Mercer v. DPHHS

                                                                                             01/17/2025


                                           DA 24-0512
                                                                                         Case Number: DA 24-0512

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           

WILLIAM W. MERCER,

              Petitioner and Appellee,

         v.

MONTANA DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES,
CHARLES BRERETON, in his official
capacity as Director of the Montana
Department of Public Health and Human Services,
NICOLE GROSSBERG, in her official
capacity as Administrator of the Child and
Family Services Division of the Montana Department
of Public Health and Human Services,

              Defendants and Appellants.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. BDV-2024-500
                       Honorable Michael F. McMahon, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       J. Stuart Segrest, Christensen & Prezeau, PLLP, Helena, Montana

               For Appellee:

                       William W. Mercer, Pro Se, Billings, Montana


                                                  Submitted on Briefs: November 20, 2024
                                                             Decided: January 17, 2025
Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     The Montana Department of Public Health & Human Services (DPHHS or the

Department) appeals the order of the First Judicial District Court, Lewis & Clark County,

which granted a mandatory preliminary injunction requiring the Department to make

available assertedly privileged information withheld from Montana State Representative

William W. Mercer (Rep. Mercer) during his review of Department child abuse and neglect

case records authorized by statute. We restate the issue as follows:

       Whether the District Court abused its discretion by granting a mandatory
       preliminary injunction requiring DPHHS to disclose materials to a Montana
       legislator conducting a statutorily authorized review of a child abuse and neglect
       case.

¶2     We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     The parties stipulated to the facts stated in the affidavit filed by Rep. Mercer in

support of his motion for a preliminary injunction. Rep. Mercer is a member of the

Montana House of Representatives, who during this proceeding represented House District

46, and following his reelection in November 2024, represents House District 52 in the

2025 legislative session. Acting in his legislative capacity, Rep. Mercer requested review

of certain records pursuant to § 41-3-205, MCA. This statute requires that child abuse and

neglect “case records” be kept confidential but also provides for disclosure of such records

upon satisfaction of statutory criteria, including, at issue here, to a Montana legislator.

Section 41-3-205(4)(a), MCA. A legislator is provided access to such records for a period



                                             2
of time “limited to 6 months from the date the written request to review records was

received by the department.” Section 41-3-205(4)(c), MCA.

¶4    On March 5, 2024, Rep. Mercer sent a letter to Charles Brereton (Brereton), the

Director of the Department, requesting review of records pertaining to a “Valley County

CPS matter involving a youth.” The parties agreed that Rep. Mercer satisfied the threshold

requirements under § 41-3-205, MCA, for review of the case records, which, in relevant

part, require that the requesting member of the legislature “receives a written inquiry

regarding a child and whether the laws of the United States or the state of Montana that

protect children from abuse or neglect are being complied with or whether the laws need

to be changed to enhance protections for children,” § 41-3-205(4)(a)(i), MCA, and

“submits a written request to the department requesting to review the records relating to

the written inquiry,” which includes “a copy of the written inquiry, the name of the child

whose records are to be reviewed, and any other information that will assist the department

in locating the records.” Section 41-3-205(4)(a)(ii), MCA.

¶5    On March 15, 2024, Rep. Mercer signed a confidentiality agreement, satisfying a

statutory requirement, and the Department provided Rep. Mercer with what it described as

the case record “as kept by child protection services.” Upon review of the documents

provided, Rep. Mercer requested additional records that he believed were required to be

produced under § 41-3-205, MCA, including emails, text messages, case notes,

memorandums, and all other communications “generated by or received by the

Department’s employees and officers” during the relevant investigation and litigation. The


                                            3
Department denied the request, maintaining the statute required production only of the

more formal “case record,” which it initially had provided to Rep. Mercer.

¶6     On July 29, 2024, Rep. Mercer filed a Petition for Writ of Mandamus and

Declaratory and Injunctive Relief.      The Department initially maintained that it had

provided Rep. Mercer with the records required under § 41-3-205, MCA, and that the

additional records he had requested fell outside the scope of the statute. However, in

August 2024, the Department’s Chief Legal Counsel altered positions and indicated the

Department would provide the additionally requested records, except for attorney-client

privileged material.

