*1 STATE FUND, MONTANA Appellee, Petitioner v. SIMMS,
RANDALL Respondent Appellant. No. DA 11-0342.
Submitted on
December
Briefs
2011.
February 1,
Decided
2012.
For Gene Eiselein, Grubbs, Billings. Eiselein Michael G. Zlatnik, Garlington, Luck, J. Bradley J. Elena Appellee:
For Missoula; Martello, Robinson, PLLP, Special Thomas Lohn & Fund, General, Helena. Attorney Montana State Assistant Court. Opinion JUSTICE COTTER delivered (Order) from the Memorandum and Order appeals 1 Randall Simms County, and Judicial District Court of Lewis Clark First (MSF) to Montana, petition Fund’s granting the Montana State The videos footage public places. video taken of him in disseminate (CCJI) by the were dеemed confidential to in relation to District Court and Order allowed them be used (WC) manner compensation any consistent Simms’ workers’ claim Montana of Civil Procedure and Workers’ with the Rules (WCC) appeals. argues He Compensation procedures. Court Simms standing did not have to file an action for dissemination MSF (Act), under Montana Justice Criminal Information Act of inadequately and that the District balanced demands of against disclosure, individual the merits of did not follow statutory construction, rules of identified improperly established and and weighed competing interests at issue. affirm. We
¶2
ISSUES raises A appeal. four issues on restatement of ¶3 dispositive issue is: MSF Did the District Court err when authorized to disseminate pending
certain confidential criminal use matter?
FACTUAL AND PROCEDURAL BACKGROUND injured scope employment in the course of his Simms was and Bozeman, 3,1999, Montana. May working while for Bozeman Glass of the provided employer the time MSF WC insurance Simms’ injury claim. condition deteriorated over accepted and Simms’ Simms’
time, totally he was and permanently and found and disabled diagnosed Complex unable to return to work. Simms was then Syndrome (CRPS), Regional ability Pain restricted his move which extremities, wheelchair, required around use his him and confined to a care, domiciliary prevented driving. and him from part diagnosis, agreed Due in to the CRPS Simms and MSF $610,000 settle March The settlement closed various categories leaving causally benefit certain open while medical benefits injury. Believing disability related to the Simms’ “ongoing condition... compensable injury,” was continuation ofthe effects of industrial MSF pay continued to medical benefits for Simms. disabilities, routinely performs MSF ongoing verifications and §39-71-211, decided do so in Simms’ case. As established under MCA, pursuant 15-93, and to Executive No. MSF specific Order has a unit-a agency-to confidential criminal prevent and detect (SIU) fraud. Fraud Special Investigative Unit includes the Unit performs investigations. MSF utilized the of the services investigate SIU to In August Simms. September 2002 September May 2007, 2006 through the SIU multiple took videos of Simms in public settings, looking physical for evidence ofhis activities possible ability to return to work. The twelve DVDs include two videos taken in videos taken on more than ten occasions *3 2007, in 2006 and over apparently totaling two hours of footage. January 2007, letter, In attorney ¶8 MSF’s sent together a videos, copies attorney of the to Simms’ for The noted review. letter that change Tt]he dramatic of condition is apparent,” and presumptions used settling proven when the case ... to ‘have erroneous, a 2007, at minimum.”Later in June MSF disseminated the physician videos to Simms’ treating and asked for his interpretation of physician the content. The 28, sent a letter back to MSF dated June 2007. physician The found the on activity the videos inconsistent with provided by Simms, which caused MSF to believe disability Simms’ required status probable re-evaluation cause to investigation. existed conduct further MSF considered the videos CCJI from point onward. 27, 2007, August On MSF
