       IN THE SUPREME COURT FOR THE STATE OF MONTANA
                                     AF 06-0377
                              NO.


IN THE MATTER OF THE RULES FOR PRIVACY AND PUBLIC
ACCESS TO COURT RECORDS IN MONTANA

Honorable Russell C. Fagg, Honorable Ingrid Gustafson, Honorable G. Todd
Baugh, Honorable Susan P. Watters, Honorable Gregory Todd, W. Corbin
Howard, and P. Mars Scott, Petitioners.



        PETITION FOR ORIGINAL JURISDICTION AND ORDER


PETITIONERS

Honorable Russell C. Fagg            Honorable Ingrid Gustafson
District Judge                       District Judge
Thirteenth Judicial District Court   Thirteenth Judicial District Court
P.O. Box 35027                       P.O. Box 35029
Billings, MT 59 103                  Billings, MT 59 103
(406) 256-2906                       (406) 256-29 16
Fax: (406) 256-2736                  Fax: (406) 256-2736
Email: rfagg@,mt.gov                 Email: igustafson@,mt.gov

Honorable G. Todd Baugh              Honorable Susan P. Watters
District Judge                       District Judge
Thirteenth Judicial District Court   Thirteenth Judicial District Court
P.O. Box 35042                       P.O. Box 35028
Billings, MT 59103                   Billings, MT 59103
(406) 256-2922                       (406) 256-29 11
Fax: (406) 256-2736                  Fax: (406) 256-2736
                                     Email: swatters@mt.gov
Honorable Gregory Todd              W. Corbin Howard
District Judge                      Attorney at Law
Thirteenth Judicial District        3860 Avenue B, Suite C
P.O. Box 35026                      Billings, MT 59 102
Billings, MT 59103                  (406) 248-9244
(406) 256-290 1                     Fax (406) 248-6384
Fax: (406) 256-2736                 Emai1:corbinhoward@,corbinhoward.com
Email: gtodd@,mt.gov

P. Mars Scott
P. Mars Scott, P.C.
P.O. Box 5988
Missoula, MT 59806
(406) 327-0600
Fax: (406) 728-0948
Email: pmarsscott@,pmarsscott.com
        IN THE SUPREME COURT OF THE STATE OF MONTANA

                               NO.


 IN THE MATTER OF THE RULES FOR PRIVACY AND PUBLIC
 ACCESS TO COURT RECORDS IN MONTANA

 Honorable Russell C. Fagg, Honorable Ingrid Gustafson, Honorable G. Todd
 Baugh, Honorable Susan P. Watters, Honorable Gregory Todd, W. Corbin
 Howard and P. Mars Scott, Petitioners.



         PETITION FOR ORIGINAL JURISDICTION AND ORDER


                                     SUMMARY

The Rules For Privacy and Public Access to Court Records in Montana (hereinafter

"Access Rules") establish the policy and rules of this Court to govern a

computerized electronic filing system that does not yet exist. In its Order of

February 13,2007 issued I THE MATTER OF ADOPTING OF THE RULES
                         N
FOR PRIVACY AND PUBLIC ACCESS TO COURT RECORDS IN

MONTANA in Case No. AF 06-0377 (hereinafter "February 13, 2007 Order")

adopting the Access Rules this Court recognized that some of the rules should


                                Petition Page 1 of 19
become applicable ". .. only when the technology contemplated by the rule or part

thereof becomes available." Rule 4.00, however, applies these Rules to & l
                                                                        records,

including paper filings, for example. The technology for compliance with these

Rules efficiently simply does not exist. Applying these Rules to litigants, courts,

clerks and the public before computer software and hardware are available to

efficiently comply with the Rules will be extremely burdensome and will harm our

system of justice. As will appear more specifically below, Petitioners respectfully

request this Court:

    I.     Assume original jurisdiction.

    11.    Amend its February 13, 2007 Order as specified in Paragraph 11 below.

    111.   Temporarily suspend the application of Section 4.00 of the Access Rules

           as further specified in Paragraph 11 below.

