                                                                                               October 21 2014


                                            DA 14-0111

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2014 MT 281

J. G. SHOCKLEY,

              Plaintiff and Appellant,

         v.

CASCADE COUNTY, JASON CARROLL, and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 2,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADV 10-534 C
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Peter Michael Meloy, Attorney at Law; Helena, Montana

                For Appellees:

                        D. Patrick McKittrick, Timothy J. McKittrick, Attorneys at Law; Great Falls,
                        Montana

                        Carey Ann Shannon, Deputy County Attorney; Great Falls, Montana



                                                      Submitted on Briefs: July 23, 2014
                                                                 Decided: October 21, 2014

Filed:




                                              Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     J. G. Shockley appeals from the judgment of the Eighth Judicial District Court,

Cascade County, dismissing on summary judgment his petition seeking disclosure of certain

documents from Cascade County. The sole issue on appeal is whether Shockley has

standing to assert a claim under Montana’s Right to Know, codified in Article II, Section 9

of the Montana Constitution.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     Appellant J. G. Shockley is a former Montana State Senator and a resident of Ravalli

County. In 2009, Shockley requested certain documents from the Cascade County Attorney

relating to the termination of a County Detention Officer, Jason Carroll. Shockley requested

the documents as a Montana citizen, not as a legislator.

¶3     Carroll was a Detention Officer in Cascade County and a member of a collective

bargaining unit represented by the International Brotherhood of Teamsters, Local No. 2

(Union). The County terminated Carroll’s employment and the Union brought a grievance

on his behalf, ultimately reaching a settlement with the County. Shockley requested

Carroll’s personnel and disciplinary records, including the settlement agreement. The

Cascade County Attorney advised Shockley to petition the District Court for release of the

records under the Right to Know provision of Article II, Section 9 of the Montana

Constitution.

¶4     On May 27, 2010, Shockley filed a pro se petition in Cascade County requesting the

documents. Shockley subsequently retained counsel and amended his petition to join Carroll
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and the Union as parties to the litigation. Both Carroll and Cascade County withdrew any

objection to release of the documents, but the Union persisted in its objection to Shockley’s

petition. Shockley and the Union filed cross motions for summary judgment in August 2013.

¶5     For most of the time this case was pending in the District Court, standing in right to

know cases was controlled by our decision in Fleenor v. Darby School District, 2006 MT 31,

331 Mont. 124, 128 P.3d 1048. That case required a plaintiff alleging violation of

Montana’s Right to Know (Article II, Section 9), or right to participate (Article II, Section

8), to allege a personal stake in, or injury from, the acts of the public body at issue. On

January 10, 2014, the District Court granted summary judgment in favor of the Union, citing

our Fleenor decision, and held that Shockley did not have standing to request the records

because he failed to clearly allege a past, present, or threatened injury connected to the

failure to produce the settlement agreement.

¶6     On January 9, 2014, the day before the District Court entered its order granting

summary judgment in favor of the Union, we overturned Fleenor in Schoof v. Nesbit, 2014

MT 6, __ Mont. __, 316 P.3d 831.

¶7     Shockley moved for reconsideration in light of the Schoof decision. Although the

District Court agreed that Schoof was controlling precedent, it denied Shockley’s motion.

The District Court held that Shockley’s situation was distinguishable from Schoof because he

was neither a resident nor subject to the jurisdiction of Cascade County and therefore lacked

standing to request the documents.

¶8     Shockley appeals that decision. We reverse and remand for further proceedings.
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                                STANDARD OF REVIEW

¶9     We review de novo a district court’s ruling on motions for summary judgment.

Dewey v. Stringer, 2014 MT 136, ¶ 6, 375 Mont. 176, 325 P.3d 1236. “A district court’s

determination regarding standing presents a question of law which we review de novo for

correctness.” Mont. State Fund v. Simms, 2012 MT 22, ¶ 14, 364 Mont. 14, 270 P.3d 64.

                                       DISCUSSION

Does Shockley, a resident of Ravalli County, have standing to assert a claim under Article
II, Section 9 of the Montana Constitution for records of a Cascade County government
body?

¶10    We are called on here to determine whether a resident of one Montana county has

standing to assert a right-to-know claim for documents from the government of another

Montana county. We hold that he does.

