MEIC v. Governor

                                                                                   05/29/2025


                                      DA 23-0648
                                                                               Case Number: DA 23-0648

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      

MONTANA ENVIRONMENTAL INFORMATION
CENTER and EARTHWORKS,

         Plaintiffs and Appellants,

    v.

OFFICE OF THE GOVERNOR FOR THE
STATE OF MONTANA,

         Defendant and Appellee.



APPEAL FROM:      District Court of the First Judicial District,
                  In and For the County of Lewis and Clark, Cause No. DDV-2022-209
                  Honorable Christopher D. Abbott, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                  Robert Farris-Olsen, David K.W. Wilson, Jr., Morrison Sherwood
                  Wilson Deola, PLLP, Helena, Montana

                  Derf Johnson, Montana Environmental Information Center, Helena,
                  Montana

           For Appellee:

                  Dale Schowengerdt, Timothy Longfield, Landmark Law, PLLC, Helena,
                  Montana

           For Amici Curiae Montana Freedom of Information Hotline, Montana
           Newspaper Association, and Montana Transparency Project:

                  Mikaela Koski, Constance Van Kley, Rylee Sommers-Flanagan, Upper
                  Seven Law, Helena, Montana
                                Submitted on Briefs: January 31, 2025

                                          Decided: May 29, 2025


Filed:

                Vir--
         __________________________________________
                          Clerk




                            2
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1      Montana Environmental Information Center and Earthworks (collectively MEIC)

appeal an order of the First Judicial District Court, Lewis and Clark County, denying

MEIC’s request for attorney’s fees after it prevailed in a right to know dispute with the

Office of the Governor (Governor’s Office). We address the following restated issues on

appeal:

     1. Whether a party who successfully vindicates its right to know under Article II,
        Section 9, of the Montana Constitution is entitled to a presumption towards
        awarding attorney’s fees.

     2. Whether an award of damages for a prevailing party in a mandamus action,
        including attorney’s fees, is mandatory or discretionary.

We vacate and remand.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶2      On November 29, 2021, MEIC delivered a formal information request under Article

II, Section 9, of the Montana Constitution to the Governor’s Office. It sought a wide array

of information related to the Montana Department of Environmental Quality (DEQ)’s

voluntary dismissal of its “bad actor” enforcement action against Hecla Mining and its

President/CEO,1 as well as information regarding the Governor’s Office’s involvement in

mining and environmental decision-making generally. Specifically, MEIC’s information

request sought:

        a. All documents, records, information, and materials regarding the
        Montanore and Rock Creek Mines;

1
  Under the Montana Mine Reclamation Act, a “bad actor” is precluded from obtaining an
exploration license or operating a mine until contaminated sites are remediated and/or the state is
reimbursed for its costs. See §§ 82-4-331(3), -335(9), MCA.
                                                3
       b. All documents, records, information, and materials regarding Montana’s
       Bad Actor Provision in the Metal Mine Reclamation Act;

       c. All communications which were generated, received, kept, referenced,
       and/or considered by the Office of the Governor and representatives,
       employees, shareholders, contractors, and/or other entities representing the
       interests of Hecla Mining and/or Phillips S. Baker, Jr.               These
       communications may include (but this request is not limited to) the email
       domain @hecla-mining.com. This correspondence may also include, but is
       not limited to, employees of the consulting firm Environomics, Inc.;

       d. All communications which were generated, received, kept, referenced,
       and/or considered by the Office of the Governor and DEQ concerning the
       permitting activities at the Montanore and Rock Creek Mines and/or
       enforcement of the Bad Actor Provision.

¶3     Around the same time, MEIC brought suit against DEQ and its newly appointed

director, Chris Dorrington, in an effort to force DEQ to enforce the “bad actor” provision

against Hecla Mining.       See Ksanka Elders Advisory Comm. v. Dorrington, No.

DV-21-1126 (Mont. First Jud. Dist. filed Nov. 10, 2021).           MEIC argued that the

information it sought in its request was relevant not only to the Ksanka Elders litigation,

but also to understanding the Governor’s Office’s role in environmental regulation and

mining; in turn, this information would inform MEIC’s lobbying activities, government

accountability goals, and public education objectives.

¶4     The Governor’s Office did not respond to MEIC’s November request.2 MEIC

followed up multiple times in January 2022, and the Governor’s Office noted that it would

look into the request. When MEIC requested an estimate of fees and costs, the Governor’s



2
  Nor did the Department of Administration, who received an identical request. Department of
Administration counsel responded to a January follow-up by directing MEIC to contact DEQ and
the Governor’s Office.
                                             4
Office responded that the work would take approximately two weeks but might take longer

because of other pending records requests. Later, in February, the Governor’s Office

advised that the information would be provided “soon.” When the requested records still

had not been provided by mid-March, MEIC brought suit against the Governor’s Office,

asserting a violation of the Public Records Act and seeking to compel production of the

requested information by writ of mandamus.

¶5     The Governor’s Office subsequently refused to produce any of the requested

information based largely on the novel theory of a “pending litigation exception” related

to the Ksanka Elders matter. This theory proposed an exception to general disclosure rules

under the right to know when the information sought could be used to “circumvent

discovery” in pending litigation.    The District Court ultimately concluded that this

argument was “completely unmoored from the text, history, and purpose underlying both

Article II, Section 9 and the implementing public records statutes,” and that a party’s

subjective purpose for requesting public records had no bearing on the government’s duty

to fulfill such requests. Thus, in the absence of any exception to disclosure, the District

Court found that the Governor’s Office shirked its clear legal duty to honor MEIC’s request

and issued a writ of mandamus compelling the Governor’s Office to produce the

information. The Governor’s Office initially appealed on the merits of this matter but later

stipulated to dismissal, and the 2023 Montana Legislature codified into law that neither

pending nor potential litigation exempts public agencies from the right to know. See

§ 2-6-1003(4), MCA (“A public agency may not refuse to disclose public information



                                             5
because the requested public information is part of litigation or may be part of litigation

unless the information is protected from disclosure under another applicable law.”).

¶6     Having succeeded on the merits of the litigation, MEIC requested attorney’s fees

under §§ 2-6-1009 and 2-3-221, MCA, for enforcing the right to know, and § 27-26-402,

MCA, for obtaining a writ of mandamus. The District Court noted the “undeniable public

interest” in MEIC’s successful enforcement of its request but ultimately denied the

attorney’s fees motion on all bases, finding that the Governor’s Office did not act out of

bad faith, indolence, or unreasonable delay. The District Court noted further that much of

the information MEIC sought could have been obtained through discovery in the Ksanka

Elders litigation. MEIC appeals the denial of this motion.

                               STANDARD OF REVIEW

¶7     We review a district court’s decision on attorney’s fees for an abuse of discretion.

Yellowstone Cnty. v. Billings Gazette, 

, 

, 

.

A district court abuses its discretion if the court acts arbitrarily, without employment of

conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice.

Friedel, LLC v. Lindeen, 

, 

, 

 (citations omitted).

                                         DISCUSSION

¶8     1. Whether a party who successfully vindicates its right to know under Article II,
       Section 9, of the Montana Constitution is entitled to a presumption towards
       awarding attorney’s fees.

¶9     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. Such cases serve a critical role in enforcing and

                                             6
developing Montanans’ fundamental right to know. Without this particular litigation, for

example, the question of whether there is a pending litigation exception to the right to know

would not have been answered, the Legislature might not have responded in affirmance,

and other Montanans who have a constitutional entitlement to public documents but cannot

afford the costs of litigation might have continued to be denied access on this now-refuted

basis. The public service—and public benefit—accomplished by MEIC’s initiation of this

lawsuit is, as the District Court stated, “undeniable.” Every branch of government and

every member of the public has a vested interest in seeing constitutional rights defined and

developed, and litigation can be a tool for doing so.

¶10    The result of the District Court’s order—that MEIC prevailed and undeniably

performed a public service, yet is denied attorney’s fees—is dissonant with the

foundational purposes of Article II, Section 9, and actively disincentivizes citizens from

enforcing the right. For citizens to be able to enforce the provision against the government,

litigation must be accessible; for litigation to be accessible, there should be a basic

presumption towards awarding attorney’s fees when the party seeking to enforce the right

to know has prevailed on the merits. This Court’s precedent on fees in the right to know

context is such that district courts are essentially without guidance and without review,

leading to results that offend the Constitution. A presumption towards awarding fees

corrects these issues without impeding the discretion provided by the relevant statute.

¶11    Section 2-6-1009(4), MCA, provides, “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 [C]onstitution . . . may be awarded costs and

                                             7
reasonable attorney fees.” Section §2-3-221, MCA, which pertains to the open meetings

component of the right to know, provides the same. In deciding whether to award

attorney’s fees, a district court “may consider any factor which the parties offer or the court

deems appropriate to consider.” Billings High Sch. Dist. No. 2 v. Billings Gazette, 

, 

, 

.

¶12    There is no question that the statute’s language is discretionary. In Gaustad v. City

of Columbus (Matter of Investigative Records), 

, 

(1994), we turned to the legislative history of § 2-3-221, MCA, when faced with the

question of whether fees might be mandatory rather than permissive. Enacted in 1975—

shortly after the right to know was established by the new Constitution—the statute initially

provided a mandatory award of fees and costs. But the Governor “returned the bill

unsigned, recommending that the legislature replace the mandatory language of the bill

with language placing the award of attorney’s fees within the district courts’ discretion.”

Matter of Investigative Records, 

, 

 (citing H. Journal, 44th

Leg., Reg. Sess. 1553 (Mont. 1975)). Both houses then approved an amendment changing

“shall” to “may,” which we construed to demonstrate “the clear intent of the statute [] that

an award of attorney’s fees is discretionary.” Matter of Investigative Records, 

, 

 (citing H. Journal, 44th Leg., Reg. Sess. 1597 (Mont. 1975)); S.

Journal, 44th Leg., Reg. Sess. 1546 (Mont. 1975). We noted that the Legislature had met

several times since our initial decision that fees may be awarded following a successful

right to know challenge in Associated Press v. Board of Public Education, 

,

 (1991), and had made no changes to the statute, presuming that it would have

                                              8
done so if it “disagreed with our interpretation.” Matter of Investigative Records, 

, 

.

¶13    But against this background of a discretionary determination, this Court has left a

vacuum of necessary guidance. We have provided only that a district court’s decision

cannot be “without rationale.” Yellowstone Cnty., ¶ 31. We have consistently reaffirmed

the rejection of enumerated factors. See, e.g., Yellowstone Cnty., ¶¶ 30-31; Unidentified

Police Officers 1, 2 & 3 v. City of Billings, 

, ¶ 9, 

, 

; Shockley v. Cascade Cnty., 

, 

, 

. In

essence, we have required only that a district court consider some factors and provide some

reasoning.

¶14    Here, as directed by our minimal precedent, the District Court considered several

factors in its denial of MEIC’s fees request, including whether the Governor’s Office acted

in bad faith, whether the Governor’s Office acted in a dilatory manner or to cause

intentional delay, and whether the requested documents could have been obtained through

discovery in the separate ongoing litigation between different parties. MEIC argues that,

in effect, the District Court errantly required an affirmative showing of bad faith and delay,

and was factually incorrect in holding that the same documents could have been obtained

through the Ksanka Elders litigation. In considering all of the factors it deemed relevant,

the District Court prioritized the Governor’s Office’s lack of bad faith and the taxpayer

burden of a fees award over the value of the public service accomplished by MEIC.

