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No. 00-015 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 291

302 Mont. 276

14 P.3d 499

STEVE PENGRA, as personal representative of the 

Estate of Tamara Pengra, deceased, and STEVEN

PENGRA, on his behalf and as guardian and 

conservator for TIFFANY PENGRA, 

Plaintiffs and Appellants, 

STATE OF MONTANA, acting through its

DEPARTMENT OF CORRECTIONS, 

Defendant and Respondent, 

and 

MONTANA LAW WEEK; and THE HELENA 

INDEPENDENT RECORD, THE ASSOCIATED PRESS, 

THE BILLINGS GAZETTE, and THE MISSOULIAN, 

Intervenors, Respondents, and

Cross-Appellant. 

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APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

Honorable Dorothy McCarter, Judge Presiding

COUNSEL OF RECORD:

For Appellants:

Richard J. Pyfer (argued), Small, Hatch, Doubek and Pyfer,

Helena, Montana

For Respondents:

P. Keith Keller (argued) and Michael R. King, Special 

Assistant Attorney General, Helena, Montana (State of Montana) 

James P. Reynolds (argued) , Reynolds, Motl & Sherwood, Helena

Montana (News organizations) 

For Cross-Appellant: 

Peter Michael Meloy (argued), Meloy and Morrison, Helena, Montana

(Montana Law Week) 

Argued: September 14, 2000 

Submitted: September 26, 2000

Decided: November 17, 2000

Filed:

__________________________________________

Clerk

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2 

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1 Steve Pengra brought this action against the State of Montana contending that the 

State's negligent acts and omissions led to the brutal rape and murder of his wife Tamara 

by a Montana prison probationer. Pengra and the State settled the suit before trial, and 

Pengra asked the court to seal the settlement agreement. Montana Law Week, the Helena

Independent Record, The Associated Press, the Billings Gazette, and the Missoulian

(collectively, "the press") were granted permission to intervene in opposition to Pengra's 

request. The First Judicial District Court, Lewis and Clark County, later denied Pengra's 

request but sealed the settlement agreement pending this appeal. We affirm that court's 

decision. 

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¶2 On appeal, Pengra argues that the District Court erred in denying his motion to seal the 

settlement agreement because (1) his daughter's and his rights to privacy protect the terms 

of the agreement; (2) the § 2-9-303, MCA, requirement that settlements of claims against 

the State must be made available for public inspection violates the personal privacy of an 

individual; and (3) the Pengras' right to privacy outweighs the public's right to know the 

terms of the settlement agreement. On cross-appeal, Montana Law Week argues that the 

court erred in denying its claim for attorney fees.

¶3 Pengra brought this action against the State of Montana on behalf of himself, the estate 

of his late wife, and their minor daughter. Tentative agreement on a settlement of the case 

was reached just five days before the scheduled start of a jury trial. At that time, the 

proprietor of Montana Law Week asked the State's attorney for a copy of the settlement 

agreement for inclusion in his publication. The information sought is the dollar amount of 

the settlement and the method of payment thereof. 

¶4 While the parties were still working out the details of the settlement, Pengra's attorney 

presented to the District Court an ex parte motion asking that the terms and conditions of 

the settlement agreement be sealed. The court set a date for hearing on the motion. Prior to 

the scheduled hearing, the press moved to be allowed to intervene, and those motions were 

granted.

¶5 In support of his motion to seal the settlement agreement, Pengra argued that disclosure 

of the terms of the agreement would be detrimental to his and his daughter's emotional 

well-being and would interfere with closure and healing for his daughter. At the hearing 

on the motion, Pengra's attorney hand-delivered to all counsel a supporting affidavit of 

Michael A. Emerson, Ph.D. However, the affidavit was neither offered into evidence nor 

filed with the court at that time. The press argued against the motion to seal, based upon 

the statement in § 2-9-303, MCA, that governmental settlement agreements are public 

records, and the public's constitutional right to know.

¶6 The following week, the District Court issued a written order denying Pengra's motion 

to seal the settlement agreement. The court concluded that there was no privacy interest in 

the amount of monetary compensation the Pengras received under the settlement and held 

that even if there was a constitutionally-protected privacy right, that right did not clearly 

outweigh the merits of public disclosure of the settlement agreement. The court denied 

Montana Law Week's request for attorney fees. Pengra appeals, and Montana Law Week 

cross-appeals.