¶11    In Schoof, we overruled Fleenor because it used a test for standing that was

incompatible with the right to know and right to participate. We held that, when the alleged

injury is premised on the violation of constitutional and statutory rights, standing is

determined by asking “whether the constitutional or statutory provision can be understood as

granting persons in the plaintiff’s position a right to judicial relief.” Schoof, ¶ 21 (quoting

Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206 (1975)) (internal ellipses omitted).

¶12    The plaintiff in Schoof, a resident of Custer County, alleged that Custer County denied

his right to participate in, and know the results of, a meeting of the Custer County

Commissioners. The district court in Schoof held that under Fleenor, Schoof did not have


                                              4
standing because he had not alleged any injury connected to the meeting of the Custer

County Commissioners.

¶13    On appeal, we concluded that Fleenor misconstrued standing in right-to-know and

right-to-participate cases in two ways. First, Fleenor misconstrued the nature of the injury at

issue in a right-to-know or right-to-participate case by requiring the plaintiff to either allege

an injury beyond failure to receive proper notice, or to allege a personal stake in the

particular governmental decision taken. Schoof, ¶ 17.

¶14    Second, we determined that Fleenor mistakenly required that a plaintiff’s injury be

“distinguishable from the injury to the public generally.” Schoof, ¶ 20. We have long held

that a plaintiff’s injury must be “concrete” for the plaintiff to have standing. See Bryan v.

Yellowstone County Elem. Sch. Dist., 2002 MT 264, ¶ 20, 312 Mont. 257, 60 P.3d 381 (“to

satisfy the standing requirement, a plaintiff must have such a personal stake in the outcome

of the controversy as to assure that concrete adverseness which sharpens presentation of

issues”) (internal quotations omitted); Olson v. Department of Revenue, 223 Mont. 464, 469,

726 P.2d 1162, 1166 (1986); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, (1962).

In Schoof, we noted that the “injury distinguishable from the injury to the public generally”

requirement was simply meant to ensure that a plaintiff’s injury is “concrete” and not

“abstract.” Schoof, ¶ 20. We noted that even where the plaintiff alleges an injury that is

widely shared, so long as the injury is concrete, there is still standing. Schoof, ¶ 21.

¶15    In sum, Schoof held that the requirements that the plaintiff allege a personal stake in

the government decision at issue, and show an injury distinguishable from the injury to the
                                               5
public generally, “impose standing thresholds that are incompatible with the nature of the

particular constitutional rights at issue.” Schoof, ¶ 17. We noted that, “to deny standing to

persons who are in fact injured simply because many others are also injured, would mean

that the most injurious and widespread Government actions could be questioned by nobody.”

Schoof, ¶ 21 (quoting U.S. v. Students Challenging Reg. Agency Procs., 412 U.S. 669, 688,

93 S. Ct. 2405, 2416 (1973)).

¶16    The bottom line of Schoof is our determination of the appropriate test for standing

when the alleged injury is premised on the violation of constitutional or statutory rights:

“[S]tanding depends on whether the constitutional or statutory provision can be understood

as granting persons in the plaintiff’s position a right to judicial relief.” Schoof, ¶ 21 (internal

quotations and ellipses omitted).

¶17    Finally, we declined in Schoof to determine the scope of standing for right-to-know

and right-to-participate claims in all contexts, limiting our holding to the facts then in front

of us. We noted that in the context of right-to-know and right-to-participate claims, “A

question naturally arises regarding how far a citizen’s standing extends.” Schoof, ¶ 24. We

quoted various comments of the Constitutional Convention delegates which indicated that

the right of participation was intended to afford citizens a reasonable opportunity to know

about and participate in any government decision. We then held:

              It is not appropriate in this case to address the parameters of standing
       for right to know and right of participation claims that may arise in other
       contexts. However, based on the constitutional language and the delegates’
       comments, it is clear that a citizen in Schoof’s position who is subject to a
       governmental agency’s jurisdiction has standing to assert a violation of these
                                                6
       provisions. Schoof is a resident of Custer County. Accordingly, we hold that
       Schoof has standing to pursue further discovery on his claims, and overrule
       Fleenor to the extent it is inconsistent with this opinion.

Schoof, ¶ 25.

