2006 MT 215 | Mont. | 2006
Lead Opinion
delivered the Opinion of the Court.
¶1 The Havre Daily News and other Montana newspapers (collectively, “the Newspaper”) sued the City of Havre, Havre Police Chief Kevin Olson and other members of the Havre Police force (collectively, “Havre”), seeking dissemination of an unredacted initial “incident report” and the accompanying officer’s “narrative.” The Newspaper also requested the District Court to order Havre to develop and implement a general policy to govern the dissemination of initial offense reports. Because Havre provided the Havre Daily News with the unredacted report, the District Court granted summary judgment in favor of Havre, ruling that the case was moot and non-justiciable, but awarded attorney fees to the Newspaper. The Newspaper now appeals and Havre cross-appeals the award of attorney fees. We affirm in part, reverse in part and remand.
¶2 The following issues are dispositive of this appeal:
¶3 (1) whether the District Court erred in denying the Newspaper’s motion for a default judgment;
¶4 (2) whether the District Court erred in granting summary judgment in favor of Havre; and
¶5 (3) whether the District Court erred in determining that the Newspaper may recover attorney fees incurred prior to receiving the unredacted reports.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The focus of this dispute is a police report describing an officer’s investigation that culminated in charges being levied against several
¶7 The Newspaper filed a complaint on March 10, 2004. The complaint detailed the facts surrounding Winderl’s receipt of the redacted Reports and requested the court to order Havre to release the unredacted Reports as well as to develop and implement a policy governing future dissemination of such reports (“prospective relief’). More specifically, the Newspaper’s request for prospective relief sought the following: (1) implementation of a policy requiring immediate dissemination of complete copies of initial incident reports to the public upon request; (2) a provision that the public pay only the actual cost of reproduction for such copies;
¶8 The District Court granted Havre’s request for summary judgment and denied the Newspaper’s request for default judgment. The court
STANDARDS OF REVIEW
¶9 ‘We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct.” Chamberlin v. Puckett Construction, 277 Mont. 198, 202-03, 921 P.2d 1237, 1240 (1996). Whether a party may avoid default judgment when she fails to answer a complaint and instead files a motion for summary judgment is purely a question of law.
¶10 We review a District Court’s grant of summary judgment de novo. ... We apply the standard declared by Rule 56, M.R.Civ.P. The moving party must establish the absence of a genuine issue of material fact and her entitlement to judgment as a matter of law. We review a district court’s conclusions of law to determine whether they are correct.” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 11, 331 Mont. 281, ¶ 11, 130 P.3d 1267, ¶ 11 (citations omitted).
¶11 “Whether or not a party is entitled to recover attorney fees is ‘strictly a question of law.’ Thus, ‘[w]e review a district court’s conclusions of law pertaining to the recovery of attorney’s fees to determine whether those conclusions are correct.’ ” Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 14, 331 Mont. 421, ¶ 14, 133 P.3d 190, ¶ 14 (quoting Transaction Network v. Wellington Tech., 2000 MT 223, ¶ 17, 301 Mont. 212, ¶ 17, 7 P.3d 409, ¶ 17 (citation omitted; modification in original)).
DISCUSSION
Issue 1: Whether the District Court erred in denying the Newspaper’s motion for a default judgment.
¶12 The Newspaper argues that the District Court should have granted its motion for a default judgment because Havre never answered its complaint, thereby effectively admitting the allegations complained therein. The Newspaper asserts that M. R. Civ. P. 7 limits responsive pleadings to an answer and urges us to reverse Klock v. Town of Cascade, 284 Mont. 167, 943 P.2d 1262 (1997), to the extent that it conflicts with Rule 7. Essentially, the Newspaper contends that allowing a party to circumvent the Rules of Civil Procedure-by filing a motion for summary judgment in lieu of an answer-will erode the structure of civil litigation that is built upon these carefully designed rules.
¶14 M. R. Civ. P. 55(a), requires the clerk to enter default judgment against a defendant who “has failed to plead or otherwise defend as provided by these rules ....” In Klock, this Court held that a motion for summary judgment satisfies the requirement that a party “otherwise defend” in order to escape default judgment. 284 Mont. at 173, 943 P.2d at 1266. Federal courts construing Rule 55(a) of the Federal Rules of Civil Procedure, which is identical to Montana’s rule, have likewise concluded that a defendant may escape default judgment by filing a motion for summary judgment. See, e.g., Rashidi v. Albright, 818 F. Supp. 1354, 1355-56 (D. Nev. 1993).
¶15 The Newspaper insists that Klock conflicts with M. R. Civ. P. 7, which provides that, aside from various iterations of complaints, answers, and replies, “[n]o other pleading shall be allowed....” Because M. R. Civ. P. 55(a), explicitly contemplates defenses other than pleadings, however, no such conflict exists. A defendant may defend by filing an answer. In addition, a defendant may “otherwise defend,” for example by filing a motion for summary judgment or a motion to dismiss pursuant to M. R. Civ. P. 12(b). Havre’s motion for summary judgment sufficed to prevent the District Court from entering default judgment in favor of the Newspaper.
Issue 2: Whether the District Court erred in granting summary judgment in favor of Havre.
A. Ripeness:
¶16 The Newspaper argues that the District Court erred in granting summary judgment because its request for prospective relief presents a justiciable issue. The Newspaper asserts that it has an existing constitutional right to receive the information contained in initial arrest and offense reports and that a judgment of the court will protect this right.
¶17 Havre argues that, with respect to the Newspaper’s request for prospective relief, no real dispute exists over which the court may exercise judicial authority. Havre maintains that cases arising under the constitutional right to know, Article II, Section 9, of the Montana Constitution, should be determined on a case-by-case basis, and no
¶18 The existence of a justiciable controversy is a threshold requirement to a court’s adjudication of a dispute, consisting of three elements as identified in Montana-Dakota Util. Co. v. City of Billings, 2003 MT 332, ¶ 9, 318 Mont. 407, ¶ 9, 80 P.3d 1247, ¶ 9. Among other reasons, a case may be non-justiciable because it presents an issue that is not ripe for judicial determination. Erwin Chemerinsky, Federal Jurisdiction, § 2.1, 44 (4th ed., Aspen 2003). Although the Newspaper and Havre quibble over whether this case presents a justiciable controversy under Montana-Dakota Util., their disagreement is more precisely characterized as an issue of ripeness. Because justiciability encompasses ripeness, the parties have properly raised, albeit imprecisely, the question of whether the Newspaper’s request for prospective relief is ripe for review.