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Issue 1

¶7 Did the District Court err in denying Pengra's motion to seal the settlement agreement 

because (1) Pengra's and his daughter's rights to privacy protect the terms of the 

agreement; (2) the § 2-9-303, MCA, requirement that settlements of claims against the 

State must be made available for public inspection violates the personal privacy of an 

individual; and (3) the Pengras' right to privacy outweighs the public's right to know the 

terms of the settlement agreement? 

¶8 We first address Pengra's contention that his daughter, as a minor, possesses elevated 

privacy rights under which the terms of the settlement agreement are protected. In general, 

minors have the same rights as do all other persons. 

Rights of persons not adults. The rights of persons under 18 years of age shall 

include, but not be limited to, all the fundamental rights of this Article unless 

specifically precluded by laws which enhance the protection of such persons. 

Art. II, § 15, Mont. Const. Thus, elevated privacy rights of a minor are not implicit in 

Montana's Constitution.

¶9 Pengra has cited a number of statutes under which the privacy rights of minors are 

accorded special, elevated protections (e.g., as to juvenile records and adoption records). 

The fact that the Legislature has enacted statutes granting minors elevated privacy rights 

in other areas shows that the Legislature knows how to express its intent to allow for 

confidentiality of proceedings involving children.

¶10 The Montana Legislature has not, however, provided for elevated privacy rights with 

regards to settlement documents for children's tort claims against the State. Section 2-9-

303, MCA, merely provides:

(2) All terms, conditions, and details of the governmental portion of a compromise 

or settlement agreement entered into or approved . . . are public records available for 

public inspection.

¶11 Pengra refers to discussion in the legislative history of § 2-9-303, MCA, regarding the 

advisability of including a provision making confidential settlements involving minor 

children. However, no such provision was enacted. Based on the absence of an elevatedfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-015%20Opinion.htm (5 of 15)3/30/2007 11:12:16 AM
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protection provision in either the Montana Constitution or the statute, we conclude that 

minors do not have a greater right to privacy than do adults in settlement agreements for 

tort claims against the State.

¶12 We next look to Pengra's belated claim that the § 2-9-303, MCA, requirement that 

settlements of claims against the State must be made available for public inspection 

violates the personal privacy of an individual and is therefore unconstitutional on its face. 

Pengra did not raise this allegation before the District Court, and it was not articulated 

before this Court until the reply brief and at oral argument. 

¶13 Rule 23(c), M.R.App.P., provides that an appellant's reply brief must be confined to 

new matter raised in the respondent's brief; thus, an appellant may not raise new issues in 

a reply brief. See Denend v. Bradford Roofing and Insulation (1985), 218 Mont. 505, 509-

10, 710 P.2d 61, 64. We will not address the merits of an issue presented for the first time 

in a reply brief on appeal. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 

506, 512, 905 P.2d 158, 162. Accordingly, we do not further consider whether § 2-9-303, 

MCA, violates the right to privacy and is thus unconstitutional on its face.

¶14 Still remaining is Pengra's as-applied challenge to the disclosure provision of § 2-9-

303, MCA: his contention that the statutory disclosure provision is superseded by his and 

his daughter's rights of individual privacy. We have recognized that statutes conflicting 

with the Montana Constitution are generally subordinate to the constitution and if possible 

must be interpreted to harmonize with it. See Engrav v. Cragun (1989), 236 Mont. 260, 

263, 769 P.2d 1224, 1226. This leads inexorably to the larger question concerning the 

conflict here presented between the constitutional right to privacy and the constitutional 

right to know. 

¶15 The two provisions at issue are found at Article II, Sections 9 and 10 of the Montana 

Constitution:

Section 9. Right to know. No person shall be deprived of the right to examine 

documents or to observe the deliberations of all public bodies or agencies of state 

government and its subdivisions, except in cases in which the demand of individual 

privacy clearly exceeds the merits of public disclosure.

