No. 03-805

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 232

CITY OF BILLINGS, 

Plaintiff and Respondent, 

v.

ROCKY T. PETERSON,

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and For the County of Yellowstone, Cause No. DC 03-438

Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jack E. Sands, Attorney at Law, Billings, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Robert Stutz,

Assistant Attorney General, Helena, Montana 

Brent Brooks, City Attorney; Moira Murphy D’Alton, Deputy,

Billings, Montana

Submitted on Briefs: April 7, 2004

 Decided: August 24, 2004

Filed:

__________________________________________

Clerk
2

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 A Billings Municipal Court jury convicted Rocky T. Peterson of the misdemeanor

offenses of careless driving and driving under the influence of alcohol. After a number of

interim procedural steps, the Thirteenth Judicial District Court, Yellowstone County,

affirmed an earlier order upholding the Municipal Court’s denial of certain pretrial motions.

Peterson appeals and we affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in affirming the Municipal Court’s determination that

an officer had particularized suspicion to stop Peterson when no recording of the hearing on

Peterson’s motion was available for review?

¶4 2. Did the District Court err in affirming the Municipal Court’s denial of Peterson’s

motion to dismiss for unnecessary delay in his initial appearance?

¶5 3. Did the District Court err in affirming the Municipal Court’s denial of Peterson’s

motion to dismiss for violation of his constitutional right to a speedy trial?

¶6 4. Did the District Court err in affirming the Municipal Court’s denial of Peterson’s

discovery request to review an officer’s personnel records?

BACKGROUND

¶7 On August 30, 2001, Billings Police Officer Shawn Finnegan issued Peterson a notice

to appear October 2, 2001, in the Billings Municipal Court on charges of careless driving and

driving under the influence of alcohol (DUI). Peterson appeared and pled not guilty. 
3

¶8 Peterson moved to dismiss, alleging Finnegan lacked particularized suspicion to stop

his vehicle. He also moved to suppress his breath test results, alleging improper

administration of his breath alcohol tests. After a hearing, the Municipal Court orally denied

the motion. 

¶9 Peterson also moved for an order requiring the City to respond to discovery requests,

one of which asked for “[t]he personnel records of the officers involved in defendant’s arrest

and in the operation of any tests given him.” After a hearing, the Municipal Court denied

the request for personnel records and granted Peterson’s other discovery requests.

¶10 The Municipal Court originally scheduled trial for December 5, 2001. The City

moved for continuances on November 27, December 11 and February 22. Peterson did not

object to the first continuance, which was due to the prosecutor’s illness. The Municipal

Court granted the second and third motions, which were based on Finnegan’s unavailability,

over Peterson’s objections. Peterson then moved to dismiss, asserting unnecessary delay in

his initial appearance and violation of his constitutional right to a speedy trial. The

Municipal Court denied the motion. On April 1, 2002, a jury convicted Peterson of both

charged offenses. 

¶11 Peterson appealed to the District Court, requesting preparation of a trial transcript and

all recorded pretrial hearings. The Municipal Court transmitted the record, including a form

identifying the tape of the pretrial hearing on Peterson’s particularized suspicion motion as

#945. The tape was not transmitted, as Peterson’s briefs to the District Court acknowledged.
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¶12 The District Court affirmed in part, determining the Municipal Court correctly denied

Peterson’s pretrial motions, but reversed on other issues and remanded for retrial. On

remand, Peterson pled guilty, reserving the right to appeal those portions of the District

Court’s earlier order affirming the Municipal Court. The District Court granted Peterson’s

request to reaffirm its earlier order for purposes of appeal to this Court. Peterson appeals.

STANDARDS OF REVIEW

¶13 The existence of particularized suspicion to justify an investigatory stop is a question

of fact determined under the totality of the circumstances. State v. Eixenberger, 2004 MT

127, ¶ 16, 321 Mont. 298, ¶ 16, 90 P.3d 453, ¶ 16 (citation omitted). A court’s finding of

particularized suspicion is reviewed under the clearly erroneous test. See State v. Nelson,

2004 MT 13, ¶ 5, 319 Mont. 250, ¶ 5, 84 P.3d 25, ¶ 5 (citation omitted). Whether an initial

appearance violated § 46-7-101(1), MCA, is a question of statutory construction, which we

review for correctness. See City of Missoula v. Lesko, 2003 MT 177, ¶ 7, 316 Mont. 401,

¶ 7, 73 P.3d 166, ¶ 7 (citation omitted). Whether a defendant’s right to a speedy trial was

violated is a question of constitutional law, which we also review for correctness. See State

v. Ray, 2003 MT 171, ¶ 12, 316 Mont. 354, ¶ 12, 71 P.3d 1247, ¶ 12 (citations omitted).

