                                           No. 05-292

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 215


HAVRE DAILY NEWS, LLC, a Washington Corporation;
THE HAVRE DAILY NEWS, INC., a Montana Subchapter
“S” Corporation; THE ASSOCIATED PRESS; THE
MONTANA NEWSPAPER ASSOCIATION; THE GREAT
FALLS TRIBUNE; THE MONTANA BROADCASTERS’
ASSOCIATION; THE DAILY INTERLAKE; THE
BOZEMAN DAILY CHRONICLE; THE SOCIETY OF
PROFESSIONAL JOURNALISTS, the Montana Pro
Chapter; and THE MISSOULIAN,

              Plaintiffs and Appellants,

         v.

THE CITY OF HAVRE; KEVIN OLSON, in his capacity as
Chief of Police for the City of Havre; MICHAEL BARTHEL,
in his capacity as Assistant Chief of Police for the City of
Havre; LT. GEORGE TATE, in his capacity as a member of
the City of Havre’s Police Department,

              Defendants and Respondents.


APPEAL FROM:         The District Court of the Twelfth Judicial District,
                     In and For the County of Hill, Cause No. DV 04-039,
                     Honorable David Rice, Presiding Judge

COUNSEL OF RECORD:

              For Appellants:

                     John M. Shontz and F. Ron Newbury, J.M. Shontz & Assoc.,
                     Helena, Montana

              For Respondents:

                     Mary VanBuskirk, Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP,
                     Havre, Montana


                                                         Submitted on Briefs: March 8, 2006
                                                                   Decided: August 30, 2006
Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     The Havre Daily News and other Montana newspapers (collectively, “the

Newspaper”) sued the City of Havre, Havre Police Chief Kevin Olson and other members

of the Havre Police force (collectively, “Havre”), seeking dissemination of an unredacted

initial “incident report” and the accompanying officer’s “narrative.” The Newspaper also

requested the District Court to order Havre to develop and implement a general policy to

govern the dissemination of initial offense reports. Because Havre provided the Havre

Daily News with the unredacted report, the District Court granted summary judgment in

favor of Havre, ruling that the case was moot and non-justiciable, but awarded attorney

fees to the Newspaper. The Newspaper now appeals and Havre cross-appeals the award

of attorney fees. We affirm in part, reverse in part and remand.

¶2     The following issues are dispositive of this appeal:

¶3     (1) whether the District Court erred in denying the Newspaper’s motion for a

default judgment;

¶4     (2) whether the District Court erred in granting summary judgment in favor of

Havre; and

¶5     (3) whether the District Court erred in determining that the Newspaper may

recover attorney fees incurred prior to receiving the unredacted reports.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6     The focus of this dispute is a police report describing an officer’s investigation

that culminated in charges being levied against several individuals for underage drinking.

                                             2
Looking into allegations that the police had shown preferential treatment to an officer’s

child, Winderl (a reporter for the Havre Daily News) requested to view the initial

“incident report” and the accompanying “narrative” prepared by the investigating officer

(collectively, “Reports”). The Havre Police Department provided Winderl with both

Reports, which he read.      Winderl requested a copy of the Reports, and an officer

eventually provided him with copies in which the names of two uncharged juvenile

witnesses and the parent of one of those juveniles were redacted. Approximately two and

a half months later, the Newspaper sued to obtain an unredacted copy of the Reports.

¶7     The Newspaper filed a complaint on March 10, 2004. The complaint detailed the

facts surrounding Winderl’s receipt of the redacted Reports and requested the court to

order Havre to release the unredacted Reports as well as to develop and implement a

policy governing future dissemination of such reports (“prospective relief”).          More

specifically, the Newspaper’s request for prospective relief sought the following: (1)

implementation of a policy requiring immediate dissemination of complete copies of

initial incident reports to the public upon request; (2) a provision that the public pay only

the actual cost of reproduction for such copies; 1 and (3) a mandate that particular

information (i.e., the name, age, occupation, family status, date of birth and residence of

the accused) be included in each initial incident report. Whereas the complaint contained

       1
        On appeal, the Newspaper has presented no argument pertaining to its request for
a policy requiring dissemination of copies at no more than the actual cost of
reproduction—not even a simple allegation that a charge of three dollars infringes the
constitutional right to know, let alone an articulation of how or why such a charge might
violate the constitution. Consequently, we deem this issue waived for purposes of this
appeal.
                                             3
thirty-eight factual allegations, thirty-seven of which pertained only to Winderl’s request

for the Reports, the Newspaper used this incident as leverage to seek judicial

implementation of a broad policy governing all hypothetical, future requests for initial

incident reports. On March 29, 2004, Havre provided the Havre Daily News with an

unredacted copy of the Reports.       On April 30, 2004, having never answered the

Newspaper’s complaint, Havre moved for summary judgment. The Newspaper, in turn,

moved for default judgment on the pleadings, pursuant to M. R. Civ. P. 12(c) and 55.

¶8    The District Court granted Havre’s request for summary judgment and denied the

Newspaper’s request for default judgment.       The court awarded attorney fees to the

Newspaper and ordered the Newspaper to file and serve an affidavit of fees and costs.

Counsel for the Newspaper never filed such an affidavit with the court. Instead, the

Newspaper filed this appeal.

                               STANDARDS OF REVIEW

¶9    “We review a district court’s conclusions of law to determine whether the court’s

interpretation of the law is correct.” Chamberlin v. Puckett Construction, 277 Mont. 198,

202-03, 921 P.2d 1237, 1240 (1996). Whether a party may avoid default judgment when

she fails to answer a complaint and instead files a motion for summary judgment is

purely a question of law.

¶10   “We review a District Court’s grant of summary judgment de novo. . . . We apply

the standard declared by Rule 56, M.R.Civ.P. The moving party must establish the

absence of a genuine issue of material fact and her entitlement to judgment as a matter of

                                            4
law. We review a district court’s conclusions of law to determine whether they are

correct.” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 11, 331 Mont. 281, ¶ 11, 130 P.3d 1267,

¶ 11 (citations omitted).

¶11    “Whether or not a party is entitled to recover attorney fees is ‘strictly a question of

law.’ Thus, ‘[w]e review a district court’s conclusions of law pertaining to the recovery

of attorney’s fees to determine whether those conclusions are correct.’”              Chase v.

Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 14, 331 Mont. 421, ¶ 14, 133 P.3d 190, ¶ 14

(quoting Transaction Network v. Wellington Tech., 2000 MT 223, ¶ 17, 301 Mont. 212,

¶ 17, 7 P.3d 409, ¶ 17 (citation omitted; modification in original)).

                                       DISCUSSION

Issue 1: Whether the District Court erred in denying the Newspaper’s motion for a

default judgment.

¶12    The Newspaper argues that the District Court should have granted its motion for a

default judgment because Havre never answered its complaint, thereby effectively

admitting the allegations complained therein. The Newspaper asserts that M. R. Civ. P. 7

limits responsive pleadings to an answer and urges us to reverse Klock v. Town of

Cascade, 284 Mont. 167, 943 P.2d 1262 (1997), to the extent that it conflicts with Rule 7.

Essentially, the Newspaper contends that allowing a party to circumvent the Rules of

Civil Procedure—by filing a motion for summary judgment in lieu of an answer—will

erode the structure of civil litigation that is built upon these carefully designed rules.




                                               5
¶13      Havre argues that its motion for summary judgment constitutes a responsive

pleading to the complaint; therefore, the court properly denied the Newspaper’s motion

for default judgment on the pleadings. Havre notes that pursuant to M. R. Civ. P. 55, as

interpreted by this Court in Klock, a motion for summary judgment is a defense to a

complaint.    Consequently, Havre contends, a court may not enter default judgment

against a party who moves for summary judgment but fails to answer a complaint. We

agree.

¶14      M. R. Civ. P. 55(a), requires the clerk to enter default judgment against a

defendant who “has failed to plead or otherwise defend as provided by these rules . . . .”

In Klock, this Court held that a motion for summary judgment satisfies the requirement

that a party “otherwise defend” in order to escape default judgment. 284 Mont. at 173,

943 P.2d at 1266. Federal courts construing Rule 55(a) of the Federal Rules of Civil

Procedure, which is identical to Montana’s rule, have likewise concluded that a defendant

may escape default judgment by filing a motion for summary judgment. See, e.g.,

Rashidi v. Albright, 818 F. Supp. 1354, 1355-56 (D. Nev. 1993).

¶15      The Newspaper insists that Klock conflicts with M. R. Civ. P. 7, which provides

that, aside from various iterations of complaints, answers, and replies, “[n]o other

pleading shall be allowed . . . .” Because M. R. Civ. P. 55(a), explicitly contemplates

defenses other than pleadings, however, no such conflict exists. A defendant may defend

by filing an answer. In addition, a defendant may “otherwise defend,” for example by

filing a motion for summary judgment or a motion to dismiss pursuant to M. R. Civ. P.

                                            6
12(b). Havre’s motion for summary judgment sufficed to prevent the District Court from

entering default judgment in favor of the Newspaper.

Issue 2: Whether the District Court erred in granting summary judgment in favor of

Havre.