¶15    A presumption towards awarding fees when a plaintiff vindicates their

constitutional right to know follows naturally in the context of the right. The right is

                                              9
fundamental and comes with a “constitutional presumption that every document within the

possession of public officials is subject to inspection.” Bryan v. Yellowstone Cnty. Elem.

Sch. Dist. No. 2, 

, 

, 

. When a plaintiff prevails

on the merits of a right to know dispute, it means that, whether in good faith or bad faith,

the government pushed back against the constitutional presumption and, in doing so,

violated a fundamental right. In pursuing litigation and ultimately righting the violation,

the plaintiff has “performed a service for the citizens of the State by enforcing a portion of

our Constitution that would otherwise be violated.” Associated Press v. Mont. Dep’t of

Revenue, 

, 

, 

. But because we have previously

neglected to suggest a presumption—or even a preference—for awarding fees in this

context, even plaintiffs with an exceptionally strong case and an egregious violation must

carefully consider whether it is worth the risk of winning the documents but losing fees.

¶16    Given the well-established discretionary nature of the statute, it is worth reiterating

that a presumption is far from a mandate. The “may” language clearly contemplates a

situation where plaintiffs are constitutionally entitled to the requested documents but not

entitled to fees. As much as we should encourage valuable, substantive litigation, we

should likewise discourage frivolous actions. Thus, even in light of the presumption, a

plaintiff should not recover fees in a successful right to know action if they were

unreasonable in bringing or maintaining the litigation.

¶17    In determining whether the plaintiff acted reasonably, a district court retains

discretion to weigh whatever factors it desires towards the ultimate question of whether the

plaintiff reasonably believed that litigation was necessary to vindicate its constitutional

                                             10
interest. Such factors might include, for example, the amount of time between making the

request and bringing the action; communications between the parties before the action; the

potential for and ease of alternative access to the materials; and the parties’ conduct in the

course of litigation. Even within the context of a presumption, a district court retains its

historical discretion to consider whatever factors it deems relevant and attribute each factor

appropriate weight when determining whether the plaintiff acted reasonably. And of

course, a district court retains its ability to determine the precise amount of fees and costs

to award; a plaintiff might be entitled to the requested documents and act reasonably in

pursuing litigation, yet recover relatively little in fees and costs due to some nuance of the

proceedings.

¶18    In formally recognizing this presumption, we do not meaningfully curtail a district

court’s discretion, nor do we seek to retroactively enact the mandatory award originally

sought by the 1975 legislature or disturb the standard of review applicable to appellate

review of a fees decision. Rather, we seek to provide basic guidance that works to

encourage and strengthen the people’s exercise of a fundamental constitutional right. This

presumption does not eliminate judicial discretion but rather structures it to reflect the

constitutional emphasis on transparency. Courts retain ample discretion to deny fees based

on the wide range of considerations going to a plaintiff’s reasonableness, provided they

articulate clear reasons for doing so. This presumption is not a novelty imagined at the

whims of this Court; it is part of the fabric of the right to know which has been errantly lost

to an unboundedly deferential standard that allowed for results fundamentally at odds with

the Constitution. A presumption towards fees echoes the textual presumption towards

                                              11
disclosure and ensures that future decisions serve to strengthen the right, not to

disincentivize public engagement and enforcement.

¶19    2. Whether an award of damages for a prevailing party in a mandamus action,
       including attorney’s fees, is mandatory or discretionary.

¶20    The specific remedy by which MEIC sought to enforce its right to know presents its

own mechanism for fees. Section 27-26-402(1), MCA, provides that “if judgment is given

for the applicant” of a writ of mandamus, “the applicant may recover the damages that the

applicant has sustained . . . together with costs.” We have consistently held attorney’s fees

to be part of damages within the meaning of the statute. See Kadillak v. Mont. Dep’t of

State Lands, 

, 

 (1982) (Kadillak II) (citing State ex

rel. O’Sullivan v. Mont. Tenth Jud. Dist. Ct., 

, 

 (1953); State v.

Batani, 

, 

 (1936)). MEIC asserts that the “may recover”

language does not make a fees award discretionary, as the use of “may” would ordinarily

suggest, but rather supports that district courts must award fees so long as the applicant

requests them.    Under this reasoning, the “may” language reflects the applicant’s

discretion—they may or may not move to recover fees, but if they do, the district court

cannot deny them. This is distinct from “may award,” which clearly grants the courts

discretion in providing a remedy. The functioning of “may recover damages” in other areas

of Montana law would seem to support this argument.

¶21    The Governor’s Office responds, among other arguments, that the idea of a

mandatory mandamus award is redundant of and in direct conflict with the clearly

discretionary remedies under the Public Records Act. Indeed, that plays out here; if fees


                                             12
were mandatory just because MEIC’s remedy came in the form of a writ of mandamus, the

District Court’s entire consideration of whether fees are appropriate would be mooted.

Every right to know enforcement action would be brought as a mandamus action, and with

certain remuneration, enforcement pursuant to the Public Records Act would become a

nullity. This tension requires some exploration of whether mandamus is an appropriate

remedy at all in this context.

¶22    A writ of mandamus is appropriate “to compel the performance of an act that the

law specifically enjoins as a duty resulting from an office, trust, or station . . . and from

which the party is unlawfully precluded.” Section 27-26-102(1), MCA. “The writ must

be issued in all cases in which there is not a plain, speedy, and adequate remedy in the

ordinary course of law.” Section 27-26-102(2), MCA. Mandamus is an “‘extraordinary

remedy available in only rare cases.’” Allied Waste Servs. of N. Am., LLC v. Mont. Dep’t

of Pub. Serv. Regul., 

, 

, 

 (quoting Boehm v.

Park Cnty., 

, 

, 

). “‘The writ is available where

the party applying for it is entitled to performance of a clear legal duty by the party against

whom the writ is sought and there is no speedy and adequate remedy in the ordinary course

of law.’” Boehm, ¶ 9 (quoting Best v. Police Dep’t of Billings, 

, 

, 

).

¶23    Because the merits appeal of the underlying writ is not before this Court, we cannot

opine whether mandamus was an appropriate remedy under these circumstances. To be

clear, the government has a clear legal duty to comply with the Constitution and a clear

legal duty to obey the presumption that documents must be disclosed under the right to

                                              13
know. These are undisputed. But built into the right to know, always, is the potential for

countervailing privacy interests that warrant keeping documents from disclosure. These

inquiries are highly fact-dependent and often present novel legal theories. Thus, by nature,

the legal duty to disclose a certain set of documents is unlikely to be so clear as to be

appropriate for issuance of a writ. However, there may be scenarios where mandamus is

appropriate, for example, where no countervailing privacy interest is asserted or where the

asserted basis for shielding documents has been previously debunked.

¶24    We also instruct district courts to pay close attention to the second part of the

mandamus standard, that is, whether there is any other speedy and adequate remedy in the

ordinary course of law. Mandamus should not be a front-line remedy for run-of-the-mill

right to know disputes but rather should be reserved for those instances where other

remedies will not accomplish the parties’ needs due to specific concerns regarding

timeliness or particular reticence of the governmental body to produce the requested

information.

¶25    Although we conclude that a successful mandamus action will generally mandate

the award of fees, we observe that attorney’s fees for a successful records request made

pursuant to the right to know are particularly governed by §§ 2-6-1009 and 2-3-221, MCA.

A writ of mandamus remains appropriate only in clear-cut cases where no genuine

countervailing interests preclude finding a clear legal duty and alternative remedies,

including under the Public Records Act, are inadequate. To maintain consistency and

respect legislative intent, district courts must scrutinize whether plaintiffs choose

mandamus strategically rather than out of genuine necessity. As we have noted, while

                                            14
there is a presumption in favor of an award of fees consistent with the “constitutional

presumption that every document within the possession of public officials is subject to

inspection[,]” Bryan, ¶ 39, it would be inappropriate to superimpose the mandatory fees of

a writ onto the discretionary consideration implicated in a right to know action.

                                      CONCLUSION

¶26    The District Court’s order is vacated and remanded to consider whether an award

of attorney’s fees is appropriate considering the presumption towards awarding fees and

costs to plaintiffs who successfully vindicate their rights under Article II, Section 9, of the

Montana Constitution.


                                                   /S/ LAURIE McKINNON


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ KATHERINE M BIDEGARAY
/S/ INGRID GUSTAFSON


Justice James Jeremiah Shea, concurring.

¶27    The sky is not falling. Contrary to the Dissents’ suggestions that the Court is taking

some unprecedented step off a cliff, what we are doing in this case is both well-precedented

and, indeed, has long been recognized by both this Court and the United States Supreme

Court as sometimes necessary.

¶28    For decades, this Court has set forth several guiding frameworks in the attorney fee

context, both when fees are provided for under the common law and by statute. See, e.g.,


                                              15
Foy v. Anderson, 

, 

 (1978) (no fault defendant

fees); Means v. Mont. Power Co., 

, 

 (1981) (common

fund doctrine); McCann v. Trustees, Dodson Sch. Dist., 

, 

 (1991) (Montana Human Rights Act discretionary fees provided for by statute);

Montanans for the Responsible Use of the School Tr. v. State ex rel. Bd. of Land Comm’rs,

, 

, 

 (Montrust) (private attorney general

theory); Tripp v. Jeld-Wen, Inc., 

, 

, 

(Montana Consumer Protection Act discretionary fees provided for by statute); Edwards v.

Cascade Cnty., 

, 

, 

 (lodestar fee

presumption); Mlekush v. Farmers Ins. Exch., 

, 

, 

 (Mlekush II) (first-party insurance exception fee presumption).

¶29    Twenty years ago this very month, this Court issued a strikingly similar Opinion

dealing with the exact same issue now before us—providing guidance to the district courts

in their exercise of discretion when deciding whether to award attorney fees pursuant to a

statutory attorney fee provision. Tripp, ¶¶ 32-37.1 In Tripp, the statute was § 30-14-133(3),

MCA, a provision in the Montana Consumer Protection Act (“MCPA”) that allowed, but

did not require, a court to award attorney fees to a prevailing party.               The text of

§ 30-14-133(3), MCA, is remarkably similar to the text of § 2-3-221, MCA. Compare

§ 30-14-133(3), MCA (“In any action brought under this section, the court may award the


1
  As in this case, Tripp generated a great deal of strong feelings and opinions. In addition to the
majority opinion authored by Justice Leaphart, Justice Warner wrote a concurring opinion, Justice
Nelson wrote a dissenting opinion, Justice Cotter wrote a concurring and dissenting opinion, and
Justice Rice wrote a concurring and dissenting opinion.
                                                16
prevailing party reasonable attorney fees.”) with § 2-3-221, MCA (“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 considering the application of this statutory

provision, this Court decided in Tripp that a standard was necessary to guide the district

courts in exercising their discretion as to when an award of attorney fees was appropriate

under § 30-14-133(3), MCA. Toward that end, “[f]or guidance we look[ed] to standards

utilized in awarding attorney fees under statutes very similar to the MCPA.” Tripp, ¶ 34

(emphasis added). Since providing that guidance in Tripp, we have applied that discretion-

guiding framework without dissent. Harmon v. Fiscus Realty, Inc., 

,

, 

; Fink v. Meadow Lake Ests. Homeowners’ Ass’n,

No. DA 15-0563 

, ¶ 15, 

.