Orders granting or denying discovery are reviewed for abuse of discretion. State v. DuBray,

2003 MT 255, ¶ 103, 317 Mont. 377, ¶ 103, 77 P.3d 247, ¶ 103 (citation omitted).

DISCUSSION

¶14 1. Did the District Court err in affirming the Municipal Court’s determination

that Finnegan had particularized suspicion to stop Peterson when no recording of the

hearing on Peterson’s motion was available for review?
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¶15 In reviewing the Municipal Court’s finding of particularized suspicion, the District

Court noted the recording of the pretrial hearing was unavailable and stated it “reviewed the

record before it . . . .” The District Court relied on Finnegan’s experience in DUI

investigations, his observations of Peterson crossing a dividing line and making an improper

turn, his identification of Peterson and Peterson’s comment that he was possibly swerving.

¶16 Peterson contends the District Court could not affirm the Municipal Court in the

absence of the pretrial hearing tape. He first relies on FIRS Holding Co., Inc. v. Lemley

(1995), 272 Mont. 490, 901 P.2d 571. There, a judge amended a retired judge’s findings of

fact after a bench trial without reviewing a transcript. On appeal, we held the amending

judge committed reversible error. FIRS Holding, 272 Mont. at 492, 901 P.2d at 573. In

FIRS Holding, the amending judge essentially made new findings of fact. Here, the District

Court merely reviewed the Municipal Court’s oral decision. FIRS Holding is of no

assistance to Peterson.

¶17 Peterson next argues the District Court had “nothing to review.” In its order, the

District Court listed several facts that did not appear in the documents of record. The record

reflects the District Court did not have the tape of the particularized suspicion hearing, but

did have one or more recordings of Peterson’s proceedings. On these facts, we accept the

District Court’s repeated statements that it reviewed the record before it and that the record

reflected the evidence on which the District Court relied. The propriety of doing so is further
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buttressed in this case by Peterson’s total failure to argue, or even hint, that the pretrial

hearing tape would have shown error in any part of the District Court’s order on review.

¶18 Peterson next asserts the District Court violated “statutory mandates” by affirming

based on an incomplete record. He points to §§ 3-6-101(1), -110(1), and -302, MCA, which

provide that a municipal court must “be a court of record,” an appeal to a district court is

“confined to review of the record and questions of law,” and a municipal court clerk is

responsible for keeping records. Nothing in the statutes precludes a district court from

affirming on an incomplete record, provided the record is sufficient for review. The District

Court having determined it had a sufficient record, we conclude Peterson has not established

a violation of the statutory mandates on which he relies. 

¶19 Peterson next argues he cannot be held responsible for the municipal court clerk’s

failure to transmit a complete record. An appellant bears the burden of establishing error on

appeal, however, and a trial court’s decision is presumed correct. See State v. Aakre, 2002

MT 101, ¶ 43, 309 Mont. 403, ¶ 43, 46 P.3d 648, ¶ 43 (citation omitted). Peterson does not

assert, let alone establish, error in the Municipal Court’s finding of particularized suspicion.

Nor, as just discussed, does he contend that a complete record would have established error

by the District Court in reviewing that finding. Therefore, we conclude Peterson has not met

his burden on appeal. 

¶20 In this regard, however, the Court is increasingly alarmed about the number of cases

currently on appeal to this Court which involve incomplete, unavailable and disorderly

municipal court records. It is apparent that some municipal courts do not properly docket
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case documents or preserve recordings. When clerks of municipal courts fail to meet their

statutory obligation to maintain and provide an appropriate record on appeal, the

consequences to the parties, district courts, this Court and other litigants can be significant.

