                                                                                          September 28 2015


                                           DA 13-0765
                                                                                           Case Number: DA 13-0765

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 281



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TROY DOUGLAS McCLELLAND,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC-13-75A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
                        Attorney General, Helena, Montana

                        Greg Sullivan, Bozeman City Attorney, Anna Saverud, City Prosecutor,
                        Bozeman, Montana



                                                    Submitted on Briefs: August 5, 2015
                                                               Decided: September 28, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Troy McClelland appeals from the District Court’s Opinion and Order filed

September 26, 2013, affirming the judgment of the Bozeman Municipal Court that

McClelland must pay $845.24 in restitution to the Crime Victims Compensation

Program. We reverse.

¶2     The issue on appeal is whether the Municipal Court properly denied McClelland’s

request to examine the mental health treatment form that supported the State’s restitution

request.

                                   BACKGROUND

¶3     In March 2012 McClelland was charged by citation with partner or family member

assault, second offense. In January 2013 the State served and filed notice that the Crime

Victims Compensation Program (Program) sought restitution from McClelland for the

amount the Program paid to the victim’s counselor as a result of treatment required by

McClelland’s conduct. The notice included a cover letter and affidavit attesting that the

Program had awarded benefits to McClelland’s victim by paying the victim’s counseling

costs of $845.24.

¶4     In February 2013 McClelland reached a plea agreement with the State in which he

agreed to plead guilty to negligent endangerment. McClelland requested a hearing on the

amount of the restitution, and the hearing was held in March 2013. McClelland agreed

that the Program had provided benefits to the victim and did not dispute that the Program

is entitled to restitution. The State called two witnesses from the Program. Amanda


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Eslick described the Program’s claim-screening process and testified that McClelland’s

victim requested payment from the Program for mental health counseling she received as

a result of McClelland’s offense. Eslick testified that she examined law enforcement

reports and the treatment plan form prepared by the counselor, but not actual counseling

notes. She explained that the Program developed the treatment plan form, and that

among other things it required mental health care providers to state, by percentage, the

proportion of the counseling attributable to the particular crime. The counselor submitted

a treatment plan form affirming that 100% of the victim’s counseling was related to

McClelland’s offense. The Program relied upon that affirmation in setting the amount of

restitution. The State’s other witness, Kathy Matson, testified that she reviewed the claim

and determined that the Program should pay benefits in the amount of the full billing for

the counseling, based upon the counselor’s treatment plan form which stated that all of

the counseling costs related to McClelland’s offense.

¶5     McClelland’s attorney questioned whether 100% of the counseling was

attributable to McClellan’s offense, but acknowledged that she had no evidence to

challenge that allocation. Further, McClelland did not subpoena any witness to the

hearing, did not contact anyone connected with the Program seeking information, and did

not request a continuance to do so. The only factual basis for McClelland’s challenge to

the restitution amount is that the treatment plan form, according to the testimony, stated

that the victim had experienced domestic violence trauma in the past. McClelland’s

attorney moved that she be allowed to examine the form, but the State objected based

upon an assertion that the victim had a right of privacy in the information.           The

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Municipal Court did not examine the treatment plan form; did not admit it into evidence;

and it is not part of the record. The Municipal Court denied McClelland’s request to

examine the form based upon the assertion that the victim had a right of privacy in the

information it contained.

¶6     McClelland did not offer any exhibits or witnesses at the restitution hearing, but

contended that the State had failed to meet its burden of proof as to the amount of

restitution. The Municipal Court found that a preponderance of the evidence supported

the amount of restitution sought and ordered that McClelland make restitution to the

Program for the counseling costs. McClelland appealed to the District Court; that court

reviewed the record and affirmed the restitution order.        The District Court denied

McClelland’s claims that he had not received sufficient notice of the witnesses who

testified at the restitution hearing and that he should have had access to the mental health

treatment form.

                               STANDARD OF REVIEW

¶7     A district court functions as an intermediate appellate court when a case is

appealed from municipal court.      Sections 3-5-303 and 3-6-110, MCA.          This Court

independently reviews an appeal from the district court’s decision. City of Bozeman v.

Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. This Court reviews a lower

court’s factual findings regarding restitution to determine whether they are clearly

erroneous. State v. Essig, 2009 MT 340, ¶ 12, 353 Mont. 99, 218 P.3d 838. This Court

reviews a contention that the sentencing court violated a defendant’s right to due process,



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as an issue of law to determine whether it is correct. State v. Ferguson, 2005 MT 343,

¶ 99, 330 Mont. 103, 126 P.3d 463.

                                     DISCUSSION

¶8     Issue: Whether the Municipal Court properly denied McClelland’s request to
       examine the mental health treatment form that supported the State’s restitution
       request.

