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DA 22-0182

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 112

BROADWATER COUNTY, MONTANA,

 Plaintiff and Appellee,

 and

HELENA INDEPENDENT RECORD,

 Defendant and Appellee,

 v.

PERSON WITH AN INTEREST IN THE RELEASE OF CONFIDENTIAL 

CRIMINAL JUSTICE INFORMATION PERTAINING TO THE INVESTIGATION 

AND PROSECUTION OF JASON ELLSWORTH: JASON ELLSWORTH,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Broadwater, Cause No. CDV-2022-02

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David M. McLean, McLean & Associates, PLLC, Missoula, Montana

For Appellees:

Kyle W. Nelson, Jeffrey J. Tierney, Goetz, Geddes & Gardner, P.C., 

Bozeman, Montana (for Helena Independent Record)

Cory Swanson, Broadwater County Attorney, Jania Hatfield, Deputy 

County Attorney, Townsend, Montana (for Broadwater County)

Submitted on Briefs: December 14, 2022

 Decided: June 13, 2023

Filed:

__________________________________________

Clerk

06/13/2023

Case Number: DA 22-0182
Justice Jim Rice delivered the Opinion of the Court. 

¶1 Appellant Jason Ellsworth (Ellsworth) appeals the order of the First Judicial District 

Court, Broadwater County, requiring Appellee Broadwater County to provide to Appellee 

Helena Independent Record (IR) or other interested persons redacted videographic and 

documentational records pertaining to Ellsworth’s May 23, 2021, stop by, and encounter 

with, a Montana Highway Patrol officer, which led to misdemeanor charges. We consider 

the following issue, and affirm:

Did the District Court err by ordering the dissemination of redacted confidential 

criminal justice information?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 According to the subject criminal complaint filed against Ellsworth, at 

approximately 10:20 p.m. on May 23, 2021, after measuring the speed of a vehicle driving 

through a posted 55 miles per hour construction zone to be 88 miles per hour, a Montana 

Highway Patrol Trooper initiated a traffic stop of the vehicle, which was driven by 

Ellsworth. Ellsworth is a Montana State Senator. The vehicle lacked a registration because 

it was a dealer vehicle, so the Trooper returned to her patrol cruiser to check the vehicle’s 

VIN. While the Trooper was in the cruiser, Ellsworth exited his vehicle and approached 

the cruiser. The Trooper opened her door and gave multiple instructions to Ellsworth to 

return to his vehicle, which Ellsworth ignored, insisting he be released because he was 

enroute to the Montana Legislature. The Trooper responded that she was not arresting 

Ellsworth, and that this was a traffic stop. Ultimately, Ellsworth was charged with speeding 

in a construction zone, reckless driving, and obstructing a peace officer. On August 2, 
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2021, Ellsworth entered a guilty plea to the obstruction charge and received a one-year 

deferred sentence. An Order and Judgment was entered the same day by Justice of the 

Peace Kirk Flynn.

¶3 Sometime later, Seaborne Larson, a reporter with the IR, requested from Broadwater 

County a copy of the investigative file for Ellsworth’s case (File). Cory Swanson, 

Broadwater County Attorney, determined the File contained confidential criminal justice 

information (CCJI) and, on January 18, 2022, petitioned the District Court for a declaratory 

ruling “to clarify, declare, and enforce rights of recovery to [CCJI] contained in the 

investigative file and prosecution of Jason Ellsworth,” and requested leave to deposit the 

File under seal with the court, asking the court to conduct an in camera review. 

Contemporaneously, Swanson also filed a separate Motion for Leave to Deposit 

Investigative File Under Seal. The motion reiterated that the County had filed a declaratory 

complaint “regarding dissemination of [CCJI]” related to the “investigative file of Jason 

Ellsworth,” who the motion noted had been convicted in Broadwater County Justice Court 

of obstructing a peace officer in August 2021. The motion explained the County sought to 

“enable the Court’s in camera review of the file for possible disclosure,” that counsel for 

Ellsworth “opposes the filing of any Motion in this matter, stating that the matter is not 

ripe for filing because the deferred imposition of sentence means there is no final 

disposition in this case,” and that the IR had not yet retained counsel and thus “reserves its 

position on this motion.” Copies of the motion were sent by U.S. Mail to Ellsworth, his 
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counsel, and representatives of the IR and Montana Standard. The District Court granted 

the motion two days later, and the File was deposited with the court under seal.

¶4 On February 8, 2022, Ellsworth, through counsel David McLean, filed a brief in 

opposition to the release of the CCJI that confirmed his position on the matter as described 

in the motion by the County Attorney. Ellsworth noted he had received a conditional

one-year deferred imposition of sentence, and that “[a]s such, this case has not been 

completed,” citing § 44-5-303(5), MCA, in support. Ellsworth further argued that, 

consequently, “the Court should reject the release of any [CCJI] at this time and should 

analyze the release only upon completion of the deferred sentence.” Ellsworth’s brief 

acknowledged the need to balance the demands of individual privacy against the merits of 

public disclosure, but argued this consideration should be undertaken only after Ellsworth’s 

sentence had been served and upon further briefing.