¶9 moved the District Court for an order authorizing it to pertaining receive CCJI to Simms from the SIU. MSF, to According the videos “may showed that Simms have exaggerated the extent of his physical handicaps and/or faked feigned disability,’’potentially committing fraud. court ordered the SIU investigative claim, to release the file concerning Simms’ WC disseminating MSF, which including meant the CCJI to the videos. Simms in WCC on proceeding against initiated a civil MSF then Simms, 20, 2007, No. Mont. State Fund v. Randall titled September pending. remains proceeding This 2007-1955. 2009-2242, sought an proceeding, No. MSF separate In a WCC
¶10 2010. The of Simms December Medical Examination Independent treating videos to the MSF released the improperly found had WCC from the videos during using physician proceeding barred though the declined proceedings, in the court physician’s letter related to use of in all further request prevent Simms’ the videos proсeedings. ruling, formally petitioned WCC MSF response foregoing In 2011, CCJI, 18, Court on March for the release certain District previously
as allowed under 44-5- MCA. MSF had submitted § review, to the under seal in camera and MSF several videos court for from the District Court to use and disseminate sought permission objected petition, MSF’s the court ordered that the them. Simms petition. remain under the court’s decision on the pending videos seal 31, 2011, petition Simms moved to dismiss MSF’s March standing MSF therefore arguing bring petition lacked controversy there was an absence of a case or for determination. Both 13,2011, District parties granted briefed issues. On June authorizing MSF to petition, releasing MSF’s the videos to MSF and footage ongoing proceeding use the video WCC No. 2007-1955 any under purpose authorized the Montana Rules Civil procedure. specifically Procedure and WCC The District Court it made no should ruling noted on whether the videos be admitted proceedings, judge it noted a decision for the WCC the WCC was Although specifically make. it did not rule on Simms’ motion petition, implicit the MSF it is court’s dismiss from the Order motion to dismiss wаs denied. appeals. OF
STANDARD
REVIEW
de
ruling
We review novo a district court’s
on motion to dismiss.
LLC,
Grizzly
Group,
Sec.
Inc. v.
2011 MT
Express,
Armored
Armored
128, 12, 360
517, 255
Mont.
P.3d
A district court’s determination
regarding standing presents
question
which we
de novo
law
review
Ranch,
Simmons,
Aspen
MT
*4
correctness.
Trails
LLC v.
2010
¶
41,
30,
Family
808
M.
(citing
356 Mont.
230 P.3d
In re Charles
Bair
Trust,
144, 86,
138,
61);
MT
v.
2008
343 Mont.
183 P.3d
¶
Heffernan
Council,
91, 28,
207,
City
2011 MT
360 Mont.
S.R.T.,
219,
39,
MT
362 Mont.
DISCUSSION Did the District err when MSF to it authorized disseminate justice certain criminal usе in a pending confidential information for matter? argues appeal petition the to disseminate the alleges
videos should have been dismissed. He that MSF did have not §44-5-303, MCA, standing bring petition under and therefore jurisdiction the District Court did not have over the matter. MSF Conversely, argues standing that it had and was file allowed to an action for the dissemination information considered appropriate permissible 44-5-303(6), and under MCA. MSF also § properly asserts that District Court performed requisite balancing test concluding before that MSF was allоwed to use videos. Both WCC the District Court concluded that
videos were CCJI during stage proceedings, ruling and this has not appealed. been The Act describes procedure for the CCJI, provides dissemination of pertinent part: (1) (2) Except provided (4), through subsections dissemination criminal of confidential restricted to agencies, criminal hy those authorized law it, receive and to those authorized receive it a district court upon finding a written demands individual do clearly exceed the merits disclosure. Permissible dissemination of confidential criminal information under this subsection receiving investigative includes information from and sharing investigative information with a of a chief governmental agency organized fire chapter under Title or fire concerning marshal investigation of a fire.
