DA 07-0500

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 287

BILLINGS GAZETTE,

 Petitioner and Appellant,

 and 

WILLIAM D’ALTON,

 Intervenor and Petitioner,

 v. 

THE STATE OF MONTANA, by and through its

COMMISSION ON PRACTICE and OFFICE OF

DISCIPLINARY COUNSEL,

 Respondents and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDV 2006-358

Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Peter Michael Meloy (argued), Meloy Law Firm, Helena, Montana

For Appellees:

Hon. Mike McGrath, Montana Attorney General, Ali N. Bovington 

(argued), Assistant Attorney General, Helena, Montana

For Amicus Curiae:

James P. Reynolds, Reynolds, Motl and Sherwood, PLLP, 

Helena, Montana (for The Reporters Committee for Freedom of the Press)

August 12 2008
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Argued and Submitted: June 25, 2008

 Decided: August 12, 2008 

Filed:

__________________________________________

Clerk
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 After attorney Moira D’Alton (D’Alton) admitted to violating various rules of 

professional conduct, she was publicly censured by this Court. However, the actions 

which constituted conduct violations remained confidential under the Rules for Lawyer 

Disciplinary Enforcement. The Billings Gazette (Gazette) sought a copy of her 

disciplinary file and the Commission on Practice (Commission) and the Office of 

Disciplinary Counsel (ODC) refused to provide it. The Gazette sued in the First Judicial 

District Court, Lewis and Clark County, and the District Court held that it did not have 

jurisdiction over the matter. The Gazette appeals. We affirm. 

ISSUE

¶2 A restatement of the dispositive issue on appeal is whether the District Court 

correctly decided it lacked subject matter jurisdiction. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Moira D’Alton was a deputy city attorney in Billings, Montana, until her 

employment was terminated in 2004. In October 2004, she began working as a

Yellowstone County public defender. D’Alton was formerly married to William 

D’Alton, the intervenor in this case. Based on an alleged domestic assault incident, Mr. 

D’Alton filed a civil suit against his former wife and the City of Billings in federal 

district court. This civil suit is unrelated to the case before us but is referenced to explain 

Mr. D’Alton’s status as intervenor. He seeks to obtain D’Alton’s disciplinary record for 

use in his federal civil action. Reference to “the Gazette” in this Opinion will incorporate

Mr. D’Alton’s claims as well.
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¶4 Complaints were filed against D’Alton with the ODC in 2003 and 2004. In 

November 2005, D’Alton filed a Conditional Admission and Affidavit of Consent with 

the Commission. The Commission conducted a private hearing for the purpose of 

obtaining information to aid in its determination as to whether to recommend approval or 

rejection of her Admission. In March 2006, the Commission recommended that this 

Court approve D’Alton’s Admission. Subsequently, we approved the Admission, 

suspended D’Alton’s law license for thirty days, and publicly censured her, placing her 

on probation for two years. We articulated the rules of professional conduct that D’Alton 

violated in our order but did not describe the specific actions that led to the censure.

¶5 In April 2006, the Gazette requested from the ODC “public documents” relating to 

D’Alton’s discipline. Citing Rules 20 and 26 of the Rules of Lawyer Disciplinary 

Enforcement (RLDE or Rules), the ODC declined to provide D’Alton’s file. Shortly 

thereafter the Gazette requested the Commission’s files on D’Alton. Citing the same 

rules, the Commission also refused. In May 2006, the Gazette filed a Petition to Obtain 

Public Documents in the First Judicial District Court. The court concluded that it did not 

have the authority to order the Commission or the ODC to release documents that are 

protected by rules promulgated by the Montana Supreme Court under its constitutional 

authority. The Gazette filed a timely appeal.

STANDARD OF REVIEW

¶6 Whether a court has subject matter jurisdiction is a question of law which we 

review for correctness. Boe v. Court Adm’r for the Mon. Jud. Branch, 2007 MT 7, ¶ 5, 

335 Mont. 228, ¶ 5, 150 P.3d 927, ¶ 5 (citation omitted). 
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DISCUSSION

¶7 Did the District Court correctly decide it lacked subject matter jurisdiction?

¶8 While the parties argued the merits of their claims to the District Court and to this 

Court on appeal, we need not reiterate those arguments as we resolve this case on 

jurisdictional grounds. This matter involves the confidentiality of lawyer disciplinary 

proceedings before the Commission and the ODC. The applicable rules, in relevant part, 

are as follows:

RULE 20. ACCESS TO DISCIPLINARY INFORMATION

A. Confidentiality. All disciplinary proceedings which are prior in 

time to the filing of a formal complaint with the Clerk of the Supreme 

Court shall be confidential, except that the pendency, subject matter, and 

status of an investigation may be disclosed by Disciplinary Counsel if:

(1) The respondent has waived confidentiality;

(2) The proceeding is based upon allegations that include either the 

conviction of a crime or reciprocal discipline;

(3) The proceeding is based upon allegations that have become 

generally known to the public; or

(4) There is a need to notify another person or organization, 

including the Lawyers Fund for Client Protection Board or the Commission 

on Character and Fitness, in order to protect the public, the administration 

of justice, or the legal profession.