¶19 The doctrine of ripeness “requires an actual, present controversy, and therefore a court will not act when the legal issue raised is only hypothetical or the existence of a controversy merely speculative.” Montana Power Co. v. Public Service Comm., 2001 MT 102, ¶ 32, 305 Mont. 260, ¶ 32, 26 P.3d 91, ¶ 32. The basic rationale behind the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements].]” Montana Power Co., ¶ 32; Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515 (1967), overruled on other grounds Califano v. Sanders, 430 U.S. 99, 975 S. Ct. 980 (1978); see also Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S. Ct. 1716, 1719 (1972) (“[jurisdiction] should not be exercised unless the case tenders the underlying constitutional issues in clean-cut and concrete form. . . . Problems of prematurity and abstractness may well present insuperable obstacles to the exercise of the Court’s jurisdiction”) (internal quotations and citations omitted).
¶20 In considering whether a case is ripe for review, federal courts consider the “fitness of the issues for judicial review” and the extent of hardship that will be suffered by the parties if the court withholds review. Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1247 (3rd Cir. 1996). In conducting the former inquiry, “[t]he principal consideration is whether the record is factually adequate to enable the
¶21 Here, the Newspaper presents a question for adjudication that inherently requires this Court to engage in a fact-intensive inquiry. Each determination regarding the dissemination of criminal justice information requires careful, fact-specific balancing of conflicting constitutional rights. The Montana Constitution imbues the citizenry with a right of privacy, Article II, Section 10, as well as a right to examine documents of “state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure[,]” Article II, Section 9. As this Court has recognized, these rights “inevitably conflict in cases involving a request for confidential criminal justice information ....” Bozeman Daily Chronicle v. Police Dept., 260 Mont. 218, 224, 859 P.2d 435, 439 (1993).
¶22 Although the Newspaper confidently asserts that the Reports in this case have been statutorily designated as public criminal justice information, see § 44-5-103(13)(e)(i)-(ii), MCA (designating initial offense reports and initial arrest reports as public criminal justice information, but failing to further define either term
¶23 In each of these hypothetical cases, in order to balance the constitutional right to know against the conflicting constitutional right of individual privacy, a reviewing court
¶24 Prospective relief is inappropriate because each of these three determinations necessarily involves a factually specific inquiry, which “requires this Court to balance the competing constitutional interests in the context of the facts of each case,” Missoulian v. Board of Regents of Higher Educ., 207 Mont. 513, 529, 675 P.2d 962, 971 (1984).
¶25 The dissent recasts the Newspaper’s claim as a request that Havre implement systematic procedures to govern dissemination of initial incident reports and characterizes that claim as a request for relief “from a real, presently existing, and readily identifiable problem which implicates the public’s right to know-i.e., the Police Department’s lack of procedures governing its decisions to withhold information contained in initial incident reports.” ¶ 51. In the course of this creative endeavor, the dissent overlooks a determinative fact,
¶26 The dissent relies heavily on Great Falls Trib. v. Mont. Pub. Ser. Com., 2003 MT 359, 319 Mont. 38, 82 P.3d 876, wherein this Court articulated a presumption of openness and the “‘affirmative’ duty [of] government officials to make all of their records and proceedings available to public scrutiny.” ¶ 54. In stark contrast to most cases relating to dissemination of criminal justice information, Great Falls Trib. only involved the rights of corporate entities, rather than the rights of private individuals. ¶ 39, ¶ 56. Thus the right of privacy was not at issue. See Great Falls Trib., ¶ 39 (“non-human entities do not enjoy privacy rights under the right of privacy provision of the Montana Constitution”). Accordingly, this Court’s articulation of a presumption of openness and “affirmative duty of disclosure cannot be read to nullify the need, in the first instance, to balance the right to know against the conflicting right of individual privacy on an ad hoc basis when both rights are at issue. Given the “inevitable conflict” that arises with requests for confidential criminal justice information, Bozeman Daily Chronicle, 260 Mont. at 224, 859 P.2d at 439, a requirement that governmental agencies provide unredacted copies on demand is untenable. Given society’s concern over the erosion of individual privacy, it would eviscerate the constitutional right of privacy to require agencies to disclose unredacted documents on demand, leaving the media, unbound by any constitutional mandate or judicial scrutiny, to unilaterally make decisions concerning Montanans’ privacy rights.
¶27 The Newspaper’s request for prospective relief lacks any concrete factual basis
B. Mootness:
¶28 The Newspaper’s request for prospective relief fails for want of ripeness. The question remains, however, whether the District Court properly granted summary judgment with respect to the Newspaper’s claim that Havre illegally denied access to the unredacted Reports.
¶29 The Newspaper argues that the Havre Daily News’s receipt of the complete Reports concerning the underage drinking charges did not render this case moot. The Newspaper contends that this case falls within the exception to mootness for wrongs that are “capable of repetition, yet evading review,” Common Cause v. Statutory Committee, 263 Mont. 324, 328, 868 P.2d 604, 607 (1994) (quotations omitted), and that they have presented a constitutional issue that involves the “broad public concerns to avoid future litigation on a point of law,” Walker v. State, 2003 MT 134, ¶ 41, 316 Mont. 103, ¶ 41, 68 P.3d 872, ¶ 41 (quotations omitted). While apparently conceding that Havre could not repeat the identical behavior complained of, the Newspaper suggests that it will encounter similar obstructions in the future.
¶30 Havre argues that this case is moot because the Havre Daily News has already received the very Reports that the Newspaper seeks to obtain through this litigation. Havre suggests that the courts cannot provide relief with respect to Reports that the Newspaper has already procured. Havre maintains that it cannot repeat the alleged wrong, because it has already provided the Havre Daily News with the Reports at issue. Thus, no actual controversy remains; instead, only a hypothetical future controversy remains, which is not the “same action” contemplated by the above-mentioned exception to the mootness doctrine. We agree with Havre that the issue pertaining to the release of the Reports was mooted by the Havre Daily News’s receipt of the unredacted Reports.