A. Ripeness:

¶16    The Newspaper argues that the District Court erred in granting summary judgment

because its request for prospective relief presents a justiciable issue. The Newspaper

asserts that it has an existing constitutional right to receive the information contained in

initial arrest and offense reports and that a judgment of the court will protect this right.

¶17    Havre argues that, with respect to the Newspaper’s request for prospective relief,

no real dispute exists over which the court may exercise judicial authority.             Havre

maintains that cases arising under the constitutional right to know, Article II, Section 9,

of the Montana Constitution, should be determined on a case-by-case basis, and no single

rule of decision can apply to all future controversies. Accordingly, Havre contends,

adjudication in this case cannot operate as a final judgment prospectively resolving future

requests for disclosure of initial offense and arrest reports. We agree that determining

which criminal justice information may be disseminated to the public requires a factually

specific inquiry that renders prospective adjudication inappropriate.

¶18    The existence of a justiciable controversy is a threshold requirement to a court’s

adjudication of a dispute, consisting of three elements as identified in Montana-Dakota

Util. Co. v. City of Billings, 2003 MT 332, ¶ 9, 318 Mont. 407, ¶ 9, 80 P.3d 1247, ¶ 9.

                                               7
Among other reasons, a case may be non-justiciable because it presents an issue that is

not ripe for judicial determination. Erwin Chemerinsky, Federal Jurisdiction, § 2.1, 44

(4th ed., Aspen 2003). Although the Newspaper and Havre quibble over whether this case

presents a justiciable controversy under Montana-Dakota Util., their disagreement is

more precisely characterized as an issue of ripeness. Because justiciability encompasses

ripeness, the parties have properly raised, albeit imprecisely, the question of whether the

Newspaper’s request for prospective relief is ripe for review.

¶19    The doctrine of ripeness “requires an actual, present controversy, and therefore a

court will not act when the legal issue raised is only hypothetical or the existence of a

controversy merely speculative.” Montana Power Co. v. Public Service Comm., 2001

MT 102, ¶ 32, 305 Mont. 260, ¶ 32, 26 P.3d 91, ¶ 32. The basic rationale behind the

ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements[.]” Montana Power Co., ¶ 32;

Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515 (1967), overruled on

other grounds Califano v. Sanders, 430 U.S. 99, 975 S. Ct. 980 (1978); see also Socialist

Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S. Ct. 1716, 1719 (1972) (“[jurisdiction]

should not be exercised unless the case tenders the underlying constitutional issues in

clean-cut and concrete form. . . . Problems of prematurity and abstractness may well

present insuperable obstacles to the exercise of the Court’s jurisdiction”) (internal

quotations and citations omitted).




                                             8
¶20    In considering whether a case is ripe for review, federal courts consider the

“fitness of the issues for judicial review” and the extent of hardship that will be suffered

by the parties if the court withholds review. Artway v. Attorney General of State of N.J.,

81 F.3d 1235, 1247 (3rd Cir. 1996). In conducting the former inquiry, “[t]he principal

consideration is whether the record is factually adequate to enable the court to make the

necessary legal determinations. The more the question presented is purely one of law,

and the less that additional facts will aid the court in its inquiry, the more likely the issue

is to be ripe, and vice-versa.” Artway, 81 F.3d at 1249.

¶21    Here, the Newspaper presents a question for adjudication that inherently requires

this Court to engage in a fact-intensive inquiry.        Each determination regarding the

dissemination of criminal justice information requires careful, fact-specific balancing of

conflicting constitutional rights. The Montana Constitution imbues the citizenry with a

right of privacy, Article II, Section 10, as well as a right to examine documents of “state

government and its subdivisions, except in cases in which the demand of individual

privacy clearly exceeds the merits of public disclosure[,]” Article II, Section 9. As this

Court has recognized, these rights “inevitably conflict in cases involving a request for

confidential criminal justice information . . . .” Bozeman Daily Chronicle v. Police Dept.,

260 Mont. 218, 224, 859 P.2d 435, 439 (1993).

¶22    Although the Newspaper confidently asserts that the Reports in this case have

been statutorily designated as public criminal justice information, see § 44-5-

103(13)(e)(i)-(ii), MCA (designating initial offense reports and initial arrest reports as

                                              9
public criminal justice information, but failing to further define either term 2 ), their proper

classification is not such a simple matter. 3 Ultimately, it matters little whether these

Reports are statutorily designated as public criminal justice information, as such

legislative classification cannot obviate the inherent tension between the constitutionally

protected right of privacy and the constitutionally guaranteed right to know.

Notwithstanding its designation as public criminal justice information, an initial offense

       2
        After this case was filed, the Department of Justice promulgated administrative
rules that define “initial offense report” and delineate the contents thereof. See
Admin. R. M. 23.12.201 and 23.12.203 (effective August 20, 2004). In light of the fact
that these rules have been promulgated, the Newspaper’s request for judicial re-
determination of the required contents of initial incident reports amounts to a request that
this Court usurp the rule-making authority of the Department of Justice, see, § 44-5-105,
MCA, and effectively declare Admin. R. M. 23.12.203 unconstitutional.
       3
         The Reports are actually labeled as an “Incident Report” and an accompanying
“Narrative for Sergeant Paul S. Huston.” Assuming that these are properly treated as
initial arrest reports, initial incident reports, or one of each, definitional ambiguity
persists. Such ambiguity stems from the legislative classification of “criminal
investigative information” as confidential criminal justice information, § 44-5-103(3)(a),
MCA. “Criminal investigative information,” in turn, is defined as “information
associated with an individual . . . or event compiled by a criminal justice agency in the
course of conducting an investigation of a crime or crimes. It includes information about
a crime or crimes derived from reports of informants or investigators or from any type of
surveillance.” Section 44-5-103(6)(a), MCA.
        Sergeant Huston’s “Narrative” describes his investigation of a report of an
underage drinking party. The “Narrative” details his initial surveillance of the area, his
apprehension of a fleeing suspect, his procurement of physical evidence of the party
(empty, partially full, and unopened beer cans), and his initial interviews of suspects and
uncharged witnesses. In so far as the “Narrative” contains information gathered by
Sergeant Huston “in the course of conducting an investigation” into the reported crimes
(including interviews with witnesses) and his preliminary surveillance of the scene, it
constitutes “criminal investigative information,” § 44-5-103(6)(a), MCA, and therefore
qualifies as “confidential criminal justice information,” § 44-5-103(3)(a), MCA.
Assuming, as does the Newspaper (sans explanation), that this “Narrative” also qualifies
as an initial offense (or arrest) report, the legislature has paradoxically classified it as
both public criminal justice information and confidential criminal justice information.
                                              10
report will sometimes contain discrete pieces of information that qualify as confidential

criminal justice information, or information in which an individual, with notice of

possible disclosure, has voiced her subjective expectation of privacy and for which the

demands of individual privacy vastly outweigh the merits of public disclosure. Victims of

child abuse or “sex crimes, for example, may have a legitimate expectation of privacy[,]”

In Re Lacy, 239 Mont. 321, 324, 780 P.2d 186, 188 (1989), that would preclude publicly

disseminating their names and, depending on the circumstances, the location of the crime

or other identifying information.     Indeed, this Court has recognized that suspects,

particularly during the early phase of an investigation (precisely the phase that will be

referenced in an initial offense report) may have a cognizable expectation of privacy. In

Re Lacy, 239 Mont. at 324, 780 P.2d at 188. As a final example, witnesses to a gang

killing—whose safety may be jeopardized by public circulation of their names or

addresses—may have a privacy interest in such information that clearly outweighs the

merits of public disclosure.

¶23    In each of these hypothetical cases, in order to balance the constitutional right to

know against the conflicting constitutional right of individual privacy, a reviewing court 4

would first ascertain whether the individual has an actual expectation of privacy.

Bozeman Daily Chronicle, 260 Mont. at 225, 859 P.2d at 439. This, of course, is purely a

question of fact, which entails determining whether the individual whose privacy interest

       4
       Of course, long before a dispute reaches the courts, somebody (or perhaps a
committee) within the government agency would have already made each of these three
determinations before deciding to withhold information in order to protect the right of
privacy.
                                            11
is at issue has notice of possible disclosure. The court would then ascertain whether

society recognizes this expectation as reasonable. Bozeman Daily Chronicle, 260 Mont.

at 225, 859 P.2d at 439.      This determination of law necessarily involves reasoned

consideration of the specific facts underlying the dispute.        To provide but a few

examples, the following inquiries may prove relevant in evaluating the reasonableness of

an individual’s expectation of privacy: (1) attributes of the individual, including whether

the individual is a victim, witness, or accused and whether the individual holds a position

of public trust, Jefferson County v. Montana Standard, 2003 MT 304, ¶ 17, 318 Mont.