¶7     On August 19, 2024, Rep. Mercer filed motions for a preliminary injunction and an

emergency hearing. The Department filed a notice of waiver and motion to stay the

six-month time limit imposed upon a legislator’s review of requested records under

§ 41-3-205(4)(c), MCA. On August 27, 2024, the District Court held a hearing on the

preliminary injunction, with Rep. Mercer appearing pro se. After receiving argument, the

District Court orally denied the Department’s motion to stay, and granted Rep. Mercer’s

requested mandatory preliminary injunction, reasoning that:

       Representative Mercer is entitled to review at the Department’s Helena
       Office no later than September 5, 2024 all pertinent child “[r]ecords,
       including case notes, correspondence, evaluations, videotapes, and
       interviews, . . . unless disclosure of the records is determined to be
       detrimental to the child or harmful to another person who is a subject of
       information contained in the records.” 

(3)
       (2023). Since Representative Mercer is a Montana legislature member, the
       Department must disclose the records described in 

(3) in its possession and control since, there is no dispute, that he
       has satisfied all mandatory requirements to review the records. See Mont.

                                             4
       Code Ann. § 41-3-205(4). Such records include all Department claimed
       attorney client privileged information (unless disclosure of any records,
       including the claimed privileged documents is determined to be detrimental
       to the child or harmful to another person who is a subject of information
       contained in the records) as reflected in its three privilege logs attached to
       the Department’s August 26, 2024 “Response and Objection to Motion for
       Emergency Hearing.”

Noting “the enormous sanctity afforded to the attorney-client privilege and the irreparable

harm disclosure could have on the Department and/or Executive Branch,” the District

Court imposed confidentiality protections beyond the statutory language by precluding

Rep. Mercer, in accordance with a stipulation between the parties, from “disclosing, in any

shape, manner or form, in any venue, public or private, any information contained in the

documents listed in the Department’s three privilege logs following [Rep. Mercer’s]

review.”

¶8     On August 28, 2024, the District Court entered a written order, and the Department

moved to stay both the oral order and the written order pending appeal, arguing that “[d]ue

to the pending deadline, and the inability to undo Representative Mercer’s review of

documents once allowed,” the order should be stayed pending the Department’s appeal of

the injunction order. The District Court denied this motion. The Department then filed, in

this Court, an “Emergency Motion for Immediate Stay” of the mandatory injunction order,

and “Appellant’s Rule 22(2) Motion for Stay.” This Court held that, “without comment or

prejudice to the question of whether the District Court erroneously granted the subject

relief,” the District Court erred by denying a stay of judgment pending appeal, and ordered

that the District Court’s injunction order be stayed pending exhaustion of the Department’s


                                             5
appeal. This Court further ordered that the six-month time limit for a legislator’s review

under § 41-3-205(4)(c), MCA was “tolled and held in abeyance regarding the request at

issue.”

                                 STANDARD OF REVIEW

¶9        An order granting a preliminary injunction is immediately appealable.

M. R. App. P. 6(3)(e). “We review a district court’s grant or denial of a preliminary

injunction for manifest abuse of discretion.” Stensvad v. Newman Ayers Ranch, Inc.,

, 

, 

 (citing Montanans Against Irresponsible

Densification, LLC v. State, 

, 

, 

 (MAID)). “A

court abuses its discretion when it acts arbitrarily, without employment of conscientious

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

Parenthood of Mont. v. State, 

, 

, 

 (citation

omitted). “A manifest abuse of discretion is one that is obvious, evident, or unmistakable.”

Stensvad, ¶ 8 (citation omitted). If the district court’s decision on a preliminary injunction

was based upon legal conclusions, this Court will review those conclusions for correctness.

MAID, ¶ 8.

                                        DISCUSSION

¶10       Whether the District Court abused its discretion by granting a mandatory
          preliminary injunction requiring DPHHS to disclose materials to a Montana
          legislator conducting a statutorily authorized review of a child abuse and neglect
          case.