¶30    In deciding Tripp, we noted that both this Court and the United States Supreme

Court had seen the need to provide such guidance in the past, so we looked to those

precedents. Tripp, ¶¶ 34-37. One of those precedents was this Court’s decision in McCann,

which was decided in 1991, 14 years before Tripp. McCann concerned the application of

§ 49-2-505(4), MCA (1979), a provision in the Montana Human Rights Act that also

allowed a court, in its discretion, to award reasonable attorney fees to a prevailing party.

The text of § 49-2-505(8), MCA,2 is also remarkably similar to the text of § 2-3-221, MCA.

Compare § 49-2-505(8), MCA (“The court in its discretion may allow the prevailing party


2
  The Legislature amended § 49-2-505, MCA, after McCann, relocating the attorney fee provision
that used to be in § 49-2-505(4), MCA, to § 49-2-505(8), MCA.
                                             17
reasonably attorneys’ fees.”) with § 2-3-221, MCA (“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 McCann, this Court found that the text of § 49-2-505(4), MCA (1979),

provided insufficient guidance to district courts in exercising their discretion, so a guiding

framework was necessary to “avoid discouraging the filing of meritorious claims under the

Montana Human Rights Act.” McCann, 

, 

. Since that

decision, we have applied the discretion-guiding framework it announced without dissent.

Hanson v. Dix, No. 03-605, 

, ¶ 15, 

; Baxter

Homeowners Ass’n v. Angel, 

, 

, 

. It also

bears noting that in the 20 years since Tripp was decided and the 34 years since McCann

was decided, there have been no amendments to alter the guidance these Opinions provide

to the district courts when determining whether to award attorney fees under the subject

statutes.3 Gaustad v. City of Columbus, 

, 

 (1994)

(“We presume that if the legislature disagreed with our interpretation . . . it would have

amended the statute accordingly.”)

¶31    Both Tripp and McCann applied a framework that was first announced by the United

States Supreme Court in Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n,

, 

 (1978). That case concerned Section 706(k) of Title VII of the

Civil Rights Act of 1964, which provides: “In any action or proceeding under this title the


3
 In 2021, § 30-14-133(3), MCA, was amended to include a $100,000 cap on awards permitting a
grant of attorney fees, but it did not alter the discretionary fee framework provided in Tripp.
                                              18
court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee.”

Faced with a fees provision that provided “little more than the barest outlines” of how it

was supposed to be applied, the U.S. Supreme Court determined it was necessary to provide

a guiding framework to assist the federal district courts in the exercise of their discretion

as to whether or not to award attorney fees. Christiansburg, 

, 

. To that end, it announced that the guiding purposes of Title VII—to vindicate “a

policy that Congress considered of the highest priority” and discourage “a violator of

federal law” from further violations—required two different frameworks for prevailing

plaintiffs and defendants. Christiansburg, 

, 

. Prevailing

plaintiffs “should ordinarily recover an attorney's fee unless special circumstances would

render such an award unjust,” but prevailing defendants should recover “only where the

action brought is found to be unreasonable, frivolous, meritless or vexatious.”

Christiansburg, 

, 

.

¶32    Justice Baker attempts to distinguish Tripp, McCann, and Christiansburg, by

pointing out that they each involved statutes permitting the district court to award either

the defendant or the plaintiff attorney fees, depending on which prevailed. The statutes at

issue in this case, she argues, only permit a prevailing plaintiff to recover, militating against

a presumption in favor of fees because it will make the government’s job of deciding when

to reject a Right to Know request more difficult. Dissent, ¶ 63. In substance, though, this

is not an argument against the creation of a guiding framework so much as an argument

about what that guiding framework should be. The fundamental point of Tripp, McCann,

and Christiansburg is that both this Court and the United States Supreme Court have long

                                               19
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 in situations

remarkably similar to the situation in this case.

¶33    Tripp, McCann, and Christiansburg, are examples dating back nearly fifty years of

both this Court and the United States Supreme Court providing guidance to lower courts

in the exercise of their discretion when applying statutory attorney fee provisions. The

history of Mlekush II provides an excellent example of why such guidance is so essential.

¶34    Tanya Mlekush was injured in a car accident with an underinsured driver. Mlekush

II, ¶ 3.   Mlekush’s own insurer, Farmers Insurance Exchange (“Farmers”), delayed

payment under her underinsured motorist coverage. Mlekush sued. Mlekush II, ¶¶ 5-6. A

jury found for Mlekush, awarding her an amount larger than any of Farmers’ settlement

offers. The district court denied Mlekush’s motion for attorney fees, though, on the basis

that the insurance exception to the American rule did not apply because she was not “forced

to assume the burden of legal action.”        Mlekush II, ¶ 10.   Mlekush appealed that

determination.   We held that the district court did not correctly apply the existing

framework, so we remanded the matter back to the district court to apply a “totality of the

circumstances analysis” to determine whether or not Mlekush was “forced to assume” the

burden of legal action to obtain her insurance benefits. Mlekush v. Farmers Ins. Exch.,

, 

, 

 (Mlekush I).

¶35    On remand, the district court again ruled that Mlekush had not been forced to

assume the burden of legal action and it again denied her claim for attorney fees. Mlekush

II, ¶ 12. Mlekush appealed a second time. In Mlekush II, this Court recognized that the

                                             20
guidance we provided to the district courts was inadequate; therefore, the members of this

Court unanimously held that there is an irrebuttable presumption that “when a first-party

insured is compelled to pursue litigation and a jury returns a verdict in excess of the

insurer’s last offer to settle an underinsured motorist claim, the insurer must pay the

first-party insured’s attorney fees in an amount subsequently determined by the district

court to be reasonable.” Mlekush II, ¶ 23 (emphasis added). As it pertains to the District

Court’s rationale for denying fees in this case, it is noteworthy that in Mlekush II, we

clarified that the irrebuttable presumption in favor of attorney fees was “not a bad faith

concept.” Mlekush II, ¶ 21. Rather, “it simply recognize[d] that the insured should not

bear the expense when she has to resort to litigation in order to recover the benefits for

which the insured has contracted and paid premiums.” Mlekush II, ¶ 21. We determined

that such a presumption was necessary because “whenever an insurer forces its insured to

assume the burden of litigation to obtain what the insured is entitled to under an insurance

contract, the insured is entitled to recover attorney fees.” Mlekush II, ¶ 18. Notably, in

Mlekush II we divested the district courts of any discretion in deciding when attorney fees

should be awarded in that circumstance.

¶36    The history of this case indicates that district courts are in even greater need of more

concrete direction to guide their exercise of discretion in this context than they were in

making the determination in the insurance exception context. Sections 2-6-1009(4) and

2-3-221, MCA were enacted in 2015 and 1975, respectively. In the time since their

respective enactments, we have reviewed 32 cases on appeal under one or both of these

statutes. A survey of these cases evinces a remarkable lack of guidance to the district courts

                                              21
in how these statutes should be applied, and a corresponding lack of consistency as to when

fees are awarded or denied, both in the district courts and on appeal. Indeed, in its

September 18, 2023 Order in this case, the District Court lamented the lack of guidance,

noting that we had “expressly declined to rely on [Justice Nelson’s proposed factors] or

any set list of guidelines or factors.” Nor is the District Court alone in its observation that

we have provided little to no guidance in how to apply these statutes. Several prior

members of this Court have bemoaned our failure to set some sort of guidepost. See

Billings High Sch. Dist. No. 2 v. Billings Gazette, 

, 

, 

 (Morris, J., joined by Warner, J., concurring) (Nelson, J., joined

by Cotter, J., concurring in part and dissenting in part); Gaustad, 

, 

 (Trieweiler, J., dissenting).

¶37    Left adrift without any meaningful guideposts, this Court and the district courts have

come to an odd variety of conclusions as to when a prevailing plaintiff is entitled to an

award of attorney fees when—to borrow our language from Mlekush II—they have “to

resort to litigation” to enforce their constitutional right to know. Compare Associated

Press, Inc. v. Mont. Dep’t of Rev., 

, 

, 

 (reversing

a denial of fees where disclosure was denied pursuant to preexisting regulation and the

denial was promptly made within a month of the request) with Billings High Sch. Dist. No.

2, ¶ 38 (affirming a denial of fees where the defendant failed to turn documents over to the

district court for in camera review over a period of five months).

¶38    This case further illustrates the unpredictability that has resulted from our failure to

provide any guidance. MEIC requested the documents at issue on November 29, 2021.

                                              22
After the Governor’s office did not even acknowledge the request for over a month, MEIC

reached out directly to the Governor’s General Counsel. The Governor’s office, through

its Administrative Specialist, then acknowledged the request had been made but did not

indicate how quickly it would produce the records. MEIC contacted the Governor’s office

again on January 10, 2022, requesting a timeline for the production. The Governor’s office

responded on January 12, 2022, stating that the request would take approximately two

weeks to complete once staff began reviewing the documents, but did not say when the

document review would begin. More than another month passed when, on February 18,

2022, MEIC followed up for a third time requesting to know when the request would be

answered. A week later, the Governor’s office responded that it “anticipat[ed] completing

[MEIC’s] request soon,” but gave no indication as to what “soon” meant. It was not until

April 19, 2022—a month after MEIC was forced to file suit to recover the documents, and

nearly five months after it had first made its request—that the Governor’s General Counsel

sent a letter to MEIC informing it that the Governor’s office would not be producing any

of the documents after all, and for the first time asserted several privileges and exceptions

as its basis for denying the request in its entirety.

¶39    The District Court did its level best to apply our mishmash of precedents, selecting

five factors it determined relevant to consider, and determined that they weighed slightly

against awarding attorney fees. But in doing so, the District Court applied its own

presumption in favor of the State as to at least one of those factors. The District Court

determined that the State did not “act in a particularly dilatory fashion,” but in doing so it

specifically noted its difficulty in making that determination because “[t]he record does not

                                               23
contain enough information about the length of time needed to fulfill similar requests or

the workload and capacity of the Governor’s office to assess whether this was a ‘timely’

response.” Based on that lack of evidence, the District Court concluded: “On its face . . .

the foregoing does not indicate indolence or intentional delay.” Obviously, the Governor’s

office is the party that is best positioned to provide information about the length of time it

has needed to fulfill similar requests or its own workload and capacity. But why would it

ever produce that information for the District Court’s consideration if it will benefit from

a presumption that the absence of such information will lead to the conclusion that it did

not act with indolence or intentional delay. On the other hand, another District Court, in

its discretion, might very well presume that the Governor’s office did act with indolence

or intentional delay precisely because it failed to provide evidence to the contrary—

evidence that was exclusively within its control. The fact that two district courts could

apply competing presumptions based on the same conduct that may likely lead to

diametrically opposed results illustrates the need for more concrete guidance from this

Court. One of the fundamental aspects of the rebuttable presumption imposed by this

Opinion is the commonsense requirement that the State should explain the manner in which

it responded—or failed to respond—to a right to know request, instead of allowing it to

benefit from its failure to provide an explanation.