    IV.    Amend its February 13, 2007 Order to provide for supplemental orders

           to be issued later as further specified in Paragraph 6(a) below.

    V.     Issue its Order extending the period for public comment on the Access

           Rules for a reasonable time.




                                Petition Page 2 of 19
                                     PETITION

The Petitioners allege as follows:

   1. This action is brought as an original proceeding in the Supreme Court of the

      State of Montana pursuant to Article 7, Section 2 of the Constitution of the

      State of Montana (1972) which provides that the Supreme Court has original

      jurisdiction to make rules governing practice before all courts and to regulate

      the conduct of legal proceedings, and pursuant to Rule 14, Montana Rules of

      Appellate Procedure. The Montana Supreme Court is empowered by the

      Constitution of Montana to issue and amend from time to time, rules

      governing legal proceedings before the lower courts.

   2. On February 13,2007, the Supreme Court of Montana, as part of its authority

      to govern the practice of law in the State of Montana, ordered the adoption of

      Rules for Privacy and Public Access to Court Records in Montana

      (hereinafter "Access Rules"). The February 13, 2007 Order specified that:

         a. The Access Rules represent the ". ..comprehensive policy and rules to

             govern electronic access to Montana's Court records." See Order, page

             1 (Emphasis supplied).




                                Petition Page 3 of 19
     b. The Access Rules were drafted ". ..within the context of two

        hndamental rights guaranteed under Montana's Constitution: the

        Public's Right to Know, Article 11, Section 9, and the Right of

        Individual Privacy, Article 11, Section 10." See Order, page 1.

     c. "The Rules shall become effective December 3 1,2007, recognizing

        that certain rules or parts thereof may become applicable only when

        the technology contemplated by the rule or part thereof becomes

        available to the courts." See Order, page 2.

3. The Montana Supreme Court Commission on Technology adopted its

  Montana Judicial Branch - Information Technology Strategic Plan - 2006

  (hereinafter "Strategic Plan") in September, 2006. The Strategic Plan

  provides for the development and implementation of the electronic filing

  system contemplated by the Access Rules over a four-year period. According

  to the Strategic Plan, from fiscal year 2008 through 201 1 the Court will:

     a. Create and implement computerized information systems complying

        with the Access Rules to file and provide access to litigants, lawyers,

        courts and the public in electronic form.&     Objective 2.6.5, page 19




                           Petition Page 4 of 19
         of Montana Judicial Branch - Information Technology Strategic Plan

         -   2006.

      b. Create Access Rule training programs.        Objective 2.6.4, page 19 of

         Montana Judicial Branch - Information Technology Strategic Plan -

         2006.

4. Petitioners Russell C. Fagg, Ingrid Gustafson, G. Todd Baugh, Gregory Todd

   and Susan P. Watters are District Court Judges in the Thirteenth Judicial

   District of the State of Montana.

5 . Petitioners W. Corbin Howard and P. Mars Scott are attorneys licensed to

   practice law before the Montana Supreme Court.

6. Petitioners believe and therefore allege as follows:

      a. The February 13, 2007 Order states that ". .. certain rules or parts

         thereof may become applicable only when the technology

         contemplated by the rule or part thereof becomes available to the

         courts." Petitioners respectfblly request the Order be clarified by:

              i. A supplemental order specifying which rules or parts of rules

                 are not applicable on December 3 1,2007 and which become

                 applicable later.



                             Petition Page 5 of 19
      ii. A supplemental order or orders to be issued after technology

          becomes available, specifying a later date certain when the rules

         having delayed effect shall become applicable.

     iii. A supplemental order or orders specifying to what districts the

         rules having delayed effect shall become applicable.

b. All of the petitions, complaints, answers, motions;affidavits, briefs

   and orders of the District Courts in the Thirteenth Judicial District

   Court ("documents") are filed in the records maintained by the District

   Court with the Clerk of District Court solely in paper form.

c. No technology is currently available to the District Courts or attorneys

   practicing before the District Courts for any of these documents to be

   filed in electronic form. According to the Strategic Plan, the software,

   procedures and training necessary to implement filing in electronic

   form will occur within the next four years.