(6) (5) procedures set forth subsection are not an remedy. exclusive A person organization may any or action file dissemination the person organization considers appropriate permissible. added). 44-5-303(1), (6), §44-5-303(6), Section MCA (emphasis Under MCA, as an organization MSF is allowed an to file action dissemination information MSF “appropriate believes to be *5 implicitly did not err in The District Court therefore permissible.” standing. motion dismiss lack of denying Simms’ to Act, investigative “criminal by CCJI includes As defined made information,” or records justice “criminal information not law,” justice other information by “any and criminal confidential 44-5- public justice as information.” Section clearly defined criminal (e), defined 103(3)(a), (d), investigative information”is MCA. ‘Criminal as: individual, or group, organization, an associated with
information of justice agеncy the course compiled by a criminal event of or It includes conducting investigation an a crime crimes. of reports or derived from information about a crime crimes of investigators any type or or from surveillance. informants 44-5-103(6)(a), information’ means justice MCA. “‘Criminal Section collected, relating justice or processed, to criminal 44-5-103(8)(a), MCA. preserved by justice agency.” a criminal Section “ ‘Dissemination’ criminal the communication or transfer of means or other than the criminal justice agencies individuals justice It includes confirmation agency maintains information. of information.” of the existence or nonexistence criminal 44-5-103(11), Section MCA. federal, state, “any a as agency” The Act defines “criminal designated by governor’s a government agency by
or local statute perform order to as its function the administration principal executive 44-5-103(7)(b), 2010 justice.”Section of MCA. In its December criminal determined is order, entirety that MSF in its not a criminal the WCC MSF, SIU, however, Fraud is agency; including Unit of criminal justice agency. a CCJI is to those Dissemination of allowed justice agencies other a district than when authorized it, findings produces court to receive once the district court written clearly do not exceed the the “demands individual Const, 303(1), MCA; Mont. see merits of disclosure.” Section 44-5- II, art. §9. balancing in the The District Court conducted the test called for
statute, addressing “right the inevitable conflict between the to know” “right privacy” to determine if MSF should be authorized 44-5-303(1), MCA; disseminate the CCJI in Section question. Jefferson Std., Co. 304, 173, 805; v. Mont. MT 318 Mont. 79 P.3d 2003 ¶ Const, II, §9, required Mont. art. 10. MSF was to demonstrate Co., information. requеsted entitled to ¶ was receive Jefferson satisfying by setting request 14. It for its and did so forth reasons §44-5-303(1) (6), point requisites MCA. At that the burden 20 why not
shifted to Simms to show
the videos should
be released.
v.
Daily
City
Dept.,
Bozeman
Chronicle
Bozeman Police
260 Mont.
(1993).
218, 227,
859 P.2d
The court considered
applied
arguments
parties
two-part
then
test
1)
“subjective
whether
had
expectation
determine:
or actual
2)
fact;
society willing
which a
privacy,”
question
whether
is
Billings
recognize
reasonable. YellowstoneCo.v.
20, 333
Gazette,
¶25 videos became CCJI. As indicated, both the WCC District Court concluded the videos presently they are CCJI. Whether were CCJI when the District Court released in them 2007 is an issue before in this do us case. We that in emphasize future district involving court WCC cases potential release of information could possibly be considered CCJI, fully the courts сomply statutory requirements must with the authorizing the Act before release the information.