173, ¶ 17, 79 P.3d 805, ¶ 17; Bozeman Daily Chronicle, 260 Mont. at 227, 228, 859 P.2d

at 441; Svaldi v. Anaconda-Deer Lodge County, 2005 MT 17, ¶ 31, 325 Mont. 365, ¶ 31,

106 P.3d 548, ¶ 31; (2) the particular characteristics of the discrete piece of information,

Jefferson County, ¶ 20 (holding that an individual has a protected privacy interest in her

social security number and driver’s license number); Bozeman Daily Chronicle, 260

Mont. at 228-30, 859 P.2d at 441-42 (holding that the names of witnesses and the victim

of a sexual assault cannot be disseminated and concluding that “[an in camera] review of

[investigative reports] is, however, essential in determining whether or not the privacy

interests of the victim and witnesses can be protected while disseminating the remainder

of the information[,]” and further recognizing that a protective order may be necessary to

properly protect those privacy interests); and (3) the relationship of that information to

the public duties of the individual,     Jefferson County, ¶¶ 17, 20;      Bozeman Daily

Chronicle, 260 Mont. at 226-27, 859 P.2d at 440-41. The important point is that among

                                            12
the vast spectrum of information, innumerable facts—placed within the particular context

of a specific dispute—may bear on the assessment of reasonableness in hypothetical

future disputes. Finally, the court would weigh the demands of individual privacy against

the merits of public disclosure. Bozeman Daily Chronicle, 260 Mont. at 227, 859 P.2d at

441. Such balancing demands that the court determine the merits of publicly disclosing

the discrete pieces of information at issue, which again involves a fact-specific inquiry,

taking consideration of the particular context from which such disclosure will proceed.

See, e.g., Engrav v. Cragun, 236 Mont. 260, 267, 769 P.2d 1224, 1229 (1989)

(considering the purpose for which public criminal justice information is sought before

determining that the names included on initial arrest reports need not be disseminated).

¶24    Prospective relief is inappropriate because each of these three determinations

necessarily involves a factually specific inquiry, which “requires this Court to balance the

competing constitutional interests in the context of the facts of each case,” Missoulian v.

Board of Regents of Higher Educ., 207 Mont. 513, 529, 675 P.2d 962, 971 (1984).

Accordingly, “in the absence of a concrete fact situation in which the competing

[constitutional right to know and right to privacy] can be weighed,” this Court simply

cannot “determine whether an effort to compel disclosure of [criminal justice

information] would or would not be barred,” California Bankers Ass’n v. Schultz, 416

U.S. 21, 56, 94 S. Ct. 1494, 1515 (1974).

¶25    The dissent recasts the Newspaper’s claim as a request that Havre implement

systematic procedures to govern dissemination of initial incident reports and

                                            13
characterizes that claim as a request for relief “from a real, presently existing, and readily

identifiable problem which implicates the public’s right to know—i.e., the Police

Department’s lack of procedures governing its decisions to withhold information

contained in initial incident reports.” ¶ 51. In the course of this creative endeavor, the

dissent overlooks a determinative fact, 5 which renders even this strained reformation of

the Newspaper’s complaint unripe: that is, the Newspaper’s claim does not allege any

discernible violation of the law that might form the basis of a justiciable controversy.

Montana’s Constitution provides that “[n]o 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. The

dissent acknowledges that even in the face of a policy, government agencies will need to

make discrete ad hoc determinations in order to adequately protect privacy rights. In the

absence of a case specific determination, there can be no violation of the clear command

of Article II, Section 9 of Montana’s Constitution. Not until a person has been denied

access to a document has that person been deprived of her “right to examine” any

document. The mere absence of a policy governing dissemination of documents does not

ripen into a violation of the constitutional right to know unless and until an identifiable

       5
        In addition, the dissent overlooks the fact that, according to the sole factual
allegation in the Newspaper’s complaint that does not deal exclusively with the Reports,
Havre apparently does have a policy for handling requests for dissemination of such
reports: such requests are not, as the dissent suggests, denied, but are referred to Officer
Bartel. The Newspaper simply disapproves of this informal policy, and so has asked the
courts to rewrite it, under the auspices of the Constitution.
                                             14
person is actually denied access to a particular document or a specific deliberation. The

dissent would enable well-funded litigants who simply disagree with the policies

governing dissemination of a government agency’s documents to drag the agency into

court, and to challenge the perceived constitutional flaws of such a policy, wholly

divorced from any factually based, concrete violation of the constitutional right to know.

Operating in this manner would have one decided advantage: This Court could simply

dispense with the practice of reviewing the often cumbersome factual records that

provide the basis for our applications of the law and, like the dissent, turn to facts that are

not of record in a case, picking and choosing those which are most convenient to the

desired outcome of the academic dispute at hand. Nevertheless, this Court may not rely

on facts outside of the record in resolving an issue before it. Huffine v. Boylan, 239

Mont. 515, 517, 782 P.2d 77, 78 (1989).

¶26    The dissent relies heavily on Great Falls Trib. v. Mont. Pub. Ser. Com., 2003 MT

359, 319 Mont. 38, 82 P.3d 876, wherein this Court articulated a presumption of

openness and the “‘affirmative’ duty [of] government officials to make all of their

records and proceedings available to public scrutiny.” ¶ 54. In stark contrast to most

cases relating to dissemination of criminal justice information, Great Falls Trib. only

involved the rights of corporate entities, rather than the rights of private individuals.

¶ 39, ¶ 56. Thus the right of privacy was not at issue. See Great Falls Trib., ¶ 39 (“non-

human entities do not enjoy privacy rights under the right of privacy provision of the

Montana Constitution”).      Accordingly, this Court’s articulation of a presumption of

                                              15
openness and “affirmative duty” of disclosure cannot be read to nullify the need, in the

first instance, to balance the right to know against the conflicting right of individual

privacy on an ad hoc basis when both rights are at issue. Given the “inevitable conflict”

that arises with requests for confidential criminal justice information, Bozeman Daily

Chronicle, 260 Mont. at 224, 859 P.2d at 439, a requirement that governmental agencies

provide unredacted copies on demand is untenable. Given society’s concern over the

erosion of individual privacy, it would eviscerate the constitutional right of privacy to

require agencies to disclose unredacted documents on demand, leaving the media,

unbound by any constitutional mandate or judicial scrutiny, to unilaterally make

decisions concerning Montanans’ privacy rights.

¶27    The Newspaper’s request for prospective relief lacks any concrete factual basis 6

and represents a request for relief from a purely hypothetical future violation of its right

to know. Accordingly, the Newspaper’s request for prospective relief presents an unripe

and, therefore, non-justiciable, controversy.




       6
         We deem the Newspaper’s claims pertaining to Winderl’s request for the Reports
moot, see below ¶¶ 28-40. Consequently, the Newspaper’s request for prospective relief,
distilled to its essence, constitutes a challenge to the constitutionality of § 44-5-105,
MCA (granting the Department of Justice rulemaking authority with respect to criminal
justice information), as well as a challenge to the constitutionality of a rule promulgated
thereunder, specifically Admin. R. M. 23.12.203. The Newspaper may mount such a
direct challenge in another proceeding, pursuant to § 2-4-702, MCA. Disconnected from
any factual basis, however, the Newspaper’s present attempt to collaterally challenge the
rule fails for want of ripeness both for the reasons enumerated above and due to the
absence of any administrative record that might provide a court with some factual bases
to guide the effort to balance the conflicting constitutional rights at issue.
                                                16
B. Mootness:

¶28    The Newspaper’s request for prospective relief fails for want of ripeness. The

question remains, however, whether the District Court properly granted summary

judgment with respect to the Newspaper’s claim that Havre illegally denied access to the

unredacted Reports.

¶29    The Newspaper argues that the Havre Daily News’s receipt of the complete

Reports concerning the underage drinking charges did not render this case moot. The

Newspaper contends that this case falls within the exception to mootness for wrongs that

are “capable of repetition, yet evading review,” Common Cause v. Statutory Committee,

263 Mont. 324, 328, 868 P.2d 604, 607 (1994) (quotations omitted), and that they have

presented a constitutional issue that involves the “broad public concerns to avoid future

litigation on a point of law,” Walker v. State, 2003 MT 134, ¶ 41, 316 Mont. 103, ¶ 41, 68

P.3d 872, ¶ 41 (quotations omitted). While apparently conceding that Havre could not

repeat the identical behavior complained of, the Newspaper suggests that it will

encounter similar obstructions in the future.

¶30    Havre argues that this case is moot because the Havre Daily News has already

received the very Reports that the Newspaper seeks to obtain through this litigation.

Havre suggests that the courts cannot provide relief with respect to Reports that the

Newspaper has already procured. Havre maintains that it cannot repeat the alleged

wrong, because it has already provided the Havre Daily News with the Reports at issue.

Thus, no actual controversy remains; instead, only a hypothetical future controversy

                                                17
remains, which is not the “same action” contemplated by the above-mentioned exception

to the mootness doctrine. We agree with Havre that the issue pertaining to the release of

the Reports was mooted by the Havre Daily News’s receipt of the unredacted Reports.

¶31    Mootness is a threshold issue which we must resolve before addressing the

substantive merits of a dispute. Grabow v. Montana High School Ass’n, 2000 MT 159,

¶ 14, 300 Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14. “A matter is moot when, due to an event or

happening, the issue has ceased to exist and no longer presents an actual controversy. . . .

A question is moot when the court cannot grant effective relief.” Shamrock Motors, Inc.

v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, ¶ 19, 974 P.2d 1150, ¶ 19

(citations omitted). Commentators have described mootness as the “doctrine of standing

set in a time frame: The requisite personal interest that must exist at the commencement

of the litigation (standing) must continue throughout its existence (mootness).” Henry

Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384

(1973). Thus, a justiciable controversy in which the parties have a personal stake must

exist at the beginning of the litigation, and at every point thereafter, unless an exception

to the doctrine of mootness applies.

