Nelson v. City of Billings, DA 17-0074

• Citation: 390 Mont. 290,412 P.3d 1058,2018 MT 36
• Decision Date: 28 February 2018
• Docket Number: DA 17-0074
• Parties: Kevin NELSON, Petitioner and Appellant, v. CITY OF BILLINGS, Montana, and Montana Municipal Interlocal Authority of Helena, Montana, Respondents and Appellees.
• Court: Montana Supreme Court

390 Mont. 290

412 P.3d 1058

2018 MT 36

Kevin NELSON, Petitioner and Appellant,

v.CITY OF BILLINGS, Montana, and Montana Municipal Interlocal Authority of Helena, Montana, Respondents and Appellees.

DA 17-0074

Supreme Court of Montana.

Submitted on Briefs: October 18, 2017

Decided: February 28, 2018

For Appellant: Kevin Nelson, Self-Represented, Billings, Montana.

For Appellees: Harlan B. Krogh, Crist, Krogh & Nord, PLLC, Billings, Montana.

Justice Beth Baker delivered the Opinion of the Court.

¶1 Kevin Nelson filed a Petition for Release of Documents with the Thirteenth Judicial District Court requesting "everything related to" a civil judgment the Montana Municipal Interlocal Authority¹ (MMIA) paid on behalf of the City of Billings (City). The City and MMIA released to Nelson all non-privileged documents and provided privilege logs describing those documents withheld on the ground of attorney-client or attorney-work-product privilege. The District Court granted summary judgment to the City and MMIA on the ground that Nelson had received all of the documents that he was entitled to examine. Nelson appeals, arguing that Montana's constitutional right to know forecloses the City's and MMIA's privilege claims. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Steven Feuerstein, a former Billings City police officer, secured a $1.6 million judgment in a 2006 civil rights lawsuit against the City. MMIA, an interlocal government agency that provides insurance coverage to the City, paid the full judgment to Feuerstein. MMIA determined, however, that the City's policy did not cover certain portions of the judgment and sought reimbursement from the City for $900,000. The City's and MMIA's reinsurer, Specialty National, declared bankruptcy and did not participate in paying the judgment.

¶3 Sometime in 2009, the City and MMIA attempted to discuss the matter in a closed session. The Billings Gazette filed suit to enjoin the closed session, and a district court issued a preliminary injunction, prohibiting any non-public discussions about the matter. That case was dismissed as moot when the City and MMIA agreed not to engage in further discussions.

¶4 MMIA later filed suit in district court against the City and Specialty National for reimbursement. Nelson alleges that during the course of that litigation, the City held closed meetings—in violation of the Montana Constitution and Open Meeting laws—to discuss litigation strategy, including a work session on June 24, 2013, which Nelson had asked to attend. The City and MMIA eventually reached a settlement agreement in which the City agreed to pay MMIA $500,000 to dispose of MMIA's lawsuit.

¶5 Nelson first requested documents from MMIA relating to the Feuerstein matter in August 2013. Nelson wrote a letter asking for "all documents in the matter of City of Billings/Feuerstien [sic]." He wrote that he would "pay any reasonable copying and postage fees of not more than $50.00" for the documents. MMIA responded to Nelson's letter and informed him that MMIA's files contained privileged documents that would need to be reviewed by general counsel and redacted before the documents could be given to Nelson. MMIA explained that, given Nelson's broad request, the costs of reviewing the documents and copying them would far exceed fifty dollars. MMIA sent another letter to Nelson a few weeks later that included copies of agendas and minutes for all MMIA meetings in which the Feuerstein case was discussed. In response, Nelson requested "all communication" "in the matter of MMIA/City of Billings/Feuerstein," including all correspondence between the parties and their attorneys. Nelson again stated that he would pay copying and postage fees up to fifty dollars. MMIA responded with a letter again explaining that the documents Nelson requested may be protected from disclosure by privilege and that in order to fulfill Nelson's request general counsel would need to review thousands of documents at a cost far exceeding fifty dollars "in staff time and legal bills." MMIA requested that Nelson agree to pay these costs before MMIA proceeded. MMIA never received a response from Nelson.

¶6 Nelson also requested documents from the City in August 2013. His initial request to the City was for meeting minutes and agendas from three dates, including the June 24, 2013 meeting from which he was excluded. The City provided him with minutes and agendas from two of the meetings he requested, along with minutes and agendas from two other meetings that took place around the same time. The City informed him that there were no minutes from the June 24, 2013 meeting because at that time Montana law did not require minutes to be kept for closed litigation strategy sessions. In a follow-up letter, Nelson requested "access to and copy of in the matter of MMIA/City of Billings/Feuerstein, all communication." As in his correspondence to MMIA, Nelson wrote that he would pay copying and postage fees up to fifty dollars. The City responded that some of the requested documents may be protected by privilege and that given the broad request, the cost of searching for, reviewing, and copying the documents would exceed fifty dollars. The City requested Nelson to advise it on how he wished to proceed.