¶31 Mootness is a threshold issue which we must resolve before addressing the substantive merits of a dispute. Grabow v. Montana High School Ass’n, 2000 MT 159, ¶ 14, 300 Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14. “A matter is moot when, due to an event or happening, the issue
¶32 “This Court reserves to itself the power to examine constitutional issues that involve the broad public concerns to avoid future litigation on a point of law.” Walker, ¶ 41 (quotations omitted). In light of the foregoing ripeness analysis, future litigation on the scope of the constitutional right to know and its interaction with the constitutional right to privacy will not be avoided by issuing the prospective relief that the Newspaper has requested, nor by addressing the legality of Havre’s redaction of a portion of the since-revealed Reports. Thus, the Newspaper may not invoke this broad, mal-defined principle to resuscitate an otherwise moot controversy.
¶33 Federal courts have developed similar but distinct exceptions to mootness for wrongs “capable of repetition, yet evading review,” and “voluntary cessation” of a wrong. See, e.g., Iowa Protection and Advocacy Services v. Tanager, Inc., 427 F.3d 541, 543-44 (8th Cir. 2005). As its implementation by the federal courts makes clear, the exception to mootness for wrongs “capable of repetition, yet evading review” is properly confined to situations where the challenged conduct invariably ceases before courts can fully adjudicate the matter. See, e.g., Spencer v. Kemna, 523 U.S. 1, 18, 118 S. Ct. 978, 988 (1998) (declining to apply the exception because “[petitioner] has not shown ... that the time between [the challenged wrong] and [the occurrence rendering the case moot] is always so short as to evade review”) (emphasis added); see also, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973) (nine-month term of pregnancy effectively precludes full appellate review of restrictions on abortion prior to the completion of any individual plaintiffs pregnancy); Southern Pac. Terminal v. Interstate Commerce Commission, 219 U.S. 498, 514-15, 31 S. Ct. 279, 283 (1911) (short duration of Interstate Commerce Commission orders precludes appellate review prior to the orders’ expiration); Nebraska Press v. Stuart, 427 U.S. 539, 546, 96 S. Ct. 2791, 2797 (1976) (prior restraint on speech via a pre-trial gag
¶34 When, as here, a defendant’s challenged conduct is of indefinite duration, but is voluntarily terminated by the defendant prior to completion of appellate review, federal courts apply the “voluntary cessation” exception to mootness. See, e.g., Jews for Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998) (“voluntary cessation of a challenged practice renders a case moot only if there is no ‘reasonable expectation’ that the challenged practice will resume after the lawsuit is dismissed”). Although the exception for “voluntary cessation” of the challenged conduct is quite similar to the exception for wrongs “capable of repetition, yet evading review,” an important distinction separates the two. Due to concern that a defendant may utilize voluntary cessation to manipulate the litigation process,
¶36 Generally, like the federal courts, this Court has limited application of this exception to situations where the challenged conduct is of inherently limited duration. See, e.g., Grabow, ¶ 15 (“[t]his exception recognizes that the amount of time inherent in the litigation process renders it nearly impossible in some cases for a final judicial decision to be reached before the case is rendered moot”) (emphasis added); see also, Common Cause, 263 Mont. at 327-28, 868 P.2d at 606-07 (concluding that the legislature’s confirmation of a recommended appointee five months after initial recommendation does not moot a challenge to the recommendation process); Matter of N.B. (holding that the expiration of a ninety-day involuntary commitment does not moot a challenge to the commitment order). On at least two previous occasions, however, this Court has applied the exception for wrongs “capable of repetition, yet evading review” to conduct that is of indefinite duration. See Heisler v. Hines Motor Co., 282 Mont. 270, 937 P.2d 45 (1997) (concerning the legality of defendant’s initial refusal to pay medical expenses, for which defendant subsequently provided payment); see also Montana-Dakota Util, (concerning the legality of a city ordinance that voters later overturned by ballot initiative). In both of these cases, we effectively conflated the exception for wrongs “capable of repetition, yet evading review,” with the exception for “voluntary cessation” of the challenged conduct. Our lack of precision, however, did not affect the ultimate outcome of these cases.
¶37 Here, the Newspaper challenged Havre’s obstruction of access to
¶38 Under the “voluntary cessation” exception, a case may be mooted by the defendant’s voluntary conduct only when it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189, 120 S. Ct. at 708. In the context of cases alleging an unconstitutional deprivation of access to (purportedly confidential) criminal justice information, when a plaintiff points to only a single instance of an agency’s withholding a document and later disclosing the same after suit has been filed, the case will generally not fall within the “voluntary cessation” exception to mootness. In such a case, it is not generally reasonable to expect the “same wrong”
¶39 If however, a plaintiff could show that the same agency has repeatedly withheld documents (or information contained within documents) from public disclosure and then fully disclosed those same documents upon the plaintiffs filing suit to enforce its right to know, the agency would shoulder a very hefty burden in attempting to persuade this Court that the “challenged conduct cannot reasonably be expected to [recur]" Laidlaw, 528 U.S. at 189, 120 S. Ct. at 708. In such a situation, the agency’s conduct violates at least one constitutional right and becomes transparently manipulative, or perhaps merely evinces apparent genuine confusion over the legality of public dissemination in certain contexts. Thus, it becomes reasonable to expect that if a substantially similar situation occurs, the agency will repeat the obstructive tactics that the plaintiff challenges, perpetrating a substantially similar, though not identical, wrong. In such cases, final judicial adjudication may provide useful guidance that may obviate future violations of the right to know. Accordingly, a plaintiff may likely obtain adjudication of such past disputes under the “voluntary cessation” exception to mootness.
¶40 Havre has provided the Havre Daily News with a complete copy of both Reports. The Newspaper alleges no other past instances of the Havre Police Department’s unconstitutionally depriving it of access to documents or portions thereof. Nor does it point to inevitable future violations of the right to know in anything other than conjectural, conclusory fashion. Thus, the identical wrong is incapable of recurrence, and the Newspaper points to no concrete evidence suggesting that Havre will perpetrate a substantially similar wrong. Consequently, Havre has conclusively established that “the challenged conduct’-redacting portions of these particular Reports-“cannot reasonably be expected to [resume].”