¶32    “This Court reserves to itself the power to examine constitutional issues that

involve the broad public concerns to avoid future litigation on a point of law.” Walker,

¶ 41 (quotations omitted). In light of the foregoing ripeness analysis, future litigation on

the scope of the constitutional right to know and its interaction with the constitutional

right to privacy will not be avoided by issuing the prospective relief that the Newspaper

                                            18
has requested, nor by addressing the legality of Havre’s redaction of a portion of the

since-revealed Reports. Thus, the Newspaper may not invoke this broad, mal-defined

principle to resuscitate an otherwise moot controversy.

¶33    Federal courts have developed similar but distinct exceptions to mootness for

wrongs “capable of repetition, yet evading review,” and “voluntary cessation” of a

wrong. See, e.g., Iowa Protection and Advocacy Services v. Tanager, Inc., 427 F.3d 541,

543-44 (8th Cir. 2005). As its implementation by the federal courts makes clear, the

exception to mootness for wrongs “capable of repetition, yet evading review” is properly

confined to situations where the challenged conduct invariably ceases before courts can

fully adjudicate the matter. See, e.g., Spencer v. Kemna, 523 U.S. 1, 18, 118 S. Ct. 978,

988 (1998) (declining to apply the exception because “[petitioner] has not shown . . . that

the time between [the challenged wrong] and [the occurrence rendering the case moot] is

always so short as to evade review”) (emphasis added); see also, Roe v. Wade, 410 U.S.

113, 93 S. Ct. 705 (1973) (nine-month term of pregnancy effectively precludes full

appellate review of restrictions on abortion prior to the completion of any individual

plaintiff’s pregnancy); Southern Pac. Terminal v. Interstate Commerce Commission, 219

U.S. 498, 514-15, 31 S. Ct. 279, 283 (1911) (short duration of Interstate Commerce

Commission orders precludes appellate review prior to the orders’ expiration); Nebraska

Press v. Stuart, 427 U.S. 539, 546, 96 S. Ct. 2791, 2797 (1976) (prior restraint on speech

via a pre-trial gag order evades review because of its inherently short duration); Dunn v.

Blumstein, 405 U.S. 330, 333 n. 2, 92 S. Ct. 995, 998 n. 2 (1971) (one-year residency

                                            19
requirement for voter registration will evade review because by the time an individual’s

challenge reaches the Supreme Court, invariably that individual has satisfied the

residency requirement).

¶34   When, as here, a defendant’s challenged conduct is of indefinite duration, but is

voluntarily terminated by the defendant prior to completion of appellate review, federal

courts apply the “voluntary cessation” exception to mootness. See, e.g., Jews for Jesus,

Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998)

(“voluntary cessation of a challenged practice renders a case moot only if there is no

‘reasonable expectation’ that the challenged practice will resume after the lawsuit is

dismissed”). Although the exception for “voluntary cessation” of the challenged conduct

is quite similar to the exception for wrongs “capable of repetition, yet evading review,”

an important distinction separates the two. Due to concern that a defendant may utilize

voluntary cessation to manipulate the litigation process, 7 “[t]he ‘heavy burden of

persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start

up again lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw

Environmental Services, Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708 (2000) (second

modification in the original). In contrast, under the exception to mootness for wrongs

“capable of repetition, yet evading review,” the party invoking the exception—generally

      7
        The concern is that a defendant will attempt to moot only a plaintiff’s meritorious
claims, thereby avoiding an undesirable judgment on the merits while vigorously
contesting those cases in which he expects to prevail. See U.S. v. W.T. Grant, 345 U.S.
629, 632-33, 73 S. Ct. 894, 897 (1953). This concern is particularly acute in situations
when one would expect the same defendant to encounter substantially identical future
controversies.
                                            20
the plaintiff—bears the burden of showing that the challenged conduct inherently is of

limited duration, so as to evade review, and that “there [is] a reasonable expectation that

the same complaining party [will] be subject to the same action again.” Spencer, 523

U.S. at 17-18, 118 S. Ct. at 988 (modifications in original); see also Skinner v. Lewis and

Clark, 1999 MT 106, ¶ 18, 294 Mont. 310, ¶ 18, 980 P.2d 1049, ¶ 18 (imposing the

burden on the party invoking the exception to mootness). We appreciate the importance

of properly assigning this burden. Accordingly, we hereby adopt the federal exception to

mootness for a party’s “voluntary cessation” of a challenged practice.

¶35   Relying on existing Montana law, both parties contest whether the current case

falls under the exception for “wrongs capable of repetition, yet evading review.”

Common Cause, 263 Mont. at 328, 868 P.2d at 607. This Court first adopted this

exception to our mootness doctrine from federal jurisprudence. See Matter of N.B., 190

Mont. 319, 323, 620 P.2d 1228, 1231 (1980) (relying on Roe v. Wade to support our

adoption of the exception to mootness for wrongs that “could be capable of repetition, yet

could evade review”).

¶36   Generally, like the federal courts, this Court has limited application of this

exception to situations where the challenged conduct is of inherently limited duration.

See, e.g., Grabow, ¶ 15 (“[t]his exception recognizes that the amount of time inherent in

the litigation process renders it nearly impossible in some cases for a final judicial

decision to be reached before the case is rendered moot”) (emphasis added); see also,

Common Cause, 263 Mont. at 327-28, 868 P.2d at 606-07 (concluding that the

                                            21
legislature’s confirmation of a recommended appointee five months after initial

recommendation does not moot a challenge to the recommendation process); Matter of

N.B. (holding that the expiration of a ninety-day involuntary commitment does not moot

a challenge to the commitment order). On at least two previous occasions, however, this

Court has applied the exception for wrongs “capable of repetition, yet evading review” to

conduct that is of indefinite duration. See Heisler v. Hines Motor Co., 282 Mont. 270,

937 P.2d 45 (1997) (concerning the legality of defendant’s initial refusal to pay medical

expenses, for which defendant subsequently provided payment); see also Montana-

Dakota Util. (concerning the legality of a city ordinance that voters later overturned by

ballot initiative). In both of these cases, we effectively conflated the exception for

wrongs “capable of repetition, yet evading review,” with the exception for “voluntary

cessation” of the challenged conduct. Our lack of precision, however, did not affect the

ultimate outcome of these cases. 8 We now clarify that in Heisler and Montana-Dakota

Util., this Court should have applied the exception to mootness for “voluntary cessation”

of the challenged practice.

¶37    Here, the Newspaper challenged Havre’s obstruction of access to certain

information within the Reports.    The duration of such obstruction is not inherently

limited. Rather, it will inevitably persist until such time as Havre voluntarily, or under

       8
        In both Heisler and Montana-Dakota Util., we found that the cases were not moot
because the plaintiffs had demonstrated a “reasonable expectation that [they] would be
subject to the same action again.” Montana-Dakota Util., ¶ 7; Heisler, 282 Mont. at 276,
937 P.2d at 48. Thus, the defendants could not possibly have established that the
challenged conduct could not reasonably be expected to recur, as necessary to render the
case moot under the “voluntary cessation” exception.
                                           22
court order, reveals this information.     Accordingly, this case is not amenable to

consideration under the exception to mootness for wrongs “capable of repetition, yet

evading review,” notwithstanding the Newspaper’s argument that this case falls under

that exception. Nevertheless, because this Court has previously conflated these distinct

exceptions to mootness, and because Havre voluntarily divulged the complete Reports

before this or any court could review the legality of its having redacted portions of the

Reports, we will consider whether this case comes under the exception for “voluntary

cessation” of the challenged practice.

¶38    Under the “voluntary cessation” exception, a case may be mooted by the

defendant’s voluntary conduct only when it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189,

120 S. Ct. at 708. In the context of cases alleging an unconstitutional deprivation of

access to (purportedly confidential) criminal justice information, when a plaintiff points

to only a single instance of an agency’s withholding a document and later disclosing the

same after suit has been filed, the case will generally not fall within the “voluntary

cessation” exception to mootness. In such a case, it is not generally reasonable to expect

the “same wrong”9 to recur, such that a ruling on the merits would be of any discernible


       9
        The same wrong, at a high level of abstraction (i.e., deprivation of access to
documents containing criminal justice information that should be publicly disseminated,
notwithstanding the right of privacy), will predictably recur. As illustrated above, see ¶¶
21-23, however, in determining whether the criminal justice agency has perpetrated a
“wrong,” we engage in a fact-specific three-part balancing test. Viewed through this
lens, improper deprivations of access to criminal justice documents are not at all
interchangeable. Rather, the unique facts of each case dictate the ultimate outcome,
                                            23
future benefit to the litigants or the interests of judicial economy. Exceptions to the

mootness doctrine allow courts to rule on non-extant controversies in order to provide

guidance concerning the legality of expected future conduct. Yet, in light of the literally

infinite assemblage of variables that could arise in a future dispute (and prove

determinative of its outcome), final judicial disposition of the tripartite test for balancing

the competing constitutional interests will provide limited meaningful guidance, if any, to

the conduct of hypothetical future parties.