CONCLUSION of the District reasons, affirm the Order we foregoing For the Court. WHEAT, BAKER, McGRATH, JUSTICES JUSTICE
CHIEF NELSON, and RICE concur. MORRIS NELSON, concurring. specially
JUSTICE specific of this case and the procedural posture on the Based decision, with by appeal, join I Court’s raised issues following caveat. practices of ongoing and admitted I continue to believe (SIU) (MSF) Unit Special Investigation its State Fund
Montana of confidential acquisition to and dissemination respect My rationаles for patently illegal. are criminal detail, forth, my are substantial reaching conclusion set Conduct, in In opinion this order re Rules dissenting Court’s ofProf. 2011). (Nov. 1, SIU’s practices 11-0439 I believe MSF’s and No. OP relationship, contrary are unlawfully upon doctor-patient intrude Act, and violate the Montana Criminal Justice Information under Article compensation ofworkers’ claimants rights constitutional II, Rules Sections of Montana Constitution. Prof. (Nelson JJ., Wheat, concurring part at 8-32 Conduct dissenting part). Notably, absurdity procedures is on full display MSF’s (obtained Only already footage had sent videotape this case. MSF after attorney investigators) treating and to Simms’ SIU Simms’
physician maybe ought get did it then occur to a court MSF it, instance, authorizing order in the first this confidential "receive” Opinion, MSF information from SIU. 8-9. and SIU ¶¶ yet long investigative believe that so as SIU has not deemed possession its to be “confidential criminal *7 information,” MSF, may SIU share MSF and in that information with turn, may disseminate the it wishes. This information whomever (Nelson Wheat, wrong. belief is flat Rules Conduct 14-18 of Prof. JJ., concurring dissenting part). part regard, it Compensation Judge got In this Workers’ Shea he right when concluded:
State Fund’s contentions blur distinction between State Group, only part Fund as a Fund Fraud whole State designated justice agency State was as a criminal Fund which by argues, example: Executive Order. State Fund for ‘The State investigative as in the State Fund’s SIU serves an tool both agency justice primary role as a criminal as well as its role Fund’s as a Again, designated as an insurer.” State Fund whole was only justice agency; as a criminal that of State Fund portion comprises Grouр the State Fund Fraud constitutes a justice §44-5-103(7), criminal under MCA. agency argument The core of State Fund’s is that the SIU two wears just any hats: it sometimes functions as other investigator any company, other insurance and it sometimes functions justice difficulty a criminal agency. position The State Fund’s is the applicable Executive Order and statutes do not provide for an this distinction. SIU cannot conduct investigation wearing decide did then whether or not it so its justice agency investigator criminal hat or its insurance That hat. MCA], by §44-5-103, particular, [in determinatiоn is made statute Simms, 12-13, 2010 Mont. State Fund v. Wrk. MTWCC MT ¶¶ (Dec. 2010) Comp. (emphasis original, LEXIS 44 footnote omitted). position segments MSF took the ten of surveillance video
at issue did not justice becomeconfidential criminal until it was reviewed Simms’ physician, physician Simms’ after reported after back MSF that Simms’ depicted activities the video were reported limitations, inconsistent SIU made its after “probable determination that existed a cause” crime had been Judge committed. Shea properly rejected approach: State Fund’s use of the “probable cause” standard determining investigation when an SIU becomes confidential justice code, criminal information is incorrect. In criminal probable warrant, cause is the standard a for issuance of search of a suspect, filing arrest criminal criminal charges. In virtually circumstances, all degree of those some of criminal investigation precedes probable a cause determination. State argument only Fund’s probable cause after determination is made that preceding investigаtion becomes nature, puts criminal the proverbial cart before the horse. Following State Fund’s reasoning, justice agency criminal could take surveillance video of a suspected drug selling dealer small baggies powder, yet white the surveillance would not constitute a criminal investigation-and thereby the surveillance become confidential information-until the criminal agency Moreover, confirmed powder white was cocaine. since the criminal agency probable itself makes the initial detеrmination, cause State argument Fund’s would allow a