¶41 Rather than granting summary judgment in favor of Havre, thereby indicating that Havre is entitled to prevail on the merits as a matter of law, the District Court should have dismissed this unripe, moot, and therefore non-justiciable controversy without prejudice. See Parker v. Weed, 220 Mont. 49, 51, 713 P.2d 535, 537 (1986) (reversing a district court’s award of summary judgment to a defendant, and indicating that the court properly disposes of a non-justiciable controversy by dismissing the case without prejudice). Consequently, this case is remanded to the District Court with instructions to dismiss the Newspaper’s claims without prejudice.
Issue 3: Whether the District Court erred in determining that the Newspaper may recover attorney fees incurred prior to receiving the unredacted Reports.
¶42 The Newspaper contests the District Court’s award of attorney fees. The Newspaper contends that it brought this action to enforce its constitutional right to know, so the court should have awarded the Newspaper all fees incurred in this action, including fees incurred on appeal. The Newspaper insists that its failure to file an affidavit on attorney fees is of no consequence. Instead of filing an affidavit based on the District Court’s limited award of fees, the Newspaper appealed the award and requested a broader award of attorney fees. Presumably, the Newspaper expects that once this Court has resolved the dispute over its entitlement to fees, it can then introduce evidence as to the appropriate amount of attorney fees.
¶43 Havre contests both the Newspaper’s entitlement to attorney fees as a matter of law and the lack of any evidentiary basis for awarding a specific amount of fees. Havre argues that the Newspaper did not prevail in the District Court, so it cannot recover attorney fees pursuant to § 2-3-221, MCA. Havre contends that the Newspaper did not bring this action to enforce its constitutional right to know, because Winderl had already viewed a complete copy of the Reports before receiving the redacted versions. Havre suggests that the public has not benefited from the Newspaper’s efforts, so no justification exists for spreading litigation costs to the taxpayers. Finally, Havre maintains that by failing to file either a court ordered fee affidavit before filing an appeal or a motion under M. R. Civ. P. 59(g) to alter or amend the judgment within ten days of receiving notice of entry of judgment, the Newspaper effectively waived its right to recover attorney fees.
¶44 Section 2-3-221, MCA, provides that “[a] plaintiff who prevails in an action brought in district court to enforce his rights under Article
¶45 Havre speciously argues (based on Winderl’s momentary viewing of the unedited Reports) that the Newspaper did not bring this cause of action to enforce its constitutional right to know, and that the public derived no benefit from the Havre Daily News’s obtaining unredacted copies of the Reports. By its terms, the right to know is not constrained by time nor by whether a person has already once examined a document. See Mont. Const, art. II, § 9. Deprivation of access to a document is no less a violation of the right to know simply because temporary access was once granted. A government does not achieve transparency and accountability-the ostensible purposes behind the constitutional right to know-by allowing citizens only a fleeting glance at documents. Faced with the prospect of lawsuits for libel and slander, the media cannot effectively hold the government publicly accountable if afforded the opportunity to view but temporarily the evidence on which its stories rely, but denied the opportunity to actually procure and preserve that same evidence.
¶46 Finally, Havre’s argument that the Newspaper waived its right to recover attorney fees by failing to provide the court with evidence of the proper amount of fees also lacks merit. The District Court ordered the Newspaper’s counsel to file an affidavit of attorney fees. The court imposed no deadline for counsel’s fifing this affidavit. We have repeatedly affirmed a party’s legal entitlement to recover attorney fees and remanded for a proper evidentiary determination of the
¶47 Judicial economy would be promoted if the Newspaper had procured a definite fee award before appealing. The Newspaper, however, used this appeal in order to assert its broad legal entitlement to attorney fees. On this legal question, which is ripe for review, we largely concur with the District Court’s determination. Havre cross-appealed, asserting that the Newspaper waived its right to recover the fees actually awarded by the court. Because the corut has not yet awarded fees in any specific amount, Havre has essentially asked us to review an action that the District Court has not yet taken. Thus, Havre’s cross-appeal is not ripe for review. See Langemo v. Montana Rail Link, Inc., 2001 MT 273, ¶ 34, 307 Mont. 293, ¶ 34, 38 P.3d 782, ¶ 34 (holding that an issue is not ripe for review absent a conclusive ruling by the district corut).
¶48 The District Court properly determined that the Newspaper may recover those attorney fees incurred in securing the unredacted Reports. Any attorney fees incurred after that time are not recoverable. We affirm and remand for the District Court to hold an evidentiary hearing to ascertain the amount of legal fees incurred by the Newspaper in order to obtain the unredacted Reports prior to its receipt of those Reports. Any fees incurred prior to that time in an attempt to obtain prospective relief may not be recovered by the Newspaper.
On appeal, the Newspaper has presented no argument pertaining to its request for a policy requiring dissemination of copies at no more than the actual cost of reproduction-not even a simple allegation that a charge of three dollars infringes the constitutional right to know, let alone an articulation of how or why such a charge might violate the constitution. Consequently, we deem this issue waived for purposes of this appeal.
After this case was filed, the Department of Justice promulgated administrative rules that define “initial offense report” and delineate the contents thereof. See Admin. R. M. 23.12.201 and 23.12.203 (effective August 20, 2004). In light of the fact that these rules have been promulgated, the Newspaper’s request for judicial re-determination of the required contents of initial incident reports amounts to a request that this Court usurp the rule-making authority of the Department of Justice, see, § 44-5-105, MCA, and effectively declare Admin. R. M. 23.12.203 unconstitutional.
The Reports are actually labeled as an “Incident Report” and an accompanying ‘Narrative for Sergeant Paul S. Huston.” Assuming that these are properly treated as initial arrest reports, initial incident reports, or one of each, definitional ambiguity persists. Such ambiguity stems from the legislative classification of “criminal investigative information” as confidential criminal justice information, § 44-5-103(3)(a), MCA. “Criminal investigative information,” in turn, is defined as “information associated with an individual... or event compiled by a criminal justice agency in the course of conducting an investigation of a crime or crimes. It includes information about a crime or crimes derived from reports of informants or investigators or from any type of surveillance.” Section 44-5-103(6)(a), MCA.