The City never received a response from Nelson.

¶7 On July 23, 2014, Nelson filed with the District Court a Petition for Release of Documents against MMIA and the City, asking for the release of "everything" "related to the matter of Steve Feuerstein/The City of Billings/Montana Municipal Insurance Authority." His petition also alleged that the closure of meetings during the litigation was a violation of the Montana Constitution and open meeting laws. He asked the court to compel the release of all documents, order an investigation to determine whether his constitutional rights were violated, and order other remedies. MMIA and the City provided Nelson with over seven thousand pages of documents and a privilege log detailing the documents withheld. MMIA and the City then moved for summary judgment on the basis that all non-privileged documents had been released. Nelson did not file a response or opposition to that motion, but rather filed a one-page "Motion to Deny Summary Judgment" with no supporting brief. Following a hearing, the District Court granted summary judgment in favor of MMIA and the City and dismissed the petition.

STANDARD OF REVIEW

¶8 This Court exercises plenary review over matters of constitutional interpretation. Cross v. VanDyke , 2014 MT 193, ¶ 5, 375 Mont. 535, 332 P.3d 215 ; Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2 , 2002 MT 264, ¶ 16, 312 Mont. 257, 60 P.3d 381.

DISCUSSION

¶9 Nelson argues on appeal that Montana Constitution Article II, Section 9, protects his right to know and allows him to examine any documents of public bodies or agencies of state government with only one exception: when individual privacy clearly exceeds the merits of public disclosure. He argues that because neither the City nor MMIA can claim any right to individual privacy, they cannot refuse to produce any documents to him based on the attorney-client or attorney-work-product privileges.

¶10 MMIA and the City argue that privileged documents are not subject to disclosure under the Montana Constitution because they are not "documents ... of ... public bodies." Therefore, they reason, Article II, Section 9, does not require the City and MMIA to make documents protected by the attorney-client or attorney-work-product privileges available for Nelson's examination. Alternatively, the City and MMIA argue that the District Court's order can be affirmed summarily because Nelson failed to respond in a procedurally proper manner to their motion for summary judgment.

¶11 We first reject the City's and MMIA's argument that the District Court's grant of summary judgment can be affirmed in a summary manner due to Nelson's procedural deficiencies. Although Nelson failed to brief the issues before the District Court on summary judgment, this failure to respond did "not relieve the District Court of the duty to engage in a Rule 56 analysis when presented with a motion for summary judgment." Chapman v. Maxwell , 2014 MT 35, ¶ 11, 374 Mont. 12, 322 P.3d 1029. The District Court properly held a hearing and issued a judgment considering the claims under the standards set out in M. R. Civ. P. 56. Applying de novo review, we consider Nelson's claims under the same standards.

¶12 Montana Constitution Article II, Section 9, provides: "No person shall be deprived of the right to examine documents ... 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." We have held that the language of Article II, Section 9, is unique, clear, unambiguous, and speaks for itself without requirement for "extrinsic aids or rules of construction." Great Falls Tribune Co. v. Great Falls Pub. Sch. , 255 Mont. 125, 129, 841 P.2d 502, 504 (1992) ( Tribune II ); Associated Press v. Bd. of Pub. Educ. , 246 Mont. 386, 391-92, 804 P.2d 376, 379 (1991) ; Great Falls Tribune v. Dist. Court of the Eighth Judicial Dist , 186 Mont. 433, 437-38, 608 P.2d 116, 119 (1980) ( Tribune I ). Pursuant to the plain meaning of the language of Article II, Section 9, we have construed the term "documents ... of ... public bodies or agencies" to mean documents "generated or maintained" by the bodies or agencies in relation to their "function and duties." Becky v. Butte-Silver Bow Sch. Dist. No. 1 , 274 Mont. 131, 138, 906 P.2d 193, 197 (1995).

¶13 As a right expressly enumerated in the Montana Constitution, the right to know is a fundamental right subject to the highest degree of protection. Walker v. State , 2003 MT 134, ¶ 74, 316 Mont. 103, 68 P.3d 872 ; Butte Cmty. Union v. Lewis , 219 Mont. 426, 430, 712 P.2d 1309, 1311 (1986). Like other constitutional rights, however, the right to...