¶18    The District Court was correct that our holding in Schoof was limited to the facts then

in front of us: a resident of a county claiming that a branch of his county government

violated his right to know and participate. The immediate case now calls on us to further

determine how far a citizen’s standing extends in claims brought pursuant to the Montana’s

Right to Know (Article II, Section 9). In particular, we must determine whether Article II,

Section 9 grants persons in Shockley’s position a right to judicial relief. Schoof, ¶ 21.

¶19    We use the same rules to interpret the Constitution that we use to interpret statutes.

City of Missoula v. Cox, 2008 MT 364, ¶ 9, 346 Mont. 422, 196 P.3d 452. Our role is “to

ascertain and declare what is in terms or in substance contained therein, not to insert what

has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Article II,

Section 9 provides:

       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.

Mont. Const. art. II, § 9.

¶20    Article II, Section 9 does not require that a person be a resident of a county, or subject

to its jurisdiction, before that person can examine that county’s documents. The language of

Article II, Section 9 indicates a broad right to know: “No person shall be deprived of the

                                               7
right to examine documents . . . of all public bodies or agencies of state government and its

subdivisions.” Mont. Const. art. II, § 9 (emphasis added). We have previously held that:

“The language of this provision speaks for itself. It applies to all persons and all public

bodies of the state and its subdivisions without exception.” Great Falls Tribune v. Dist.

Court of Eighth Judicial Dist., 186 Mont. 433, 437–38, 608 P.2d 116, 119 (1980). The

Legislature similarly gives a broad reading to the right to know: “Every citizen has a right to

inspect and take a copy of any public writings of this state . . . .” Section 2-6-102, MCA

(emphasis added). The goal of Article II, Section 9 is government transparency and

accountability: “[T]he deliberations and resolution of all public matters must be subject to

public scrutiny.” Montana Constitutional Convention, Verbatim Transcript, Mar. 7, 1972,

p. 1670. As one Convention delegate aptly stated: “Montanans want to be a part of their

government. They want to know their government and what it is doing. They want to

provide input on matters which affect them directly or which they are keenly interested in.”

Montana Constitutional Convention, Verbatim Transcript, Mar. 7, 1972, p. 1657 (emphasis

added).

¶21    Our Constitution does not impose a requirement that Montana citizens be subject to

the jurisdiction of a particular public body in order to have standing to exercise their right to

know. In the absence of any indication of such a requirement, it is not the province of this

Court to read one into the Constitution. The plain language of Article II, Section 9 indicates

that all Montana citizens have a right to inspect the documents of any public body in the


                                               8
state, regardless of any nexus between the citizen and the governing body in question—

subject, of course, to the privacy restrictions set forth in Article II, Section 9.

¶22    The inquiry to determine standing in an action premised on the violation of

constitutional or statutory rights is only “whether the constitutional or statutory provision can

be understood as granting persons in the plaintiff’s position a right to judicial relief.” Schoof,

¶ 21. We hold Article II, Section 9 grants a right to judicial relief to a Montana citizen

alleging denial of access to a document of a Montana public body.1             The plaintiff here is a

citizen of Montana who has alleged he was denied the right to inspect the documents of a

public body. These facts are sufficient to establish standing under Article II, Section 9 of the

Montana Constitution.

¶23    To be clear, this decision does not decide the ultimate disposition of Shockley’s

request. The constitutional right to know is limited by individual privacy considerations

which may permit the County to withhold the documents. In addition, there may be issues

with respect to the disclosure of documents that contain confidentiality provisions.

Moreover, the question of whether standing extends beyond Montana citizens is not before

us, and we do not here decide it. We decide only that, as a Montana citizen, Shockley has

standing to bring his claim.

                                          CONCLUSION


1
  While there is no statute expressly authorizing the courts to remedy violations of Article II, Section
9, we have consistently held that Article II, Section 9 is self-executing, and have accordingly
allowed plaintiffs to bring suit to remedy alleged violations without invoking an implementing
statute. See Bozeman Daily Chronicle v. City of Bozeman Police Dep’t, 260 Mont. 218, 231, 859
                                                   9
¶24    We reverse and remand for further proceedings consistent with this opinion.


                                                /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE




P.2d 435, 443 (1993).
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