Sergeant Huston’s ‘Narrative” describes his investigation of a report of an underage drinking party. The “Narrative” details his initial surveillance of the area, his apprehension of a fleeing suspect, his procurement of physical evidence of the party (empty, partially full, and unopened beer cans), and his initial interviews of suspects and uncharged witnesses. In so far as the ‘Narrative” contains information gathered by Sergeant Huston “in the course of conducting an investigation” into the reported crimes (including interviews with witnesses) and his preliminary surveillance of the
Of course, long before a dispute reaches the courts, somebody (or perhaps a committee) within the government agency would have already made each of these three determinations before deciding to withhold information in order to protect the right of privacy.
In addition, the dissent overlooks the fact that, according to the sole factual allegation in the Newspaper’s complaint that does not deal exclusively with the Reports, Havre apparently does have a policy for handling requests for dissemination of such reports: such requests are not, as the dissent suggests, denied, but are referred to Officer Bartel. The Newspaper simply disapproves of this informal policy, and so has asked the courts to rewrite it, under the auspices of the Constitution.
We deem the Newspaper’s claims pertaining to Winderl’s request for the Reports moot, see below ¶¶ 28-40. Consequently, the Newspaper’s request for prospective relief, distilled to its essence, constitutes a challenge to the constitutionality of § 44-5-105, MCA (granting the Department of Justice rulemaking authority with respect to criminal justice information), as well as a challenge to the constitutionality of a rule promulgated thereunder, specifically Admin. R. M. 23.12.203. The Newspaper may mount such a direct challenge in another proceeding, pursuant to § 2-4-702, MCA.
The concern is that a defendant will attempt to moot only a plaintiffs meritorious claims, thereby avoiding an undesirable judgment on the merits while vigorously contesting those cases in which he expects to prevail. See U.S. v. W.T. Grant, 345 U.S. 629, 632-33, 73 S. Ct. 894, 897 (1953). This concern is particularly acute in situations when one would expect the same defendant to encounter substantially identical future controversies.
In both Heisler and Montana-Dakota Util., we found that the cases were not moot because the plaintiffs had demonstrated a “reasonable expectation that [they] would be subject to the same action again.” Montana-Dakota Util., ¶ 7; Heisler, 282 Mont. at 276, 937 P.2d at 48. Thus, the defendants could not possibly have established that the challenged conduct could not reasonably be expected to recur, as necessary to render the case moot under the “voluntary cessation” exception.
The same wrong, at a high level of abstraction (i.e., deprivation of access to documents containing criminal justice information that should be publicly disseminated, notwithstanding the right of privacy), will predictably recur. As illustrated above, see ¶¶ 21-23, however, in determining whether the criminal justice agency has perpetrated a “wrong,” we engage in a fact-specific three-part balancing test. Viewed through this lens, improper deprivations of access to criminal justice documents are not at all interchangeable. Rather, the unique facts of each case dictate the ultimate outcome, resulting in distinctive dispositions. The resolution of a dispute will generally provide only limited guidance in resolving a narrow class of potential future disputes. Accordingly, in this context, in considering whether the “same wrong” will recur, courts should conceive of the wrong in concrete terms, rather than in the abstract. Thus, whether a deprivation constitutes the “same wrong” depends on whether the substantially identical constellation of facts-facts which breathe life into and shape the conflicting constitutional rights-will recur.
The outcome here would not differ if we were to apply the exception for wrongs “capable of repetition, yet evading review,” because the Newspaper cannot establish a reasonable expectation that it will be subjected to the same action again.
Concurrence in Part
concurs and dissents.
¶49 I concur in the Court’s resolution of Issue One. I dissent with regard to Issue Two. As for Issue Three, I agree that the Newspaper is entitled to recover attorney fees incurred in securing the unredacted reports. However, given my conclusion as to Issue Two, I would remand for consideration of an award of additional attorney fees, pursuant to § 2-3-221, MCA, following proper resolution of the Newspaper’s
¶50 As for Issue two, I do not agree with the Court’s conclusion that this claim is not ripe for adjudication. In my view, the Court’s analysis is based on a flawed premise. Given its ongoing interest in obtaining initial incident reports to determine whether they contain newsworthy information, the Newspaper sought a remedy to the Police Department’s failure to follow systematic procedures in accommodating the public’s right to know. The Court characterizes this claim as a “request for prospective relief’ and, on that basis, proceeds to conclude that the claim is not ripe for adjudication. I disagree with this characterization.
¶51 I conclude that the Newspaper’s claim is a request for instant relief. The Court states that the Newspaper’s request for “prospective relief’ amounts to “a request for relief from a purely hypothetical future violation of its right to know.” This statement is wholly inaccurate. The Newspaper seeks relief not from a “purely hypothetical future violation,” but from a real, presently existing, and readily identifiable problem which implicates the public’s right to know-i.e., the Police Department’s lack of procedures governing its decisions to withhold information contained in initial incident reports. Addressing this claim plainly does not require “prospective adjudication” or an evaluation of specific factual scenarios which are not presently before us, as the Court asserts. The Court further mischaracterizes the claim at issue here by suggesting that the Newspaper asks us to balance the public’s right to know against an individual privacy interest in a hypothetical future case.
¶52 Because the implementation of a policy would likely preclude or resolve some future conflicts, the Newspaper’s claim may, in part, be properly characterized as a request for prospective relief. However, it is plainly wrong to characterize the entire claim in this manner. The problem identified is one that exists presently, and the relief sought would immediately change the way the Police Department handles this kind of request. Thus, the Court’s blanket characterization ignores the immediate nature of both the problem identified by the Newspaper and the relief requested.
¶53 Moreover, the Court misconceives the nature of this appeal in stating at the outset that the “focus of this dispute is a police report.” Similarly, the Court also states that “the challenged” conduct in this case is “redacting portions of these particular Reports.” Access to the redacted information was an issue in the proceedings below when the Newspaper sought to obtain the full Reports. However, Havre has since disclosed the full text of the Reports, albeit belatedly. Accordingly, the
¶54 Neither party disputes the fact that the Newspaper’s claim of entitlement to the unredacted Reports is moot. Nonetheless, this Court devotes nearly ten pages of mootness analysis to “the Newspaper’s claim that Havre illegally denied access to the unredacted Reports.” And for what? To simply conclude that the Newspaper’s claim for “the release of the Reports was mooted by the Havre Daily News’s receipt of the unredacted Reports.” This analysis is wholly unnecessary given that neither party contests this issue or presents it for our review. Thus, the majority here renders an advisory opinion-something which we have unequivocally stated that we will not do. Ingraham v. State (1997), 284 Mont. 481, 487, 945 P.2d 19, 23 (citing State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997).