d. No procedures exist for complying with the Access Rules. Neither the

   Task Force appointed by the Commission on Technology nor any

   other commission or task force has been authorized by the Montana

   Supreme Court to establish procedures or adopt official forms to



                      Petition Page 6,of 19
   establish how litigants, their lawyers, clerks or judges are to comply

   with the Access Rules, particularly in a paper-based filing system.

e. Although some paper documents filed before the District Courts

   contain information described in Section 4.50(c) of the Access Rules

   (social security numbers, full birth dates, full names of children and

   full financial account numbers, hereinafter referred to as "§4.50(c)

   information"), Petitioners are not aware of a single case of "identity

   theft" traceable to the examination of dccurnents in paper form.

   danger posed to individual's privacy interests is very low in the

   existing paper-based filing system for the following reasons:

      i. The documents are part of an enormous volume of paper filings.

         Some contain §4.50(c) information, but many contain           $4.50

         (c) information. As the Court noted in its Strategic Plan:

             1. There were 38,6 19 cases filed before the District Courts

                of Montana in 2005.

             2. There were over 300,000 cases filed before Montana's

                Courts of Limited Jurisdiction in 2005.




                      Petition Page 7 of 19
             3. Literally hundreds of thousands of pages of paper

                documents are filed before the Montana Courts each year.

      ii. These paper documents are only available to the public by

         physical inspection at the Clerk of District Court's offices.

f. In practical terms, the danger to the privacy interests of Montana

   citizens posed by the presence of $4.50 (c) information in court

   documents is minimal until technology allows filing - and accessing -

   those documents in electronic form.

g. The application of the Access Rules to the current paper filing system

   will be greatly burdensome:

      i. It will greatly increase the volume of filed documents in 2 ways:

             1. Litigants must file two documents where now they file

                one: one document with $4.50 (c) information disclosed

                and sealed and a second document with $4.50 (c)

                information redacted.

             2. Whenever an order containing $4.50 (c) information,

                must be issued by a court, the court must prepare two

                documents: an original with the $4.50 (c) information, file



                      petition Page 8 of 19
           the original in a sealed portion of the file, and prepare a

           second without the $4.50 (c) information for filing in the

           public portion of the file.

ii. The increase in volume of documents will:

        1. Increase the workload of Clerks of Court;

       2. Increase the workload of courts;

       3. Increase the legal fees of litigants represented by counsel
                         -




           for compliance with the Access Rules in a paper based

           system - with no offsetting efficiencies that are the very

           reason for moving to an electronic filing system.

iii. It will increase the number of self-represented litigants. Any

    increase in legal costs decreases the number of litigants who can

    afford to hire lawyers. Self-represented litigants generally take

    more of the District Court's time than litigants represented by

    lawyers. Self-represented litigante often are ineffective in using

    the legal system.

iv. It will increase the difficulty of self-represented litigants finding

    their way through the legal system.



                 Petition Page 9 of 19
 v. It will require the development of two new sets of procedures

     and forms by district courts and attorneys within the next four

     years:

        1. One set of procedures and forms to comply with the

              Access Rules in a paper-based filing system; and

        2. A second set of procedures and forms to comply with the

              Access Rules as soon as electronic filing becomes

              available.

vi. It will require two sets of CLE's within the next four years:

        1. Training for attorneys and court personnel in procedures

              and forms to be used in complying with the Access Rules

              in the paper-based filing system; and

        2. Another round of training in a second set of forms and

              procedures for complying with the Access Rules as soon

              as electronic filing becomes available.

vii. It will substantially slow the daily administration of iustice in

     the Montana courts both before the district courts and before




                   Petition Page 10 of 19
                courts of limited jurisdiction before the technology becomes

                available for full electronic filing.

7. The February 13,.2007 Order noted that a previous draft of the Access Rules

   had been submitted for public comment and that public comment period had

   expired on August 23,2006. Petitioners respectfully request that the period

   for public comment be reopened for a reasonable time for the following

   reasons :

      a. Petitioners and others in the court system have privately conducted

         numerous discussions and worked very hard to develop forms and

         procedures for complying with the Access Rules.

      b. It has been in the course of attempting to develop the practical

         application of the Access Rules that the concerns and difficulties set

         forth in paragraph 6 have come to light.

      c. While Petitioners do not make this request lightly, they respectfully

         suggest that an additional period for comment would provide an

         opportunity for what has been active and ongoing private discussions

         to be conducted in a public forum with full access of the public to the

          entire process of developing forms and procedures.



                            Petition Page 11 of 19
8. Petitioners, Judges and lawyers similarly situated, litigants, jurors, witnesses,

   victims and others whose personal information appears in the records of

   District Courts and Courts of limited jurisdiction throughout the State of

   Montana have no other adequate remedy at law. The Task Force appointed

   by the Commission on Technology has no authority to define specific

   procedures for compliance with the Access Rules and no authority to amend

   or suspend any portion of the Access Rules.

9. Requiring full compliance with the Access Rules intended for an electronic-

   based filing system in a paper-based filing system will harm the public

   interest.

10.Requiring full compliance with the Access Rules in a paper-based filing

   system which renders the administration of justice less efficient also violates

   the letter and in spirit of the Rules of Civil Procedure which is to seek ". . .to

   secure thejust, speedy, and inexpensive determination of every action." Rule

   1, Mont. R. Civ. P.

11. The Supreme Court of Montana should assume original jurisdiction of this

   matter since it exclusively controls and regulates the practice of law in

   Montana. The issues raised herein have impact of major importance on a



                             Petition Page 12 of 19
   statewide basis. The issues raised herein affect all courts, litigants and

   attorneys throughout Montana similarly situated. The issues involved are of

   common or general interest of many persons. The persons affected thereby

   are numerous and it is impractical to bring them all before the Court. For

  these reasons, the Petitioners file this Application on their own behalf and for

  the benefit of all persons similarly situated and affected by the Access Rules.

12.The petitioners seek an order temporarily suspending the application of the

  Access Rules until computer software and hardware are available to

  efficiently comply with the Rules. To that end, Petitioners respecthlly

  request the following:

      a. That this Court amend its February 13, 2007 Order issued IN THE

         MATTER OF ADOPTING RULES FOR PRIVACY AND PUBLIC

         ACCESS TO COURT RECORDS IN MONTANA filed as Case No.

         AF 06-0377 to provide that:

             i. IT IS ORDERED THAT the Rules for Privacy and Public

                Access to Court Records in Montana (the Rules) attached hereto

                as Exhibit "A" are adopted. The comments to the Rules are not

                adopted as rules but are provided for interpretational guidance



                            Petition Page 13 of 19
         only. The Rules shall be effective after December 3 1,2007; gJ
                                                                      n
               ..
         after f  i
         7 full electronic filing, and access
          the

         information systems technology contemplated by Objective

         2.6.4 and 2.6.5. of the Montana Judicial Branch - Information

         Technology Strategic Plan - 2006 are available to provide

         public access to court records while shielding confidential

         information under Section 4.50 and Section 4.60 below, from

         public view. 0

         €eeF&.

b. That this Court suspend the application of Section 4.00 of the Access

   Rules until the full electronic filing and access information systems

   technology contemplated by Objective 2.6.4 and 2.6.5. of the Montana

   Judicial Branch - Information Technology Strategic Plan - 2006 are

   available to provide public access to court records while shielding

   confidential information under Section 4.50 and Section 4.60 from

   public view.




                     Petition Page 14 of 19
         c. That this Court later issue a supplemental order or orders as requested

             in paragraph 6 (a) above.

   13.Petitioners request that the Court accept jurisdiction of this matter, issue its

      temporary order suspending the application of the Access Rules as set forth

      above, and provide such further notice and request such further commentary

      from the bench and bar as is appropriate.

WHEREFORE, petitioners pray as follows:

   I. That the Supreme Court of Montana assume original jurisdiction.

  11. That the Supreme Court of Montana amend its Order of February 13,2007

      IN THE MATTER OF ADOPTING OF THE RULES FOR PRIVACY AND
      PUBLIC ACCESS TO COURT RECORDS IN MONTANA in Case No. AF

      06-0377 as requested in Paragraph 11 above.

