Hashing out the right to know

When a prominent Montanan politician was killed in a car accident, some news media sued for and won access to investigation files —
but that doesn’t settle the on-going battle for the Right to Know

by Clem Work

The violent death of a prominent politician is front-page news wherever it happens, but rumors that swirl in the wake of tragedy are just as predictable.

Such was the case when Montana House Majority Leader Paul Sliter, R-Somers, died in a single-car rollover on a mountain road near Helena last August 15. At 32, he was already a veteran of four legislative terms. The driver turned out to be his best friend, 27-year-old Shane Hedges, Gov. Judy Martz’ chief policy advisor, whom she regarded as “my son.” Both men were drunk.

The political wunderkinder had been on their way back down to the capital city from a GOP energy strategy meeting at a favorite mountain watering hole in nearby Marysville, an old mining town. Hedges lost control of his SUV. Sliter, who was not wearing a seatbelt, was thrown from the vehicle and killed when it rolled over him.

Although reporters were able to obtain basic information about the fatal crash in the days following, there was clearly more to the story. Hedges was unable or unwilling to recall the details, including whether he had been driving. Rumors bounced around — of cocaine use, of a drag race down the dirt road, of the governor tampering with evidence.

In the months that followed, the accident would shake the Martz administration to its foundation. But the accident would also trigger a classic joust between journalists and public officials over the public’s right to know, involving choices of strategy as crucial in their own way as the policy choices pondered at the Marysville steakhouse that fateful night.

Even after Hedges was determined to be the driver, a week after the crash, and convicted on Oct. 10 of negligent homicide after a guilty plea, Lewis and Clark County Attorney Leo Gallagher was unusually tight-lipped about the crash investigation. “Every call we made was referred to Gallagher,” recalled Kathleen McLaughlin, Lee State Bureau reporter. And Gallagher, citing a request by Sliter’s widow Elaine to keep the records confidential, wasn’t talking, even after he closed the investigation on Dec. 5.

For reporters, the need to examine the crash investigation files seemed obvious. “Given the public interest and the concerns about this tragic event, which has been fraught with rumors and hearsay, the record should be set straight,” Dave Shors, editor of the Helena Independent-Record, told McLaughlin. “The conduct of the public officials involved in the events of that evening and the days that followed is a proper matter for public scrutiny.”

For Elaine Sliter, who was soon appointed to fill Paul’s House seat, the need to maintain some confidentiality seemed equally obvious. As her lawyer explained, she didn’t want to have her baby daughter someday read the horrible details of her father’s death. The news media, however, had specifically omitted from their request any autopsy or accident-scene photos.

To resolve the issue of access, Gallagher invited the news media to sue him for the information. Under the state’s Criminal Justice Information Act, a district court could order the crash investigation files released by finding that “the demands of individual privacy do not clearly exceed the merits of public disclosure.”

And sue him they did — 11 daily and weekly newspapers in the state, led by the Independent-Record, as well as The Associated Press, the Montana Newspaper Association and the Montana Television Network, with stations in Butte, Missoula, Billings and Great Falls. The public and press, they argued, have a constitutional right to examine case files involving the conduct of public officials, particularly where the investigation is complete and there are no further charges pending.

There was one notable absence among Montana’s major news media. The Great Falls Tribune had chosen not to join in the suit because its editors and the newspaper’s lawyer wanted to make a bigger point: Not only that the press and public have a constitutional right to such documents, but that the statutory scheme that forces the public and press to sue for access to information is unconstitutional. But in order to make that bigger point, they knew the case would have to be heard and decided by the state Supreme Court, a process that might take as long as two years.

“We have a very strong constitution, and this case would have been a slam dunk,” said Jim Strauss, editor of the Tribune.

He has a case. Under Article II, Section 9 of the 1972 Constitution, called the Right to Know, “No person shall be deprived of the right to examine documents or observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases where the demand of individual privacy clearly exceeds the merits of public disclosure.”

Recent state high court opinions have made it pretty clear that when a state government official or employee is being investigated for misconduct, the public’s right to know trumps the individual’s right to keep that information secret. The Bozeman Daily Chronicle won access in 1993 to the county attorney’s files on a city police officer who resigned after an investigation of allegations that he raped a female law enforcement academy cadet while he was off-duty. “Such alleged misconduct went directly to the police officer’s breach of his position of public trust (and) therefore this conduct is a proper matter for public scrutiny,” Justice Nelson wrote for a unanimous court.

The problem, however, is that the laws controlling the release of criminal justice information are weighted heavily in favor of privacy and against access. “This blanket presumption against access ought to be challenged as unconstitutional,” says the Tribune’s lawyer, Mike Meloy of Helena, himself a former House Majority Leader. To gain access, the public or the press have to go to court to secure a right they already have. By relieving the agency holding the information of any obligation to balance documents’ public value against whatever privacy interests there are in keeping them secret, adds Meloy, many documents are unnecessarily kept secret because it’s expensive and intimidating to file a lawsuit to uncover them.

Faced with joining the lawsuit, which meant buying into the go-to-court-for-every-document scheme written into state law, the Tribune decided to sit this one out. “We thought about filing another suit, but that would have just muddied the waters,” Strauss recalled. “So we stayed on the sidelines.” For Helena lawyer Jim Reynolds, representing the news media in the suit, the Hedges case may not have promised the nirvana of constitutional clarity but it presented some pretty juicy issues nonetheless: Do survivors have a right of privacy (of information about the deceased)? Are autopsy documents public or not? Litigating the case, with the almost inevitable appeal to the state supreme court, could have provided answers — hopefully favorable — to such questions.