Section 10. Right of privacy. The right of individual privacy is essential to the wellbeing of a free society and shall not be infringed without the showing of a 

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compelling state interest.

This Court has applied a two-step process in deciding claims in which these rights 

conflict. The process requires, first, determination of whether the person claiming the right 

of privacy has a subjective expectation of privacy and, if so, whether society is willing to 

recognize that expectation as reasonable. If both of those prerequisites are met, then the 

court must decide whether the privacy interest clearly exceeds the merits of public 

disclosure. Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962. We 

therefore proceed to weigh the Pengras' rights to privacy, insofar as they are recognized by 

society, against the public's right to know the terms of the settlement agreement. 

¶16 We are unable to identify any factual record from which the District Court could have 

found a privacy interest that would be harmed by disclosure of the settlement amount. 

While counsel apparently hand-delivered copies of the affidavit of psychologist Michael 

A. Emerson, Ph.D., to opposing counsel at the hearing before the District Court, that 

affidavit was not filed with the court until weeks after the court reached its decision. 

Because Emerson did not testify personally, no opportunity for cross-examination was 

available as to the statements made in the affidavit. And although counsel alleges that the 

affidavit was discussed at the hearing, no transcript of the hearing has been filed with this 

Court, and the District Court's written decision does not refer to the affidavit. Any 

assertion that the affidavit was part of the record is thus wholly unsupported.

¶17 Even if the affidavit were part of the record, the statements therein address only 

generally the adverse effects of publicity on the child. The statements apply to adverse 

effects from any and all public discussion of Tamara Pengra's death, including such 

discussions at the time of the crime and when Pengra filed this action. The affidavit does 

not relate specifically to adverse effects from disclosure of the settlement terms. 

¶18 The claim that the Pengras have a subjective expectation of privacy in the settlement 

amount is, moreover, discredited by the surrounding circumstances of this case. Pengra 

took no steps to keep private his lawsuit against the State, and in fact requested a jury trial 

in the District Court. Pengra's counsel admitted at oral argument before this Court that if 

the settlement amount had not been sufficient, his client would have gone forward with the 

public jury trial of this case. The District Court opined that any harm to the Pengras by 

publicity had already occurred and that there was no basis for a conclusion that disclosure 

of the amount of the settlement would cause greater harm to the Pengras than had already 

been caused by the previous disclosures of the facts of the crime. We agree. 

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¶19 As to whether society is willing to recognize the Pengras' privacy expectation as to the 

amount of their tort settlement with the State, the enactment of the disclosure requirement 

in § 2-9-303, MCA, indicates that it is not. The reasons on the other side of the balance-the 

merits of public disclosure-explain that unwillingness. 

¶20 Compelling policy reasons support disclosure of settlement amounts in tort actions 

with the State. Disclosure of such agreements provides an irreplaceable opportunity for 

taxpayers to assess the seriousness of unlawful and negligent activities of their public 

institutions. The taxpayers are entitled to know how much they must pay for such actions 

or inactions. And without muzzling the entire legislative process and all those involved in 

obtaining the appropriation to pay the claim, it appears that whatever privacy right the 

settling party has will be compromised, anyway, when the legislature appropriates the 

funds to pay the settlement.

¶21 Finally, we address the argument that it is not fair that just because a person files suit 

against the State, that person "loses his right of privacy." While this argument has some 

initial appeal, it falters upon closer examination. First, Pengra has cited no authority 

establishing a "right" to secrecy of a settlement amount. The unfortunate reality is that 

persons must take their tortfeasors as they find them- with resources to enter into 

settlements or not, and with restrictions as to disclosure of expenditures of those resources 

or not. Second, the § 2-9-303, MCA, disclosure requirements are aimed not at what the 

settling party receives, but instead at the what State government expends as a result of a 

given act or omission to act by agents of the government. The opposing party's "loss of the 

right of privacy" is only a secondary result of the disclosure provision.

¶22 On balance, we conclude that Pengra has not demonstrated that his and his daughter's 

rights to privacy clearly outweigh the public's right to know what costs the public has 

incurred in the settlement agreement with the Pengras. We affirm the District Court's 

decision denying Pengra's motion to seal the settlement agreement.