¶39    If however, a plaintiff could show that the same agency has repeatedly withheld

documents (or information contained within documents) from public disclosure and then

fully disclosed those same documents upon the plaintiff’s filing suit to enforce its right to

know, the agency would shoulder a very hefty burden in attempting to persuade this

Court that the “challenged conduct cannot reasonably be expected to [recur].” Laidlaw,

528 U.S. at 189, 120 S. Ct. at 708. In such a situation, the agency’s conduct violates at

least one constitutional right and becomes transparently manipulative, or perhaps merely

evinces apparent genuine confusion over the legality of public dissemination in certain

contexts. Thus, it becomes reasonable to expect that if a substantially similar situation

occurs, the agency will repeat the obstructive tactics that the plaintiff challenges,


resulting in distinctive dispositions. The resolution of a dispute will generally provide
only limited guidance in resolving a narrow class of potential future disputes.
Accordingly, in this context, in considering whether the “same wrong” will recur, courts
should conceive of the wrong in concrete terms, rather than in the abstract. Thus,
whether a deprivation constitutes the “same wrong” depends on whether the substantially
identical constellation of facts—facts which breathe life into and shape the conflicting
constitutional rights—will recur.
                                              24
perpetrating a substantially similar, though not identical, wrong. In such cases, final

judicial adjudication may provide useful guidance that may obviate future violations of

the right to know. Accordingly, a plaintiff may likely obtain adjudication of such past

disputes under the “voluntary cessation” exception to mootness.

¶40   Havre has provided the Havre Daily News with a complete copy of both Reports.

The Newspaper alleges no other past instances of the Havre Police Department’s

unconstitutionally depriving it of access to documents or portions thereof. Nor does it

point to inevitable future violations of the right to know in anything other than

conjectural, conclusory fashion. Thus, the identical wrong is incapable of recurrence, and

the Newspaper points to no concrete evidence suggesting that Havre will perpetrate a

substantially similar wrong. Consequently, Havre has conclusively established that “the

challenged conduct”—redacting portions of these particular Reports—“cannot reasonably

be expected to [resume].” 10     Laidlaw, 528 U.S. at 189, 120 S. Ct. at 708.         Any

hypothetical refusal to provide access to such reports in the future would not constitute a

recurrence of the same challenged conduct because we must “balance the competing

constitutional interests” at issue under the unique “facts of each case,” Missoulian, 207

Mont. at 529, 675 P.2d at 971. To the extent that this case once presented a justiciable

controversy, that dispute has been rendered moot by Havre’s providing the Havre Daily

News with a complete copy of the Reports.


      10
        The outcome here would not differ if we were to apply the exception for wrongs
“capable of repetition, yet evading review,” because the Newspaper cannot establish a
reasonable expectation that it will be subjected to the same action again.
                                            25
¶41    Rather than granting summary judgment in favor of Havre, thereby indicating that

Havre is entitled to prevail on the merits as a matter of law, the District Court should

have dismissed this unripe, moot, and therefore non-justiciable controversy without

prejudice. See Parker v. Weed, 220 Mont. 49, 51, 713 P.2d 535, 537 (1986) (reversing a

district court’s award of summary judgment to a defendant, and indicating that the court

properly disposes of a non-justiciable controversy by dismissing the case without

prejudice). Consequently, this case is remanded to the District Court with instructions to

dismiss the Newspaper’s claims without prejudice.

Issue 3: Whether the District Court erred in determining that the Newspaper may

recover attorney fees incurred prior to receiving the unredacted Reports.

¶42    The Newspaper contests the District Court’s award of attorney fees.             The

Newspaper contends that it brought this action to enforce its constitutional right to know,

so the court should have awarded the Newspaper all fees incurred in this action, including

fees incurred on appeal. The Newspaper insists that its failure to file an affidavit on

attorney fees is of no consequence. Instead of filing an affidavit based on the District

Court’s limited award of fees, the Newspaper appealed the award and requested a broader

award of attorney fees. Presumably, the Newspaper expects that once this Court has

resolved the dispute over its entitlement to fees, it can then introduce evidence as to the

appropriate amount of attorney fees.

¶43    Havre contests both the Newspaper’s entitlement to attorney fees as a matter of

law and the lack of any evidentiary basis for awarding a specific amount of fees. Havre

                                            26
argues that the Newspaper did not prevail in the District Court, so it cannot recover

attorney fees pursuant to § 2-3-221, MCA. Havre contends that the Newspaper did not

bring this action to enforce its constitutional right to know, because Winderl had already

viewed a complete copy of the Reports before receiving the redacted versions. Havre

suggests that the public has not benefited from the Newspaper’s efforts, so no

justification exists for spreading litigation costs to the taxpayers.        Finally, Havre

maintains that by failing to file either a court ordered fee affidavit before filing an appeal

or a motion under M. R. Civ. P. 59(g) to alter or amend the judgment within ten days of

receiving notice of entry of judgment, the Newspaper effectively waived its right to

recover attorney fees.

¶44    Section 2-3-221, MCA, provides that “[a] plaintiff who prevails in an action

brought in district court to enforce his rights under Article II, section 9, of the Montana

constitution may be awarded his costs and reasonable attorneys’ fees.” A district court

exercises discretion in awarding fees under this section. Bozeman Daily Chronicle, 260

Mont. at 230, 859 P.2d at 442. Although Havre correctly observes that the Newspaper

did not technically “prevail” in its action in the District Court, the court granted summary

judgment in favor of Havre precisely because Havre mooted the case by providing the

Newspaper with unredacted copies of the Reports. Absent Havre’s conduct, the case

would not have become moot. In mooting the case, Havre provided the Newspaper with

the very relief it sought to procure through litigation; thus, the Newspaper has prevailed

in substance, albeit without court intervention.      Given these circumstances, we will

                                             27
consider the Newspaper to be the prevailing party with respect to its request for

unredacted copies of the Reports. Otherwise, a similarly situated party could, after

extensive litigation, at the eleventh hour, and facing imminent defeat, simply moot a case

in order to dodge this fee-shifting statute. Because its unripe request for prospective

relief was never justiciable, the Newspaper is not the prevailing party with respect to

those claims.

¶45    Havre speciously argues (based on Winderl’s momentary viewing of the unedited

Reports) that the Newspaper did not bring this cause of action to enforce its constitutional

right to know, and that the public derived no benefit from the Havre Daily News’s

obtaining unredacted copies of the Reports. By its terms, the right to know is not

constrained by time nor by whether a person has already once examined a document. See

Mont. Const. art. II, § 9. Deprivation of access to a document is no less a violation of the

right to know simply because temporary access was once granted. A government does

not achieve transparency and accountability—the ostensible purposes behind the

constitutional right to know—by allowing citizens only a fleeting glance at documents.

Faced with the prospect of lawsuits for libel and slander, the media cannot effectively

hold the government publicly accountable if afforded the opportunity to view but

temporarily the evidence on which its stories rely, but denied the opportunity to actually

procure and preserve that same evidence.

¶46    Finally, Havre’s argument that the Newspaper waived its right to recover attorney

fees by failing to provide the court with evidence of the proper amount of fees also lacks

                                            28
merit. The District Court ordered the Newspaper’s counsel to file an affidavit of attorney

fees.    The court imposed no deadline for counsel’s filing this affidavit.          We have

repeatedly affirmed a party’s legal entitlement to recover attorney fees and remanded for

a proper evidentiary determination of the recoverable amount of attorney fees. See, e.g.,

Plath v. Schonrock, 2003 MT 21, ¶ 41, 314 Mont. 101, ¶ 41, 64 P.3d 984, ¶ 41. Thus, the

failure to file an affidavit of attorney fees prior to pursuing this appeal is not fatal to the

Newspaper’s entitlement to recover fees. Furthermore, Havre incorrectly suggests that

the Newspaper’s failure to file a motion to alter the verdict pursuant to M. R. Civ. P.

59(g) undermines its right to recover fees. The District Court’s determination that the

Newspaper is legally entitled to recover fees renders M. R. Civ. P. 59(g) irrelevant. See

Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶¶ 18-23, 331 Mont. 421, ¶¶ 18-23, 133

P.3d 190, ¶¶ 18-23 (holding that a court has rendered its decision on a Rule 59(g) motion

for attorney fees when it awards fees, albeit without specifying an amount).

   ¶47     Judicial economy would be promoted if the Newspaper had procured a definite

fee award before appealing. The Newspaper, however, used this appeal in order to assert

its broad legal entitlement to attorney fees. On this legal question, which is ripe for

review, we largely concur with the District Court’s determination. Havre cross-appealed,

asserting that the Newspaper waived its right to recover the fees actually awarded by the

court. Because the court has not yet awarded fees in any specific amount, Havre has

essentially asked us to review an action that the District Court has not yet taken. Thus,

Havre’s cross-appeal is not ripe for review. See Langemo v. Montana Rail Link, Inc.,

                                              29
2001 MT 273, ¶ 34, 307 Mont. 293, ¶ 34, 38 P.3d 782, ¶ 34 (holding that an issue is not

ripe for review absent a conclusive ruling by the district court).