23 when, ever, if unilaterally determine agency to confidential criminal investigatory materials “become” privacy protections This eviscerate the information. Act. Criminal Justice Information by afforded 41, original, in footnotes Simms, (emphases 2010 16 MTWCC ¶ omitted). As I discussed other facet of this case deserves mention. One 10, 24-29, investigators SIU conduct Conduct at
Rules Prof Fund claimants without videotaped surveillance State surreptitious This sometimes includes as occurred to Simms. warrant-such tоwn, secretly following videotaping a claimant around activities. person “a legal that surveillance is argued State Fund such because plain for what he or she does in view privacy expectation has no noting person I that while a public.” disagreed proposition, with this degree privacy for himself or his expect preserve cannot the same home, public expect as he could at Montanans are not affairs proposition as State Fund’s prepared accept reasonаble day. government every throughout can track and record our move (Nelson JJ., Wheat, concurring & part at 25 Rules Conduct of Prof dissenting part). contrary, To the they right in their expect privacy Montanans have a affairs, homes-albeit, they when leave their not to same even degree they expect accept their We fixed within homes. locations, banks, parking garages, cameras in various like willing give are some for the sake of up businesses. We security provide. accept these devices But we do town, monitoring recording cameras that follow all around us no every our other than to detect and document purpose move activity. evidence of unlawful (Nelson Wheat, JJ., concurring at & in part
Rules Conduct 29 Prof dissenting part). Notably, last issued a decision in Supreme Court week which Jones, exact United States v. No. 10-1259 this issue was discussed. (U.S. 2012). 23, There, acting a valid police, Jan. without search (GPS) warrant, tracking System a Global device Positioning attached vehicle and used that device to monitor the vehicle’s to Jones’s then period. Supreme on streets over a movements four-week unanimously a search. The five-Justice concluded this was rationaleJhe., majority trespass reached this conclusion under a (Jones’s attaching “effect” information-gathering an device an vehicle), government “physically occupied private property information,” Jones, constitutes a search. purpose obtaining 24 4,
slip op. concurring judgment 9-10. The four Justices in the reached conclusion based Katz’s “reasonable Jones, (Alito, privaсy” Ginsburg, Breyer, test. at 13-14 slip op. See JJ., States, Kagan, concurring judgment); also United see Katz v. (1967) 347, 361, 507, J., (Harlan, concurring); 389 U.S. 88 S. Ct. Allen, 75, State v. 2010 MT Mont. P.3d 1045 *9 (Nelson, J., specially concurring). noteworthy present are particularly What the context are the concurring opinions opined
remarks the Jones. Justice Alito relatively monitoring person’s short-term of a movements on expectations privacy society streets accords with has our recognized concluded, however, as reasonable. He use longer investigations term monitoring GPS of most offenses Jones, (Alito, on impinges expectations of at privacy. slip op. 13 Ginsburg, JJ., & Breyer, Kagan, concurring in judgment). the offenses, society’s such
For has been that law agents indeed, enforcement and others would not-and main, could simply not-secretly catalogue every monitor and single movement of an for a very long period. individual’s car In case, weeks, for four law agents every enforcement tracked movement respondent driving. made in the vehicle he was identify precision We need not the at рoint with which the search, tracking of this vehicle surely became a for the line was present crossed before the 4-week mark. may Other cases more questions. uncertainty difficult But where exists respect period whether a certain long enough GPS surveillance is search, Fourth always constitute a Amendment police may seek warrant.