¶55 The particular documents which the Newspaper sought are simply not an issue here, much less the “focus” of this dispute. The real issue on appeal is whether the District Court properly granted summary judgment on the Newspaper’s remaining claim.
¶56 The Newspaper’s Complaint contains two distinct claims. Besides seeking the unredacted Reports, the Newspaper recognized a larger problem at the outset of this case-the state of affairs in which the public is forced to file suit in order to exercise its constitutional right to know. Upon this recognition, and given its ongoing interest in obtaining initial incident reports to determine whether they contain newsworthy information, the Newspaper sought a remedy to the Police Department’s failure to follow systematic procedures in determining whether to withhold incident reports from the public.
¶57 Specifically, the Complaint contained, inter alia, the following allegations: (1) that Lt. George Tate initially allowed Winderl to view an unredacted copy of the Reports; (2) that Lt. Tate then vacillated, signaling that he was reluctant to release the entirety of the documents to Winderl because it included the names of individuals who were not charged; (3) that Winderl contacted Lt. Tate later that day, at which time Lt. Tate said he was “uncomfortable” providing a copy of the Reports without discussing the issue with his superior officers; (4) that Winderl was eventually provided with a copy of the Reports, with certain material redacted, including all references to Police Chief Kevin Olson and his daughter; and (5) that Winderl had, in the past, sought to access incident reports by asking low ranking officers, receptionists, and dispatchers at the Police Department, that these individuals would not provide access to the reports, and that they had referred Winderl to a high ranking officer. The Complaint also alleged that the Police Department charged Winderl three dollars to obtain the redacted copy,
¶58 As a legal basis for the Complaint, the Newspaper asserted, inter alia, that the Montana Constitution requires that public documents be made available at a cost adequate to cover only the expense of making the copy, and that Montana law requires government agencies to implement policies and procedures which guarantee the public’s exercise of its right to know.
¶59 Upon these allegations, the Newspaper sought implementation of a policy requiring: (1) that the Police Department “provide complete copies of all initial incident reports to the public during regular business hours upon demand by the public”; (2) that initial incident reports include a number of specific items, including personal information regarding the accused and any witnesses; and (3) that the Police Department provide copies of initial incident reports and attachments “at a cost not to exceed the actual cost of reproducing the copy regardless of the form the report or attachments are in.”
¶60 The Court considers the Newspaper’s pleadings an “untenable” request that “governmental agencies provide unredacted copies on demand.” I disagree. All pleadings must be construed so as to do substantial justice. Rule 8(f), M.R.Civ.P. In assessing complaints, we “ ‘look to the claim as a whole, to the subject with which it deals, to the reason and spirit of the allegations in ascertaining its real purpose. If such purpose can reasonably be said to be within the scope of the language used, that purpose should be honored.’ ” School Trust v. State ex rel. Bd. of Comm’rs, 1999 MT 263, ¶ 29, 296 Mont. 402, ¶ 29, 989 P.2d 800, ¶ 29 (quoting Miller v. Titeca (1981), 192 Mont. 357, 364, 628 P.2d 670, 675). Moreover, “[i]t is always to be presumed that no absurd or unreasonable result was intended by the complainant.” Hidden Hollow Ranch v. Collins (1965), 146 Mont. 321, 326, 406 P.2d 365, 367-68.
¶61 The subject of the Complaint is not only the Police Department’s refusal to disclose the full text of the Reports, but also the Department’s lack of systematic procedures in responding to the Newspaper’s requests. The spirit of the allegations is that the Police Department’s shortcomings in this regard hinder the public’s exercise of its right to
¶62 It is equally clear that the Complaint is not without its shortcomings. The Newspaper’s request that “complete copies of all initial incident reports” be available on demand, standing alone, obviously conflicts with the exception contained in Article II, Section 9-i.e., that the public may properly be denied access to government documents when “the demand of individual privacy clearly exceeds the merits of public disclosure.” Reading this portion of the Complaint in isolation, as the Court apparently does here, one might conclude that the Newspaper advocates a policy which ignores the constitutional exception for individual privacy. Of course, as the Court notes, “a requirement that governmental agencies provide unredacted copies on demand is untenable.” Yet, the Newspaper also explicitly acknowledged the exception for individual privacy earlier in the Complaint. Given this acknowledgment, and given that we do not assume a party intends absurd or unreasonable results by a complaint, Hidden Hollow Ranch, 146 Mont. at 326, 406 P.2d at 367-68, it is fair to characterize the Newspaper’s Complaint, in its totality, as a request for the implementation of a policy in conformity with Article II, Section 9, of the Montana Constitution.
¶63 The Court characterizes this interpretation as a “creative endeavor” which produces a “strained reformation” of the Newspaper’s Complaint.
¶64 Additionally, the Court states, without citing authority, that “[t]he mere absence of a policy governing dissemination of documents does not ripen into a violation of the constitutional right to know unless and until an identifiable person is actually denied access to a particular document....” Here, the Newspaper was denied access to a particular document. Consequently, it filed suit to obtain the documents and press for the implementation of a policy. Yet, the Court concludes that the Newspaper may not pursue its claim for the implementation of a policy because the claim now lacks a “concrete factual basis.” In so concluding, however, the Court fails to explain how this claim has become “wholly divorced” from the Police Department’s undisputed violation of the public’s right to know. There is simply no basis for concluding that this claim for the implementation of a policy has lost its connection with the Newspaper’s underlying claim for disclosure of the unredacted Reports.
¶65 And, if a clear violation of the right to know by a government agency does not entitle the public to challenge the agency’s failure to implement a policy, what does? How will a member of the public ever be able to challenge a government agency’s failure in this regard if the Court insists that such a claim is a request for “prospective” relief?