¶11       The Department argues that the District Court erred in granting the preliminary

injunction by failing to maintain “the status quo by staying the [six-month] deadline while

                                              6
the matter proceeded on an expedited basis to ensure review prior to the legislative

session.” The Department argues the District Court misinterpreted the legislator disclosure

provisions and that, “[p]roperly interpreted as a matter of law, the statute does not

circumvent the attorney-client or work-product privileges or permit review of documents

outside the case record.” Finally, the Department contends the District Court “artificially

created the threat of irreparable injury by determining relief had to be granted by the

six-month deadline,” and improperly resolved the ultimate issue presented by the parties.

¶12    The Department is correct that “it is well established that a court does not decide the

merits of a claim in a preliminary injunction proceeding.” Netzer Law Office, P.C. v. State,

, ¶ 15, 

, 

. Likewise, appellate review of a district

court’s grant of injunctive relief is meant to be “limited and deferential” and “does not

extend to the underlying merits of the case.” Montana v. State, 

,

, 

 (citing Flathead-Lolo-Bitterroot Citizen Task Force v.

Montana, 

 (9th Cir. 2024) and Farris v. Seabrook, 

(9th Cir. 2012)). That is a challenging task here, where the granting of leave for Rep.

Mercer to review documents nearly takes the case to its final conclusion. However, the

District Court acknowledged that its order did not resolve “the ultimate merits of the case”

and imposed restrictions on Rep. Mercer’s use of the information beyond those provided

in statute. Our decision here recognizes, as it must under the standards, that the ultimate

resolution of the breadth of Rep. Mercer’s entitlement to records under the statute,

including claimed privileges subject to in camera review, will be resolved in the final


                                              7
adjudication of the matter. Our review is confined to whether the District Court manifestly

abused its discretion in permitting Rep. Mercer’s review to proceed under the governing

preliminary injunction standards.

¶13    “Montana’s preliminary injunction statute requires an applicant to establish four

factors,” including (a) the applicant is likely to succeed on the merits, (b) the applicant is

likely to suffer irreparable harm in the absence of preliminary relief, (c) the balance of

equities tips in the applicant’s favor, and (d) the order is in the public interest. MAID, ¶ 10;

§ 27-19-201(1), MCA; see also Winter v. Nat. Res. Def. Council, Inc., 

,

 (2008) (“A plaintiff seeking a preliminary injunction must establish

that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.”). The “test is conjunctive.” MAID, ¶ 12. “Unless it is

clear that an applicant fails to raise serious questions going to the merits, a district court

should likewise consider and address each of the remaining factors.” Stensvad, ¶ 29.

Likelihood of Success on the Merits

¶14    Rep. Mercer requested and the District Court granted a mandatory preliminary

injunction. When the requested preliminary injunctive relief “orders a responsible party to

take action” as opposed to “simply maintaining the status quo,” the preliminary relief is

accurately characterized as mandatory and as such is “subject to a more demanding

standard.”   N.D. v. Reykdal, 

 (9th Cir. 2024) (distinguishing a

“mandatory injunction” from a “prohibitory injunction”). Under the first factor, “[t]o


                                               8
obtain a mandatory injunction, we have held, a plaintiff ‘must establish that the law and

facts clearly favor her position, not simply that she is likely to succeed.’” Reykdal,

 (quoting Garcia v. Google, 

 (9th Cir. 2015) (en banc))

(emphasis in original).

¶15    The Department challenges the District Court’s failure to maintain the status quo,

but Rep. Mercer seeks a form of relief that “goes well beyond simply maintaining the status

quo pendente lite.”       Garcia, 

 (quoting Stanley v. Univ. of S. Cal.,

 (9th Cir. 1994)).         Rep. Mercer seeks an order mandating the

Department to affirmatively permit review of documents it has refused to allow. See

Garcia 

 (requiring Google to remove a film from certain websites was

correctly treated as a mandatory injunction as it ordered the party to take action); see also

Stanley, 

 (“[A]n injunction compelling USC to install Coach Stanley as the

head coach of the women’s basketball team and to pay her $28,000 a year more than she

received when her employment contract expired” did not simply maintain the status quo

and therefore was correctly categorized as a preliminary mandatory injunction.).