Upon the filing of a formal complaint, the Commission’s entire file 

on the matter shall be subject to discovery.

RULE 26. DISCIPLINE BY CONSENT

D. Confidentiality. All tendered admission proceedings prior to 

entry of a consent discipline order shall be confidential and subject to the 

provisions of Rule 20 of these Rules.
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¶9 Additionally, the preamble to the RLDE unequivocally states that the Montana 

Supreme Court “possesses original and exclusive jurisdiction and responsibility under 

Article VII, Section 2(3), of the 1972 Montana Constitution and the provisions of Chapter 

61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all 

matters involving . . . the conduct and disciplining of [persons admitted to practice law in 

Montana].”

¶10 We addressed a similar situation in Boe, in which Boe, a longtime judicial 

assistant for the district court in Billings appealed the Yellowstone County District 

Court’s dismissal of her complaint challenging various provisions of the Montana 

Judicial Branch Personnel Plan (Plan). In anticipation of transferring all county judicial 

employees from across the State into State employees in July 2003, and at the behest of

the Montana Legislature, the Montana Supreme Court developed and adopted the Plan to 

provide for job classification, pay, recruitment and selection, performance appraisal, 

training and promotion of statewide judicial branch employees. Upon adoption and 

implementation of the Plan, all county judicial employees were transferred to the 

Montana Judicial Branch. Boe challenged the Plan, claiming, among other things, that it 

contained inequities, was capricious and violated her equal protection and due process

rights. The State, representing the Court Administrator’s office, argued that the Supreme 

Court had exclusive jurisdiction over the Plan, and therefore the district court lacked 

subject matter jurisdiction. The district court agreed and dismissed Boe’s complaint. We 

affirmed, noting that we had accepted original jurisdiction over previous petitions filed 

seeking amendments to the Plan, and that we had “exclusive jurisdiction over [the Plan] 
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and a district court [could not] invalidate, modify, or replace any or all of it.” Boe, ¶ 10. 

We further stated that Goetz v. Harrison 153 Mont. 403, 457 P.2d 911 (1969), supported 

this ruling. In Goetz, the Court unequivocally held that “no Montana district judge has 

jurisdiction to sit in the judgment of the Supreme Court of Montana.” Boe, ¶ 11.

¶11 As in the case of the Montana Judicial Branch Personnel Plan, we have exclusive 

jurisdiction over lawyer discipline and the rules on how such discipline shall be 

dispensed. Mont. Const. art. VII, § 2(3). In the current Rules, we have declared that 

certain procedures are confidential. The District Court does not have the authority to 

issue a contrary ruling. As we instructed in Boe, an original petition is necessary when 

rules or policies expressly adopted by this Court pursuant to our rule-making authority 

are subject to a direct challenge. Boe, ¶ 12. 

¶12 In Boe, we advised Boe that she could pursue her claim by filing an original 

petition in this Court. However, we cannot extend the same offer to the Gazette when it 

comes to D’Alton’s case. D’Alton tendered her Admission pursuant to a duly authorized

proceeding under our rules of disciplinary conduct. She did so in reliance upon the 

confidentiality provided for in the Rules. We cannot now declare D’Alton’s file open to 

the public. To do so would, in effect, be to revise our Rule and apply it retroactively to 

D’Alton’s disadvantage. While the constitutional provisions and statutes prohibiting ex 

post facto laws have not been applied to the attorney conduct rules adopted by this Court, 

the principles of fairness and notice associated with the prohibition nonetheless apply in 

this situation. State v. Leistiko, 256 Mont. 32, 36-37, 844 P.2d 97, 100 (1992). 

Moreover, due process requires fundamental fairness of procedure which includes notice. 
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In re B.N.Y., 2003 MT 241, ¶ 21, 317 Mont. 291, ¶ 21, 77 P.3d 189, ¶ 21; In re A.F.-C., 

2001 MT 283, ¶ 50, 307 Mont. 358, ¶ 50, 37 P.3d 724, ¶ 50. D’Alton was not put on 

notice that at some future time, under circumstances over which she had no control, her 

file could be opened to the public. To now issue such a ruling would be a violation of 

D’Alton’s entitlement to due and fair process.

CONCLUSION

¶13 For the foregoing reasons, we affirm the District Court’s order dismissing the 

Gazette’s petition on the ground that it lacked subject matter jurisdiction. 

/S/ PATRICIA COTTER

We concur: 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE