text:
    Manuel ANTONIO RAMIREZ, Claimant, v. GARAY'S ROOFING, LLC, Respondent, and Kelly Enterprises, Inc., and Starnet Insurance Co, Appellants, and Kansas Workers Compensation Fund, Appellee.
    No. 119,948
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Michael R. Kauphusman and Ryan D. Weltz, of Wallace, Saunders, Chartered, of Overland Park, for appellants Kelly Enterprises, Inc. and Starnet Insurance Company.
    Kendra M. Oakes, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee Kansas Workers Compensation Fund.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Kelly Enterprises, Inc. (Kelly) appeals the decision of the Kansas Workers Compensation Appeals Board that Kelly was liable for the workers'-compensation benefits of an employee of a contractor it had hired. Kansas law provides this statutory liability as an employer when a party, acting as the principal, hires someone else by contract to perform "the whole or any part of the work undertaken by the principal." K.S.A. 44-503(a).

Kelly argues that it isn't responsible under this statute, but the evidence showed that Kelly regularly builds apartment buildings that it then manages and that it acts as the general contractor for those building projects. When Kelly hired a painting contractor, it hired someone else by contract to perform "part of the work undertaken by the principal." We find no error in the Board's conclusion that Kelly is liable for the workers'-compensation benefits owed to Manuel Antonio Ramirez, the employee here.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Ramirez was injured while working for Garay's Roofing & Painting, LLC. Silvino Garay, owner of Garay's, had hired Ramirez as a full-time painter to work on the construction of a new apartment complex that's now known as Kelly Reserve. Kelly had hired Garay's to help build the complex.

Kelly was a property management company. But besides managing apartment complexes, it also built them. Kelly had overseen the construction of 10 apartment complexes, acting as general contractor. Seven of the complexes belonged to independent businesses owned by members of the Kelly family. The other three were originally Kelly properties but were sold after being rented out for many years. Kelly had built all the complexes it managed.

Kelly also provided staff for Kelly properties, but its employees weren't involved in any construction work. It had several employees who did basic maintenance around Kelly properties, but those employees didn't perform tasks such as roofing or exterior painting. Instead, Kelly contracted with others to complete that work.

Kelly contracted with Garay's to roof and paint Kelly Reserve. Kelly had worked with Garay's on several properties over a time span of more than 10 years. Garay's provided Kelly with a certificate of workers'-compensation insurance because Kelly didn't pay contractors who didn't have insurance.

Kelly Reserve took about two to three years to complete. Pat Kelly, the owner of Kelly, managed the project and dealt with all the contractors. According to Pat, building apartment complexes was part of Kelly's business. He went to the construction site at least once a week to make sure the project was running smoothly.

By October 2015, Ramirez had been working on the Kelly Reserve project for about a year and a half. One day, as Ramirez was retouching a paint job, he was standing on a 24-foot ladder when the ladder started to slide backwards. Ramirez fell onto the concrete parking lot, hitting his head and breaking his left arm. An ambulance took him to the hospital, where he had surgery on his arm. He stayed in the hospital for three or four days. Silvino Garay visited Ramirez in the hospital and offered to pay for Ramirez' medical bills. He also gave Ramirez a $600 check to put toward his bills.

Ramirez ended up with $189,495.61 in medical bills. He spoke with Silvino about them a month or two after the accident. Silvino asked for a copy of the bills, and Ramirez sent them. After that, Silvino never contacted Ramirez again and wouldn't answer Ramirez' calls.

Ramirez applied for a hearing with the Division of Workers Compensation, listing Garay's as his employer. He added the Kansas Workers Compensation Fund (Fund) when Garay's turned out to be uninsured. Ramirez also amended his application, listing Kelly as his statutory employer based on K.S.A. 44-503(a).

An administrative law judge (ALJ) found Ramirez had sustained compensable injuries arising out of and in the course of his employment with Garay's. The ALJ also held Kelly was not secondarily liable as Ramirez' statutory employer. The ALJ found Kelly employees didn't do exterior painting and no evidence showed other companies like Kelly normally used their own employees to do this kind of work. The ALJ held the Fund, not Kelly, was liable for Ramirez' compensation because Garay's was uninsured.