¶5 The District Court issued its Order Following In Camera Review on March 17, 

2022. The court ruled that no prosecution was pending, Ellsworth’s criminal case had been

completed, and that § 44-5-303(5), MCA, permitted the declaratory action to now be 

brought and decided. Reasoning that “[t]he law is well-settled” and “[t]he facts of the case 

are not complex,” the District Court ruled no further briefing was necessary. The District 

Court “assume[d] that, because of his objection, Ellsworth is asserting his expectation of 

privacy,” and conducted the balancing analysis upon that assumption, beginning with a 

finding that Ellsworth had a subjective or actual expectation of privacy in the investigative 

information at issue. Considering whether society was willing to recognize this expectation 
5

as reasonable, the District Court generally concluded that “Ellsworth occupies a position 

of public trust, and that the crime to which he pled guilty directly bears upon his position. 

An expectation of privacy in the investigation of these charges is unreasonable under these 

circumstances, and his individual privacy rights do not exceed the merits of public 

disclosure.” Then, the District Court held that Ellsworth’s privacy rights outweighed the 

public’s right to know regarding certain information irrelevant to the subject charge and 

over twenty years old, and also required the redaction of other personal identification 

information.

¶6 Ellsworth appealed, and the District Court stayed its decision pending the appeal.

STANDARD OF REVIEW

¶7 “We review a district court’s conclusions of law to determine whether the court’s 

interpretation of the law is correct.” Jefferson County v. Mont. Std., 2003 MT 304, ¶ 9, 

318 Mont. 173, 79 P.3d 805. 

DISCUSSION

¶8 Did the District Court err by ordering the dissemination of redacted confidential

criminal justice information?

¶9 Ellsworth first argues that the District Court proceeding was improper because

Broadwater County’s declaratory complaint was never served on either Defendant, and 

“neither defendant filed an Answer or other responsive pleading,” referring to Ellsworth 

and the IR. Ellsworth thus argues he was denied procedural due process, including an

opportunity to brief the merits of the privacy issue. He contends the procedure “constitutes 

reversible error” and that the case should be remanded for Broadwater County to “serve 
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the Complaint and an appropriate briefing schedule should be ordered.” The IR and 

Broadwater County answer that these issues were forfeited because Ellsworth did not argue 

them before the District Court but that, in any event, the statutory process was properly 

followed, and Ellsworth appeared in the proceeding and presented briefing.

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¶10 To the extent Ellsworth’s procedural arguments to the District Court implicated the 

proper process to be followed, § 44-5-303(5)(a), MCA, governs dissemination of CCJI and 

provides:

If a prosecutor receives a written request for release of confidential criminal 

justice information relating to a criminal investigation that has been 

terminated by declination of prosecution or relating to a criminal prosecution 

that has been completed by entry of judgment, dismissal, or acquittal, or if 

the disclosure may be in the public interest, the prosecutor may file a 

declaratory judgment action with the district court pursuant to the provisions 

of the Uniform Declaratory Judgments Act, Title 27, chapter 8, for release of 

the information. The prosecutor shall:

[...]

(iii) no later than the time of the filing of the declaratory judgment action:

(A) make reasonable efforts to provide notice to a victim of the alleged 

offense and any person with a protected privacy interest in information 

contained in the confidential criminal justice information and any other 

individual who would be affected by release of the information of the request 

for release of confidential criminal justice information and the filing of the 

declaratory judgment action; and

1 Ellsworth does not argue here, as he did in the District Court, that release of the CCJI was not a 

ripe issue because his criminal proceeding, culminating in a deferred imposition of sentence, had 

not been completed at the time the CCJI declaratory action was initiated. Instead, he argues that 

because the District Court contrarily held that his criminal proceeding had been completed by that 

time, the court should have then ordered additional briefing on the merits of the privacy issue.
7

(B) provide notice that the person may file an objection to disclosure with 

the district court if the person believes a privacy interest that they possess 

exceeds the merits of public disclosure.

(Emphasis added.) “The rules of statutory construction require the language of a statute to 

be construed according to its plain meaning. If the language is clear and unambiguous, no 

further interpretation is required.” Ravalli County v. Erickson, 2004 MT 35, ¶ 11, 320 

Mont. 31, 85 P.3d 772. 

¶11 The Legislature has thus enacted a statutory procedure for dissemination of CCJI 

that incorporates a declaratory action under the Uniform Declaratory Judgments Act, but 

which also includes additional specific provisions. Section 44-5-303(5)(a)(ii), MCA, 

authorizes a prosecutor to initiate an interpleader declaratory action and requires the 

naming as a defendant “anyone known to the prosecutor who has requested the [CCJI].” 

