Mont. high court refuses to release lawyer records

The Montana Supreme Court last week refused to release the disciplinary records of a former  city prosecutor who was fired for ethical violations but was then hired as a county public defender.

In attempting to obtain the records, which became confidential by Montana Supreme Court rule once Moira D’Alton admitted to four ethical violations, the Billings Gazette had argued that right-to-know provisions within Montana’s constitution and open records statutes mandated the records’ disclosure. The Reporters Committee for Freedom of the Press filed an amicus brief in support of the Gazette’s position in December.

Moira D’Alton was fired from her job as a Billings city prosecutor in 2004 but was then later hired as a Yellowstone County public defender. After D’Alton was censured and had her law license suspended for 30 days by the state Supreme Court in September 2006 for violating four provisions of the Montana Rules of Professional Conduct, the Gazette tried to find out more about what she’d done.  But while D’Alton’s disciplinary files would have been made public had her case been adjudicated through a formal disciplinary proceeding, her files were sealed when she admitted to wrongdoing prior to the initiation of proceedings against her.

Montana is one of just a handful of states with a constitutional provision that grants its citizens a  right of access to documents created by “public bodies.” A primary question in the case was whether Montana state courts should be considered public bodies subject to the constitutional right-to-know provision and other state open records statutes.

But the state’s highest court declined to rule on the Gazette’s right-to-know arguments and instead affirmed the district court’s decision, which found that the lower court never had jurisdiction for a case assessing state supreme court rules. The Supreme Court also found that releasing D’Alton’s disciplinary records now would be unfair to her.

“D’Alton was not put on notice that at some future time, under circumstances over which she had no control, her file could be open to the public,” wrote Justice Patricia Cotter in her Aug. 12 decision. “To now issue such a ruling would be a violation of D’Alton’s entitlement to due and fair process.”

After the decision was released, Gazette attorney Mike Meloy said the court could have ruled on the merits by allowing D’Alton a new hearing under a revised public disclosure rule. Or, the court could have simply applied the new rule in future cases, Meloy said.

"I was disappointed that the court was willing to do whatever was necessary to avoid ruling on the merits,” he said. The Gazette is mulling over whether to refile the case directly with the Montana Supreme Court, he said.