Jones, (Alito, slip op. JJ., at 13-14 Ginsburg, Breyer, Kagan, concurring in judgment). Sotomayor, joined Justice who majority opinion, felt that the vehicle) (Jones’s
government’s physical personal invasion of property gather information was a search under the Fourth Amendment’s longstanding test, trespassory reasonable-expectation-of- which Kate’s privacy test augmented Jones, but did not displace. slip op. at 1-2 (Sotomayor, J., concurring). Nevertheless, she agreement noted her that, very least, with Justice longer monitoring Alito at the term GPS investigations of most impinges expectations offenses Jones, J., under the op. (Sotomayor, Katz test as well. slip 3 concurring). then Sotomayor Justice added:
In involving cases monitoring, even short-term some unique
25 analysis will to the Katz relevant of GPS surveillance attributes monitoring precise, generates attention. GPS require particular that reflects public movements person’s record of a comprehensive familial, professional, political, her of detail about a wealth Weaver, See, v. e.g., People associations. religious, and sexual (‘Disclosed (2009) 1195, 1199 433, 441-442, 909 N.E.2d N.Y.3d nature of trips indisputably private ... will be [GPS] data psychiatrist, conjure: trips to the imagination takes little clinic, the AIDS treatment the abоrtion surgeon, the plastic attorney, by-the- center, club, the criminal defense strip church, motel, synagogue or mosque, meeting, hour the union on”). such can store on and Government gay bar and into years mine them for information efficiently records and Pineda-Moreno, F.3d v. [United future. States 2010) (CA9 C.J., rehearing en (Kozinski, dissenting from denial banc).] cheap comparison monitoring And GPS because and, design, techniques proceeds surveillance conventional that constrain ordinary checks surreptitiously, evades police practices: law ‘limited resources abusive enforcement (2004). Lidster, 419, 426 community hostility.” v. 540 U.S. Illinois watching may chills the Government Awareness *10 and freedoms. And the Government’s expressive associational aspects private data that reveal power unrestrained to assemble net that identity susceptible to abuse. The result is GPS of is low such a monitoring-by relatively at a cost making available any person quantum substantial of intimate information about discretion, Government, in chooses to whom the its unfettered track-may between citizen and relationship “alter society.” government way in a that is inimical democratic 2011) (CA7 Cuevas-Perez, 640 F.3d United States v. (Flaum, J., concurring). monitoring
I of into account would take these attributes GPS considering of a reasonable societal when the existence I expectation privacy public in the sum of one’s movements. of reasonably people expect ask that their whether a aggregated and in manner that movements will be recorded will, ascertain, less at their more or enables Government habits, beliefs, so on. religious sexual and political Jones, J., (Sotomayor, concurring). at slip op. 3-4 admitted respect resonate with to SIU’s These observations monitoring, videotaping workers’ practice tracking, they daily claimants lives. MSF and go about their compensation are wrong SIU flat their belief that this sort of surveillance and gathering does not implicate rights constitutional because “a no person privacy expectation plain has for what he or she does in public.” expectations privacy view Montanans do retain while in public. reasonably expect And Montanans do not state government, in its warrant, unfettered discretion and without a is recording and aggregating everyday their activities and movements a manner which enables the State to ascertain and catalog political religious beliefs, habits, their their sexual private aspects identity.1 other In Conduct, its order in Rules this Court acknowledged of Prof. troubling practices issue,”
“the nature of some but decided Tt]he propriety practices these should be аddressed with the fully developed benefit record from district court.” Rules of Prof. Conduct at 6. The Court likewise declines to delve into these matters case, present given particular issues raised Simms on appeal. light herein, In Court’s holdings narrow further practices (beyond discussion of MSF’s Iwhat already have discussed above) unnecessary. however, I appreciate, cautioning the Court’s statement ‘the fully comply courts must statutory with the requirements of the Act before authorizing the release of the [confidential justice] Opinion, information.” observations, With these I specially concur. joins
JUSTICE WHEAT Special Concurrence of JUSTICE NELSON. 1Notably, Sotomayor suggested-and Justice agree-that may also I ‘it necessary of premise reconsider the that an individual has no reasonable voluntarily parties.” Jones, slip op. disclosed third 5at (Sotomayor, J., concurring). pointed approach She out is ill-suited to the digital age, people great in which reveal a deal ofinformation about themselves to third parties carrying example, people course of out mundane tasks. For disclose the phone they providers; they numbers that dial or text to their cellular the URLs that *11 they correspond
visit and the email addresses with which to their Internet service providers; books, groceries, they purchase and medications to online retailers. Yet, people accept it is complaint doubtful “that without the warrantless every they disclosure to the Government of list Web site had visited the last month, week, year. or voluntarily ... I would not assume all is, alone, purpose disclosed some member of the for a limited for that reason protection.” Jones, J., slip op. (Sotomayor, disentitled to Fourth Amendment at 5-6 concurring).