A named defendant in a declaratory action would need to be served with process. Here, 

the party who had requested the CCJI was not Ellsworth, but the IR, who has not contested 

service.2 

2

In its Motion for Leave to Participate and to Realign Parties, filed with this Court on May 5, 

2022, the IR explained that it did not receive service of process in the proceeding and therefore 

did not participate before the District Court. The IR offered that, “[d]espite these procedural 

snafus, the IR does not seek to disturb the District Court’s ruling or waste judicial resources with 

dismissal and remand . . . . The IR simply asks this Court for the opportunity to participate in this 

appeal by filing a response brief . . . as an appellee and as the real party in interest to the CCJI 

dispute.” Ellsworth objected to the IR’s motion, arguing in his May 16, 2022, response that the 

IR “was aware of the issue” while it was pending before the District Court, and thus, “[u]nlike 

Ellsworth, the IR slept on its rights when it should have appeared.” This Court granted the IR’s 

motion and modified the caption to reflect the proper alignment of the parties, including listing the 

IR as a defendant. See Order, No. DA 22-0182, May 24, 2022. 
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¶12 Additionally, the statute requires the prosecutor to “make reasonable efforts” to 

notify specified other individuals “of the request for release of [CCJI] and the filing of the 

declaratory judgment action,” including, as relevant here, “any person with a protected 

privacy interest in information contained in the [CCJI] and any other individual who would 

be affected by release of the information,” both of which would potentially include 

Ellsworth. Section 44-5-303(5)(a)(iii)(A), MCA (emphasis added). While formal service 

of process upon these persons would certainly qualify as a “reasonable effort” at

notification, the specific provisions of the CCJI statute do not require formal service to be 

routinely effectuated upon all such persons. 

¶13 Here, after initiating the declaratory action on January 8, 2022, which generically 

named all persons with an interest in the release of the subject CCJI, the prosecutor 

undertook notification efforts that included—for purposes of this appeal, as related to

Ellsworth—contact with Ellsworth’s counsel prior to the filing of the motion for leave to 

deposit the CCJI with the District Court, which was reflected in the motion’s declaration 

that Ellsworth’s counsel opposed the motion on the ground “the matter is not ripe.” Then

the prosecutor mailed a copy of the motion, which described the contemporaneous filing 

of the declaratory action and its purpose, to Ellsworth and to Ellsworth’s counsel. Thus, 

Ellsworth was given verbal and written notification of the declaratory action. Indeed, on 

February 8, 2022, Ellsworth filed a brief making procedural arguments in opposition to 

release of the CCJI. 
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¶14 Citing Ravalli County, and Justice Warner’s concurring opinion therein, Ellsworth 

now contends he was not provided an opportunity to fully brief the release issue in the 

District Court. However, in Ravalli County, “[t]here was no briefing, no argument, and to 

paraphrase the county attorney, ‘we’ll just let the judge handle it from here.’ In other 

words, Ravalli County simply wanted an advisory opinion.” Ravalli County, ¶ 22 

(J. Warner, concurring). The circumstances here are clearly distinguishable; after 

receiving verbal and written notice of the proceeding, Ellsworth was provided a full 

opportunity to participate and did so by filing a brief raising the issues of his choice. We 

conclude the prosecutor made the requisite reasonable effort to notify Ellsworth under

§ 44-5-303(5)(a)(iii)(A), MCA, that Ellsworth was given a proper opportunity to 

participate, and that his right to due process was not infringed. 

¶15 Ellsworth next argues the District Court erred by ordering dissemination of 

Ellsworth’s CCJI “without providing appropriate procedural safeguards,” noting the limits 

on release of information discussed in Jefferson County. In answer, the Appellees contend

that Ellsworth forfeited the issue by not making this argument to the District Court. 

Broadwater County argues Ellsworth “had the opportunity to state his position regarding 

whether or not the CCJI should be released. He failed that opportunity and did not state a 

position.” The IR adds that Ellsworth “bet[] on his procedural argument” and failed to 

make a substantive objection in the District Court to release of the CCJI.

¶16 While “[w]e permit parties to bolster their preserved issues ‘or make further 

arguments within the scope of the legal theory articulated to the trial court,’ . . . we will not 
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review ‘an entirely new legal theory.” State v. Brown, 2022 MT 176, ¶ 30, 410 Mont. 38, 

517 P.3d 177 (citation omitted); see also Kostelecky v. Peas in a Pod LLC, 2022 MT 195, 

¶ 43, 410 Mont. 239, 518 P.3d 840 (“The manifest recharacterization of Kosteleckys’

breach of contract claim on appeal as a claim for compensation for unprovided services in 

February 2017 is an entirely new and unpled theory of contract liability not encompassed 

within their originally pled claim.”). Before the District Court, Ellsworth pursued a course 

of action seeking delay in consideration of the CCJI issue until his sentence had been 

served, and of requesting the District Court to exercise its discretion to permit additional 

briefing at that juncture. However, the District Court ruled that delay until the completion 

of Ellsworth’s sentence was not required, a ruling Ellsworth does not contest on appeal, 

and declined to discretionarily grant further briefing on an issue about which it described 

the law as “well settled” and the facts as “not complex.” The District Court understood 

from Ellsworth’s briefing that he objected to release, and proceeded on the assumption that 

he claimed a privacy interest, which the court balanced against the right to know. It 

concluded that release of most of the CCJI was mandated, and restricted or redacted a small 

portion thereof, thus placing parameters on the release. We conclude the District Court 

neither erred on the law nor abused its discretion in the process it undertook.

¶17 Affirmed.

/S/ JIM RICE
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We concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ DIRK M. SANDEFUR