But this politically charged case was not fated to be the vehicle for answering such questions. The lawsuit was quickly turning into a three-way wrangle between the media, County Attorney Gallagher and lawyers for Elaine Sliter. Gallagher wanted to withhold names of witnesses at the accident scene who were not public employees, to protect their privacy. Sliter and her lawyer Mark Taylor wanted to keep out all descriptions of her husband’s fatal injuries. All the more reason for the Tribune not to step out on the dance floor. “We had no reason to negotiate with government officials, and by negotiating, we would set a precedent for further negotiations,” explained Strauss.

That wasn’t the way the news media in the lawsuit saw it. “I didn’t necessarily disagree (with the constitutional challenge),” said Chuck Johnson, chief of the Lee State Bureau. “But we wanted to get the records as soon as possible. It was important for the public to know how public officials (at the crash site) responded.” Negotiation would serve a practical purpose of getting the information to the public while it was news.

Gallagher suggested to District Judge Thomas Honzel that he cancel a hearing and sort out the competing interests himself. Instead, Honzel turned the job of editing the 400-page investigative file back to Gallagher and the other lawyers. With Gallagher wielding a yellow highlighter and Taylor a green one — to indicate words or passages they wanted to edit out — and the media lawyers, Reynolds and partner Kim Wilson, trying to reduce the green and yellow text as much as possible, the negotiations went on for nearly a month. In the end, Johnson said, “We got 99 percent of what we wanted.”

On Feb. 13, 2002, the redacted investigative file was released to the print. It was not a pretty picture. Investigators clearly were focused on suspicions that some of Hedges’ and Sliter’s drinking companions, top state officials and GOP consultants advising Gov. Martz may have lied to witnesses at the accident scene, denying that they even knew Sliter and trying to hide the fact that Hedges was involved by saying Sliter was driving solo. Some witnesses also claimed Hedges himself had said he wasn’t driving. Rumors of racing and drug use were put to rest.

The files did confirm, however, that Gov. Martz had later that morning “out of motherly concern” taken Hedges from St. Peter’s Hospital to the Governor’s Mansion before Hedges could be questioned, despite orders from the Highway Patrol to the contrary. Realizing that the files would soon be released, Martz had already admitted several weeks earlier to the astounding fact that she had laundered Hedges’ blood-stained clothes (but the question lingers whether she would have confessed, at least so soon, if the news media had mounted a drawn-out constitutional challenge instead).

The revelations were front-page news, but they weren’t enough for Gallagher. He decided not to file any criminal charges, saying there was insufficient solid evidence of wrongdoing. The men whom the witnesses indicated — Leo Giacometto, a former U.S. Marshal for Montana and a Martz cabinet-level official at the time, and two of Martz’s national political consultants, Jim Innocenzi and John Maddox — had denied any improper actions.

Editorial reaction was predictably strong. “Wednesday’s revelations call into question the integrity of (the) governor and some of her top aides,” said the Billings Gazette. “In the court of public opinion, these eyewitness charges of cover-up diminish public confidence in government.” Said the Missoulian: “However you interpret the evidence ... it contains few examples of admirable behavior on the part of any of the principals. You get a clear sense that the trauma and profound tragedy were not quite enough to make some of them forget altogether the political implications.” And for the Helena Independent-Record, the proof was in the pudding: “We just wanted to set the record straight ... It was obvious that the merits of public disclosure held sway. The public deserves — indeed, must have — the information necessary to sift fact from fancy, to finally put rumors to rest.”

The release of the fatal crash file did nothing, however, to help resolve any future access case, except to reinforce the access track record that Montana’s news media have established in recent years — and to reinforce the notion that they will have to go to court again and again for access to public documents or meetings.

At the 1972 Constitutional Convention, UM journalism professor Bob McGiffert spoke out against the Right to Know provision as drafted, because of the individual privacy loophole. He predicted that the privacy provision “could result in an endless series of costly and indecisive lawsuits.” He was outvoted, but “McGiffert was right,” said Montana Standard editor Gerry O’Brien. As of late spring, the Standard as well as other Montana news media, including the Tribune, were variously involved in litigation in three other access cases:

• In January, a district judge ruled that the Standard should be allowed to view a videotape of a DUI arrest of Beaverhead County commissioner Donna Sevalstad in February, 2001. She has appealed the ruling, arguing that she wasn’t on county business at the time, and therefore the drunk driving arrest is not the public’s business.

• The Standard is also suing Butte School District No. 1 for release of public records concerning insurance coverage of two Lexus cars owned successively by Superintendent Kate Stetzner. While the district refused to release most documents, it did release insurance rolls listing two Lexuses in the same time frame as Stetzner’s ownership and the state attorney general’s office said misdemeanor false police report charges would be filed against Stetzner.

• The Tribune is the lead plaintiff in a news media consortium that has challenged the Public Service Company’s decision to withhold details of electrical power supply deals made by NorthWestern Energy, the successor to Montana Power. Judge Honzel ordered in April that some details be made public but the news media are appealing the withheld information to the state supreme court.

In Montana, maintaining the public’s right to know will continue to depend on a vigilant press, willing to challenge secrecy in government. But for the foreseeable future, access litigation seems as sure as death and taxes.