¶40    So the District Court concluded that the timeline of this case demonstrated that the

State did not act in a particularly dilatory fashion—a conclusion driven by the District

Court’s presumption that the State acted timely because “[t]he record does not contain

enough information about the length of time needed to fulfill similar requests or the

                                             24
workload and capacity of the Governor’s office.” But how does this timeline hold up

without that presumption in favor of the State? We often hear people say that government

should operate more like a business. So let’s use that analogy.

¶41    John Q. Citizen places an order with Montana Corp. Mr. Citizen waits patiently for

over a month without so much as an email even acknowledging his order, so he contacts

Montana Corp. to confirm that Montana Corp. even got the order. Montana Corp. responds

with “yeah we got your order,” but gives no indication as to when Mr. Citizen can expect

the order to be filled. So Mr. Citizen inquires again asking when he can expect his order

will be filled. Montana Corp. responds with “It’ll be about two weeks after we start to

work on it.” At this point, most of us would say, “Wait, what? You haven’t even started

to work on my order? It’s been almost six weeks. You know what? Just give me my

money back.” But, of course, this is a non-refundable order, and Mr. Citizen has the

patience of Job, so he waits for more than another month before he contacts Montana Corp.,

asking again where his order is. Another week goes by before Montana Corp. even

responds to this inquiry, and when it does its response is a vague noncommittal “we

anticipate filling your order soon,” but Montana Corp. doesn’t say what “soon” means. At

this point, Mr. Citizen starts to get worried that he’s just being strung along so he’s forced

to hire an attorney to sue Montana Corp. to fill the order he placed over three-and-a-half

months earlier. Then another month goes by before Montana Corp. even responds to the

lawsuit and, when it does respond over five-and-a-half months after Mr. Citizen placed his

order, Montana Corp. tells Mr. Citizen for the first time:



                                             25
         Dear Mr. Citizen:

         Thank you for your patience these past five-and-a-half months. Despite our
         previous assurances to you that we would be filling your order “soon,” we’ve
         now decided we’re not going to fill your order at all.

         Thank you for being a loyal customer of Montana Corp.

         Sincerely,

         Montana Corp. Customer Service

So then Mr. Citizen is required to incur the expense and delay of going through the courts

for another year and three months until Montana Corp. is forced to fill his order by court

order.

¶42      Considering that level of customer service, anyone would be hard-pressed to ever

order anything from Montana Corp. ever again just based on the unexplained delays and

unresponsiveness prior to the litigation commencing. While not a standard that I am

advocating for the District Courts in the future, when deciding whether a citizen should

have to bear the expense of going to court to vindicate their constitutional right to know, I

think the citizens of Montana are entitled to expect more from their government than

service that would earn a one-star Yelp review. But if a District Court is inclined to give

the State a pass based on these facts, shouldn’t the State at least be required to explain the

reasons for its delays and failures to respond? And in the complete absence of any

explanation, what is the basis for giving the State the benefit of a presumption that it did

not act with indolence or intentional delay?

¶43      The Governor’s assertion that MEIC was attempting to use its constitutional right

to know to circumvent discovery—while ultimately not a valid defense—provides yet

                                               26
another apt analogy. In a civil case, litigants generally have 30 days to respond to a request

to produce documents. See M. R. Civ. P. 34(b)(2)(A). “We have repeatedly articulated a

low-tolerance approach toward discovery abuse, encouraging district courts not to give

transgressors second chances but rather to impose sanctions.” Peterman v. Herbalife Int’l,

Inc., 

, 

, 

.4 In this case, the District Court

closed its order denying MEIC’s fee request by noting that in “the absence of precedent,

the Court [did] not find this to be a case where the taxpayers should bear the burden of the

Court’s order.” While I sympathize wholeheartedly with the District Court’s point about

a lack of guiding precedent, the District Court’s point failed to account for the fact that the

taxpayers had already incurred the cost of attorney fees for private counsel hired by the

Governor’s office to defend withholding the documents. Obviously, the Governor, in his

discretion, has the right to hire competent outside legal counsel to defend his office in a

right to know claim. But if a district court, in its discretion, is going to consider the

expenditure of taxpayer dollars as a factor in deciding whether or not to award attorney

fees, it seems ironic that this consideration should be weighed against the taxpaying

citizens who successfully litigated their constitutional right to know.

¶44    In the final analysis, all the Court’s Opinion in this case does is finally provide the

guidance that district courts and multiple Justices have been asking us to provide for at


4
  This provides yet another example where we have imposed a framework to guide district courts
in their exercise of a core discretionary function. Surely if creating a presumption in favor of
awarding sanctions—that routinely will include an award of attorney fees and costs—for failing
to produce documents during discovery did not rob district courts of their discretion, then creating
a presumption in favor of awarding attorney fees for failing to produce documents under a
constitutional mandate will not do so.
                                                27
least 30 years, in a manner that has been employed by both this Court and the United States

Supreme Court for nearly 50 years. In doing so, it recognizes that when a Montana citizen

has to resort to litigation in order to vindicate a constitutional right, the citizen is entitled

to a rebuttable presumption that he should not bear the expense of that litigation.

See Mlekush II, ¶ 21. Toward that end, we are simply holding that whenever the State

forces its citizens to assume the burden of litigation to obtain what the citizens are entitled

to under the Montana Constitution, the citizens are entitled to a presumption in favor of

attorney fees. See Mlekush II, ¶ 18. This framework does not divest district courts of their

discretion in determining whether the State has overcome that rebuttable presumption, it

merely provides what we have provided in dozens of contexts: a guiding principle for them

to apply in exercising that discretion.

¶45    Justice Rice’s Dissent goes well beyond Justice Baker’s concerns regarding the trial

court’s discretion. He accuses the Court of perpetuating a “recent trend of holdings

wherein the Court has resolved cases after setting aside longstanding governing principles

of the law” and “backfill[ing] arbitrarily, including potentially the justice’s personal

preferences, desires, agendas, and even biases.” Dissent, ¶ 68. Justice Rice’s serious

accusations provide me with an opportunity to remind the reading public of how this Court

reaches its decisions. Members of this Court swear to “support, protect and defend the

constitution of the United States, and the constitution of the state of Montana,

and . . . discharge the duties of [his or her] office with fidelity” an oath that I, and I know

all of my fellow Justices, take gravely seriously. Mont. Const. art. III, § 3. When cases

are filed with the Court, we consider them in conference and take a vote on the outcome

                                               28
based on our reasoned understanding of the law. A single Justice is assigned to write an

opinion expressing the vote of the majority of the Court, but their opinion is ultimately

signed by all of the justices who voted in favor of the outcome. Thus, each of our opinions

is the result of a serious discussion among duly elected colleagues to reach what a majority

of the Court considers the correct conclusion. Of course, there will be disagreements.

That’s why there’s an odd number of members on the Court.

¶46    To support his assertion that a majority of this Court has jumped those procedural

guardrails and begun deciding cases based on “the [J]ustice’s personal preferences, desires,

agendas, and even biases” Justice Rice cites three cases: Svenstad v. Newman Ayers Ranch,

Inc., 

, 

, 

; State v. Wolfblack, 

, 

, 

; and State v. Gibbons, 

, 

, 

.

Dissent, ¶¶ 69, 74, 76. Justice Rice asserts that these cases signal a departure from typical

statutory construction as evidenced by the Legislature’s recent actions to overturn those

decisions by amending the statutes they interpreted.5 I assert that the Legislature’s actions

signal that the system is working as the Framers of our Constitution intended. It is

axiomatic that it is the job of the Legislature to write the laws and the job of the Courts is

to interpret them. We do our best to fulfill our half of that constitutional bargain, but

sometimes the Legislature feels we have done our job incorrectly. Their constitutional


5
  As I discuss in more detail below, the Legislature recently passed a bill to overrule our holding
in O’Neill v. Gianforte, 

, 

, 

. The Governor prevailed in
O’Neill, an Opinion which I authored and in which Justice Rice concurred. O’Neill is but one of
many examples proving the point that the Legislature may see fit to pass legislation responding to
our decisions, regardless of any perceived biases of the Opinion or its signing Justices, or the
political affiliation of the prevailing party.
                                                29
response is to go back to the drawing board and rewrite the laws so that we read them the

way they think we should. This conversation between us and the legislature has been going

on since Montana became a State and will go on long after the Justices currently on the

Court have left. See Bonner v. Minnier, 

, 

 (1893).

¶47    But Justice Rice does not stop at accusing us, his colleagues, of inserting our

personal biases into the law. Citing what he sees as a biased distinction between decisions

in cases involving Democratic and Republican administrations, he goes on to ask the

question “what are the Republican Defendant and Republicans in general—and anyone

concerned about impartiality—supposed to make of the Court’s decision today?” Dissent,

¶ 79. Such a weighty question deserves a fulsome answer. My frontline answer is “the

same thing the Democratic defendant was supposed to think in 2005 when this Court

decided Columbia Falls Elem. Sch. Dist. No. 6 v. State, 

, 

, 

 (C Falls).” At that time, the Governor, Attorney General, and Legislature all

comprised a Democratic administration. We decided that the administration’s decisions

regarding school funding violated Article X, Section 1(3), of the Montana Constitution.

C Falls, ¶ 31. We also reversed the district court’s denial of attorney fees to the plaintiffs

and remanded to the district court to consider whether to award attorney fees under our

then recent private attorney general doctrine. C Falls, ¶ 41 (citing Montrust, ¶ 67). Sound

familiar? Justice Rice concurred in that decision, evidently not concerned with what the

Democratic defendant was to make of it. Perhaps because the defendant was to make of it

what every losing party before is to make of our decisions: that a majority of this Court

decided they were wrong, nothing more.

                                             30
¶48    Justice Rice’s concerns extend beyond this case. He is worried about “another

coincidental Republican defeat in a run of bad case outcomes.” Dissent, ¶ 79. Presumably

he means the few cases he cited earlier in his Dissent, all from 2024. For greater context,

I took a broader look at the current administration’s “losing streak.” Since the Governor

took office in 2021, we have issued three published opinions in cases in which the Governor

was the named defendant: Brown v. Gianforte, 

, 

, 

; O’Neill v. Gianforte, 

, 

, 

; Choteau Acantha

Publ’g, Inc. v. Gianforte, 

, 

, ___ P.3d ___. The Governor

prevailed in two of those three cases. To provide some background relevant to this

discussion, I authored the two opinions in which the Governor prevailed; Justice Rice

authored the opinion in which the Governor lost. Speaking for myself, I can attest that in

neither of the two cases I authored, was I looking for a way to give the Governor a win;

nor do I think my colleagues who joined my Opinion had any such motivation. I also feel

confident in stating that Justice Rice wasn’t looking to put one in the Governor’s

“L Column” with Choteau Acantha Publ’g.             Neither Brown nor O’Neill was a

“pro-Republican” Opinion any more than Choteau Acantha Publ’g was an

“anti-Republican” Opinion. All three Opinions, and their dissenting Opinions, were guided

by the same North Star—the individual Justices’ sincere desire to adhere to and uphold our

Constitution.