In the present case, the District Court had a sufficient record for review purposes, but the

amount of time and resources squandered by counsel and courts as a result of the clerk’s

failure to provide the entire record on appeal can never be recovered. Moreover, it is not

unlikely that crucial evidence will be lost in some future case if municipal court clerks do not

satisfy their statutory obligations. The people of Montana would not be amused to learn that

misdemeanor criminal convictions may be in jeopardy because of sloppy record-keeping by

their municipal employees.

¶21 Finally, we note the City’s reference to Rule 9(e), U.M.C.R.App., which allows an

appellant to prepare a statement of the evidence or proceedings “within 3 days from the

hearing or trial or such time extended as the municipal court may for good cause shown

permit” if a record is unavailable, as well as its argument that Peterson failed to follow this

procedure. In this regard, we observe that Rule 9(f), U.M.C.R.App., allows parties to submit

an agreed statement of the record in lieu of the record on appeal. Peterson correctly responds

that the City’s legal theory regarding Rule 9(e), U.M.C.R.App., is presented for the first time

on appeal. Consequently, and in accordance with our longstanding rule that we do not

address theories or issues raised for the first time on appeal, we do not address the City’s

argument. See, e.g., State v. May, 2004 MT 45, ¶ 15, 320 Mont. 116, ¶ 15, 86 P.3d 42, ¶ 15

(citation omitted). 
8

¶22 We hold the District Court did not err in affirming the Municipal Court’s finding of

particularized suspicion.

¶23 2. Did the District Court err in affirming the Municipal Court’s denial of

Peterson’s motion to dismiss for unnecessary delay in his initial appearance?

¶24 The Municipal Court denied Peterson’s motion to dismiss for unnecessary delay in

his initial appearance. The District Court affirmed on appeal, agreeing that a 33-day delay

would not be normal procedure for an incarcerated defendant but was acceptable for a

defendant who received a notice to appear.

¶25 Peterson asserts the delay violated § 46-7-101(1), MCA, which reads “[a] person

arrested, whether with or without a warrant, must be taken without unnecessary delay before

the nearest and most accessible judge for an initial appearance.” He contends the statute

applies to all arrested persons, whether incarcerated or not. 

¶26 The City responds that Peterson was not arrested and, therefore, the statute does not

apply. The District Court’s order states Peterson was arrested. The City did not cross-appeal

the issue of whether Peterson was arrested vis-a-vis § 46-7-101(1), MCA. Therefore, that

issue is not properly before us. See State v. Gardner, 2003 MT 338, ¶ 24, 318 Mont. 436,

¶ 24, 80 P.3d 1262, ¶ 24. Consequently, for purposes of this case, Peterson was arrested. 

¶27 Returning to Peterson’s argument, he first relies on County of Riverside v.

McLaughlin (1991), 500 U.S. 44, 56, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49, 63, in which

the United States Supreme Court stated “a jurisdiction that provides judicial determinations
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of probable cause within 48 hours of arrest will, as a general matter, comply with the

promptness requirement” of a prior case. McLaughlin has no application here. That case

involved Fourth Amendment considerations relating to “prompt” probable cause

determinations for persons arrested and detained. McLaughlin, 500 U.S. at 55-56, 111 S.Ct.

at 1669-70, 114 L.Ed.2d at 62. The present case involves neither a probable cause

determination nor a detained person.

¶28 Next, Peterson acknowledges our statement in State v. Dieziger (1982), 200 Mont.

267, 270, 650 P.2d 800, 802 (citation omitted), that the purposes of § 46-7-101, MCA, are

to enable a defendant to assist in preparing the defense and to protect a defendant from being

held incommunicado for a protracted time. He also correctly observes that the Montana

Legislature amended § 46-7-101, MCA, after Dieziger. See 1991 Mont. Laws, Ch. 800, Sec.

87. Peterson argues Dieziger is irrelevant to the present case because of the amendment, the

lack of arrest and timing of the charge in Dieziger, and the failure of the defendant in

Dieziger to file a suppression motion or put on a defense. We disagree.

¶29 Section 46-7-101, MCA, as addressed in Dieziger, provided in pertinent part that 

[a]ny person making an arrest without a warrant shall take the arrested person

without unnecessary delay before the nearest or most accessible judge in the

same county, and a complaint stating the charges against the arrested person

shall be filed forthwith.