Issue 2 

¶23 Did the court err in denying Montana Law Week's claim for attorney fees?

¶24 Montana Law Week moved the District Court for an order awarding its reasonable 

attorney fees pursuant to § 2-3-221, MCA:

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A plaintiff who prevails in an action brought in district court to enforce his rights 

under Article II, section 9, of the Montana constitution may be awarded his costs 

and reasonable attorneys' fees.

We have pointed out that under this statute, an award of attorney fees is discretionary. 

Gaustad v. City of Columbus (1995), 272 Mont. 486, 488, 901 P.2d 565, 567.

¶25 This Court has on two prior occasions reviewed claims that trial courts abused their 

discretion in resolving requests for attorney fees in "right-to-know" lawsuits. In one, 

Bozeman Daily Chronicle v. City of Bozeman Police Dept. (1993), 260 Mont. 218, 859 

P.2d 435, the Court affirmed an award of fees. In the second case, Gaustad, we affirmed 

the denial of attorney fees. Neither case sets forth general standards for when attorney fees 

should be awarded under the statute. 

¶26 In the present case, Montana Law Week has prevailed in its position, which argues in 

favor of granting the request for attorney fees. However, the State has never opposed 

Montana Law Week's position. The State has not asserted a right of privacy-that right has 

instead been asserted in this case by Pengra, a private party. Failure to object to the 

asserted right is the State's sole offense. As the State points out, it was faced with a 

dilemma when Pengra filed his motion to seal the settlement: If it had disclosed the 

settlement before the hearing and Pengra had later established a right to privacy, the State 

could have been liable for damages for violating that right. In addition, on and after the 

date on which the settlement was submitted for the District Court's approval, the court 

itself treated the agreement as temporarily sealed. Disclosure after that time would have 

exposed the State to a claim that it was in contempt of court.

¶27 We hold that the District Court did not abuse its discretion in declining Montana Law 

Week's request that the State be ordered to pay Montana Law Week's attorney fees. We 

therefore affirm the court's decision on that issue. 

¶28 Having thus agreed with the District Court on both issues raised on appeal, we affirm 

that court's decision in its entirety. We remand this case with instructions that the District 

Court should dissolve its order staying disclosure of the settlement amount. 

/S/ J. A. TURNAGE

We concur: 

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/S/ KARLA M. GRAY

Justice W. William Leaphart, dissenting.

¶29 I dissent as to Issue One and would not reach Issue Two. 

¶30 The Court concludes that Pengra's facial challenge to § 2-9-303, MCA, was not 

properly raised below and is thus not ripe for appellate review. The Court reasons that 

Pengra did not raise this allegation before the District Court. In so concluding, the Court 

has elevated form over substance. 

¶31 In the District Court proceeding, Pengra filed a motion invoking the right to privacy 

and sought to seal the settlement documents. In his brief in support of the motion he 

argued that: "The legislature cannot take away a person's personal privacy interest by 

statutory edict [referring to § 2-9-303, MCA]. The Constitution of Montana protects an 

individual's privacy and makes it paramount." In response, the media invoked the clear 

disclosure requirements of § 2-9-303(2), MCA, which states: 

(2) All terms, conditions, and details of the governmental portion of a compromise or 

settlement agreement entered into or approved . . . are public records available for public 

inspection. 

¶32 Although Pengra did not recite the magic word "unconstitutional," he unequivocally 

asserted the constitutional right of privacy in the face of the above statute which abrogates 

any such right without even a pretense of balancing the competing interests. This Court 

ignores the obvious when it suggests that the District Court was not clearly presented with 

the issue of whether the statute is constitutional. 

¶33 Furthermore, in his opening brief on appeal, Pengra argues:

By not going to jury trial and receiving a public verdict these people protected their 

privacy as many citizens do under similar circumstances. At the time they entered the 

settlement negotiations or at the time they filed suit for the minor child and the father they 

presumably knew not only about the statutory requirement of disclosure. They also 

reasonably knew constitutional and statutory rights, including their important right to 

pursuing [sic] and that where a statute is unconstitutional on its face or as applied they 

can be protected. [Emphasis added.]

