Montana Supreme Court: When the public's right to know is vindicated, attorneys fees should follow
The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).
In a sprawling, 61-page decision that had about as many opinions attached to it as members of Montana's highest court, a majority of justices said that the State of Montana, specifically the governor's office, should pay attorneys fees in a public documents fight between the office and groups wanting more information about a mining executive.
However, the particular details before the court were not whether a former mining executive should be permitted to lead a mining company after his former company was found to be a 'bad actor' by state law. Instead, the Montana Supreme Court weighed in on when the government should pay attorneys fees in the public records dispute.
In a fractured mix of majority, concurring and dissenting opinions, at least four justices agreed that Lewis and Clark District Judge Christopher Abbott should have given attorneys fees to the Montana Environmental Information Center and Earthworks, which had sued Gov. Greg Gianforte for documents related to Phillips S. Baker, Jr., and permitting documents related to both Hecla Mining and the Montanore mine. The MEIC argued that the state had not enforced its 'bad actor' provision against Baker, the Hecla CEO, because of his leadership in a company that went went bankrupt, while leaving millions of dollars of mining mess to be taken care of in perpetuity by the state.
MEIC and Earthworks, which won the public documents fight against the governor, also asked for attorneys fees because they brought the lawsuit under the Montana Constitution's right-to-know provisions. In the state, judges have discretion to award attorneys fees when private groups or individuals are successful in vindicating constitutional rights, like obtaining public documents.
Previously, the Montana State Supreme Court had been reluctant to recommend a checklist of conditions that have to be met in order to award attorneys fees, instead relying on the judgment of district or trial court judges. However, a majority of the court decided to take up the issue, saying that more guidance was necessary for judges, something a minority, including Chief Justice Cory Swanson, balked at. The dissenting opinions centered on the idea that judges should still have latitude to decide on a case-by-case basis, and that if the Legislature wanted to mandate attorneys fees, it should be done in law.
Justice Laurie McKinnon wrote the majority opinion, with James Jeremiah Shea, Katherine Bidegaray and Ingrid Gustafson concurring. Justices Jim Rice and Beth Baker, along with Swanson were in the minority.
The majority pointed out in the case that the governor's office had employed a 'novel' legal theory that Abbott debunked, but even so, 'the court found the governor's office shirked its clear legal duty to MEIC's request.'
'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,' the majority opinion said.
The justices reasoned that if constitutionally protected rights are meaningful, then litigation — or the ability to take the government to court — must be accessible.
'The result of the district court's order — that MEIC prevailed and undeniably performed a public service, yet it is denied attorney's fees — is dissonant with the foundational purposes of Article II, Section 9, and actively disincentivizes citizens from enforcing that right,' the majority opinion said. '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 its merits.'
The majority shifted the blame back to the Montana Supreme Court, saying the state's provisions for awarding attorneys fees had created a 'vacuum of necessary guidance,' and the majority wanted to more fully develop the advice.
Abbott had determined that because Gianforte had not acted in bad faith, and because attorneys fees would essentially be borne by Montana taxpayers, he decided not to award attorneys fees.
However, the court said the calculus Abbott used — whether there was evidence of bad faith — shouldn't be the deciding factor in the right-to-know cases.
'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,' the opinion said. '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.'
The court's opinion also said it was taking up the matter because it's essential for courts and citizens to understand fundamental or Constitutional rights.
'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,' the ruling said. '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 allows for results fundamentally at odds with the Constitution.'
Leaders from both Earthworks and MEIC cheered the decision, saying the decision was a win for residents who want to keep tabs on government officials.
'Montana's Constitution guarantees the public the right to know what government is up to. Justice only works when every person has the ability to oversee their government,' said Anne Hedges, executive director with MEIC. 'This decision will ensure the public can continue to access government documents and will prevent abuse when the government officials refuse to comply with the constitution.'
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