¶9     A sentencing judge must require a convicted person to make “full restitution” to a

crime victim who has suffered a pecuniary loss. Section 46-18-201(5), MCA; State v.

Simpson, 2014 MT 175, ¶ 10, 375 Mont. 393, 328 P.3d 1144. The measure of the

restitution is “all special damages . . . substantiated by evidence in the record” that the

victim could recover in a civil action based on the same facts or events.          Section

46-18-243(1), MCA.      While the Rules of Evidence do not apply at sentencing, a

defendant has a due process right to explain, argue and rebut any information presented at

the hearing. State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321 P.3d 841.

¶10    Restitution is not criminal punishment, but is a civil remedy administered by

courts for the convenience of victims. State v. Field, 2005 MT 181, ¶ 29, 328 Mont. 26,

116 P.3d 813. When there is no presentence investigation, as in the present case, “the

court shall accept evidence of the victim’s loss at the time of sentencing.” Section

46-18-242(2), MCA. The restitution amount will be upheld if “calculated by use of

reasonable methods based on the best evidence available under the circumstances” and

specific documentation is not required. Simpson, ¶ 14; State v. Dodson, 2011 MT 302,

¶¶ 12-14, 363 Mont. 63, 265 P.3d 1254.          When the defendant does not present

contradictory evidence “the District Court does not err in relying on a victim’s estimates

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of loss.” Simpson, ¶ 14. The restitution amount must be supported by a preponderance

of the evidence. State v. Hilgers, 1999 MT 284, ¶ 4, 297 Mont. 23, 989 P.2d 866.

¶11    The Crime Victims Compensation Program exists to provide compensation to

persons who are innocent victims of crime. Section 53-9-102, MCA. When the Program

compensates a victim, the Program steps into the shoes of the victim and is entitled to

restitution from the offender for the amount of compensation paid. Section 46-18-243(2),

MCA. The Program has a subrogation right to any restitution ordered by a court, to the

extent of its payment to the victim. Section 46-18-248, MCA. McClelland does not

contest the Program’s right to seek restitution in this case.

¶12    McClelland contends that because the victim suffered some domestic violence in

the past, her most recent counseling could not have all been based upon his conduct. He

does not explain how the fact of prior domestic violence contradicted the counselor’s

conclusion about the victim’s current treatment, and he did not produce any evidence to

support this speculation. We do not make any determination as to validity or impact of

the prior information about the victim’s exposure to domestic violence.

¶13    Despite this, we agree with McClelland that it was error for the Municipal Court to

categorically deny his attorney access to the treatment plan form. The State’s witnesses

relied on the form in their testimony. When the prosecution raised the privacy issue, the

Municipal Court should have examined the form to determine whether it contained

information that implicated the victim’s privacy rights protected by Article II, Section 10

of the Montana Constitution. If the form contains the victim’s private information, then

the court must determine whether the demands of individual privacy exceed the merits of

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public disclosure. Board of Trustees v. Cut Bank Pioneer Press, 2007 MT 115, ¶¶ 34-35,

337 Mont. 229, 160 P.3d 482. The competing interests of individual privacy and the

right to know must be individually balanced in light of the facts of each case. T.L.S. v.

Montana Advocacy Program, 2006 MT 262, ¶ 25, 334 Mont. 146, 144 P.3d 818. To the

extent that the form did not contain the victim’s private information, McClelland was

entitled to view the form as a matter of procedural due process. Aragon, ¶ 12.

¶14    As noted above, McClelland was entitled to explain, argue or rebut any restitution

information received at the hearing. The summary rejection of McClelland’s request to

examine the treatment plan form impacted McClelland’s right to explain, argue or rebut

the restitution information presented at the hearing. If a crime victim provides a written

statement at the sentencing hearing, the court is required to provide a copy to the

defendant. Section 46-18-115(4), MCA; State v. McMaster, 2008 MT 268, ¶ 32, 345

Mont. 172, 190 P.3d 302. In this case the Program stood in the shoes of the victim for

purposes of restitution and provided a written statement of loss to the court. The Program

witnesses relied on the form when testifying.

¶15    At the same time, the victim may have a protectable expectation of privacy to

some portion of the contents of the treatment plan form. If the treatment plan included

information that was subject to the victim’s rights of individual privacy, then the

Municipal Court could have taken steps to protect the victim’s privacy, such as redacting

that information and allowing access to the redacted form. Since the treatment plan form

is not in the record we have no basis to further review the Municipal Court’s decision that

it could not be examined by McClelland’s attorney.

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¶16   The Dissent misapprehends the nature and the breadth of the majority Opinion.

