Pengra v. State

• Decision Date: 17 November 2000
• Docket Number: No. 00-015.,00-015.
• Citation: 14 P.3d 499,2000 MT 291,302 Mont. 276
• Parties: Steve PENGRA, as personal representative of the Estate of Tamara Pengra, deceased, and Steven Pengra, on his behalf and as guardian and conservator for Tiffany Pengra, Plaintiffs and Appellants, v. STATE of Montana, acting through its Department of Corrections, Defendant and Respondent, and Montana Law Week; and The Helena Independent Record, The Associated Press, The Billings Gazette, and The Missoulian, Intervenors, Respondents, and Cross-Appellant.
• Court: Montana Supreme Court

14 P.3d 499

2000 MT 291

302 Mont. 276

Steve PENGRA, as personal representative of the Estate of Tamara Pengra, deceased, and Steven Pengra, on his behalf and as guardian and conservator for Tiffany Pengra, Plaintiffs and Appellants, v. STATE of Montana, acting through its Department of Corrections, Defendant and Respondent, and Montana Law Week; and The Helena Independent Record, The Associated Press, The Billings Gazette, and The Missoulian, Intervenors, Respondents, and Cross-Appellant.

No. 00-015.

Supreme Court of Montana.

Argued September 14, 2000.

Submitted September 26, 2000.

Decided November 17, 2000.

Richard J. Pyfer (argued), Small, Hatch, Doubek and Pyfer, Helena, MT, For Appellants.

P. Keith Keller (argued) and Michael R. King, Special Assistant Attorney General, (State of Montana) James P. Reynolds (argued), Reynolds, Motl & Sherwood, Helena, MT, (News organizations), For Respondents.

Peter Michael Meloy (argued), Meloy and Morrison, Helena, MT, (Montana Law Week), For Cross Appellant.

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 Steve Pengra brought this action against the State of Montana contending that the State's negligent acts and omissions led to the brutal rape and murder of his wife Tamara by a Montana prison probationer. Pengra and the State settled the suit before trial, and Pengra asked the court to seal the settlement agreement. Montana Law Week, the Helena Independent Record, The Associated Press, the Billings Gazette, and the Missoulian (collectively, "the press") were granted permission to intervene in opposition to Pengra's request. The First Judicial District Court, Lewis and Clark County, later denied Pengra's request but sealed the settlement agreement pending this appeal. We affirm that court's decision.

¶ 2 On appeal, Pengra argues that the District Court erred in denying his motion to seal the settlement agreement because (1) his daughter's and his rights to privacy protect the terms of the agreement; (2) the & sect; 2-9-303, MCA, requirement that settlements of claims against the State must be made available for public inspection violates the personal privacy of an individual; and (3) the Pengras' right to privacy outweighs the public's right to know the terms of the settlement agreement. On cross-appeal, Montana Law Week argues that the court erred in denying its claim for attorney fees.

¶ 3 Pengra brought this action against the State of Montana on behalf of himself, the estate of his late wife, and their minor daughter. Tentative agreement on a settlement of the case was reached just five days before the scheduled start of a jury trial. At that time, the proprietor of Montana Law Week asked the State's attorney for a copy of the settlement agreement for inclusion in his publication. The information sought is the dollar amount of the settlement and the method of payment thereof.

¶ 4 While the parties were still working out the details of the settlement, Pengra's attorney presented to the District Court an ex parte motion asking that the terms and conditions of the settlement agreement be sealed. The court set a date for hearing on the motion. Prior to the scheduled hearing, the press moved to be allowed to intervene, and those motions were granted.

¶ 5 In support of his motion to seal the settlement agreement, Pengra argued that disclosure of the terms of the agreement would be detrimental to his and his daughter's emotional well-being and would interfere with closure and healing for his daughter. At the hearing on the motion, Pengra's attorney hand-delivered to all counsel a supporting affidavit of Michael A. Emerson, Ph.D. However, the affidavit was neither offered into evidence nor filed with the court at that time. The press argued against the motion to seal, based upon the statement in & sect; 2-9-303, MCA, that governmental settlement agreements are public records, and the public's constitutional right to know.