¶66 Apparently the Court has concluded that the public may seek disclosure of particular documents, but may not, in cases such as this one, assert a claim for the implementation of a policy. The Court’s reasoning effectively precludes the public from ever challenging a government agency’s failure to implement a policy as long as the defendant agency discloses the particular information sought prior to adjudication (an act which now apparently removes any “concrete factual basis” from the complaint). I find this approach entirely unjustifiable.
¶67 Finally, I am troubled that the Court so readily disregards the Newspaper’s claim for the implementation of a policy, as this request goes straight to the heart of the problem at issue-i.e., the government’s proven tendency to disregard the public’s right to know, which leads to lawsuits that needlessly consume public funds and judicial resources.
¶68 Article II, Section 9, of the Montana Constitution provides that the public’s opportunity to examine government documents is a part of the right to know. As this right is contained in the Montana Constitution’s Declaration of Rights, it is a fundamental right. State v. Tapson, 2001 MT 292, ¶ 15, 307 Mont. 428, ¶ 15, 41 P.3d 305, ¶ 15. In interpreting Section 9, we have held that there is a constitutional presumption that
¶69 The Court suggests that the presumption of openness may be limited to cases involving “the rights of corporate entities” because Great Falls Tribune “only involved the rights of corporate entities, rather than the rights of private individuals.” However, we have never limited the presumption in this way and it is truly frightening that we would do so here by way of dictum. Our articulation of the presumption in Great Falls Tribune was an unqualified holding regarding the constitutional right to know; not merely a holding limited to the particular facts of that case. See Great Falls Tribune, ¶ 54. Moreover, this holding is little more than a restatement of Article II, Section 9, which provides that “[n]o person shall be deprived of the right to examine documents . . . except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” (Emphasis added.) This plain and unambiguous language means that when the balance is even, the right to know trumps, thus requiring disclosure. In fact, even if the balance is slightly in favor of individual privacy, the right to know still trumps, thus requiring disclosure. It is only when the balance is clearly in favor of individual privacy that the documents may be properly withheld from the public. It is at this stage, and this stage only, that the right to individual privacy trumps the right to know.
¶70 Thus, the plain language of the Constitution requires that disclosure is the rule, and withholding public documents based on individual privacy is the exception. The term “except” in Section 9 necessarily makes withholding information based on privacy the exception under elemental rules of statutory interpretation. Thus, the right to know is superior in that it presumptively trumps the right to individual privacy in the context of right-to-know cases. And, if this plain language were not clear enough, the transcripts of the
¶71 Simply put, the presumption of openness, which we formally recognized in Great Falls Tribune, is contained in the plain language of Section 9. It does not depend in any way on the particular facts of Great Falls Tribune, nor is it qualified thereby. The Court’s suggestion to the contrary blatantly disregards the plain language of Section 9.
¶72 The Court goes on to observe that the presumption of openness and the government’s affirmative duty of disclosure “cannot be read to nullify the need, in the first instance, to balance the right to know against the conflicting right of individual privacy on an ad hoc basis when both rights are at issue.” Of course, the plain language of Article II, Section 9, mandates this conclusion. However, in balancing these two rights, as noted above, the presumption of openness is the guiding principle and it is not overcome unless the right of individual privacy clearly exceeds the merits of public disclosure.
¶73 Despite the clear language of Section 9 which discloses the presumption of openness, and despite the government’s affirmative duty of disclosure as articulated by this Court, government agencies have repeatedly demonstrated a disregard and misunderstanding of the public’s right to know. We see it in this case, in the cases we have considered over the years, and in a recent study which Professor Fritz Snyder recounts as follows:
In 2003, a survey in Montana showed an 81 percent success rate in obtaining public information from public agencies. However, nearly half of Montana’s county sheriffs violated the state’s Open Records Law by refusing to release their jail rosters. The sheriffs or their employees claimed the inmate lists were confidential. The Daniels County sheriff said he did not care what the law said: “He wasn’t about to let anyone see his list of recent crime calls without a court order.” “A District Court clerk in Chinook took it upon herself to censor the roster of court cases by removing ones ‘the public doesn’t need to know about.’” In six counties, officials said it would take a court order to get the information. “In all, just 11 counties provided the reports at the first request from the citizens making the checks.” Judith Basin County Sheriff Robert Jacobi said that his office “has a responsibility not to disclose the misfortunes of people in the community to anyone who walks in off the street.”
¶74 Given the govemment’s-especially law enforcement’s-track record, it is no wonder that the Newspaper seeks the implementation of a policy.
¶75 For example, a policy could specify who would make the disclosure determination and how it would be made; it could specify a definite timeline for this determination;
¶76 Conversely, with no policy in place, government agencies will inevitably continue to fail in their affirmative duty to make their records publicly available. We will continue to see abuses such as that perpetrated in this case-i.e., withholding public information for well over two months, thus forcing the Newspaper to file suit, and then turning over the information before an adjudication on the merits. As a result, the public will continue to pick up the tab for needless lawsuits instituted to obtain undisputedly public information.
¶77 The Newspaper’s effort to remedy this situation finds support in another constitutional context; the United States Supreme Court has indicated that the government may not delegate unbridled discretion to bureaucrats whose official decisions may impinge on the free speech guarantee of the First Amendment. In Forsyth County, Ga. v. Nationalist Movement (1992), 505 U.S. 123, 124, 112 S.Ct. 2395, 2398, 120 L.Ed.2d 101, the United States Supreme Court considered an assembly and parade ordinance which allowed the government administrator to vary the licensing fee for assembling or parading to reflect the estimated cost of maintaining public order. While some prior restraints on speech are constitutionally acceptable, the Supreme Court stated, a regulation of this type may not delegate overly broad licensing discretion. Forsyth County, 505 U.S. at 130, 112 S.Ct. at 2401 (citations omitted). In fact, the decision observes, a governmental regulation of this type which can be arbitrarily applied is inherently inconsistent with a valid restriction on the freedom of speech. Forsyth County, 505 U.S. at 130, 112 S.Ct. at 2401 (citation omitted).
¶78 The ordinance at issue contained no articulated standards, it did not require the administrator to rely on any objective factors, and it did not obligate the administrator to provide an explanation for the decision rendered. Forsyth County, 505 U.S. at 133, 112 S.Ct. at 2403. Having observed these facts, and having noted that “[t]he decision how much to charge ... is left to the whim of the administrator,” the Supreme Court held: “The First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth County, 505 U.S. at 133, 112 S.Ct. at 2403.