¶49    Nor does the fact that some members of this Court reached different conclusions in

both Brown and O’Neill suggest any partisan motivation on their part. No case illustrates

this point better than O’Neill. In O’Neill, Justice McKinnon authored a strongly worded

                                            31
dissenting Opinion, in which she was joined by Justice Gustafson and Judge Halligan.6

After O’Neill was issued, the Legislature introduced, and recently passed, HB 271, in direct

response to this Court’s holding in O’Neill. The preamble of the Bill explicitly states that

it was necessary because “the Montana Supreme Court recently issued a decision in O’Neill

v. Gianforte, 

.” The Legislature debated the bill, and a majority bipartisan

coalition of legislators in both houses effectively adopted Justice McKinnon’s position as

expressed in her dissenting Opinion.

¶50      More broadly, in the same period since the Governor took office, this Court has

issued approximately 45 published opinions in which the State was the named defendant.

The State prevailed in 32 of those opinions, giving the State a win rate of approximately

71%. How often the State prevails in cases where it is the plaintiff is a subject for a future

law review article, but my personal experience suggests that the State’s win rate is even

higher in those instances. If a two-thirds-plus win rate constitutes a “run of bad case

outcomes,” I do not dare consider what many of the parties that practice before us must

think of their win rates or the ostensible “personal preferences, desires, agendas, and even

biases” they ascribe to us.

¶51      In Tripp, Justice Rice wrote a strongly-worded dissent very similar to his dissent in

this case. As in this case, he said the Court was overstepping its bounds, but unlike this




6
    District Court Judge Halligan, sitting for former Chief Justice Mike McGrath.
                                                 32
case he did not suggest a partisan motivation for the Court’s Opinion. Justice John

Warner,7 one of the concurring Justices in Tripp, responded to Justice Rice’s dissent:

               I agree with the principles in Justice Rice’s dissent on [the attorney
       fee issue]. I would sign that dissent if I was of the opinion that such
       principles applied. However, as provided in § 30–14–133(3), MCA, and
       noted by the Court at ¶ 32, the legislature has made an award of attorney fees
       to either a prevailing plaintiff or defendant discretionary, not mandatory. We
       here set a standard for the exercise of that discretion. We show no disrespect
       to, nor do we infringe on, the legislature’s prerogative by setting such
       standard.

(Emphasis added.) But for the citation to the specific statute at issue, Justice Warner’s

eloquent—and much briefer—concurrence could be written nearly verbatim in this case:

       [A]s provided in [§ 2-3-221], MCA, . . . the legislature has made an award of
       attorney fees . . . discretionary, not mandatory. We here set a standard for
       the exercise of that discretion. We show no disrespect to, nor do we infringe
       on, the legislature’s prerogative by setting such standard.

As noted above, the lack of any action by the Legislature over the past twenty years since

Tripp was decided certainly indicates that the Legislature did not view this Court’s Opinion

in Tripp as disrespectful or infringing on its prerogative. Nor should this Opinion be

viewed as such.

¶52    There is nothing new about the Court’s Opinion providing a framework to guide the

district court’s discretion in the application of a statutory award of attorney fees. We did

it in Tripp, we did it in McCann, and the United States Supreme Court did it in




7
  Just as I do not ascribe any partisan bias to the current members of the Court participating in this
Opinion, I likewise do not ascribe any partisan bias to the members of this Court who participated
in deciding Tripp. But since we’re looking at this matter through a partisan lens, I suppose it
should be noted that both Justice Warner and Justice Rice were appointed to the Supreme Court
by Governor Judy Martz.
                                                 33
Christiansburg nearly fifty years ago. There is nothing new about the reasoning behind

the Court’s opinion. It is meaningfully identical to the reasoning this Court unanimously

applied in Mlekush II, except in Mlekush II we imposed an irrebuttable presumption for an

award of attorney fees whereas, in deference to the statutory language, the guidance

provided here is a rebuttable presumption. There is nothing new about Justice Rice’s

concerns with providing a guiding framework in these circumstances. He expressed similar

concerns in his dissent in Tripp. There is nothing new about my response to Justice Rice’s

concerns, which Justice Warner expressed much more concisely in his concurrence in

Tripp. The only thing new in this case are the accusations that the Court’s holding is not

only new, but motivated by personal biases and partisan preferences. Those accusations

are demonstrably false and dangerously novel.

¶53    Dissents and concurrences are a time-honored tradition of judicial practice. They

are an essential tool in highlighting alternative arguments, suggesting future solutions to

outstanding issues, and clarifying a Justice’s position. Rare are the dissents, however, that

close by suggesting that the public should read the Court’s decision as motivation to alter

the method by which the Court is elected. Justice Rice asks why such proposals “continue

to arise year after year” and closes with a quote from Pogo suggesting that he has “met the

enemy, and he is us.” Dissent, ¶ 80. “With all due respect,” is a phrase that is too often

casually bandied about when what follows is usually a statement that exhibits very little

respect. So I feel it necessary to preface my answer to Justice Rice’s concluding question

by stating that I have nothing but sincere, tremendous respect for Justice Rice, as I do all

my colleagues on the Court—respect that endures even when we disagree. But with all

                                             34
due respect to Justice Rice and Pogo, I think the answer to Justice Rice’s final question is,

in this instance, more aptly answered by the classic line from 1979’s When a Stranger

Calls: “The call is coming from inside the house.”


                                                  /S/ JAMES JEREMIAH SHEA


Justices Katherine M. Bidegaray and Ingrid Gustafson join in the concurring Opinion of
Justice James Jeremiah Shea.


                                                  /S/ KATHERINE M BIDEGARAY
                                                  /S/ INGRID GUSTAFSON


Justice Beth Baker, dissenting.

¶54    For fifty years, beginning soon after the Montana Constitution was adopted,

Montana statutes have allowed a court to award attorney fees to the prevailing party in an

action brought under Article II, Section 9 of the Montana Constitution. Sections 2-3-221,

2-6-1009(4), MCA. We have left to the discretion of the district court whether to grant

such an award. Shockley, ¶¶ 7-8. We have declined to set firm guidelines for district court

consideration in awarding fees to prevailing plaintiffs in right to know actions, instead

requiring only that the court explain its rationale for an award or denial. Unidentified

Police Officers 1, 2, & 3, ¶ 9; Shockley, ¶ 8; Yellowstone Cnty., ¶¶ 30-31.

¶55    Under our guiding standards, when reviewing a decision on attorney fees under

§ 2-3-221, MCA—similar to other discretionary fee awards—we apply a deferential

standard of review. “We will not substitute our judgment for that of a district court unless

that court clearly abused its discretion.” Unidentified Police Officers 1, 2, & 3, ¶ 7

                                             35
(citations and internal quotation marks omitted). A district court abuses its discretion if

the court acts arbitrarily, without employment of conscientious judgment, or exceeds the

bounds of reason, resulting in substantial injustice. Friedel, LLC, ¶ 5 (citation omitted).

¶56    Here, when the District Court declined to award fees, it reasoned that the Governor

did not act in bad faith or with undue delay and that a discovery request could have been

utilized in obtaining the requested documents regardless. The District Court did not act

summarily in denying MEIC’s motion for attorney fees or fail to explain its rationale. The

court’s six-page order detailed the circumstances in this case and balanced the benefit

gained from litigating the public’s right to know against the actions taken by the

Governor’s Office. The court acknowledged that the public did benefit from MEIC’s

efforts in obtaining the records and that liability for fees potentially could deter public

entities from noncompliance with their constitutional obligations. But it found that the

Governor’s Office did not act in bad faith in relying on the “underlying litigation”

exception, as past administrations had relied on the same “alleged privilege,” and that the

Governor’s Office was not dilatory in the time it took to address the request given the

breadth of the request and its timing during the holiday season. The court also observed,

citing in part our decision in Friedel, LLC, ¶¶ 8–9, that “the scope of discovery is

sufficiently broad that much—if not all—of the information MEIC sought could have been

obtained in [the Ksanka Elders litigation].” With these factors in mind, the District Court

ultimately determined that an award of attorney fees was not warranted in this case.

¶57    MEIC suggests that the District Court imposed a “standard” requiring proof of bad

faith to secure an award of fees. But as in other decisions relating to the award of attorney

                                             36
fees in a right to know action, the District Court did not mandate a set of criteria that must

be met before attorney fees may be awarded. Instead, it considered the relevant factors of

the case, weighed the parties’ arguments, and articulated a reasoned decision based on the

totality of the circumstances.

¶58    We have emphasized that, “under the abuse of discretion standard of review, district

courts may reach different determinations of substantially similar questions, as long as

neither court has ‘acted arbitrarily without conscientious judgment or exceeded the bounds

of reason.’” Rolan v. New West Health Servs., 

, 

,

 (citation omitted). We do not determine whether we would have reached the

same decision. Rolan, ¶ 24 (citation omitted). A trial court may give substantial weight to

any factors it determines have the most effect on the subject matter of each case in deciding

if an award of fees is proper. Compare Friedel, LLC, ¶¶ 4, 8 (denial of attorney fees under

§ 2-3-221, MCA, upheld where the district court determined that the plaintiff took an

unreasonable approach to resolve dispute at hand), and Billings High Sch. Dist. No. 2,

¶¶ 37-38 (denial of attorney fees under § 2-3-221, MCA, upheld where the district court

determined that the public entity was reasonable by seeking judicial determination prior to

the release of certain documents due to potential privacy concerns), with Unidentified

Police Officers 1, 2, & 3, ¶¶ 13-14 (upholding award of fees based on the public benefit

gained from disclosure despite good faith efforts by the public entity to balance privacy

interests and exposure to litigation against the right to know). Here, the District Court

provided its own rationale for its denial of fees, focusing on the factors it deemed most

appropriate based on the circumstances of the case.

                                             37
¶59    Montana follows the American Rule for attorney fees, which requires each party in

a case to pay its own attorney fees, “absent statutory or contractual authority to the

contrary.” Abbey/Land, LLC v. Glacier Constr. Partners, LLC, 

, 

, 

 (quoting Goodover v. Lindey’s, 

, 

 (1992)). We construe exceptions to the American Rule narrowly. See Jacobsen

v. Allstate Ins. Co., 

, 

, 

; Cmty. Ass’n for

N. Shore Conservation, Inc. v. Flathead Cnty., 

, ¶ 47, 

, 

; Abbey/Land, LLC, ¶ 64. Applicable here, there is statutory authority for fees,

but it is permissive and does not indicate a presumption of fees to the prevailing plaintiff

as the Court now holds. Opinion, ¶ 10. The award of fees instead long has been committed

to the discretion of the trial court, and we review a court’s grant or denial just as we review

any other discretionary determination. See § 1-2-101, MCA.