“Mandatory injunctions are most likely to be appropriate when ‘the status quo . . . is exactly

what will inflict the irreparable injury upon complainant.’”        Hernandez v. Sessions,

 (9th Cir. 2017) (quoting Friends for All Children, Inc. v. Lockheed

Aircraft Corp., 

, 830 n.21 (D.C. Cir. 1984)). Here, the status quo, whereby

the Department will not provide all records to Rep. Mercer for review, is what is inflicting

the asserted injury—the inability of Rep. Mercer to timely review records designated for


                                              9
review by the statute.     Thus, because such mandatory injunctive relief is generally

“disfavored,” the burden under the first prong increases and the moving party “must

establish that the law and facts clearly favor [their] position, not simply that [they are]

likely to succeed.” Garcia, 

 (emphasis in original). Here, the District Court

applied this heightened standard, reasoning that Rep. Mercer demonstrated that

“controlling Montana Law and [] the stipulated facts ‘clearly favor his position’ as a

Montana legislature member.”

¶16    Although we do not provide an ultimate interpretation of the governing statutes here,

we are mindful in this preliminary posture of the governing standards. “We interpret a

statute first by looking to its plain language.” City of Missoula v. Fox, 

, ¶ 18,

, 

 (citing Mont. Sports Shooting Ass’n v. State, 

, 

, 

). A court’s role is to ascertain what is contained within

the statute, “not to insert what has been omitted or to omit what has been inserted.” Fox,

¶ 18 (quoting § 1-2-101, MCA). “The duty of this Court is to ‘read and construe each

statute as a whole’ so that we may ‘give effect to the purpose of the statute.’” Fox, ¶ 18

(quoting State v. Triplett, 

, 

, 

).

¶17    Title 41, chapter 3, MCA, requires that “case records of the department and its local

affiliate, the local office of public assistance, the county attorney, and the court concerning

actions taken under this chapter,” as well as “all records concerning reports of child abuse

and neglect” must be kept confidential. Section 41-3-205(1), MCA. These “records” are

further described as “including case notes, correspondence, evaluations, videotapes, and


                                              10
interviews.” Section 41-3-205(3), MCA. However, upon satisfaction of the requirements

in § 41-3-205(4)(i)–(iii), MCA1, these “records described in subsection (3) must be

disclosed to a member of the United States congress or a member of the Montana

legislature,” § 41-3-205(4), MCA, “unless disclosure of the records is determined to be

detrimental to the child or harmful to another person who is a subject of information

contained in the records.” Section 41-3-205(3), MCA. The District Court reasoned that

Rep. Mercer had established “beyond a reasonable doubt” his entitlement to the requested

records under these statutes.

¶18    The Department contends that, although Rep. Mercer met the requirements for

disclosure under § 41-3-205(4), MCA, his interpretation of the legislator exception

constitutes “an open ended discovery mechanism [that] is not supported by the statutory

framework and thus the law does not clearly favor his position.” The Department reasons

that the overarching purpose of § 41-3-205, MCA is to provide confidentiality for case

records, and thus the references to other documents within § 41-3-205(3), MCA and

§ 41-3-205(4), MCA, should be limited to those documents found within the litigation case




1
  “[T]he [legislative] member receives a written inquiry regarding a child and whether the laws of
the United States or the state of Montana that protect children from abuse or neglect are being
complied with or whether the laws need to be changed to enhance protections for children; [] the
member submits a written request to the department requesting to review the records relating to
the written inquiry. The member’s request must include a copy of the written inquiry, the name
of the child whose records are to be reviewed, and any other information that will assist the
department in locating the records. [] [B]efore reviewing the records, the member: [] signs a form
that outlines the state and federal laws regarding confidentiality and the penalties for unauthorized
release of the information; and [] receives from the department an orientation of the content and
structure of the records.” Section 41-3-205(4), MCA.

                                                 11
record, which would not include other documents and those that are attorney-client

privileged.   The Department argues that the attorney-client privilege is an implied

exception to the disclosures authorized by this statute, for the same reasons this Court

discussed in Nelson, and thus that decision should be analogized to the disclosure

requirements here.    See Nelson v. City of Billings, 

, 

,

.

¶19    The District Court reasoned that this argument was “a request that the Court insert

what has been omitted in 

(3)” because “[t]he Legislature

specifically excluded from a 

(4) request only those records

that are ‘detrimental to the child or harmful to another person who is a subject of

information contained in the records.’” Indeed, a reading of the plain language provides a

straightforward process, that if the requirements in § 41-3-205(4)(a), MCA, are satisfied

by a Montana legislator, then the “[r]ecords, including case notes, correspondence,

evaluations, videotapes, and interviews,” § 41-3-205(3), MCA, “must be disclosed,”

§ 41-3-205(4), MCA, “unless [those records are] otherwise protected by this section or

unless disclosure of the records is determined to be detrimental to the child or harmful to

another person who is a subject of information contained in the records . . . .”

Section 41-3-205(3), MCA. No language otherwise limiting the disclosure to litigation

case records and documents within those records is provided by the statute.

¶20    As noted, the District Court thereafter stated that, “[n]otwithstanding, however,

neither the Court, the Department nor Representative Mercer have lost sight of the


                                            12
enormous sanctity afforded to the attorney-client privilege and the irreparable harm

disclosure of such protected and confidential information could have on the Department

and/or Executive Branch,” leading it to impose additional confidentiality restrictions upon

Rep. Mercer’s use of the information he would review for purposes of the preliminary

injunction order.

¶21    Likewise, we need go no further for purposes of this appeal. “The attorney-client

privilege has deep roots in the American legal system.” Nelson, ¶ 23. “The purpose of this

privilege is to ‘encourage full and frank communication between attorneys and their clients

and thereby promote broader public interests in the observance of law and administration

of justice.’” Nelson, ¶ 23 (quoting Upjohn Co. v. United States, 

,

 (1981)). While Nelson focused on application of the attorney-client

privilege in a Right to Know case, the general comments on the historical importance of

the privilege still hold true. If attorney-client information must be turned over, the policy

goals Nelson discussed—that the attorney-client privilege is focused on encouraging “full

and frank communication” thereby promoting “broader public interests”—must be

carefully respected. Upjohn Co., 

, 

.

¶22    Section 41-3-205, MCA, provides that “[r]ecords may be disclosed to a court for in

camera inspection if relevant to an issue before it.” Section 41-3-205(2), MCA. Therefore,

the Department may, during the merits proceeding, claim that certain records are privileged

and seek an in camera review. The District Court’s rulings on those documents will




                                             13
thereafter be subject to review on appeal. However, Rep. Mercer has demonstrated that

his position is “clearly favor[ed].” Garcia, 

.

Irreparable Harm

¶23    “Plaintiffs seeking preliminary relief must demonstrate that irreparable injury is

likely, not merely speculative, in the absence of an injunction.” MAID, ¶ 15 (internal

citations omitted).   “Issuing a preliminary injunction based only on a possibility of

irreparable harm is inconsistent with our characterization of injunctive relief as an

extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” MAID, ¶ 19 (citing Winter, 

, 

)

(emphasis in original). The Ninth Circuit, among other federal circuits, has applied this

prong to mandatory relief, holding that, “[i]n general, mandatory injunctions ‘are not

granted unless extreme or very serious damage will result and are not issued in doubtful

cases or where the injury complained of is capable of compensation in damages.’”

Doe v. Snyder, 

 (9th Cir. 2022) (citing Marlyn Nutraceuticals, Inc. v.

Mucos Pharma GmbH & Co., 

 (9th Cir. 2009)).

¶24    The District Court concluded that Rep. Mercer had “overwhelmingly satisfied” the

requirement of a showing of irreparable harm. The District Court cited to the underlying

purpose of § 41-3-205(4), MCA, namely the statute’s “enhanced legislature transparency”

meant to “proactively allow [Montana Legislature members] to perform [their] necessary

and lawful due diligence inquiry.” Without full compliance with the disclosure obligations,

the District Court reasoned that the goal of transparency is rendered meaningless. Further,


                                            14
regarding timing, Rep. Mercer argued, and the District Court agreed, that “[w]ithout the

relief ordered, [Rep. Mercer] had no hope of completing his review before the six-month

deadline passed, which would have caused irreparable harm.”

