*1 JIM ELLIOTT, Appellant, Petitioner REVENUE, MONTANA DEPARTMENT OF Respondent Respondent, MONTANA TAXPAYERS’ ASSOCIATION,

Intervenor. No. 05-336. Argument May Heard at Oral 2006. Submitted June Decided October

2006 MT 267. 334 Mont. 195. 146 P.3d 741. Meloy (argued), A. Appellant: For Peter Michael Robin Trieweiler, Meloy Helena. Meguire, Assistant (argued), Special L. Ohler

For David Respondent: General, Attorney Helena. Prezeau, Hughes, Cherche (argued), John Alke

For Intervenor: Kellner, Alke, Sullivan & Helena. Visiting Assistant Griffing, L. Amicus Curiae: Elizabeth

For *2 Law, Professor, of Montana School of Missoula. University the Court. Opinion JUSTICE COTTER delivered (Elliott) state tax requested certain State Senator Jim Elliott ¶1 (Auditor) “C” Auditor for Legislative information from the Auditor, on based doing Montana. corporations business (DOR), Department of Revenue by the State provided information it year information tax 2002 and for compiled requested Elliot access to similar Later, denied the Auditor and to Elliott. DOR filed a Petition to Obtain years. other tax Elliott tax information for Elliott (Petition), Court denied. which the District Public Documents affirm. appeals. We

ISSUE is: appeal The restated issue on ¶2 it denied disclosure Court err when

Did the District tax records? state corporations’ Montana “C” PROCEDURAL BACKGROUND FACTUAL AND Chairman of the 2004, Elliott, capacity in his January Legislative of the and Vice-chairman Taxation Committee Senate corporations “C” with Committee, tax information for requested Audit years for which for all tax $1,000,000.00 in Montana sales or more because he sought the information information. Elliott DOR had the so as to make to be informed legislator needs “responsible a believed of the part public.” on the and accurate decisions responsible him with tax provide Auditor to asked the Initially, Elliott less than paid $150.00 corporations all information about information, Elliott inspecting in 2002. After Montana taxes in terms of corporations information 500 “C” top tax requested MCA.) (See definition corporation “C” Montana sales. on Elliott’s behalf. to the Auditor the information DOR information for containing spreadsheets for Elliott compiled Auditor however, identified were not taxpayers, year Corporate tax spreadsheets. name on corporations of some of the identities then researched Elliott

by matching up the tax information he received for 2002 with financial he on the internet such sources as the U.S. located from Exchange published filings corporate Securities Commission’s reports. financial Elliott disclosed the results of his research to his constituents and other Montana citizens. compelling people Elliott testified that “the reason for the [to records]

state of Montana have access to state tax is that just, equitable policy important. every taxation For dollar that one taxes, person illegally paying avoids ... in the citizens of the state of up Montana make for that in or in increased taxes decreased services.” Subsequently, request Elliott reiterated his for tax records from all years. tax request available DOR refused Elliott’s because he had disclosed to the public corporate previously provided. petitioned the District Court to order disclosure ofthe state 6, 2005, April tax records. On the District Court denied Elliott’s Petition holding evidentiary hearing after an on November arguments February oral on 2005. Elliott appeals.

STANDARD OF REVIEW We review district court’s conclusion of regarding question to determine Bryan is correct. District, 264, 16, ¶

DISCUSSION Did the District Court err when it public denied disclosure of corporations’ Montana “C” state tax records? II, Elliott invokes the provisions of Article Section

9, of the Montana Constitution in support his contention that state corporate tax subject public records are disclosure. Article Section provides:

Right person deprived know. No shall be examine documents or to all public observe deliberations of agencies government subdivisions, bodies or of state and its except in cases in which the demand privacy clearly of individual exceeds the merits of disclosure.

However, prohibits state law the disclosure of tax records by 15-31-511, MCA, DOR Montana corporate taxpayers. Section provides:

Confidentiality in Except tax records. this properjudicial section in accordance with a order or as otherwise law, any in provided by divulge it is unlawful to or make known manner:

(a) forth or any particulars or set the amount of income chapter or required or under this report disclosed in return in the relating to taxation secured any other chapter; administration of this

(b) in or disclosed on return or information any federal department or rule of the report required return or federal this chapter. of revenue under Court, highlights the conflict between to this briefs but dismisses ofArticle Section § that, statutory yield law must “Obviously, state by arguing

the statute However, agree premise. with this cardinal to constitutional law.” We proof beyond a reasonable constitutional absent presumed statutes are Erickson, contrary. County Ravalli doubt omitted). (citation 17¶ challenge-either no constitutional Notably, Elliott has mounted Indeed, 15-31-511, Elliott’s invalidate applied-to facial or as during Court and in briefs to this unequivocally, both counsel stated constitutionality of challenge the that Elliott does not argument, oral tax information. disclosure of statutory prohibition on nullity” light of case law Rather, as “a he views the statute Article interpreting disclosure of which the information the precisely Elliott seeks asked the District MCA. Elliott

directly prohibited corporations with information for “C” order disclosure of Court to sales, the name of the including: $1,000,000.00 more in Montana total sales; property; Montana sales; total Montana corporation; factor; apportionment payroll; total payroll; Montana property; operating net income; income before Montana taxable adjusted taxable liability; and the income; loss; taxable the statute Elliott concedes received. While date the tax return was right to the constitutional disclosure, maintains that he prohibits such restrictions, and that we statutory these “trumps” know essence the statute unconstitutional. declaring per so rule without se to enact a power its constitutional Legislature has exercised role of the V, 1, Montana Constitution. statute. are to ascertain established. We a statute is well construing courts *4 has been not to insert what substance, we are but a terms statute’s 1-2-101, inserted. Section has been omitted or omit what statute duly enacted disregard simply not we it is unconstitutional. conclude that unless we first stated, already unconstitutionality As of a statute must be County, 17. In that beyond demonstrated a reasonable doubt. Ravalli unconstitutionality no has been offered-much less demonstration unconstitutional, nor may not declare this statute will proven-here, we sponte. we undertake to do so sua Absent successful statute, it. challenge propriety obligated apply of a we are J., Finley, (Gray, State v. specially concurring). 15-31-511, MCA, challenge Without direct constitutional § confronting, disturbing, prohibition

we have no basis for much less its on disclosure of state tax records. Therefore we conclude we grant cannot the relief Elliott seeks.

CONCLUSION foregoing reason, For the we affirm. GRAY, LEAPHART, CHIEF JUSTICE JUSTICES RICE and BUYSKE, sitting NELSON DISTRICT JUDGE for JUSTICE MORRIS concur.

JUSTICE WARNER concurs. I concur with the opinion. result of Court’s I write to address necessary 15-31-511, MCA, reason Elliott claims it is not to find § unconstitutional in order to secure the tax information he prays for. argues Senator Elliott the “or provided by as otherwise law” 15-31-511(1), MCA, exception renders the statute ineffective because “law” includes Article Section 9 of the Montana Constitution.1 15-31-511(1), MCA, provides:

Except in this section in accordance a proper with judicial law, order or as provided by otherwise is unlawful divulge any manner[.] or make known in added.) (Emphasis points out that the “or as otherwise exception encompasses law” the Montana Right provision, Constitution’s to Know Section which is set forth at 10 of the Opinion. Although Court’s what constitute “documents ... of all not public bodies” is defined Article interpreted phrase encompass this Court has “documents generated body or maintained a which are somehow related body.” Becky to the function and duties of that v. Butte-Silver Bow Sch. argument clearly opening This articulated in Elliot’s to the District brief Court, appellate argument as well as his briefs and oral before this Court.

200 (1995). Thus, 193, 197 Article 1, 274 131, 138, 906 P.2d Mont. Dist. No. Becky, 274 Mont. at 9, “public to documents.” II, applicable Section is 138, 906 P.2d at 197. right public to view only limitation on the constitutional right Elliott, constitutional

documents, according to is an individual’s that a this Court has held goes point on to out that privacy. to Elliott the right privacy to under has no individual for-profit corporation Pub. Serv. Falls Tribune v. Mont. Constitution. Great 876, 38, 39, 39. Commn., 359, 39, Mont. 82 P.3d ¶ 319 ¶ loop-hole in the law which adroitly argues that there is for-profit corporation’s examine a public that the be able to requires II, which Article is This is because tax records. to are available for-profit corporations the tax records of that provides MCA, 15-31-511(1), to applies exception and thus the public, the confidentiality. abrogate requirement the statute’s MCA, exception the interpretation, Under this dispute counsel did not ineffective. Elliott’s render the statute would exception the acknowledged that argument, at oral this conclusion however, out, that the He pointed the statute. essentially swallows .2 in Great Falls Tribune until this Court’s decision was effective statute 15-31-511(1), MCA, exception the to § I not conclude that do gives effect interpretation An that without effect. renders the statute makes a statute void or to one that always preferred is to statute Rural Fire Dist. surplusage. Missoula treats a statute as mere (1986). 1170, 1173 178, 182, Co., 720 P.2d 222 Mont. Missoula a for- under Falls Tribune assuming, arguendo, that Great Even the weighed against has no interest be corporation privacy profit right know, does not end there. analysis the right public’s may circumscribe only provision not the is privacy Section 9. by right to know 376, 654 P.2d 982 201 Mont. rel. Smith v. Dist. In State ex Ct. could be right (1982), this Court considered jury. explained We by impartial trial an to a circumscribed in Smith: ... is Constitution of the Montana “Right provision to Know” when circumscribed properly It can be