Nothing in this Opinion requires that any person’s private health care information be

disclosed, nor does it contain any requirements contrary to the statutes that govern the

Program. This Opinion applies only to the Program’s form that the witnesses in this case

relied upon in seeking restitution from McClelland. It stands only for the proposition that

a court faced with an issue of a document that may contain matters of individual privacy

must determine the contents of the document and balance the competing interests of

privacy and disclosure as clearly required by established Montana law. This Opinion

clearly states that information that comes within the victim’s right to individual privacy

may not be disclosed.

¶17   Therefore, we reverse the determination as to restitution due from McClelland and

remand to the Municipal Court for further proceedings consistent with this Opinion.

¶18   Reversed.

                                                /S/ MIKE McGRATH

We Concur:

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


Justice Laurie McKinnon, dissenting.

¶19   McClelland argues that he should have been permitted to examine the mental

health treatment plan form to evaluate Dr. Lindner’s assessment that 100% of the

victim’s treatment was related to McClelland’s crime. McClelland claimed, without


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support, that the victim’s counseling could not be attributable entirely to his conduct

because the victim had been previously abused. McClelland claimed, without support,

that because the victim had a history of prior abuse there was thus created a

corresponding due process right for McClelland, not otherwise existing when prior abuse

is absent, to examine records pertaining to the victim’s mental health. McClelland insists

on disclosure of the victim’s mental health treatment plan even when there was

testimony, without objection, at four different times during the restitution hearing that Dr.

Lindner indicated the victim’s counseling was 100% attributable to McClelland’s assault.

The Court’s decision fails to appreciate the implications of McClelland’s arguments for

victims of repeated domestic violence; fails to acknowledge the complete absence of any

evidence supporting McClelland’s speculation that the victim’s counseling was not 100%

attributable to his conduct; and, most importantly, fails to recognize that § 53-9-133,

MCA, allows the court to “set as a condition of probation the payment to the state of an

amount equal to any benefits paid by the office [of victims services] to a victim or a

victim’s dependents.” (Emphasis supplied.) Finally, the Court fails to even mention the

provisions of § 53-9-107, MCA, which establishes records of the office of victim services

are confidential and exempt from disclosure, except where the proponent of disclosure

has shown a compelling interest.

¶20    The Legislature in 1977 created the Crime Victims Compensation Program

(CVCP) “to provide a method of compensating those persons within the state who are

innocent victims of criminal acts . . . .”       Section 53-9-102, MCA.      The CVCP is

statutorily authorized to “determine all matters relating to claims for compensation,” and

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the program is authorized to adopt rules to implement the compensation program.

Section 53-9-104(1)(c), MCA; see Admin. R. M. 23.15.10, et seq. The Legislature

defined CVCP as a victim “to the extent that it has reimbursed a victim for pecuniary

loss.” Section 46-18-243(2)(a)(v), MCA. The CVCP is designed to reimburse crime

victims timely and completely and, as explained by Matson, award benefits to victims

based on CVCP’s internal claims processing without requiring the victim to wait until the

criminal defendant is sentenced. To that end, and in recognition of the CVCP’s right of

subrogation as a victim, the court may set as a condition of probation the payment to the

State of “an amount equal to any benefits” paid by the CVCP. Section 53-9-133(1),

MCA.

¶21      The Court’s decision undermines the operation of these statutory provisions

because it ignores that restitution here is being claimed by CVCP and not the actual

victim of McClelland’s assault. The statutory framework does not require that CVCP

substantiate or document the loss sustained by the person to whom the CVCP awards

benefits. If the Legislature had intended CVCP to substantiate its administrative decision

to award benefits, the Legislature could have expressly stated as much. Instead, the

Legislature gave the CVCP broad administrative authority to “determine all matters

relating to claims for compensation.” Section 53-9-104(1)(c), MCA. In authorizing the

program, the Legislature empowered CVCP to obtain reports and data pertaining to

health     care   information   and    confidential    criminal    justice   information.

Section 53-9-104(2)(a), (b), MCA. CVCP has the authority to subpoena witnesses and

other prospective evidence, administer oaths or affirmations, and to conduct hearings and

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receive evidence. Section 53-9-104(2)(c), MCA. These statutory provisions do not

require the CVCP to justify its administrative decision in awarding benefits to a crime

victim.

¶22    CVCP awarded the victim $845.24 for mental health counseling and submitted an

affidavit “that specifically describe[d] [CVCP’s] loss and the replacement value in dollars

of the loss . . . ” as required by § 46-18-242, MCA. It is undisputed that CVCP is a

victim and there was no further requirement for CVCP to submit additional

documentation of its loss. State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321 P.3d

841. We have explained that a defendant has a due process right to “explain, argue, and

rebut any information” presented at sentencing, State v. Roedel, 2007 MT 291, ¶ 65, 339

Mont. 489, 171 P.3d 694, but a court does not err in relying upon testimony and evidence

presented by the victim when a defendant fails to present any evidence, as here, which

rebuts the victim’s testimony as to pecuniary loss. State v. Dodson, 2011 MT 302, ¶ 14,

363 Mont. 63, 265 P.3d 1254.

¶23    The State produced testimony explaining the CVCP’s process for determining

victim eligibility and the amount of compensation.    The internal administrative process

for evaluating a claim tracks the statutory provisions of §§ 53-9-125 through -128, MCA.

Consistent with its authority to “prescribe forms for applications for compensation,” the

CVCP generated the mental health treatment plan form to assist in evaluating a victim’s

claim. Section 53-9-104(1)(b), MCA. Matson testified that, in addition to having the

provider indicate diagnostic codes and a diagnosis, the provider must indicate on the form

the duration of counseling, whether the counseling is directly related to the crime, and

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any previous history of trauma. Thus, the mental health treatment plan form, as the name

suggests, clearly contained confidential information pertaining to the victim which

McClelland was not entitled to examine.

¶24    The Court’s analysis regarding in camera review of the mental health treatment

plan form is therefore misplaced and contravenes clear statutory provisions setting forth

the procedure for disclosure of records of the CVCP. Section 53-9-107(3)(a), MCA,

specifically exempts from public disclosure records of the office that contain

“information of a personal nature, such as personal, medical, or similar information,”

unless there is “clear and convincing evidence” that the public interest requires disclosure

in the particular instance. Furthermore, “[t]he party seeking disclosure has the burden of

showing that public disclosure would not constitute an unreasonable invasion of privacy.”

Section 53-9-107(3)(b), MCA, similarly provides that a criminal defendant may not

examine CVCP records containing a victim’s medical information which are prohibited

from disclosure by federal law and regulations. The Justice Court indicated that pursuant

to the Health Insurance Portability and Accountability Act (HIPPA), 42 U.S.C. § 1320d,

et seq., where there is no waiver from the victim, prohibited disclosure of the contents of

the mental health treatment plan form to McClelland. McClelland presented no evidence

or even argument demonstrating a compelling interest for disclosure. In my opinion, the

Justice Court got it right.

¶25    Accordingly, the Court’s observation that “[McClelland] does not explain how the

fact of prior domestic violence contradicted the counselor’s conclusion about the victim’s

current treatment, and he did not produce any evidence to support this speculation,”

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Opinion, ¶ 12, is in direct contravention with the above statutory provisions requiring that

a criminal defendant bear the burden of demonstrating by clear and convincing evidence

that disclosure of CVCP records is necessary to protect a compelling interest. The Justice

Court explained to defense counsel that she was not relying on any information contained

in the form other than the amount of counseling attributable to McClelland’s actions.

Matson and Eslick had already explained, without objection from McClelland, that

services provided to the victim were 100% related to the incident with McClelland. In

consideration of this record, McClelland has failed to present any evidence which would

warrant further inquiry from the court such as an in camera review.

¶26    As a final note, I feel compelled to address the underlying premise that has been

set forth by McClelland, that is: if you are unfortunate enough to have a history of

domestic violence the confidentiality of your health care information is somehow less

worthy of protection than those without such a history. Absent nothing more than a

fishing expedition on the part of McClelland’s trial counsel and with no evidence

produced that even suggested relevance of the victim’s prior history, we have ordered an

in camera review. The bald assertion from McClelland that testimony about a history of

domestic violence “tended to show that the counseling the victim received bore some

relationship to that prior incident and, thus, was not solely related to” McClelland’s

offense has no support in the record. Furthermore, a claim that Dr. Lindner “contradicted

herself on the disputed fact” when she indicated the victim’s counseling was 100%

attributable is reckless and akin to suggesting that Dr. Lindner made “a false claim or a

false statement . . . in connection with any claim [and] is guilty of theft . . . .” Section

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53-9-111, MCA. I cannot join in this Court’s condoning such arguments from counsel on

this record. I believe our remand for an in camera review legitimizes an inappropriate

and unsubstantiated conclusion regarding victims of domestic violence. Had defense

counsel put any effort at all into proving the relevance of the victim’s prior victimization,

rather than conduct a fishing expedition of the state’s witnesses, resolution of this matter

may have been entirely different. Defense counsel did not, and I would affirm the Justice

Court, as did the District Court.

¶27    I dissent form the Court’s decision to do otherwise.


                                                  /S/ LAURIE McKINNON




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