¶48    The District Court properly determined that the Newspaper may recover those

attorney fees incurred in securing the unredacted Reports. Any attorney fees incurred

after that time are not recoverable. We affirm and remand for the District Court to hold

an evidentiary hearing to ascertain the amount of legal fees incurred by the Newspaper in

order to obtain the unredacted Reports prior to its receipt of those Reports. Any fees

incurred prior to that time in an attempt to obtain prospective relief may not be recovered

by the Newspaper.


                                                  /S/ W. WILLIAM LEAPHART




We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




                                             30
Justice James C. Nelson concurs and dissents.

¶49    I concur in the Court’s resolution of Issue One. I dissent with regard to Issue Two.

As for Issue Three, I agree that the Newspaper is entitled to recover attorney fees

incurred in securing the unredacted reports. However, given my conclusion as to Issue

Two, I would remand for consideration of an award of additional attorney fees, pursuant

to § 2-3-221, MCA, following proper resolution of the Newspaper’s remaining claim.

¶50    As for Issue two, I do not agree with the Court’s conclusion that this claim is not

ripe for adjudication. In my view, the Court’s analysis is based on a flawed premise.

Given its ongoing interest in obtaining initial incident reports to determine whether they

contain newsworthy information, the Newspaper sought a remedy to the Police

Department’s failure to follow systematic procedures in accommodating the public’s

right to know. The Court characterizes this claim as a “request for prospective relief”

and, on that basis, proceeds to conclude that the claim is not ripe for adjudication. I

disagree with this characterization.

¶51    I conclude that the Newspaper’s claim is a request for instant relief. The Court

states that the Newspaper’s request for “prospective relief” amounts to “a request for

relief from a purely hypothetical future violation of its right to know.” This statement is

wholly inaccurate. The Newspaper seeks relief not from a “purely hypothetical future

violation,” but from a real, presently existing, and readily identifiable problem which

implicates the public’s right to know—i.e., the Police Department’s lack of procedures

governing its decisions to withhold information contained in initial incident reports.

                                            31
Addressing this claim plainly does not require “prospective adjudication” or an

evaluation of specific factual scenarios which are not presently before us, as the Court

asserts. The Court further mischaracterizes the claim at issue here by suggesting that the

Newspaper asks us to balance the public’s right to know against an individual privacy

interest in a hypothetical future case.

¶52    Because the implementation of a policy would likely preclude or resolve some

future conflicts, the Newspaper’s claim may, in part, be properly characterized as a

request for prospective relief. However, it is plainly wrong to characterize the entire

claim in this manner. The problem identified is one that exists presently, and the relief

sought would immediately change the way the Police Department handles this kind of

request. Thus, the Court’s blanket characterization ignores the immediate nature of both

the problem identified by the Newspaper and the relief requested.

¶53    Moreover, the Court misconceives the nature of this appeal in stating at the outset

that the “focus of this dispute is a police report.” Similarly, the Court also states that “the

challenged” conduct in this case is “redacting portions of these particular Reports.”

Access to the redacted information was an issue in the proceedings below when the

Newspaper sought to obtain the full Reports. However, Havre has since disclosed the full

text of the Reports, albeit belatedly. Accordingly, the Newspaper’s claim for the release

of the unredacted Reports is moot.

¶54    Neither party disputes the fact that the Newspaper’s claim of entitlement to the

unredacted Reports is moot.        Nonetheless, this Court devotes nearly ten pages of

                                              32
mootness analysis to “the Newspaper’s claim that Havre illegally denied access to the

unredacted Reports.” And for what? To simply conclude that the Newspaper’s claim for

“the release of the Reports was mooted by the Havre Daily News’s receipt of the

unredacted Reports.”       This analysis is wholly unnecessary given that neither party

contests this issue or presents it for our review. Thus, the majority here renders an

advisory opinion—something which we have unequivocally stated that we will not do.

Ingraham v. State (1997), 284 Mont. 481, 487, 945 P.2d 19, 23 (citing State ex rel.

Fletcher v. District Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997).

¶55       The particular documents which the Newspaper sought are simply not an issue

here, much less the “focus” of this dispute. The real issue on appeal is whether the

District Court properly granted summary judgment on the Newspaper’s remaining claim.

¶56       The Newspaper’s Complaint contains two distinct claims. Besides seeking the

unredacted Reports, the Newspaper recognized a larger problem at the outset of this

case—the state of affairs in which the public is forced to file suit in order to exercise its

constitutional right to know. Upon this recognition, and given its ongoing interest in

obtaining initial incident reports to determine whether they contain newsworthy

information, the Newspaper sought a remedy to the Police Department’s failure to follow

systematic procedures in determining whether to withhold incident reports from the

public.

¶57       Specifically,   the   Complaint    contained,    inter   alia,    the   following

allegations: (1) that Lt. George Tate initially allowed Winderl to view an unredacted

                                             33
copy of the Reports; (2) that Lt. Tate then vacillated, signaling that he was reluctant to

release the entirety of the documents to Winderl because it included the names of

individuals who were not charged; (3) that Winderl contacted Lt. Tate later that day, at

which time Lt. Tate said he was “uncomfortable” providing a copy of the Reports without

discussing the issue with his superior officers; (4) that Winderl was eventually provided

with a copy of the Reports, with certain material redacted, including all references to

Police Chief Kevin Olson and his daughter; and (5) that Winderl had, in the past, sought

to access incident reports by asking low ranking officers, receptionists, and dispatchers at

the Police Department, that these individuals would not provide access to the reports, and

that they had referred Winderl to a high ranking officer. The Complaint also alleged that

the Police Department charged Winderl three dollars to obtain the redacted copy, and that

this charge exceeded the cost of creating the copy.

¶58    As a legal basis for the Complaint, the Newspaper asserted, inter alia, that the

Montana Constitution requires that public documents be made available at a cost

adequate to cover only the expense of making the copy, and that Montana law requires

government agencies to implement policies and procedures which guarantee the public’s

exercise of its right to know.

¶59    Upon these allegations, the Newspaper sought implementation of a policy

requiring: (1) that the Police Department “provide complete copies of all initial incident

reports to the public during regular business hours upon demand by the public”; (2) that

initial incident reports include a number of specific items, including personal information

                                            34
regarding the accused and any witnesses; and (3) that the Police Department provide

copies of initial incident reports and attachments “at a cost not to exceed the actual cost

of reproducing the copy regardless of the form the report or attachments are in.” 1

¶60    The Court considers the Newspaper’s pleadings an “untenable” request that

“governmental agencies provide unredacted copies on demand.”                   I disagree.     All

pleadings must be construed so as to do substantial justice. Rule 8(f), M.R.Civ.P. In

assessing complaints, we “‘look to the claim as a whole, to the subject with which it

deals, to the reason and spirit of the allegations in ascertaining its real purpose. If such

purpose can reasonably be said to be within the scope of the language used, that purpose

should be honored.’” School Trust v. State ex rel. Bd. of Comm’rs, 1999 MT 263, ¶ 29,

296 Mont. 402, ¶ 29, 989 P.2d 800, ¶ 29 (quoting Miller v. Titeca (1981), 192 Mont. 357,

364, 628 P.2d 670, 675). Moreover, “[i]t is always to be presumed that no absurd or

unreasonable result was intended by the complainant.” Hidden Hollow Ranch v. Collins

(1965), 146 Mont. 321, 326, 406 P.2d 365, 367-68.

¶61    The subject of the Complaint is not only the Police Department’s refusal to

disclose the full text of the Reports, but also the Department’s lack of systematic

procedures in responding to the Newspaper’s requests. The spirit of the allegations is

that the Police Department’s shortcomings in this regard hinder the public’s exercise of

1
   As the Court notes, the Newspaper fails to present any appellate argument as to its claim
regarding the cost of obtaining copies of public documents. Notwithstanding the deficiency in
the Newspaper’s appellate brief, this claim deserved to be litigated. After all, why should a
government agency be allowed to profit from a citizen’s exercise of his or her constitutional right
to know? And what possible justification could there be for allowing an agency to potentially
restrict access to public information by way of excessive copy fees?
                                                35
its right to know. Viewing the Newspaper’s Complaint as a whole, its purpose is clear—

it seeks remedial implementation of a policy to facilitate the public’s exercise of its right

to know in a systematic, consistent, and expedient manner.

¶62    It is equally clear that the Complaint is not without its shortcomings. The

Newspaper’s request that “complete copies of all initial incident reports” be available on

demand, standing alone, obviously conflicts with the exception contained in Article II,

Section 9—i.e., that the public may properly be denied access to government documents

when “the demand of individual privacy clearly exceeds the merits of public disclosure.”

Reading this portion of the Complaint in isolation, as the Court apparently does here, one

might conclude that the Newspaper advocates a policy which ignores the constitutional

exception for individual privacy. Of course, as the Court notes, “a requirement that

governmental agencies provide unredacted copies on demand is untenable.” Yet, the

Newspaper also explicitly acknowledged the exception for individual privacy earlier in

the Complaint. Given this acknowledgment, and given that we do not assume a party

intends absurd or unreasonable results by a complaint, Hidden Hollow Ranch, 146 Mont.

at 326, 406 P.2d at 367-68, it is fair to characterize the Newspaper’s Complaint, in its

totality, as a request for the implementation of a policy in conformity with Article II,

Section 9, of the Montana Constitution.