¶25    The Department’s briefing, though opposing relief, acknowledges the timing issue

as one that could cause irreparable harm, stating “there is no risk of injury to Rep. Mercer,

certainly none that is irreparable, as long as the determination whether he is entitled to view

the privileged documents is made in time for consideration in the upcoming legislative

session.” (Emphasis added.) Thus, irreparable injury without issuance of the mandatory

injunction is clear—the legislative session is now underway, and the review must occur.

Even with this Court’s imposition of a stay of the time limit, the same harm Rep. Mercer

alleged in his briefing remains—“[t]he inability to timely review the records encompassed

by § 41-3-205(4), MCA will impair [Rep. Mercer’s] ability to understand the decisions

made by the Department and to confer with [DPHHS] on policy changes, as contemplated

by § 41-3-205(4)(a)(i)”; and “[l]egislation that is not drafted in January or February of 2025

will not survive the transmittal deadline for general bills . . . .”

¶26    While a mandatory injunction raises the standard here, and Rep. Mercer’s burden,

we conclude the District Court did not abuse its discretion in concluding this factor was

properly satisfied.

Balance of Equities

¶27    The third factor asks whether “the balance of equities tips in the applicant’s favor.”

Section 27-19-201(1)(c), MCA.           The District Court concluded that Rep. Mercer


                                               15
sufficiently showed under a plain reading of the statute, and his position in the Montana

Legislature, that he had “an absolute statutory right to the records he requested in March

2024 subject to the limitations set forth in [§ 41-3-205(4), MCA],” which ultimately tipped

the balance of equities in Rep. Mercer’s favor. The District Court also considered that the

stipulation of confidentiality between the two parties would give protection to asserted

attorney-client information.

¶28    Rep. Mercer’s injury would be his inability to review information necessary to

respond to the inquiry he received about the case, and to do so in time to also seek any

legislative changes, despite having a statutory right to review the documents.         The

Department, on the other hand, could be injured by the release of privileged information,

which DPHHS correctly points out could not be undone. Here, the stipulation forbidding

any disclosure of information greatly minimizes the Department’s potential injury, whereas

the commencement of the legislative session only expands the harm caused to Rep. Mercer

without a mandatory injunction. Therefore, we agree that the balance of equities is in favor

of Rep. Mercer’s position.

Public Interest

¶29    “In exercising their sound discretion, courts of equity should pay particular regard

for the public consequences in employing the extraordinary remedy of injunction.” MAID,

¶ 21 (citing Winter, 

, 

). “The public interest factor is

another way of inquiring whether there are policy considerations that bear on whether to




                                            16
grant an injunction.” Cross v. State, 

, 

, ___ P.3d ___

(internal citations omitted).

¶30    The Department offers little or no argument on this factor. The District Court

concluded that, under a plain language reading of the statute, Rep. Mercer “by his very

March 2024 record request, is serving the public’s interest as a Montana legislature

member,” and that therefore “[t]he Department’s refusal to comply with Representative

Mercer’s request is not, in [the District Court’s] view, in the public’s interests.” As such,

the District Court concluded that the preliminary mandatory injunction was clearly in the

public’s interest. While the policy behind protection of attorney-client communications

also implicates the public interest, the stipulation entered into between Rep. Mercer and

the Department and ordered by the District Court, and the process discussed above, ensures

that the public interest in facilitating statutory disclosure as the legislative session begins

is greater than the potential harm that may come from the disclosure of attorney-client

information that is now subject to the court-ordered confidentiality requirements.

Therefore, we conclude the District Court did not abuse its discretion in finding the

injunction was in the public interest.

¶31    In conclusion, we hold that the District Court did not err in applying the factors

governing issuance of a preliminary injunction, here a mandatory injunction, and did not

abuse its discretion by granting Rep. Mercer relief under the parameters of its order.

Further, we hold that the scope of this preliminary injunction provided appropriate

preliminary relief and did not serve as a final ruling on the merits.


                                              17
¶32   Affirmed.


                               /S/ JIM RICE


We Concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA




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