Dieziger, 200 Mont. at 269-70, 650 P.2d at 802. The statutory language “without

unnecessary delay,” upon which Dieziger’s determination of the statute’s purposes was

based, remains unchanged in § 46-7-101, MCA, as amended. Nothing in the 1991
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amendments to § 46-7-101, MCA, impacts on the statute’s purposes as stated in Dieziger.

Moreover, factual distinctions between Dieziger and the present case do not relate to the

statute’s purposes.

¶30 Here, Peterson was not incarcerated and does not assert impairment of his defense due

to the 33-day delay in his initial appearance. Under these facts and given the purposes of §

46-7-101(1), MCA, we discern no error in the District Court’s agreement with the Municipal

Court that the delay in Peterson’s initial appearance was acceptable under the statute.

Having concluded the 33-day delay of Peterson’s initial appearance did not violate the

statutory requirement, we need not consider Peterson’s arguments regarding the appropriate

remedy for a violation of § 46-7-101(1), MCA.

¶31 We hold the District Court did not err in affirming the Municipal Court’s denial of

Peterson’s motion to dismiss for unnecessary delay in his initial appearance.

¶32 3. Did the District Court err in affirming the Municipal Court’s denial of

Peterson’s motion to dismiss for violation of his constitutional right to a speedy trial?

¶33 On August 30, 2001, Peterson received a notice to appear and Finnegan filed a

complaint against him. Peterson’s trial occurred April 1, 2002. He argues his constitutional

right to a speedy trial was violated. 

¶34 The constitutional right to a speedy trial attaches at arrest or the filing of a complaint.

Ray, ¶ 23 (citations omitted). Four factors pertain to constitutional speedy trial analysis: (1)

the length of the delay; (2) the reason for it; (3) the defendant’s assertion of the right; and

(4) the prejudice to the defense. Ray, ¶ 13 (citation omitted). In the present case, the parties
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agree that the length of the delay mandates constitutional speedy trial analysis and that

Peterson timely asserted his right to a speedy trial. It also is undisputed that Peterson carries

the burden of establishing prejudice under the fourth factor. See Ray, ¶¶ 14, 16, 24 (citations

omitted).

¶35 Peterson’s constitutional speedy trial argument focuses on prejudice to the defense.

We analyze whether prejudice exists based on the three interests speedy trials are intended

to protect: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety

and concern; and (3) avoidance of impairment of the defense. State v. Longhorn, 2002 MT

135, ¶ 33, 310 Mont. 172, ¶ 33, 49 P.3d 48, ¶ 33 (citation omitted). The weightiest interest

is avoiding impairment of the defense. Longhorn, ¶ 39 (citation omitted). Here, Peterson

was not incarcerated and does not contend his defense was impaired. He asserts, however,

that he “experienced considerable anxiety” in missing work to attend proceedings that were

rescheduled several times. 

¶36 Because anxiety and concern are inherent in being charged with an offense, the proper

analysis is the degree to which a delay of trial aggravated them. Longhorn, ¶ 38 (citation

omitted). Based on his assertion that he “experienced considerable anxiety,” Peterson

contends that “virtually no defendant, knowing that he would have to take that much time off

work and be prepared for so many fruitless hearings and trial dates, would ever be likely to

contest a misdemeanor charge.” He advances no authority under which these asserted facts

would constitute sufficient prejudice to warrant reversal, however. Rule 23(a)(4),

M.R.App.P., requires an appellant to support arguments with citations to the record and to
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relevant authorities; an appellant cannot meet the burden of establishing error absent such

citations. See State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26

(citation omitted). We conclude Peterson’s missed work, repeated court appearances, and

related anxiety--standing alone--are insufficient to constitute the prejudice necessary to

establish a violation of his constitutional right to a speedy trial.

¶37 We hold the District Court did not err in affirming the Municipal Court’s denial of

Peterson’s motion to dismiss for violation of his constitutional right to a speedy trial. 

¶38 4. Did the District Court err in affirming the Municipal Court’s denial of

Peterson’s request to review Finnegan’s personnel records?