¶60    Reasoning that a plaintiff’s success in vindicating the right to know means the

government has “pushed back against the constitutional presumption and [therefore]

violated a fundamental right,” the Court concludes that a presumption for awarding fees

“follows naturally.” Opinion, ¶ 15. This rationale is overly simplistic. It fails to appreciate

the wide range of public requests between those that are “frivolous” or “unreasonable” and

those that present an “exceptionally strong case and an egregious violation” of the right to

know. Opinion, ¶¶ 15-16. For example, under state law, the dissemination of confidential

criminal justice information is restricted “to criminal justice agencies, to those authorized

by law to receive it, and to those authorized to receive it by a district court upon a written

finding that the demands of individual privacy do not clearly exceed the merits of public

                                              38
disclosure[.]” Section 44-5-303, MCA. We considered this provision in Bozeman Daily

Chron. v. City of Bozeman Police Dep’t, 

, 

 (1993). Noting that

“[t]he public’s right to know and the individual’s right to privacy inevitably conflict in

cases involving a request for confidential criminal justice information[,]” we held that “it

is incumbent upon a party to make a proper showing in order to be eligible to receive such

specific confidential information.” Bozeman Daily Chron., 

, 

 (quoting Allstate Ins. Co. v. City of Billings, 

, 

(1989)). Once a party has met that initial burden, “it then becomes incumbent upon the

agency or person in possession of the information to demonstrate why all or portions

thereof should not be released because the rights of individual privacy outweigh the merits

of public disclosure.” Bozeman Daily Chron., 

, 

. We

recognized, in that case and in many others since, that the district courts must “balance the

competing right to know and right to privacy to determine what, if any, information should

be given to the party requesting the information from the government.” Bozeman Daily

Chron., 

, 

 (citation omitted). See also, e.g., Nelson v. City

of Billings, 

, 

, 

 (holding that government

entity asserting protections of attorney-client or work-product privilege in a request for

public documents must prove application and scope of the asserted privilege to a reviewing

court, which then “must—as possible based on the nature and substance of the

documents—give effect to both the subject privilege and the public’s right to know by

ordering appropriate redaction of the privileged information and disclosure of the

unprivileged balance of the document, if any”); Krakauer v. State, 

, 384

                                             

, 

 (reiterating “the efficacy of an in camera review of requested

records by a district court to ensure that privacy interests are protected”) (citations omitted);

Havre Daily News, LLC v. City of Havre, 

, 

, 

 (agreeing that “determining which criminal justice information may be disseminated

to the public requires a factually specific inquiry” to be conducted by the district court);

Jefferson Cnty. v. Mont. Standard, 

, 

, 

 (noting

that “it is proper for a district court to conduct . . . an in camera inspection in order to

balance the privacy rights of all of the individuals involved in the case against the public’s

right to know”) (citations omitted).

¶61    In similar regard, this Court recently held that the Governor enjoys a limited

privilege under Montana’s Constitution, essential to carrying out the Governor’s

constitutional duties, to shield from public disclosure information received during

pre-decisional deliberations to the extent disclosure would chill future candor. O’Neill v.

Gianforte, 

, ¶ 26, 

, 

.                 We determined that

recognition of such a gubernatorial privilege was “necessary for the integrity of

government.” O’Neill, ¶ 24 (quotation omitted). But we cautioned that the Governor had

to meet a “high bar of demonstrating that the information is essential to carrying out a

constitutional duty and that its disclosure would chill future candor”—a showing that must

be made to a reviewing court, which would be tasked to examine and appropriately redact

the requested documents to give effect both to the necessary privilege and to the public’s

right to know. O’Neill, ¶¶ 26-27.



                                               40
¶62    These cases demonstrate that vindication of the public’s right to know is only part

of the equation when a district court considers a prevailing plaintiff’s fee request. The

government’s “push[-]back” against a demand for public documents does not ipso facto

mean the government has violated a fundamental right. Opinion, ¶ 15. The government

must meet its obligation to make information available to the public and its obligation to

protect individual privacy interests or other recognized privileges.       It should not be

discouraged from studied consideration of the competing interests, or from submitting such

conflicts to the district courts for the required balancing, by a presumption that failure to

produce the information on demand will make the government liable for the requesting

party’s attorney fees.

¶63    This difference also is what distinguishes right-to-know fee litigation from the cases

cited in Justice Shea’s concurrence. First, Mlekush II, ¶¶ 15-16, involved the common law

“insurance exception” to the American Rule, recognizing that an insurer is liable for

attorney fees when the insurer breaches its contractual duty to defend and indemnify its

insured. “Thus, when a first-party insured buys insurance, . . . he or she does so with the

reasonable expectation that they will be treated fairly and will not have to resort to

expensive, time-consuming litigation in order to recover what they are rightfully entitled

to under the terms of their insurance policy.” Mlekush II, ¶ 20. Second, McCann, Tripp,

and the Christiansburg case they cited all involved how to determine when a prevailing

defendant should be awarded fees under a “prevailing party” statute. See McCann,

, 

; Tripp, ¶ 37; Christiansburg, 

, 

. In a right-to-know case, the government is not eligible to recover fees. See

                                             41
§§ 2-3-221, MCA (authorizing fees to a successful plaintiff “alleging a deprivation of

rights under Article II, section 9, of the Montana constitution”), 2-6-1009(4), MCA

(authorizing fees to a successful plaintiff “alleging a deprivation of rights under Article II,

section 9, of the Montana constitution or under” the public records statutes). Distinct from

each of those situations is the government’s obligation to balance competing rights and

interests when evaluating a public information request.         In my view, that is why a

presumption in favor of fees is not appropriate.

¶64    The Court’s new presumption will not relieve the trial courts’ burden to examine

the circumstances of each case, as they now will need to determine when or under what

circumstances such a presumption is overcome. It again will be up to this Court to review

on appeal whether a district court abused its discretion in deciding that the presumption

either did or did not apply under the circumstances of the particular case. In my view, there

is no reason to depart from our customary review of attorney fee rulings for abuse of

discretion. Rather than being “unboundedly deferential,” Opinion, ¶ 18, it is a standard

that is well-defined in our jurisprudence, has articulable parameters, and is applied to

innumerable discretionary rulings.

¶65    Finally, regarding MEIC’s contention that it is entitled to fees under § 27-26-402(1),

MCA, because it prevailed on its mandamus claim, we explained in Bd. of Trustees v. Bd.

of Cnty. Comm’rs, 

, 

 (1980), that the

appropriate method of bringing an action asserting a violation of open meeting laws is by

petition pursuant to § 2-3-203, MCA, not for a writ of mandamus. We reiterated in Goyen

v. City of Troy, 

, 

 (1996), “that actions for violations

                                              42
of the open meeting law are appropriately brought by a petition alleging violation of the

act pursuant to § 2-3-203, MCA. Writs of mandamus and prohibition are not appropriate

for the enforcement of those provisions.” As the Court reasons, attorney fees likewise are

specifically provided for in § 2-3-221, MCA, which is the appropriate method for

recovering fees in such actions, rendering the provision for fees under the mandamus

statutes “unimportant.” Bd. of Trustees, 

, 

. I would

conclude simply that fee requests in an action asserting violation of Montana’s public

records laws are appropriately brought via petition pursuant to § 2-6-1009, MCA,

which—like § 2-3-221, MCA—provides for a discretionary award of attorney fees to a

prevailing party. Therefore, the District Court did not err in declining to award fees under

the mandamus statutes.

¶66    I dissent from the Court’s decision to establish a presumption in favor of fee awards

in right-to-know actions. The District Court’s reasoned consideration of MEIC’s fee

request reveals that it used conscientious judgment in making its decision. Because the

court acted within its discretion when it denied attorney fees and MEIC has not

demonstrated that its denial was arbitrary, outside the bounds of reason, or failed to employ

conscientious judgment, I would affirm.


                                                  /S/ BETH BAKER


Chief Justice Cory J. Swanson and Justice Jim Rice join in the dissenting Opinion of Justice
Beth Baker.

                                                  /S/ CORY J. SWANSON
                                                  /S/ JIM RICE

                                             43
Justice Jim Rice, dissenting.

¶67    Justice Baker’s Dissent skillfully applies the extensive existing law governing the

matter before the Court, including the statute, the standards for statutory interpretation, and

our longstanding consistent precedent, is a classically proper legal analysis, and reaches

the correct legal conclusion. It should be the Court’s opinion.

¶68    The contrast between the Dissent and the Majority Opinion is not only obvious, but

to a careful observer, should be shocking. The Majority Opinion is essentially based upon

no governing law at all. The imposition of a new presumption has not been requested,

briefed, or analyzed during the course of the litigation. More concerning, it perpetuates a

recent trend of holdings wherein the Court has resolved cases after setting aside

longstanding governing principles of the law. When established principles are discarded,

a legal vacuum is left that must necessarily be backfilled arbitrarily, including potentially

the justices’ personal preferences, desires, agendas, and even biases, whether knowingly

or not. While I do not question the sincerity and good intentions of the justices who have

decided these recent cases, sincerity alone will not prevent a slide into a pattern of

analytical error. The interests of litigants who rightly expect the Court to follow established

law and feel unfairly treated if the Court fails to do so, are too important for this concern

to be ignored.

¶69    In Stensvad v. Newman Ayers Ranch, Inc., 

, 

, 

, the Court addressed a 2023 statute providing new standards for issuance of

preliminary injunctions. The statute explicitly provided that the Legislature’s intent was

that the new standards “mirror the federal preliminary injunction standard, and that

                                              44
interpretation and application of [the statute] closely follow United States supreme court

case law.” Section 27-19-201(4), MCA (2023). The plain wording of this provision left

no room for any doubt about the Legislature’s intent. Indeed, the Court was not even faced

with the task of determining legislative intent—it was absolutely clear: to “closely follow”

U.S. Supreme Court precedent, based upon the factors adopted by that Court in Winter v.

Natural Resources Defense Council, Inc., 

, 

 (2008) (the “Winter

factors”). Consistent therewith, the new statute’s language was an exact re-statement of

the factors stated by the U.S. Supreme Court in Winter. Compare Winter, 

,

 (2008), and § 27-19-201(1), MCA (2023).

¶70    However, despite the unmistakable clarity of the Legislature’s intent, the Court did

not follow it.    First, it waved off the statute’s plain wording, declaring that “the

Legislature’s instruction to mirror Supreme Court case law is not as simple as merely

applying the Winter factors.” Stensvad, ¶ 12. But cf. Mont. Indep. Living Project v. City

of Helena, 

, 

, 

 (“Language that is clear and

unambiguous, using words’ plain and ordinary meanings, requires no further

interpretation.”). Indeed, the Court seemingly dismissed the Legislature’s capability to

even understand and legislate on the issue, which, of course, would be constitutionally

indefensible.    Setting aside these governing principles left a vacuum that the Court

arbitrarily filled with its own creation, imposing standards that directly contradicted the

statute and the Legislature’s expressed intent. The Court held that eligibility for injunctions

would be governed by sliding scales and sundry tests and factors employed by, not the U.S.

Supreme Court, but the Ninth Circuit Court of Appeals. Stensvad, ¶ 25.

                                              45
¶71    The Court was alerted to its error by the separate opinion:

       The Legislature uniquely provided in plain language the source of any further
       clarification of the new statute that may be necessary. . . . [C]ourts are to
       look to and “closely follow” U.S. Supreme Court case law to guide the
       “interpretation and application” of the new four-part, conjunctive standard,
       and I would do so in adherence to this express statutory directive. The Court
       instead holds that the new statute should be interpreted under the case law of
       the Ninth Circuit Court of Appeals.

                                         .   .    .

       [T]he [U.S.] Supreme Court does not apply sliding scales or impose
       additional tests upon factors or require additional inquiries or employ
       approaches that may be used by the federal circuits or other courts. I thus
       respectfully disagree with the Court that “the Legislature’s instruction to
       mirror Supreme Court case law is not as simple as merely applying the
       Winter factors.” . . . The clarity of the U.S. Supreme Court’s Winter
       jurisprudence is likely the reason the Legislature endorsed that particular
       body of precedent and expressly required that it be “closely follow[ed].” I
       believe this plain and specific directive does not leave room for application
       of alternate interpretive factors or tests formulated by other courts.

Stensvad, ¶¶ 41, 45 (Rice, J., disagreeing with the Court’s reasoning but concurring in the

result under application of the Winter standards) (emphasis added). However, the Court

did not relent.

¶72    Faced with a judicial holding that was directly contradictory to its intent, the

Legislature acted immediately to restore the statute. House Bill 409, introduced in the 2025

legislative session, provided, first, an explanation of the Court’s rejection of the

Legislature’s expressed intent:

       WHEREAS, in 2023, the Montana Legislature amended section 27-19-201,
       MCA, to establish a standard for preliminary injunctions and temporary
       restraining orders based on United States Supreme Court precedent; and

       WHEREAS, that section states, “It is the intent of the legislature that the
       language in subsection (1) mirror the federal preliminary injunction standard,

                                             46
       and that interpretation and application of subsection (1) closely follow
       United States supreme court case law”; and

       WHEREAS, in Stensvad v. Newma[n] Ayers Ranch, Inc., the Montana
       Supreme Court adopted the serious questions test, a sliding scale approach
       to evaluating applications for preliminary injunctions and temporary
       restraining orders; and

       WHEREAS, the use of the serious questions test or any other sliding scale
       test is contrary to the legislative intent expressed in section 27-19-201,
       MCA; and

       WHEREAS, the amendments to section 27-19-201, MCA, contained in this
       legislation are intended to express the intent of the Legislature that any
       applications for preliminary injunctions or temporary restraining orders
       must be based on United States Supreme Court precedent and not on 9th
       Circuit Court of Appeals decisions.

2025 Mont. Laws ch. 20, pmbl. (emphasis added).

¶73    The text of HB 409 required that “[w]hen conducting the preliminary injunction

analysis, the court . . . may not use a sliding scale test, the serious questions test, flexible

interplay, or another federal circuit modification to the criteria.” 2025 Mont. Laws ch. 20,

§ 4(b). HB 409 was passed and signed by the Governor on March 25, 2025, and was made

immediately effective to counter this Court’s incursion. Unfortunately, had the Court not

discarded governing interpretive principles in Stensvad, including application of the

unambiguous plain wording of the statute, and not “insert[ing] what is omitted,” State v.

Johnson, 

, 

, 

 (citing § 1-2-101, MCA), and

had it refrained from filling the consequential vacuum with its own creation, the case would

have properly been decided pursuant to application of the Winter factors. In short, our duty

was to apply the Legislature’s words and stop where the Legislature stopped.

Consequently, the Court’s decision forced the Legislature to expend its limited time

                                              47
responding to the Court’s clear analytical error. To be sure, the exercise of constitutional

duties by the legislative and judicial branches will at times produce tension and even

disagreement; but that tension should not arise from the failure of the Court to follow the

established standards of the law.

¶74    In State v. Wolfblack, 

, 

, 

, the Court

considered whether a criminal sentence that ran consecutively, as a matter of law, with

another of the defendant’s sentences, should, upon sentence revocation and resentencing,

continue to run consecutively with the other sentence.        The Legislature had clearly

expressed its intention, providing that the time to be served under a second sentence “may

not be merged” with time to be served in the first sentence unless those sentences were

expressly ordered to be served concurrently at the time of the original sentencing, which

had not occurred in that case. Section 46-18-401(1), MCA (2023). The answer to the

question before the Court should have been obvious, and has been so understood by

sentencing courts: because the sentences ran consecutively prior to revocation, so too

would the new revocation sentence imposed in replacement of the original sentence.

However, the Court set aside this authority and instead held that the new revocation

sentence in that case would run concurrently with the other sentence, notwithstanding the

prior designation of the sentences as consecutive, because the question should depend on

the timing of the revocation sentences. See Wolfblack, ¶ 14. The Court was alerted by the

separate opinion to the error in its reasoning, and to the confusion that would ensue:

       The Court’s ruling requires consecutive sentences to be switched to
       concurrent sentences upon revocation, in contradiction of § 46-18-401(1)(b),
       MCA. . . . It also results in an absurdity: a defendant who violates his

                                            48
       consecutive sentences would receive the benefit of having his sentences
       changed to concurrent sentences upon entry of his revocation sentence, as a
       matter of law. The Court cites no authority, and there is none, that would
       permit consecutive sentences to be changed to concurrent sentences upon
       revocation of a sentence following a defendant’s violation—regardless of the
       Court’s attempt to tie this result to the timing of the revocation sentence.
       Opinion, ¶ 14. This decision will no doubt create confusion and disarray
       regarding revocation sentences.

Wolfblack, ¶ 23 (Rice, J., dissenting) (emphasis added).

¶75    There was an immediate legislative effort in response.       House Bill 612 was

introduced in the 2025 Legislature to remedy the inevitable confusion in sentencing caused

by Wolfblack and to restore the Legislature’s original intent. HB 612 was entitled: “AN

ACT PROVIDING IF A SENTENCE IS REVOKED THE NEW SENTENCE MUST

RUN CONSECUTIVELY TO ANY EXISTING SENTENCE UNLESS THE ORIGINAL

SENTENCE RAN CONCURRENTLY”—a seemingly unremarkable re-statement of what

was current law, except that the Court had departed from it. 2025 Mont. Laws ch. 324.

Sponsor Rep. Greg Overstreet introduced the bill in the House Judiciary Committee by

offering that HB 612 was necessary “to fix something the Supreme Court did in a case

called Wolfblack. . . .   In essence, the Supreme Court conflated concurrent and . . .

consecutive criminal sentences.” Hr’g on HB 612 Before the H. Judiciary Comm., Video

Recording at 09:39:50-09:40:19, 69th Leg., Reg. Sess. (Feb. 26, 2025). Proponent Mardell

Ployhar, Assistant Attorney General, provided a detailed explanation, adding:

       [HB 612] is intended to clarify the way in which sentences should be
       calculated if a defendant has a suspended sentence revoked and the defendant
       has more than one sentence. This bill has become necessary since the
       Montana Supreme Court’s decision in State v. Wolfblack in 2024. . . . [That]
       holding was contrary to the general understanding that attorneys and courts
       have had of sentencing law.

                                            49
Hr’g on HB 612 Before the H. Judiciary Comm., Video Recording at 09:41:24-09:42:13,

69th Leg., Reg. Sess. (Feb. 26, 2025). HB 612 passed both chambers and was signed into

law on May 1, 2025. 2025 Mont. Laws ch. 324.

¶76    A reader may wonder how the Court could so badly miss such an obvious question.

Could it be that the Court, in eschewing controlling authority, backfilled the resulting

vacuum by allowing its own preferred policy preferences to seep into the decision? In my

view, the Court has been pursuing policy objectives of more leniency in criminal

sentencing, including shorter sentences, and abrogation or reduction of fines, in opposition

to the Legislature’s adopted policies. Before the messenger is shot, it should be understood

that this is not my assessment of the Court; it is the Court’s assessment of itself, articulated

numerous times, at length. See, e.g., State v. Gibbons, 

, 

, 

 (“A poor offender feels the impact of any fine disproportionately compared

to his wealthier counterpart. . . . Mandatory minimum fines thus disproportionately impact

minority communities and people of color. . . . [T]he symbiotic harm from mandatory

minimum fines affects the women in an offender’s family—the mother, wife, or sister pays

the fine for their loved one and there is less money for food, clothing, and

shelter. . . . When the public expresses fear of victimization and a belief that criminals are

not receiving a harsh enough punishment, there is a tendency to respond in kind with new

crimes and stiffer penalties.”); City of Whitefish v. Curran, 

, 

, 

 (McKinnon, J., dissenting) (“Monetary sanctions, although perhaps

imposed uniformly and thus appearing to be fair and equal, are mechanisms for entrenching

and perpetuating the inequalities and disparities that already exist in society. Those

                                              50
economically disadvantaged, which have proven to be marginalized populations,

disproportionately bear more ‘pain’ from punishment for their crimes than do those less

destitute. Monetary sanctions are therefore a central mechanism of inequality in the

criminal justice system that serve to entrench and deepen the inequalities already present

in a market-based society.”). I could cite to other recent decisions that were decided in a

manner consistent with these policy concerns, but the point is that judicial efforts to pursue

policies to address perceived societal inequities and wrongs necessarily invade the

provinces of the legislative and executive branches, and are an inappropriate basis for

judicial decisions, particularly in substitution for established governing legal authorities.

¶77    In Gibbons, the above-quoted policy concerns were cited by the Court in striking

down a DUI sentencing statute, applicable to fifth and subsequent DUI convictions, which

imposed a mandatory fine. The statute had been applied for 27 years under our Court’s

consistent position that this mandatory fine for extreme offenses was properly applied and

not subject to the sentencing court’s discretionary assessment. However, the Court was

unmoved by the decades of consistency and stability. Instead, it overturned our long

precedent distinguishing mandatory fines from discretionary fines so that it could strike

down its newly minted statutory interpretation as unconstitutional. Gibbons, ¶ 79 (Rice,

J., dissenting). The Gibbons holding has already been challenged as incorrect with a

request that it be overruled, and for additional reasons the Court did not consider in its

opinion. Because that issue is now pending before the Court in a different case, I will not

discuss it further here.



                                              51
¶78    These cases are sufficient to demonstrate the stated concern, which we are once

again seeing in the case before us today. The Court is imposing a new framework for

attorney fees in right to know cases, inconsistent with a statute that provides no such

scale-tipping presumption, contrary to the Legislature’s long acceptance of the statute, and

contrary to decades of our precedent, which afforded the same balance. No one has argued

for adoption of such a presumption, and there is no source for it. Thus, again, the Court

abandons actual law and backfills the vacuum with its own creation made of whole cloth.

The Court offers that it is not “meaningfully curtail[ing]” the exercise of judicial discretion,

Opinion, ¶ 18, but this, in my view, is disingenuous. If the Court was not making any

“meaningful” change, reversal of the District Court’s consideration of the circumstances

of this case and its careful exercise of discretion would not be necessary. Rather, and

contrary to legislative intent, this decision will precipitously change the landscape for fees

in disclosure cases, upsetting the current law’s careful balance and consideration of

opposing positions, and will inevitably result in the assessment of fees in many more, if

not virtually all, cases, including against the Office of the Governor in this case upon

remand.

¶79    Concerns about unfairness and inequality may quickly be raised in response to this

fee decision. In Forward Montana v. State, 

, 

, 

,

the Court reversed the District Court’s discretionary denial of attorney fees to plaintiffs

who had sued a Republican legislature, requiring that fees be awarded under the private

attorney general doctrine. Forward Mont., ¶ 46. In so doing, the Court set aside prior

reasoning employed by the Court in Western Tradition Partnership, Inc. v. Attorney

                                              52
General of Montana, 

, 

, 

, to deny fees to plaintiffs,

who had waged far more arduous litigation against a Democratic state administration,

under either the Uniform Declaratory Judgments Act or the private attorney general

doctrine. See Forward Mont., ¶ 52 (Rice, J., dissenting) (“it is irrefutable that Western

Tradition’s burden of litigation, including before the U.S. Supreme Court, far exceeded

Forward Montana’s summary judgment litigation”). In Barrett v. State, 

,

, 

, members of the Majority wrote separately to advocate for

the reversal of the District Court’s discretionary denial of fees to plaintiffs who had sued

a Republican state administration, pursuant to the private attorney general doctrine, and to

require that fees be awarded. Today, the Court departs from 50 years of precedent and a

plain reading of the governing statute in what will be MEIC v. Governor to once again

reverse a district court’s discretionary denial of fees to a Plaintiff who had sued a

Republican administration of state government in a right to know case, and to create a new

presumption that the Republican Defendant here must pay. So what are the Republican

Defendant and Republicans in general—and anyone concerned about impartiality—

supposed to make of the Court’s decision today, especially in view of these prior fee

decisions? That this is simply another coincidental Republican defeat in a run of bad case

outcomes resulting from the Court’s careful application of established legal principles? Or,

that this is another case where the Court has jettisoned long-established governing authority

and backfilled the vacuum with its own preferences to weaponize the law, whether it be

statute or the private attorney general doctrine, against them?



                                             53
¶80      Words matter, but actions matter more. The justices of the Court have rightly voiced

opposition to proposals to make judicial elections partisan, because doing so, we claim,

would make the courts political. We profess a desire that courts would operate for the

highest purposes and upon the best motivations, including nonpartisanship and neutrality.

Why, then, do proposals to change the current system of nonpartisan elections to partisan

elections continue to arise year after year? I suspect there are multiple reasons, but the

Court may want to consider whether one reason applicable to the Court is explained by the

wisdom of Pogo: “We have met the enemy, and he is us.” Walt Kelly, Pogo (Apr. 22,

1971).

¶81      There are many days that I proudly watch this Court rise to apply the law as the

Court finds it, as it has been enacted and endorsed by the Legislature or consistently applied

in case precedent, and not as we would prefer it to be, faithful to its application without

policy agendas, unaffected by outside influences and neutrally applied regardless of person

or party. I am not counting today among them.

¶82      I dissent.


                                                   /S/ JIM RICE


Chief Justice Cory J. Swanson joins in the dissenting Opinion of Justice Jim Rice.


                                                   /S/ CORY J. SWANSON




                                              54
Justice Laurie McKinnon, concurring.

¶83    I write separately to address what I deem to be a highly inappropriate and

unprofessional attack made by Justice Rice and Chief Justice Swanson upon the Court as

an institution, and on the integrity of myself and my colleagues as jurists. Further, I take

their attack personally as, in case it is not apparent, I authored all but one of the cases they

find themselves at odds with. Neither justice addresses the merits of the decision here;

rather, they launch into a tirade pointing to Justice Rice’s dissents and claiming this Court

is driven by policy and personal agendas. This is particularly disturbing because the

dissent’s bitter partisan and political attacks on fellow justices and this Court are endorsed

by a newly elected Chief Justice, who did not participate in the deliberations, arguments,

discussions, or draft opinions that ultimately evolved into the Court’s decisions and,

therefore, has no basis to deride the motivations of the justices deciding these difficult cases

as being political and policy driven. This Court stands at the apex of the judicial branch

and is the institution of government charged with protecting the constitutional rights of its

citizens. Its nonpartisan role in protecting those rights is undermined when an Associate

Justice and, particularly, a Chief Justice make partisan accusations against their colleagues

about cases not even before them. What is the public to make of such dissension and

dysfunction, and has the dissent jeopardized this Court’s legitimacy? Of course they have.

What both justices ignore is that when a dissent does not carry the day, the precedent of

that case requires that the rule of law still be followed. Some justices might continue to

dissent, however few justices would attack those decisions by maligning the motivations

of their colleagues. While I certainly do not dispute that the legislature must set policy

                                              55
through its statutory enactments and this Court must uphold those enactments when they

are constitutional, I am of the opinion that the integrity and nonpartisan nature of this Court

is disturbingly undermined when Justice Rice and Chief Justice Swanson, who was not

even privy to this Court’s deliberations to those now-impugned cases, rant that a majority

of this Court making those difficult decisions did so based on our personal partisan agendas

and attempting to establish our own policy.

¶84    I took an oath, not to the Legislature, but to the Montana and federal constitutions.

I believe my duty and obligation as a jurist are to the citizens of this State to ensure that

the Constitution is abided by, not that legislative enactments are upheld when they are

unconstitutional. My decisions, and those of my colleagues with whom the dissent finds

fault, followed a diligent, comprehensive analysis of the facts and law of each case. Each

decision represented a majority decision of the Court. Those decisions are not at issue, nor

remotely relevant to any applicable judicial analysis here. In the not too recent past, despite

disagreements among the justices on decisions which were difficult, we, nonetheless,

always showed respect for each other and each other’s opinions. The decorum and integrity

of the Court comes first, and it is lost when a justice writes disparagingly that the Court is

partisan and follows a policy agenda. Rarely, if ever, have I seen an attack on the integrity

of my fellow colleagues’ motivations and judicial decisions that is as vitriolic as in the

dissent of Justice Rice and Chief Justice Swanson. And one wonders what the motivation

underlying it must be. I have never been in the Legislature, nor do I want to be. My career,

education, commitment, and passion, as is true of those justices criticized by the dissent,



                                              56
has always been to the rule of law, a nonpartisan and independent judiciary, and upholding

our constitution.

¶85    There is, however, one thing I agree with in the otherwise invective and

unprofessional dissent. This is indeed a sad day for the Court. The bitter and rancid dissent

of Justice Rice and Chief Justice Swanson will affect relationships between the justices and

undoubtedly be seized upon by those holding the Court in disrepute as further opinion that

the Court should be reformed. It is a sad day for the Court because it is an attack by two

members on the integrity of their colleagues, the quality of this Court’s opinions, and the

Court’s hard work; work that upholds the independence of the judiciary, the constitution,

the rule of law and—in contrast to Justice Rice and Chief Justice Swanson—work for

which I am extremely proud. Despite this, I appreciate the dissent highlighting the Court’s

accomplishments and contributions to the law with which they disagree: it motivates me to

keep up my work protecting Montana’s Constitution and deciding cases in a nonpartisan

manner.


                                                  /S/ LAURIE McKINNON


Chief Justice Cory J. Swanson, dissenting.

¶86    I join Justice Baker’s Dissent because it is the correct resolution of this case. The

District Court Judge applied his formidable intellect and sound judgment to the case record

and did not abuse his discretion in denying attorney fees.

¶87    I join Justice Rice’s Dissent because it provides a clear-eyed and well-reasoned

assessment of where this case fits into the context of the Court’s recent caselaw and

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jurisprudential methodology on some—not all—occasions. I read and re-read his Dissent,

searching in vain for the “unprofessional,” “bitter,” or other offending content decried by

Justice McKinnon. Finding nothing offensive or personal in his criticism, I commend it as

a healthy and unflinching self-evaluation of this Court’s performance.

¶88    Judges are mere human beings, all fallible. My judicial prayer is that God grant me

adherence to clear principles, seasoned with humility and strengthened by a commitment

to learning. All human beings have bias, inherent in our world-view and habits of thought.

The responsible jurist must subject himself or herself to rigorous examination for bias.

This process is aided by appellate review, and the concurrence and dissent from

well-educated members of a multi-justice court. No doubt my colleagues will help me in

the coming years to identify and discipline my own biases.

¶89    The Concurrences miss the point of Justice Rice’s comment regarding partisanship

and partisan elections. He is not writing in favor of them, he is cautioning us against them.

The more we exhibit bias in our opinions, the more we fuel the accusations of partisanship

on the Court, and the more we inadvertently support the calls to cure the ill of judicial bias

with even more of the same. I join his concern and reinforce his caution.

¶90    As has been much discussed publicly, I have spoken against partisanship on the

Court and I adamantly disagree that it will cure the disease of bias. It would merely provide

an avenue for a known bias—political party affiliation—to overcome an existing bias

which eludes a label and evades detection by many voters. But merely voicing opposition

to partisanship means nothing unless the Court actually practices self-restraint and

self-discipline to confine itself to its constitutional role and follow its own rules of legal

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interpretation and standards of review. The real culprit is not just bias, it is activism.

Activism is the vehicle which gives life and expression to bias. Whether liberal or

conservative, activism is a greater threat to judicial legitimacy and authority than the

political criticism of this era or the judicial criticism of this Dissent.

¶91    I appreciate the spirit and substance of Justice Shea’s Concurrence, and I agree with

him this Court owes clearer guidance to the district courts on many issues, perhaps

including this one. I disagree this is the appropriate case to pronounce this rule, or even

that the rule is correct, as Justice Baker has so ably explained. I also agree with Justice

Shea’s view that the make-up of the Court, including its odd number of seven members,

contains a built-in assumption that we may sincerely and even heatedly disagree. But at

the end of the day, we need four votes to render a majority decision.

¶92    This illustrates why I was required to vote and express my opinion on this case,

despite Justice McKinnon’s criticism. Careful observers of this case’s history already

understand it was classified to a five-justice panel in 2024, without the inclusion of retiring

Chief Justice McGrath or Justice Sandefur. The original five could not reach a majority

decision, so the case went en banc—meaning Justice Bidegaray and I joined the discussion

and Opinions when we came on the Court. Our presence on this case is not illegitimate or

inappropriate in any way. It is a constitutional necessity to reach a majority vote. Mont.

Const. art. VII, § 3(1). Justice McKinnon does not complain about Justice Bidegaray’s

vote; had I merely joined Justice Baker’s Dissent, I doubt there would have been a

complaint.



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¶93    Which leads to my concluding thoughts on my role as Chief Justice, again in

response to Justice McKinnon’s criticism that joining Justice Rice’s Dissent is

inappropriate for the Chief. This office requires me to advocate for the Judicial Branch as

a whole, and I enthusiastically do so with full faith and conviction this institution is an

essential co-equal branch necessary for the proper functioning of our Republic. That means

defending the branch from encroachments on its power or prerogatives, and supporting

each member and employee of the Judiciary to fulfill his or her duty, for the good of the

people we serve.

¶94    But my leadership role also means helping the Judicial Branch improve. Like any

collection of individuals, we have successes and failures.         Improvement requires

identifying, acknowledging, understanding, and learning from our mistakes. That is not an

attack upon the Judiciary or any of its members. On the contrary, it is an act of love and

loyalty to who we are and who we can be. And in my view, it is the best way for the

Judiciary to reform itself by achieving constitutional balance: respect the authority and

prerogatives of the political branches to make law without surrendering the Judiciary’s

power to interpret the law.

¶95    We are seven co-equal Justices when it comes to writing Opinions. We agree with

each other far more than we disagree. And after more than a hundred published Opinions

this year, this is the first occasion when these differing views on the Court’s methodology

have inflamed our public conversation. If anyone bothers to read this already way-too-long

Opinion, they may make political hay of it. We cannot control that narrative, we can only

do our duty as we understand our duty. And while collegiality and agreement with my

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colleagues is dear to me, the truth is dearer still.1 So being Chief Justice does not prevent

me from articulating my interpretation of the laws and Constitution, even if it rocks the

boat. It is my duty.


                                                           /S/ CORY J. SWANSON




1
    “Plato is dear to me, but dearer still is truth.” – Aristotle
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