                                             36
¶63    The Court characterizes this interpretation as a “creative endeavor” which

produces a “strained reformation” of the Newspaper’s Complaint. 2                  In reality, this

interpretation merely conforms to long-standing precedent. The law mandates that we

not construe Complaints strictly, as if interpreting a plainly worded statute. See School

Trust, ¶ 29. Rather, as noted above, it is well established that we look to “‘the reason and

spirit of the allegations in ascertaining its real purpose.’” School Trust, ¶ 29. In doing so,

we are to honor the purpose evident in the pleadings. School Trust, ¶ 29. Accordingly,

my interpretation of the Complaint is not a “strained reformation,” as the majority asserts;

rather, it merely honors the purpose made evident by the pleadings. In my view, the

Court ignores the longstanding rule which requires broad interpretation of complaints.

¶64    Additionally, the Court states, without citing authority, that “[t]he mere absence of

a policy governing dissemination of documents does not ripen into a violation of the

constitutional right to know unless and until an identifiable person is actually denied

access to a particular document . . . .” Here, the Newspaper was denied access to a

particular document. Consequently, it filed suit to obtain the documents and press for the

implementation of a policy. Yet, the Court concludes that the Newspaper may not pursue

its claim for the implementation of a policy because the claim now lacks a “concrete

2
   Incidentally, the only “creative endeavor” involved in this appeal is the Court’s decision to
undertake the assumption that “Havre apparently does have a policy” for handling requests such
as the Newspaper made here—i.e., referral to Officer Barthel. Nothing in the record establishes
that referrals to Barthel constitute a “policy.” Moreover, no legitimate policy can depend on one
person for its implementation in a bureaucratic organization. If Barthel is solely responsible for
handling these requests, then the public’s ability to exercise its right to know is restricted to the
hours of Barthel’s weekly work schedule, as well as those periods of time when he is not on sick
leave, vacation leave, or preoccupied with other pressing matters which require police attention.
                                                 37
factual basis.” In so concluding, however, the Court fails to explain how this claim has

become “wholly divorced” from the Police Department’s undisputed violation of the

public’s right to know. There is simply no basis for concluding that this claim for the

implementation of a policy has lost its connection with the Newspaper’s underlying claim

for disclosure of the unredacted Reports.

¶65    And, if a clear violation of the right to know by a government agency does not

entitle the public to challenge the agency’s failure to implement a policy, what does?

How will a member of the public ever be able to challenge a government agency’s failure

in this regard if the Court insists that such a claim is a request for “prospective” relief?

¶66    Apparently the Court has concluded that the public may seek disclosure of

particular documents, but may not, in cases such as this one, assert a claim for the

implementation of a policy. The Court’s reasoning effectively precludes the public from

ever challenging a government agency’s failure to implement a policy as long as the

defendant agency discloses the particular information sought prior to adjudication (an act

which now apparently removes any “concrete factual basis” from the complaint). I find

this approach entirely unjustifiable.

¶67    Finally, I am troubled that the Court so readily disregards the Newspaper’s claim

for the implementation of a policy, as this request goes straight to the heart of the

problem at issue—i.e., the government’s proven tendency to disregard the public’s right

to know, which leads to lawsuits that needlessly consume public funds and judicial

resources.

                                              38
¶68    Article II, Section 9, of the Montana Constitution provides that the public’s

opportunity to examine government documents is a part of the right to know. As this

right is contained in the Montana Constitution’s Declaration of Rights, it is a fundamental

right. State v. Tapson, 2001 MT 292, ¶ 15, 307 Mont. 428, ¶ 15, 41 P.3d 305, ¶ 15. In

interpreting Section 9, we have held that there is a constitutional presumption that all

documents of every kind in the hands of public officials are amenable to inspection.

Great Falls Tribune v. Mont. Public Service Comm’n, 2003 MT 359, ¶ 54, 319 Mont. 38,

¶ 54, 82 P.3d 876, ¶ 54.       Additionally, we have held that this right to examine

government documents, together with the public’s right of participation as provided for in

Section 8 of Article II, 3 imposes “an ‘affirmative’ duty on government officials to make

all of their records and proceedings available to public scrutiny.”             Great Falls

Tribune, ¶ 54.

¶69    The Court suggests that the presumption of openness may be limited to cases

involving “the rights of corporate entities” because Great Falls Tribune “only involved

the rights of corporate entities, rather than the rights of private individuals.” However,

we have never limited the presumption in this way and it is truly frightening that we

would do so here by way of dictum. Our articulation of the presumption in Great Falls

Tribune was an unqualified holding regarding the constitutional right to know; not merely

a holding limited to the particular facts of that case. See Great Falls Tribune, ¶ 54.


3
   Article II, Section 8 provides: “Right of participation. The public has the right to expect
governmental agencies to afford such reasonable opportunity for citizen participation in the
operation of the agencies prior to the final decision as may be provided by law.”
                                                  39
Moreover, this holding is little more than a restatement of Article II, Section 9, which

provides that “[n]o person shall be deprived of the right to examine documents . . . except

in cases in which the demand of individual privacy clearly exceeds the merits of public

disclosure.” (Emphasis added.) This plain and unambiguous language means that when

the balance is even, the right to know trumps, thus requiring disclosure. In fact, even if

the balance is slightly in favor of individual privacy, the right to know still trumps, thus

requiring disclosure. It is only when the balance is clearly in favor of individual privacy

that the documents may be properly withheld from the public. It is at this stage, and this

stage only, that the right to individual privacy trumps the right to know.

¶70    Thus, the plain language of the Constitution requires that disclosure is the rule,

and withholding public documents based on individual privacy is the exception. The

term “except” in Section 9 necessarily makes withholding information based on privacy

the exception under elemental rules of statutory interpretation. Thus, the right to know is

superior in that it presumptively trumps the right to individual privacy in the context of

right-to-know cases. And, if this plain language were not clear enough, the transcripts of

the Constitutional Convention make it unquestionable. As the venerable Delegate

Dorothy Eck stated, with regard to Section 9, “we added the word ‘clearly’ with the

intention of tipping the balance in the favor of the right to know.”              Montana

Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1670 (emphasis

added).




                                             40
¶71    Simply put, the presumption of openness, which we formally recognized in Great

Falls Tribune, is contained in the plain language of Section 9. It does not depend in any

way on the particular facts of Great Falls Tribune, nor is it qualified thereby. The

Court’s suggestion to the contrary blatantly disregards the plain language of Section 9.

¶72    The Court goes on to observe that the presumption of openness and the

government’s affirmative duty of disclosure “cannot be read to nullify the need, in the

first instance, to balance the right to know against the conflicting right of individual

privacy on an ad hoc basis when both rights are at issue.” Of course, the plain language

of Article II, Section 9, mandates this conclusion. However, in balancing these two

rights, as noted above, the presumption of openness is the guiding principle and it is not

overcome unless the right of individual privacy clearly exceeds the merits of public

disclosure.

¶73    Despite the clear language of Section 9 which discloses the presumption of

openness, and despite the government’s affirmative duty of disclosure as articulated by

this Court, government agencies have repeatedly demonstrated a disregard and

misunderstanding of the public’s right to know. We see it in this case, in the cases we

have considered over the years, and in a recent study which Professor Fritz Snyder

recounts as follows:

              In 2003, a survey in Montana showed an 81 percent success rate in
       obtaining public information from public agencies. However, nearly half of
       Montana’s county sheriffs violated the state’s Open Records Law by
       refusing to release their jail rosters. The sheriffs or their employees
       claimed the inmate lists were confidential. The Daniels County sheriff said
       he did not care what the law said: “He wasn’t about to let anyone see his
                                            41
       list of recent crime calls without a court order.” “A District Court clerk in
       Chinook took it upon herself to censor the roster of court cases by
       removing ones ‘the public doesn’t need to know about.’” In six counties,
       officials said it would take a court order to get the information. “In all, just
       11 counties provided the reports at the first request from the citizens
       making the checks.” Judith Basin County Sheriff Robert Jacobi said that
       his office “has a responsibility not to disclose the misfortunes of people in
       the community to anyone who walks in off the street.”

Fritz Snyder, The Right to Participate and the Right to Know in Montana, 66 Mont. L.

Rev. 297, 317-18 (Summer 2005) (citing, inter alia, Bob Anez, Records Audit Reveals

Barriers, MISSOULIAN, Oct. 22, 2003, at A1. Among the items requested was a copy of

each sheriff’s report of the incident calls handled in the previous twenty-four hours.). 4

¶74    Given the government’s—especially law enforcement’s—track record, it is no

wonder that the Newspaper seeks the implementation of a policy. 5 Because the right to

know is a fundamental right, it is indeed necessary that government agencies implement

policies to effectuate the public’s ability to exercise this right on a consistent basis and in

an expedient fashion. Otherwise, the presumption of openness will be constrained by the

whims of bureaucrats who may or may not fully understand or wish to concede the

public’s fundamental right to know. Of course, privacy interests must be considered in

light of the unique facts attendant to the various scenarios which will arise. Thus, no

4
   Further study of the Freedom of Information Act survey to which Professor Snyder refers can
be made at the Montana Associated Press website: http://www.ap.org/montana/MTFOI.html (last
visited August 15, 2006). See also http://foi.missouri.edu/openrecseries/mt/countycompliance.html (last
visited August 15, 2006).
5
   The Court asserts that I am relying on facts outside the record. Of course, my opinion here,
both in concurrence and dissent, is based solely on the facts of record and the relevant law.
Although I have referenced facts outside the record, I most certainly do not “rely” on these facts
in forming my opinion. Plainly, my reference to the Freedom of Information Act survey is only
an observation regarding the context in which this cases arises; not a factual basis on which I rest
my opinion.
                                               42
policy could serve as a substitute for the necessary ad hoc determinations to be made by

government agencies in the first instance. However, a policy would help to facilitate the

public’s right to know by at least providing a systematic process for making each ad hoc

determination.

¶75    For example, a policy could specify who would make the disclosure determination

and how it would be made; it could specify a definite timeline for this determination; 6

and it could provide for an explanation to be given to the public when information is

withheld. Additionally, a policy could set guidelines for the redaction of information

which is generally protected by the right of individual privacy. Further, a policy could

also serve to educate those in the agency as to the presumption of openness and the

government’s affirmative duty of disclosure. In this way, a formal policy could reduce

the number of lawsuits instituted to obtain public information. Consequently, if fewer

lawsuits occur, fewer public funds will be spent on litigation and awards of attorney fees

to those who must vindicate their right to know through a lawsuit. Indeed, the instant

dispute may have been averted if the Police Department had been operating pursuant to a

policy which honored the public’s right to know.

¶76    Conversely, with no policy in place, government agencies will inevitably continue

to fail in their affirmative duty to make their records publicly available. We will continue

to see abuses such as that perpetrated in this case—i.e., withholding public information

for well over two months, thus forcing the Newspaper to file suit, and then turning over

6
    The right to know means little if public officials are allowed to withhold public information
for indefinite periods of time or until current news becomes stale news.
                                                  43
the information before an adjudication on the merits. As a result, the public will continue

to pick up the tab for needless lawsuits instituted to obtain undisputedly public

information.

¶77    The Newspaper’s effort to remedy this situation finds support in another

constitutional context; the United States Supreme Court has indicated that the

government may not delegate unbridled discretion to bureaucrats whose official decisions

may impinge on the free speech guarantee of the First Amendment. In Forsyth County,

Ga. v. Nationalist Movement (1992), 505 U.S. 123, 124, 112 S.Ct. 2395, 2398, 120

L.Ed.2d 101, the United States Supreme Court considered an assembly and parade

ordinance which allowed the government administrator to vary the licensing fee for

assembling or parading to reflect the estimated cost of maintaining public order. While

some prior restraints on speech are constitutionally acceptable, the Supreme Court stated,

a regulation of this type may not delegate overly broad licensing discretion. Forsyth

County, 505 U.S. at 130, 112 S.Ct. at 2401 (citations omitted). In fact, the decision

observes, a governmental regulation of this type which can be arbitrarily applied is

inherently inconsistent with a valid restriction on the freedom of speech. Forsyth County,

505 U.S. at 130, 112 S.Ct. at 2401 (citation omitted).

¶78    The ordinance at issue contained no articulated standards, it did not require the

administrator to rely on any objective factors, and it did not obligate the administrator to

provide an explanation for the decision rendered. Forsyth County, 505 U.S. at 133, 112

S.Ct. at 2403. Having observed these facts, and having noted that “[t]he decision how

                                            44
much to charge . . . is left to the whim of the administrator,” the Supreme Court held:

“The First Amendment prohibits the vesting of such unbridled discretion in a government

official.” Forsyth County, 505 U.S. at 133, 112 S.Ct. at 2403.

¶79    I believe the same principle holds true here in the context of the fundamental right

to know. While the ordinance at issue in Forsyth County granted overly broad discretion

to the administrator, Havre’s lack of a formal policy in this case effectively grants

boundless discretion to the Police Department in its decisions regarding the public’s right

to know. This unbridled discretion is inherently inconsistent with the presumption of

openness, as it conditions the public’s timely exercise of a fundamental right on the

whims of whomever may be available to disseminate public information from the Police

Department at a given time.

¶80    While openness is critical in any Montana government agency, it is particularly

critical in law enforcement agencies because of the enormous power they wield. Our law

enforcement agencies serve the public in a conscientious and honorable manner, but they

are nonetheless bound by the same constitutional principles as other government actors

and, specifically, to an affirmative duty to make their records available to public scrutiny.

As we have stated,

       the delegates to the Constitutional Convention made a clear and
       unequivocal decision that government operates most effectively, most
       reliably, and is most accountable when it is subject to public scrutiny. . . .
              While on any given occasion there may be legitimate arguments for
       handling government operations privately, the delegates to our
       Constitutional Convention concluded that in the long-term those fleeting
       considerations are outweighed by the dangers of a government beyond
       public scrutiny.
                                             45
Great Falls Tribune v. Day, 1998 MT 133, ¶¶ 34-35, 289 Mont. 155, ¶¶ 34-35, 959 P.2d

508, ¶¶ 34-35.

¶81   The Court of Appeals for the Sixth Circuit has stated:

      When government begins closing doors, it selectively controls information
      rightfully belonging to the people. Selective information is misinformation.
      The Framers of the First Amendment “did not trust any government to
      separate the true from the false for us.” Kleindienst v. Mandel, 408 U.S.
      753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v.
      Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J.,
      concurring)). They protected the people against secret government.

Detroit Free Press v. Ashcroft (6th Cir. 2002), 303 F.3d 681, 683. Although these

statements were made with regard to the United States Constitution, they are nonetheless

applicable here. On a similar note, J. Robert Oppenheimer, the father of the atomic

bomb, has observed a principle that underlies Montana’s right to know:

      We do not believe any group of men adequate enough or wise enough to
      operate without scrutiny or without criticism. We know that the only way
      to avoid error is to detect it, that the only way to detect it is to be free to
      inquire. We know that in secrecy error undetected will flourish and subvert.

¶82   The right-to-know guarantees of our Constitution, Article II, Section 9, are among

the most important fundamental guarantees that Montanans enjoy.               As we have

recognized, quoting the Bill of Rights Committee, Section 9 arises

      out of the increasing concern of citizens and commentators alike that
      government’s sheer bigness threatens the effective exercise of citizenship.
      The committee notes this concern and believes that one step which can be
      taken to change this situation is to Constitutionally presume the openness of
      government documents and operations.




                                            46
Bryan v. District, 2002 MT 264, ¶ 31, 312 Mont. 257, ¶ 31, 60 P.3d 381, ¶ 31 (quoting

the 1972 Montana Constitutional Convention, Vol. II at 631).

¶83    In recognition of the vital importance of the public’s right to know, and given the

premature resolution of the Newspaper’s claim for the implementation of a policy, I

would reverse and remand with instructions that Havre must answer the Newspaper’s

Complaint to further the development of the factual record in this case. Because this

Court orders dismissal without prejudice, the Newspaper will be forced to re-file its

Complaint before proceeding with its claim for the implementation of a policy.7

¶84    The Constitution has been the supreme law of this State for more than thirty years.

It is wholly unacceptable that the media and public are still met with intransigence,

stalling tactics, and delay, and are ultimately forced to litigate to obtain public documents

to which they are constitutionally entitled. We see far too many of these cases each

year—and there are more waiting in the wings as we hand down this Opinion. Simply

put, the Newspaper should not have been forced to sue in order to exercise the

constitutional right to know. And, when the Newspaper is forced to sue, it should be

entitled to attorney fees.     Indeed, we should recognize by now that governmental

disregard for the public’s right to know will continue ad infinitum unless the custodians
7
   The Court’s formal resolution of this case is needlessly ambiguous. The Court correctly
frames Issue Two as a question of whether the District Court erred in granting summary
judgment. However, the Opinion does not expressly answer this question. Rather, it only
implies that an error was committed. Similarly, the Court does not formally reverse the District
Court’s Order. Of course, reversal is the only basis for the remand in this case. Yet, the Court
declines to employ the precision which has traditionally defined our opinions, choosing instead
to place today’s Opinion in a nebulous category of resolution wherein remand is proper without a
reversal, pursuant to an implied conclusion that some error has been committed. No legal
precedent provides support for this approach.
                                               47
of public documents appreciate that violations of the right-to-know provisions of the

Constitution will, in the usual course, result in an award of attorney fees in favor of the

requestor and against the local government.

¶85    A closed government is an evil government: it abuses trust, it perverts truth, it

misappropriates faith, and, in the end, it reviles the petitions of its citizens to know how

they are governed and by what manner of people. Our right to know is too fundamental

to be entrusted to the whims of those who neither understand its constitutional birthright

nor honor its power to breach the wall of secrecy that divides the government from the

governed.

¶86    I dissent.

                                                     /S/ JAMES C. NELSON



Justice Patricia O. Cotter joins in the concurring and dissenting Opinion of Justice Nelson.


                                                     /S/ PATRICIA COTTER




                                                48