not absolute. 2 Reg., Telegraph Dept. 194 Mont. Co. v. the framers Pub. Serv. Tel. and Mt. States surely (assuming Section 9 and 10 181, 188 of Article P.2d rights privacy as do to have the same constitutional non-human entities intended human Tribune, individuals). Falls overruled Great Mt. States was weighty compelling. against competes interest which added). Smith, Smith, (emphasis 201 Mont. at 654 P.2d at 986 hearing that a could be excluded pretrial suppression this Court held at eye “only acquired from the if dissemination of information public danger a clear and to the fairness of hearing present would create utilized defendant’s trial and no reasonable alternative means can be Smith, information.” such 201 Mont. prejudicial to avoid the effect of at Co., Inc. v. Falls acknowledge that Great Falls Tribune Great Schools, (1992), Pub. P.2d 502 this Court concluded “pursuant language meetings to the clear of Article only privacy be closed when the need for individual exceeds the Schools, merits of disclosure.” Pub. 255 Mont. at Great Falls *6 131, added); 321, 841 P.2d at In (emphasis Cf., Lacy, 505 re (1989) (“The 186, only right 188 limitation on the to right privacy.”) receive this information is the constitutional to added). view, (emphasis my statements, In these that only it is the right to that privacy public’s right individual can circumscribe the to know, unnecessary. are both and overbroad Neither Great Falls Pub. Lacy Schools nor involved matters other than whether an individual’s right privacy outweighed public’s right to the to In know. Great Falls overrule, discuss, Pub. Schools the did Court not nor did it Smith. The Court language has continued to cite to the in Smith the right that to know “can properly right against be circumscribed when the or interest competes weighty Tribune, which it compelling.” E.g., is or Great Falls 986). Smith, (quoting 30 201 Mont. at 654 P.2d at The rule in Smith should in control this case and would overrule Falls Pub. Great suggests Schools to the extent it it only right privacy that is the to that may right the circumscribe to know. case, In present argument necessarily the Elliott’s raises the issue authority tax, ability

of the State’s to its to enforce this authority, which is Article VIII of the Montana Constitution, sufficiently “weighty compelling” may is so or that it in appropriate right Lacy, circumstances circumscribe the to know. See (because authority 239 at judiciary Mont. P.2d at 189 the has Constitution, duty over the it to interpretation of the is the courts’ what, the in competing balance interests issue order to determine any, if given party requesting should be to a 9). from the government under Article Supreme long recognized The U.S. Court has the of importance power the to tax: taxing people the of the and their power

It is admitted that very government, is essential existence of property, it is legitimately objects exercised on the which may be the government to the utmost extent to which applicable, carry it. choose to (1819). Article VIII of the Maryland,

McCulloch v. 17 U.S. At the gives Legislature power the the to tax. Montana Constitution Convention, and Finance Constitutional the Revenue 1972 Montana in suggest putting power such a the so far as to Committee went unnecessary, power “the to tax is an was because Constitution the state, already possessed by state power power inherent of the Convention, any grant authority.” of Constitutional without 18,1972, February p. 579. Proposal, and Finance Committee Revenue course, VIII, Rygg stated: “Of discussing Delegate governmental important power taxation is the most power of power it is that this never be body possesses, equally important Constitutional bargained away.” or lightly treated 3,1972, Convention, Transcript, p. March Verbatim good, and for the common requires provide The State revenue necessary to raise this revenue. Without taxation is of course know, the tax, right government protect could not power of the rights of the fundamental privacy, individual enforcing its Therefore, I that the State’s interest people. conclude may, that it sufficiently “weighty compelling” authority to tax is circumstances, to know. circumscribe appropriate limited and component a critical The record establishes United States of Montana that current tax structure (I.R.S.) information contained provide Internal Service Revenue Department the Montana tax returns to United States *7 such information. system simply would not work without Revenue. disclosing information the I.R.S. from 6103(p)(8) prohibits 26 U.S.C. § adopts that State State unless a federal tax return about 15-31-511, if this Court confidentiality provision such as § effect, that the of no it follows 15-31-511 is were to conclude DOR, and the current information stop providing I.R.S. would fail. would for-profit corporations taxes on system levying not have the Montana does establishes The record also effectively compile system a tax which could to establish resources taxes from levy and collect necessary process the State, in this without that do business many for-profit corporations by the I.R.S. gathered circumstance, limited confidentiality conclude that this which flow from Article VIII of the Constitution, sufficiently weighty compelling are in Article public’s right circumscribe the judgment It for this reason that I vote to affirm the District Court.