 111. That the Supreme Court of Montana temporarily suspend the application of

      Section 4.00 of the Rules for Privacy and Public Access to Court Records in

      Montana as requested in Paragraph 11 above.

 IV. That the Supreme Court of Montana amend its Order of February 13,2007 to

      provide for the following supplemental orders to be issued later:




                                Petition Page 15 of 1S
         a. A supplemental order specifying which rules or parts of rules are

             applicable on December 3 1,2007 and which become applicable later.

         b. A supplemental order or orders to be issued after technology becomes

             available, specifying a later date certain when the rules having delayed

             effect shall become applicable.

         c. A supplemental order or orders specifying to what districts the rules

             having delayed effect shall become applicable.

  V. That the Supreme Court of Montana issue its Order extending the period for

      public comment on the Access Rules for a reasonable time.

 VI. For such other and farther relief as to this Court shall seem just and equitable.



Dated:   ,
         P/
          ,,   47
                6
                                                                       etitioner
                                       District Judge
                                       Thirteenth Judicial District
                                       P.O. Box 35027
                                       Billings, Montana 59103
                                       (406) 256-2906
                                       Fax: (406) 256-2736
                                       Email: rfagg@,mt.gov




                               Petition Page 16 of 19
Dated: /2//2/ZOO 7

                               District Judge
                               Thirteenth Judicial District
                               P.O. Box 35029
                               Billings, Montana 59103
                               (406) 256-2916
                               Fax: (406) 256-2736
                               Ernail: igustafson@,rnt.gov



Dated:   12 9eC. 2067




                               Fax: (406) 256-2736



Dated:   ,74h7               L f o s
                               Honorable Susan P. Watters, Petitioner

                               District Judge
                               Thirteenth Judicial District
                               P.O. Box 35028
                               Billings, Montana 59103
                               (406) 256-291 1
                               Fax: (406) 256-2736
                               Email: swatters(ii%rnt.gov




                        Petition Page 17 of 19
Dated:   /&- 1 - 7
              20                  I

                            ~onorabl#re@& Todd, Petitioner
                            District r g e V
                            Thirteen Judicial District
                            P.O. Box 35026
                            Billings, Montana 59103
                            (406) 256-2901
                            Fax: (406) 256-2736
                            Email: gtodd@,mt.gov


Dated:   ! J ~ J


                            W. Corbin Howard, petitioner
                            Attorney at Law
                            3860 Avenue B, Suite C
                            Billings, Montana 59102
                            (406) 248-9244
                            Fax: (406) 248-6384
                            Email:




                            P: Mars Scott, Petitioner
                            P. Mars Scott, P.C. Law Offices
                            2920 Garfield , Suite 200
                            P.O. Box 5988
                            Missoula, Montana 59806
                            (406) 327-0600
                            Fax: (406) 728-0948
                            Email: pmarsscott@,pmarsscott.com




                     Petition Page 18 of 19
                            CERTIFICATE OF SERVICE

    I hereby certify that on this   / $ k d a y of December, 2007, a true and correct

    copy of the foregoing was served by placing a copy in the U.S. Mail, first class

    postage prepaid and addressed to the following:

                   Judy Meadows
                   State Law Librarian
                   P.O. Box 203004
                   Helena, MT 59620-3004
                   Co-Chair of Task Force, Montana Supreme Court Commission
                   on Technology

Dated:   &%%+Jk/puq


                         CERTIFICATE OF COMPLIANCE

   Pursuant to Rule 14 and Rule 11 of the Montana Rules of Appellate Procedure,

   I certify that this Petition is printed with a proportionately spaced Times

   Roman text typeface of 14 points; is double spaced; and the word count

    calculated by Microsoft Word is not more than 5,000 words, excluding the

    certificate of service and certificate of compliance.


Dated:   I/
         J.   /b
               , "
                                              W. Corbin Howard, Petitioner




                               Petition Page 19 of 19