¶39 Peterson moved for discovery of 16 items, including the personnel files of officers

involved in his case--namely, Finnegan’s file. In support of his motion, Peterson relied on

§ 46-15-322(1), MCA, United States Supreme Court cases cited for due process principles,

United States v. Henthorn (9th Cir. 1991), 931 F.2d 29, and right to know statutes. The

Municipal Court granted all of Peterson’s discovery requests except the request for

Finnegan’s personnel file, reasoning the request was not sufficiently supported to warrant

an in camera investigation of the file for exculpatory evidence. The District Court affirmed,

and Peterson asserts error. 

¶40 Pursuant to § 46-15-322(1), MCA, a prosecutor must make certain material and

information available to a defendant upon request. Peterson does not identify what language

in § 46-15-322(1), MCA, supports his request for Finnegan’s file. 
13

¶41 In State v. Romero (1996), 279 Mont. 58, 74, 926 P.2d 717, 727, this Court applied

§ 46-15-322(5), MCA, to a defendant’s request for an officer’s personnel file. Section 46-

15-322(5), MCA, provides in pertinent part that

[u]pon motion showing that the defendant has substantial need in the

preparation of the case for additional material or information not otherwise

provided for . . . the court, in its discretion, may order any person to make it

available to the defendant. 

In Romero, a defendant requested an officer’s personnel file, and the State denied his

request. The defendant did not seek to compel production, but filed a motion in limine to

preclude the officer from testifying. Romero, 279 Mont. at 73, 926 P.2d at 726. The district

court denied the motion, advising that § 46-15-322(5), MCA, required the defendant to

secure a court order compelling discovery of the personnel file. We affirmed, agreeing that

the defendant had failed to file a discovery motion. Romero, 279 Mont. at 74, 926 P.2d at

727.

¶42 Here, the District Court relied on Romero and applied § 46-15-322(5), MCA, to

Peterson’s request for Finnegan’s file. The District Court concluded Peterson had not

demonstrated “substantial need” for the file because the basis for his request was “crossexamination purposes.” 

¶43 On appeal, Peterson does not contest the applicability of § 46-15-322(5), MCA, to his

request for Finnegan’s file. Indeed, he correctly asserts he satisfied Romero’s requirement

that a defendant must file a motion for discovery of a personnel file. He contends, however,

that he could not specify how he would use the information in Finnegan’s file until he
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obtained it. This argument ignores the plain language of § 46-15-322(5), MCA, which

requires a motion demonstrating substantial need. 

¶44 Peterson further argues he should have had an opportunity to inquire about whether

Finnegan’s file contained any blemishes, because the Municipal and District Courts relied

on Finnegan’s training, experience and awards in their determinations that Finnegan was an

experienced officer who developed particularized suspicion based on his observations.

Peterson did not offer and could not have offered this justification in his original motion, as

required by § 46-15-322(5), MCA, because he filed his discovery motion more than two

months before the hearing in the Municipal Court on the particularized suspicion issue. We

conclude Peterson did not establish “substantial need” for Finnegan’s personnel file, as

required by § 46-15-322(5), MCA.

¶45 Alternatively, Peterson asserts a defendant’s constitutional right to due process is

violated when the prosecution fails to produce relevant documents that could be used to

cross-examine key government witnesses. He cites Davis v. Alaska (1974), 415 U.S. 308,

94 S.Ct. 1105, 39 L.Ed.2d 347, and Kyles v. Whitley (1995), 514 U.S. 419, 115 S.Ct. 1555,

131 L.Ed.2d 490, in support of this assertion, but neither discusses nor applies those cases

to the present case. It is not this Court’s obligation to develop parties’ arguments for them.

State v. Flowers, 2004 MT 37, ¶ 44, 320 Mont. 49, ¶ 44, 86 P.3d 3, ¶ 44 (citation omitted).

Thus, we address Davis and Kyles only briefly. 