¶79 I believe the same principle holds true here in the context of the fundamental right to know. While the ordinance at issue in Forsyth
¶80 While openness is critical in any Montana government agency, it is particularly critical in law enforcement agencies because of the enormous power they wield. Our law enforcement agencies serve the public in a conscientious and honorable manner, but they are nonetheless bound by the same constitutional principles as other government actors and, specifically, to an affirmative duty to make their records available to public scrutiny. As we have stated,
the delegates to the Constitutional Convention made a clear and unequivocal decision that government operates most effectively, most reliably, and is most accountable when it is subject to public scrutiny. .. .
While on any given occasion there may be legitimate arguments for handling government operations privately, the delegates to our Constitutional Convention concluded that in the long-term those fleeting considerations are outweighed by the dangers of a government beyond public scrutiny.
Great Falls Tribune v. Day, 1998 MT 133, ¶¶ 34-35, 289 Mont. 155, ¶¶ 34-35, 959 P.2d 508, ¶¶ 34-35.
¶81 The Court of Appeals for the Sixth Circuit has stated:
When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment “did not trust any government to separate the true from the false for us.” Kleindienst v. Mandel, 408 U.S. 753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J., concurring)). They protected the people against secret government.
Detroit Free Press v. Ashcroft (6th Cir. 2002), 303 F.3d 681, 683. Although these statements were made with regard to the United States Constitution, they are nonetheless applicable here. On a similar note, J. Robert Oppenheimer, the father of the atomic bomb, has observed a principle that underlies Montana’s right to know:
We do not believe any group of men adequate enough or wise enough to operate without scrutiny or without criticism. We know*363 that the only way to avoid error is to detect it, that the only way to detect it is to be free to inquire. We know that in secrecy error undetected will flourish and subvert.
¶82 The right-to-know guarantees of our Constitution, Article II, Section 9, are among the most important fundamental guarantees that Montanans enjoy. As we have recognized, quoting the Bill of Rights Committee, Section 9 arises
out of the increasing concern of citizens and commentators alike that government’s sheer bigness threatens the effective exercise of citizenship. The committee notes this concern and believes that one step which can be taken to change this situation is to Constitutionally presume the openness of government documents and operations.
Bryan v. District, 2002 MT 264, ¶ 31, 312 Mont. 257, ¶ 31, 60 P.3d 381, ¶ 31 (quoting the 1972 Montana Constitutional Convention, Vol. II at 631).
¶83 In recognition of the vital importance of the public’s right to know, and given the premature resolution of the Newspaper’s claim for the implementation of a policy, I would reverse and remand with instructions that Havre must answer the Newspaper’s Complaint to further the development of the factual record in this case. Because this Court orders dismissal without prejudice, the Newspaper will be forced to re-file its Complaint before proceeding with its claim for the implementation of a policy.
¶84 The Constitution has been the supreme law of this State for more than thirty years. It is wholly unacceptable that the media and public are still met with intransigence, stalling tactics, and delay, and are ultimately forced to litigate to obtain public documents to which they are constitutionally entitled. We see far too many of these cases each year — and there are more waiting in the wings as we hand down this Opinion. Simply put, the Newspaper should not have been forced to sue in order to exercise the constitutional right to know. And, when the Newspaper is forced to sue, it should be entitled to attorney fees.
¶85 A closed government is an evil government: it abuses trust, it perverts truth, it misappropriates faith, and, in the end, it reviles the petitions of its citizens to know how they are governed and by what manner of people. Our right to know is too fundamental to be entrusted to the whims of those who neither understand its constitutional birthright nor honor its power to breach the wall of secrecy that divides the government from the governed.
¶86 I dissent.
As the Court notes, the Newspaper fails to present any appellate argument as to its claim regarding the cost of obtaining copies of public documents. Notwithstanding the deficiency in the Newspaper’s appellate brief, this claim deserved to be litigated. After all, why should a government agency be allowed to profit from a citizen’s exercise of his or her constitutional right to know? And what possible justification could there be for allowing an agency to potentially restrict access to public information by way of excessive copy fees?
Incidentally, the only “creative endeavor” involved in this appeal is the Court’s decision to undertake the assumption that “Havre apparently does have a policy” for handling requests such as the Newspaper made here-i.e., referral to Officer Barthel. Nothing in the record establishes that referrals to Barthel constitute a “policy.” Moreover, no legitimate policy can depend on one person for its implementation in a bureaucratic organization. If Barthel is solely responsible for handling these requests, then the public’s ability to exercise its right to know is restricted to the hours of Barthel’s weekly work schedule, as well as those periods of time when he is not on sick leave, vacation leave, or preoccupied with other pressing matters which require police attention.
Article II, Section 8 provides: “Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.”
Further study of the Freedom of Information Act survey to which Professor Snyder refers can be made at the Montana Associated Press website: http://www.ap.org/montana/MTFOI.html (last visited August 15, 2006). See also http://foi.missouri.edu/openrecseries/mt/countycomphance.html (last visited August 15, 2006).
The Court asserts that I am relying on facts outside the record. Of course, my opinion here, both in concurrence and dissent, is based solely on the facts of record and the relevant law. Although I have referenced facts outside the record, I most certainly do not “rely” on these facts in forming my opinion. Plainly, my reference to the Freedom of Information Act survey is only an observation regarding the context in which this cases arises; not a factual basis on which I rest my opinion.
The right to know means little if public officials are allowed to withhold public information for indefinite periods of time or until current news becomes stale news.
The Court’s formal resolution of this case is needlessly ambiguous. The Court correctly frames Issue Two as a question of whether the District Court erred in granting summary judgment. However, the Opinion does not expressly answer this question. Rather, it only implies that an error was committed. Similarly, the Court does not formally reverse the District Court’s Order. Of course, reversal is the only basis for the remand in this case. Yet, the Court declines to employ the precision which has traditionally defined our opinions, choosing instead to place today’s Opinion in a nebulous category of resolution wherein remand is proper without a reversal, pursuant to an implied conclusion that some error has been committed. No legal precedent provides support for this approach.