                                                                                              08/02/2016


                                           DA 15-0749
                                                                                          Case Number: DA 15-0749

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 186N



DUANE RONALD BELANUS,

               Plaintiff and Appellant,

         v.

LEO GALLAGHER,

               Defendant and Appellee.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDV 2014-625
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Duane Ronald Belanus, self-represented, Deer Lodge, Montana

                For Appellee:

                       Mitchell A. Young, Gregory L. Bonilla, MACo Defense Services, Helena,
                       Montana



                                                   Submitted on Briefs: July 13, 2016

                                                              Decided: August 2, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Duane Ronald Belanus sued Lewis and Clark County Attorney Leo Gallagher to

compel Gallagher to deliver copies of his entire case file from the State’s 2009

prosecution of Belanus for sexual intercourse without consent and other offenses.

Belanus was convicted and sentenced to life in prison for his crimes. The First Judicial

District Court held that Gallagher had no legal duty to deliver the file to Belanus.

Belanus appeals.

¶3     Soon after his imprisonment, Belanus filed motions with the sentencing court

asking for copies of search warrants issued in his criminal case. The presiding judge

responded that the requested warrants were not part of the court file, but that he would

request Gallagher to provide copies of the warrants. Belanus then wrote several letters to

Gallagher.   Gallagher responded on November 15, 2014, that he had provided the

requested information to Belanus or his agents, and that Belanus’s criminal defense

attorneys had provided that information to Belanus’s father at the conclusion of the

criminal case. Gallagher told Belanus that if he wanted additional copies of materials

from the file, Gallagher would allow Belanus’s designated agent to inspect the file and
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identify the documents he wanted copied. Gallagher would arrange to have copies made

for Belanus’s agent.

¶4    Belanus’s civil suit in the District Court alleged that Gallagher’s failure to deliver

copies of the search warrant documents to Belanus violates his rights under the Freedom

of Information Act (FOIA), the Montana Public Records Acts, and Article II, Sections 8

and 9, of the Montana Constitution. Belanus later conceded that his claims under the

FOIA should be dismissed. The District Court ruled against Belanus on his remaining

claims.

¶5    We review the district court’s order de novo, applying M. R. Civ. P. 56(c)(3).

Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary

judgment is appropriate when the moving party demonstrates both an absence of any

genuine issue of material fact and entitlement to judgment as a matter of law. Albert,

¶ 15; M. R. Civ. P. 56(c)(3). Once the moving party has shown the absence of a genuine

issue of material fact, the non-moving party must present substantial evidence to raise a

genuine issue of material fact. Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294

P.3d 382.

¶6    Belanus argues that Gallagher “intentionally” failed to provide Belanus with his

case file in violation of the Montana Constitution. Belanus argues that he is “fully

authorized by law, to obtain any and all implied criminal justice information regarding

his own case.” Belanus asserts that he is “unable to physically obtain” his files, and

because he has “no ‘agents’ to send for errands over to Gallagher’s office to identify
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documents to be copied,” he is “forced to ask for copies through the mail.” He argues

that §§ 46-15-322 and -327, MCA, “place[ ] not only an affirmative duty on Gallagher to

provide Belanus with his entire case file, but it also places an on-going duty to disclose

any new information that may be discovered and brought to Gallagher’s attention.”

¶7    Observing that the Montana Constitution “does not require a public officer to

deliver documents, only that persons not be deprived of the right to examine documents,”

the District Court found no “procedural mechanism [by which] to order Gallagher to pay

a fine or be held responsible for claimed injuries to Belanus.” The court also noted that

Gallagher had offered to supply Belanus “with whatever documents he desires that are

not victim identification information or work product.”

¶8    Article II, Section 9, of the Montana Constitution establishes a right to “examine

documents.” But there is no constitutional provision that establishes a right to have

documents delivered. The statutes executing Article II, Section 9, contemplate access to

public records—not confidential criminal justice information such as the search warrant

affidavits Belanus seeks in this case.     Sections 2-6-1002, -1003, MCA.       Gallagher

informed Belanus nearly two years ago that Belanus’s second attorney had given the

entire case file to Belanus’s father.     Gallagher made Belanus’s file available for

examination and reproduction by inviting Belanus or a responsible agent to visit

Gallagher’s office and inspect the file. He offered to copy any documents (except for

victim identification information or work product) that Belanus or his agent requested.

Gallagher did not violate Belanus’s constitutional right to know.
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¶9     Because Gallagher did not violate Article II, Section 9, Belanus cannot argue that

his right to participate under Article II, Section 8, was violated by Gallagher’s failure to

deliver Belanus’s case file to him. See Bryan v. Yellowstone Cnty. Elementary Sch. Dist.

No. 2, 2002 MT 264, ¶ 44, 312 Mont. 257, 60 P.3d 381 (“[T]he ‘reasonable opportunity’

standard articulated in Article II, Section 8, and § 2-3-111, MCA, demands compliance

with the right to know contained in Article II, Section 9.”).

¶10    Belanus fares no better under §§ 46-15-322 and -327, MCA. Those statutes

pertain to the production of evidence and criminal discovery during a criminal

proceeding. Belanus has not shown that the obligations under §§ 46-15-322 and -327,

MCA, extend beyond trial to a separate civil case. In any event, § 46-15-322, MCA,

requires only that the prosecutor make discovery materials “available to the defendant for

examination and reproduction.” Section 46-15-322(1), MCA. It does not require that the

prosecutor “deliver” discovery documents to a defendant. State v. Sol, 282 Mont. 69, 79,

936 P.2d 307, 313 (1997) (concluding that the State was not obligated to deliver results

of a test performed on a breathalyzer because the defendant was aware of the tests and the

State had made the results available to him “for examination and reproduction”).

¶11    Gallagher did not violate the law or constitutional mandate when he refused to

mail or otherwise deliver Belanus’s file directly to him. Once he made Belanus’s file

“available for examination and reproduction,” Gallagher was under no further legal

obligation to act.


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¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions.               Without

authority to support a legal duty, the District Court held correctly that there was no relief

it could grant to Belanus on his civil complaint. The District Court correctly interpreted

and applied the law. We affirm its order granting summary judgment to Gallagher.



                                                  /S/ BETH BAKER


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ MICHAEL E WHEAT




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