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¶34 It is beyond me how a court, confronted with one litigant asserting a constitutional 

privacy interest in a document, opposed by another litigant relying on a statute which 

purports to defeat that right of privacy can conclude that the constitutionality of the statute 

is somehow not at issue. Although the matter could have been more forcefully pleaded, the 

constitutionality of § 2-9-303, MCA, was clearly the crux of this dispute from the 

beginning. 

¶35 Having turned a blind eye to the facial challenge to the statute, the Court then goes on 

to address the "as-applied" challenge to § 2-9-303, MCA. The Court cites our decision in 

Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962, for the analysis to 

be employed when addressing conflicts between the Article II, Section 9, right to know, 

and the Article II, Section 10, right of privacy. In Missoulian, we enunciated a two-step 

process. First, it must be determined whether the person claiming the right of privacy has a 

subjective expectation of privacy and if so, whether society is willing to recognize that 

expectation as reasonable. Missoulian, 207 Mont. at 522, 675 P.2d at 967 (citation 

omitted). If both of these prerequisites are met, then the court must engage in a balancing 

test to determine whether the privacy interest exceeds the merits of the public disclosure. 

Having properly stated the test, the Court then "proceed[s] to weigh the Pengras' rights to 

privacy, insofar as they are recognized by society, against the public's right to know the 

terms of the settlement agreement." 

¶36 The obvious flaw in the Court's "weighing" of the competing interests in the present 

case is that the statute in question forecloses any weighing process. Section -303 does not 

state that settlement agreements with the State are public documents if the interests of 

privacy outweigh public disclosure. Rather, it establishes an absolute rule: all terms and 

details of settlement with the State "are public records available for public inspection." 

The traditional balancing test has been preempted by a legislative enactment under which 

the right to know absolutely trumps the right of privacy. 

¶37 Given the absolute statutory preference accorded the right to know, the Court's 

discussion as to the inadequacy of the factual record to support Pengra's claim to a 

subjective expectation of privacy is completely superfluous. If Pengra had produced 

fifteen witnesses with five days of testimony about his expectation of privacy it would 

make no difference. Under § -303 the settlement documents would be public documents 

irrespective of what the record demonstrates regarding Pengra's subjective expectation of 

privacy. The Court's faulting of Pengra for not timely filing the Emerson affidavit as part 

of the record and for not taking other steps to keep the lawsuit private is a complete red 

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herring. These so-called deficiencies have no relevancy to the analysis of § -303 and merit 

no further discussion. 

¶38 The fact that § -303 preempts any "balancing" of competing interests proves the very 

point that the Court has conveniently side-stepped. That is, that the statute is not just 

unconstitutional as applied. It is unconstitutional on its face. It gives an absolute 

preference to one constitutional guarantee, the right to know, to the exclusion of another, 

the right of privacy. A legislative enactment which elevates the right to know to an 

absolute rule without any consideration of the individual's right of privacy cannot pass 

constitutional muster. 

The Missoulian Analysis is Self-Defeating when applied to a Legislative Preference:

¶39 Even assuming arguendo that § -303 allowed for a balancing of interests, it makes no 

sense whatsoever to apply the two-part Missoulian construct to a legislative enactment 

which elevates one right over the other in an absolute manner. The media argues, and the 

Court agrees, that, in the face of the legislative enactment, the Pengras along with the rest 

of the public were on notice that settlements with the State are public. Thus, this Court 

holds there could be no subjective expectation of privacy. Why it is that the public's 

subjective expectation is defined by the legislative notice of § -303 to the exclusion of the 

superior constitutional notice of Article II, Section 10's right of privacy remains a mystery. 

¶40 As to the second Missoulian inquiry: whether society is willing to recognize the 

Pengras' privacy right, the media argues that, in adopting § -303, the legislature has 

spoken and plainly foreclosed any argument that society would recognize a right of 

privacy in a settlement with the State. Unfortunately the Court buys into this argument 

without considering the implications of its decision. Under the Court's present logic, the 

legislature can, by passing a statute, defeat both any subjective expectation of privacy and 

any contention that society would recognize as reasonable an expectation of privacy. 

