The Montana Supreme Court of discord
The recent dust-up within the Montana Supreme Court has proven to be quite interesting – and somewhat disappointing.
By a 4-3 majority, the court awarded attorney fees to the plaintiffs in Montana Environmental Information Center and Earthworks vs. Office of the Governor. This is certainly not an unheard-of occurrence; other cases have reached the same conclusion.
In reaching this conclusion, the majority reversed the district court's denial of attorney fees. That's not unusual either.
Here's what distinguishes this case in the eyes of the dissenting justices: The majority had the temerity to offer guidance in what has been a confusing and inconsistent area of the law.
Here's the skinny: The plaintiffs asked the governor for copies of a wide range of documents. After about five months of dilly-dallying, the governor denied the request. The plaintiffs sued, relying on the right-to-know provision of the Montana constitution (Article II, Section 9). They won.
When the plaintiffs filed to recover attorney fees for their litigation, district court denied the request. In the view of the district judge, the governor's Office 'did not act out of bad faith, indolence, or unreasonable delay.' This denial was at issue before the Supreme Court.
In the 61 pages of ensuing verbiage, one nugget shines. It's a simple, single-sentence statute:
2-3-221. Costs to prevailing party in certain actions to enforce constitutional right to know. A person alleging a deprivation of rights who prevails in an action brought in district court to enforce the person's rights under Article II, section 9, of the Montana constitution may be awarded costs and reasonable attorney fees.
In statutory interpretation, the word 'may' carries clear meaning: The district court has discretion to decide whether to award the costs and fees. In order to reverse that decision, the Supreme Court must determine that district court abused its discretion.
At the onset of the majority opinion, Justice Laurie McKinnon wrote, 'When a party succeeds in litigation based on a right to know request, it has performed a public service in ensuring that Montana's government is appropriately transparent and accountable to the people.'
This statement follows precedent in at least two other cases (Bozeman Daily Chronicle v. City of Bozeman Police Department (1993), Associated Press, et al. v. Montana Department of Revenue (2000)). So far, so good.
On this basis, the majority took the next step: 'A presumption towards awarding fees when a plaintiff vindicates their constitutional right to know follows naturally in the context of the right.'
This is what set the dissenters' teeth on edge. Justice Jim Rice's dissent said the majority 'abandons actual law and backfills the vacuum with its own creation made of whole cloth.'
I don't see it. In fact, Justice James Jeremiah Shea pointed out that 'both this Court and the United States Supreme Court have long recognized, on a number of occasions, the necessity of creating frameworks to guide the discretion of lower courts in applying statutory awards of attorney fees.'
Well, reasonable people can (and should) disagree. What puzzles me was Justice Rice's swerve into accusing the majority of bias against a Republican administration and partisan weaponizing of the law. Where did that come from?
When Justice McKinnon took the unusual step of responding to Rice's 'highly inappropriate and unprofessional attack,' Chief Justice Cory Swanson weighed in. His self-proclaimed in-depth reading of Shea's dissent found 'nothing offensive or personal in his criticism.'
I find that artificially ingenuous and doubly repugnant.
McKinnon wrote a well reasoned majority opinion that furthers our understanding of the right to know. It deserves respect rather than ridicule.
MEIC Earthworks right to know decision
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