its discretion when it awarded attorney fees and costs to Krakauer?
Because we remand for further proceedings, we do not address the merits of the attorney fee issue. We vacate the fee award so that the matter may be reconsidered upon conclusion of the proceeding.
¶ 2 This is a dispute over release of student records related to allegations of sexual assault occurring near the Missoula campus of the University of Montana (University). The underlying allegations of the case were part of a broader campus cultural concern that garnered local and national media attention. Krakauer, a journalist and resident of Colorado, conducted an investigation and published a book chronicling instances of alleged sexual misconduct on or near the University campus. This case involves one of those instances. When Krakauer's request for release of certain student records related to the matter was denied by the Commissioner, Krakauer initiated this action by filing a petition in the First Judicial District Court.
¶ 3 In support of his petition, Krakauer submitted documents that the United States District Court for the District of Montana had previously unsealed and released. Doe v. Univ. of Mont. , No. CV 12–77–M–DLC, 2012 WL 2416481, 2012 U.S. Dist. LEXIS 88519 (D. Mont. June 26, 2012)
, available at https://perma.cc/3RRE-ETXB.1 There, a student (Doe) initiated the action under seal, seeking a preliminary injunction halting the University's disciplinary proceedings against him. The documents, now part of the record here, indicate that after a female student made an allegation that Doe had raped her in an off-campus apartment, the University initiated an investigation into a possible violation of the Student Conduct Code. Dean of Students Charles Couture determined that Doe committed sexual intercourse without consent, and as sanctions, recommended Doe's immediate expulsion from the University and restriction from all University property and University-sponsored events. Doe, represented by counsel, appealed the Dean's determination to the University Court, a body made up of faculty, staff, and students appointed to hear disciplinary matters.
¶ 4 The University Court conducted a hearing and concluded by a 5-2 vote that Doe had committed sexual intercourse without consent, and further concluded by a unanimous vote of 7-0 that he should be sanctioned by expulsion from the University. Pursuant to the Student Conduct Code, Doe requested that the University Court's determination be reviewed by President Engstrom. President Engstrom's review considered whether the evidence provided a reasonable basis for the findings and disciplinary sanction, and whether procedural errors were so substantial as to deny a fair hearing to either party. President Engstrom upheld the University Court's findings and proposed sanction, and found no procedural error that denied a fair hearing.
¶ 5 As the final step in the disciplinary appeal process, Doe appealed President Engstrom's decision to the Commissioner, whose office acknowledged receipt of the appeal. This is the last step in the process documented in the records released by the U.S. District Court in Doe
. Nothing more is documented there or in the record here about the Commissioner's subsequent actions in the case.
¶ 6 Krakauer filed a request with the Commissioner's office on January 17, 2014, naming a particular student and asking for “the opportunity to inspect or obtain copies of public records that concern the actions of the Office of the Commissioner of Higher Education in July and August 2012 regarding the ruling by the University Court of the University of Montana in which student ... was found guilty of rape and was ordered expelled from the University.” Krakauer asserted factual connections between the federal Doe
case and a highly-publicized state criminal proceeding that had been initiated against the then-starting quarterback of the University's football team. He maintained that the student Doe and the quarterback were the same person, and his request to the Commissioner named the student specifically. Krakauer postulated that the Commissioner must have overturned the University Court's and President Engstrom's decision and sanction of expulsion, noting that the student had “remained in school and continued to participate as the Grizzly quarterback.”
¶ 7 The Commissioner refused to acknowledge that such records existed, and further refused to permit inspection or release of any such documents, asserting that federal and state law prevent him from doing so. Krakauer initiated this action on February 12, 2014, citing the right to know under the Montana Constitution. Upon cross-motions for summary judgment, and after holding a hearing, the District Court granted summary judgment to Krakauer, and ordered the Commissioner to “make available for inspection and/or copying within 21 days” the requested records, with students' names, birthdates, social security numbers, and other identifying information redacted.
¶ 8 The Commissioner appealed and we initially dismissed the case without prejudice, as the District Court had not yet entered an order addressing the attorney fee issue. The District Court awarded fees to Krakauer on June 19, 2015, and the Commissioner again undertook an appeal.
¶ 9 “We conduct de novo review of summary-judgment orders, performing the same analysis as does a district court pursuant to Rule 56 of the Montana Rules of Civil Procedure
.” Lorang v. Fortis Ins. Co. , 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186 (citing LaTray v. City of Havre , 2000 MT 119, ¶ 14, 299 Mont. 449, 999 P.2d 1010 ).
¶ 10 Substantively, Krakauer's Petition was based upon the constitutional right to know, and the Commissioner likewise raises constitutional issues. Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2 , 2002 MT 264, ¶ 16, 312 Mont. 257, 60 P.3d 381
(internal citation omitted) (citing Schuff v. A.T. Klemens & Son , 2000 MT 357, ¶ 28, 303 Mont. 274, 16 P.3d 1002 ).
¶ 11 1. Does Krakauer, a Colorado resident, have standing to avail himself of the right to know granted under Article II, Section 9 of the Montana Constitution
?
¶ 12 The Commissioner argues that Krakauer, as a resident of Colorado, does not have standing to pursue his Petition, because he is not a party intended to benefit from the Montana Constitutional right to know provision, and related statutes. The Commissioner argues this privilege was created and enacted for the sole benefit of Montana citizens, to allow them access to the workings of their own government.
, we clarified the standing requirements, and more specifically the required showing for injury, under
. After doing so for purposes of that case, we noted, “It is not appropriate in this case to address the parameters of standing for right to know and right of participation claims that may arise in other contexts.” Schoof , ¶ 25. Later the same year, we addressed another standing argument related to Article II, Section 9 of the Montana Constitution, in Shockley v. Cascade Cnty. , 2014 MT 281, 376 Mont. 493, 336 P.3d 375. There, we held that the Montana Constitution does not prohibit a citizen of one Montana county from requesting public documents from a public body in another county. Shockley , ¶ 22. We declined to address “the question of whether standing extends beyond Montana citizens [.]” Shockley , ¶ 23. That question arises here.
is short and clear. “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,...
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