Having negated both these propositions in one fell blow, the legislature has obviated any 

need for a judicial weighing of the competing interests under the Missoulian analysis. 

Under this Court's reasoning, the mere fact of enactment completes the constitutional 

analysis so that once the legislature speaks, the courts no longer have any role in 

scrutinizing whether the enactment comports with the Constitution.

¶41 In short, the Court has handed the Article II, Section 10, right of privacy to the 

legislature on a silver platter and said do with it what you will, it's in your hands. If, in its 

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wisdom, the legislature next passes a statute which says that all medical and tax records of 

litigants in the State court system are public records available for public inspection, so be 

it. In the face of such a statute, an individual could not expect privacy nor would society 

recognize as reasonable such an expectation. In the final analysis, the courts are rendered 

helpless bystanders, powerless to require any deference to the individual right of privacy 

as envisioned by the framers of the Constitution. 

¶42 I continue to value the public's right to know and recognize that there will be instances 

where that right will conflict with the right of privacy. I cannot, however, accept the 

Orwellian proposition that the legislature can, with no judicial balancing of the competing 

interests allowed, subordinate the rights of individuals to the rights of the public. 

¶43 I would hold that § 2-9-303, MCA, is unconstitutional on its face in that it creates an 

absolute preference for the right to know without any consideration whatsoever for the 

Pengras' constitutional right of privacy. Tiffany Pengra's loss of her mother is a personal 

tragedy of the highest order. That she is deemed to have waived her right of privacy if she 

seeks recompense for that loss is a constitutional tragedy. 

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., join in the foregoing 

dissenting opinion.

/S/ TERRY N. TRIEWEILER 

/S/ WILLIAM E. HUNT, SR.

Justice James C. Nelson specially concurs.

1. ¶I concur in our discussion and resolution of Issue 2. As to Issue 1, I concur in the 

result, and I also concur in the "balancing" approach which the Court takes in 

resolving this issue in this case.

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2. ¶Having said that, I also agree with the observation of the dissent. The plain 

language of § 2-9-303(2), MCA, precludes the very sort of balancing that the trial 

court and this Court use to resolve Issue 1. The statutory language is mandatory. All 

settlements with the State are public documents. End of story. There is no ability 

under this statute, as presently written, for judicial balancing of the constitutional 

right of individual privacy guaranteed under Article II, Section 10, and the public's 

right to know guaranteed under Article II, Section 9,--keeping in mind that the one 

constitutional limitation of the public's right to know is a demonstrated overarching 

right of individual privacy in the documents or deliberations for which access or 

disclosure are sought.

3. ¶I part company with the dissenting Justices, however, in their conclusion that this 

case should be resolved on the basis of their constitutional argument. While the 

dissent makes the argument that Pengra should have made, the fact of the matter is 

that was not Pengra's argument to the trial court nor was that his argument on appeal.

4. ¶In fact, a review of the record and Pengra's briefs on appeal show that he argued 

for the balancing approach which this Court uses to resolve Issue 1--albeit that he 

argued for the opposite result than the one we reach. It is not until page 5 of his 8-

page reply brief that Pengra raises the argument that § 2-9-303(2), MCA, may be 

unconstitutional. Even then, the two sentences he devotes to this raise an "as 

applied" challenge, rather than the "facial" challenge which, as the dissent correctly 

points out, is the true problem. Specifically, Pengra states that he is "not asking the 

Court to insert any provision into MONT. CODE ANN. § 2-9-303(2). Rather, they 

are requesting this Court to rule that the law is unconstitutional as applied to the 

facts and circumstances of this case."

5. ¶In summary, I concur in the balancing approach and disposition of Issue 1 because 

that was the way it was presented and argued to the trial court and to this Court by 

Pengra. As to whether § 2-9-303(2), MCA, is facially unconstitutional as presently 

written, that will have to be addressed in a future challenge, absent the Legislature 

amending the statute to allow the sort of balancing of Article II, Section 9, and 

Article II, Section 10 rights that, in my view, the Constitution clearly requires.

6. ¶On this basis I concur with the Court's opinion.

/S/ JAMES C. NELSON

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Justice Jim Regnier concurs in the foregoing special concurrence.

/S/ JIM REGNIER 

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