¶46 In Davis, the United States Supreme Court held a defendant’s right to crossexamination under the Confrontation Clause was violated when a trial court issued a
15

protective order precluding defense counsel from using a juvenile’s record to impeach him

regarding his potential bias or motive in identifying the defendant as the perpetrator of a

crime. Davis, 415 U.S. at 317-18, 94 S.Ct. at 1111, 39 L.Ed.2d at 354-55. The Supreme

Court further determined the constitutional error required automatic reversal. Davis, 415

U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355. Thus, Davis did not address a due process

violation stemming from a prosecution’s failure to provide information. Nor does Peterson

assert a violation of the Confrontation Clause. Therefore, his reliance on Davis is misplaced.

¶47 Kyles addressed a habeas corpus petitioner’s argument that the prosecution violated

his right to due process by failing to provide information to the defense before his capital

murder trial. The undisclosed information included, among other things, six inconsistent

eyewitness descriptions of the murderer; license numbers taken from vehicles at the crime

scene; an informant’s inconsistent statements; and evidence linking the informant to other

crimes at the same location and to a similar, unrelated murder. Kyles, 514 U.S. at 428-29,

115 S.Ct. at 1563, 131 L.Ed.2d at 502. Applying a line of cases stemming from Brady v.

Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the Supreme Court held a due

process violation occurred because the cumulative effect of the undisclosed evidence

amounted to a reasonable probability that the result of the defendant’s trial would have been

different if the evidence had been disclosed. Kyles, 514 U.S. at 432-54, 115 S.Ct. at 1565-

75, 131 L.Ed.2d at 505-18.

¶48 Peterson does not assert a Brady violation occurred in this case. Again, this Court is

not obligated to formulate arguments on a party’s behalf. Flowers, ¶ 44. Peterson’s passing
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reference to Kyles is insufficient to raise a Brady claim or a constitutional challenge to § 46-

15-322(5), MCA. Therefore, we decline to address Kyles further. 

¶49 Peterson next advances Henthorn as authority specifically addressing discovery of law

enforcement officers’ personnel files. As with Davis and Kyles, he does not set forth any

argument regarding the application of Henthorn to the present case, but merely quotes from

it. In Henthorn, the United States Court of Appeals for the Ninth Circuit ruled that the

government must inspect a testifying officer’s personnel file upon a defendant’s request for

the file’s production, must turn over any material information from the file to the defense,

and must submit information to the trial court for an in camera review if the materiality of

the information is uncertain. Henthorn, 931 F.2d at 30-31. Under Henthorn, the defendant

is not required to “make an initial showing of materiality” in order to trigger the

government’s obligation to inspect the file. Henthorn, 931 F.2d at 31.

¶50 As noted above, Peterson does not set forth any argument regarding Henthorn’s

application and, specifically, the relationship of Henthorn and § 46-15-322(5), MCA.

Moreover, Peterson does not attempt in his reply brief to refute the City’s contention that

Henthorn is inapposite because it did not concern § 46-15-322(5), MCA, Romero superceded

it, and analysis under Montana law may differ due to the Montana Constitution’s right to

privacy. We decline to formulate arguments on Peterson’s behalf. See Flowers, ¶ 44. In

light of Peterson’s failure to present an argument, we decline to address Henthorn further.

¶51 Finally, Peterson relies on Great Falls Tribune v. Sheriff (1989), 238 Mont. 103, 775

P.2d 1267, in asserting his entitlement to Finnegan’s personnel file under the constitutional
17

right to know. In the Municipal Court, however, he based his discovery request on §§ 2-6-

102 and -104, MCA, rather than the right to know set forth in Article II, Section 9, of the

Montana Constitution and discussed in Great Falls Tribune. Section 2-6-102, MCA, entitles

citizens to inspect and copy public writings, with exceptions for constitutionally protected

materials and certain statutorily protected materials. Section 2-6-104, MCA, provides that

public records and other matters in the office of any public officer are open to public

inspection during office hours, except as provided by law. In this regard, Peterson presents

no argument regarding the application of §§ 2-6-102 and -104, MCA. Peterson’s assertion

of a violation of the constitutional right to know constitutes a change of legal theory from his

earlier reliance on right to know statutes. As stated above, we do not address changes in

legal theory on appeal. May, ¶ 15. Therefore, we decline to address Peterson’s Great Falls

Tribune argument.

¶52 We hold the District Court did not err in affirming the Municipal Court’s denial of

Peterson’s discovery request to review Finnegan’s file.

¶53 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ JIM RICE