¶ 6 The following week, the District Court issued a written order denying Pengra's motion to seal the settlement agreement. The court concluded that there was no privacy interest in the amount of monetary compensation the Pengras received under the settlement and held that even if there was a constitutionally-protected privacy right, that right did not clearly outweigh the merits of public disclosure of the settlement agreement. The court denied Montana Law Week's request for attorney fees. Pengra appeals, and Montana Law Week cross-appeals.

Issue 1

¶ 7 Did the District Court err in denying Pengra's motion to seal the settlement agreement because (1) Pengra's and his daughter's rights to privacy protect the terms of the agreement; (2) the § 2-9-303, MCA, requirement that settlements of claims against the State must be made available for public inspection violates the personal privacy of an individual; and (3) the Pengras' right to privacy outweighs the public's right to know the terms of the settlement agreement?

¶ 8 We first address Pengra's contention that his daughter, as a minor, possesses elevated privacy rights under which the terms of the settlement agreement are protected. In general, minors have the same rights as do all other persons.

Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.

Art. II, § 15, Mont. Const. Thus, elevated privacy rights of a minor are not implicit in Montana's Constitution.

¶ 9 Pengra has cited a number of statutes under which the privacy rights of minors are accorded special, elevated protections (e.g., as to juvenile records and adoption records). The fact that the Legislature has enacted statutes granting minors elevated privacy rights in other areas shows that the Legislature knows how to express its intent to allow for confidentiality of proceedings involving children.

¶ 10 The Montana Legislature has not, however, provided for elevated privacy rights with regards to settlement documents for children's tort claims against the State. Section 2-9-303, MCA, merely provides:

(2) All terms, conditions, and details of the governmental portion of a compromise or settlement agreement entered into or approved ... are public records available for public inspection.

¶ 11 Pengra refers to discussion in the legislative history of § 2-9-303, MCA, regarding the advisability of including a provision making confidential settlements involving minor children. However, no such provision was enacted. Based on the absence of an elevated-protection provision in either the Montana Constitution or the statute, we conclude that minors do not have a greater right to privacy than do adults in settlement agreements for tort claims against the State.

¶ 12 We next look to Pengra's belated claim that the § 2-9-303, MCA, requirement that settlements of claims against the State must be made available for public inspection violates the personal privacy of an individual and is therefore unconstitutional on its face. Pengra did not raise this allegation before the District Court, and it was not articulated before this Court until the reply brief and at oral argument.

¶ 13 Rule 23(c), M.R.App.P., provides that an appellant's reply brief must be confined to new matter raised in the respondent's brief; thus, an appellant may not raise new issues in a reply brief. See Denend v. Bradford Roofing and Insulation (1985), 218 Mont. 505, 509-10, 710 P.2d 61, 64

. We will not address the merits of an issue presented for the first time in a reply brief on appeal. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 512, 905 P.2d 158, 162. Accordingly, we do not further consider whether § 2-9-303, MCA, violates the right to privacy and is thus unconstitutional on its face.

¶ 14 Still remaining is Pengra's as-applied challenge to the disclosure provision of § 2-9-303, MCA: his contention that the statutory disclosure provision is superseded by his and his daughter's rights of individual privacy. We have recognized that statutes conflicting with the Montana Constitution are generally subordinate to the constitution and if possible must be interpreted to harmonize with it. See Engrav v. Cragun (1989), 236 Mont. 260, 263, 769 P.2d 1224, 1226

. This leads inexorably to the larger question concerning the conflict here presented between the constitutional right to privacy and the constitutional right to know.

¶ 15 The two provisions at issue are found at Article II, Sections 9 and 10 of the Montana Constitution:

Section 9. 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 subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

This Court has applied a two-step process in deciding claims in which these rights conflict. The process requires, first, determination of whether the person claiming the right of privacy has a subjective expectation of privacy and, if so, whether society is willing to recognize that expectation as reasonable. If both of those prerequisites are met, then the court must decide whether the privacy interest clearly exceeds the merits of public disclosure. Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962. We therefore proceed to weigh the Pengras' rights to privacy, insofar as they are recognized by society, against the public's right to know the terms of the settlement agreement.

¶ 16 We are unable to identify any factual record from which the District Court could have found a privacy interest that would be harmed by disclosure of...