The Fund appealed to the Board, arguing that Kelly was liable for Ramirez' compensation. The Board agreed, reversing the ALJ's decision. It noted that Pat acted as the general contractor for Kelly's projects, and he had done so for several years while constructing multiple apartment complexes. Based on this evidence, the Board held construction of apartment complexes was an inherent and integral part of Kelly's business. The Board found Kelly liable as Ramirez' statutory employer.

Kelly then appealed to our court. The Fund filed a brief as appellee. Ramirez and Garay's didn't file briefs.

ANALYSIS

On appeal, Kelly argues the Board erred in finding it was Ramirez' statutory employer. It argues that similar businesses can acquire apartment complexes by means other than constructing them, so construction was not an inherent and integral part of its business. It also contends that it relied in good faith on Garay's insurance certificate.

The Fund responds Kelly was Ramirez' statutory employer because construction was a part of its business. The Fund notes that Pat was directly involved in construction work and Pat testified that construction was a part of Kelly's business.

Standard of Review and the Law of Statutory Employers

We review the Board's final orders under the Kansas Judicial Review Act (KJRA). K.S.A. 2018 Supp. 44-556(a) ; K.S.A. 77-601 et seq. At Board hearings, claimants have the burden to prove their right to compensation. K.S.A. 2018 Supp. 44-501b(c) ; Dirshe v. Cargill Meat Solutions Corp. , 53 Kan. App. 2d 118, 119, 382 P.3d 484 (2016). On appeal, the party claiming error has the burden to prove it. K.S.A. 2018 Supp. 77-621(a)(1) ; Dirshe , 53 Kan. App. 2d at 119.

The only issue is whether Kelly is Ramirez' statutory employer, which is a question of fact. See Bright v. Cargill, Inc ., 251 Kan. 387, 401, 837 P.2d 348 (1992) (reversing summary judgment because principal's status as statutory employer presented genuine issue of material fact); Falls v. Scott , 249 Kan. 54, 64, 815 P.2d 1104 (1991) ("[G]enerally speaking, the question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts."). When reviewing factual questions, we consider whether substantial evidence supports the Board's fact-findings. K.S.A. 2018 Supp. 77-621(c)(7) ; Atkins v. Webcon , 308 Kan. 92, 96, 419 P.3d 1 (2018). Substantial evidence has both relevance and substance, and it provides a substantial factual basis from which issues can be determined. 308 Kan. at 96.

When determining whether substantial evidence supports the Board's findings, we consider the full record, including the evidence supporting those findings as well as the evidence contradicting them. We do not reweigh evidence or engage in an independent review. Williams v. Petromark Drilling , 299 Kan. 792, 795, 326 P.3d 1057 (2014). In applying substantial-evidence review when there is some evidence to support the Board's decision, we reverse only when that evidence has been so undermined by cross-examination or other evidence that it cannot support the decision. Moore v. Venture Corporation , 51 Kan. App. 2d 132, 137-38, 343 P.3d 114 (2015).

With that background, we turn to the statute under which some parties may become the employer of a worker solely for applying the Workers Compensation Act. That statute, K.S.A. 44-503(a), comes into play when the actual employer of someone, like Garay's here, doesn't have the required workers'-compensation insurance. So if someone (like Kelly) contracts with another (like Garay's) to carry out work that is "part of the principal's trade or business," that principal (here, Kelly) becomes an employer for workers'-compensation purposes:

"Where any person (in this section referred to as principal) undertakes to execute any work which is a part of the principal's trade or business or which the principal has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal , the principal shall be liable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been liable to pay if that worker had been immediately employed by the principal ; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed. For the purposes of this subsection, a worker shall not include an individual who is a self-employed subcontractor." (Emphases added.) K.S.A. 44-503(a).

These employers are known as " 'statutory employers.' " Robinett v. The Haskell Co. , 270 Kan. 95, 98, 12 P.3d 411 (2000).

When the actual employer has workers'-compensation insurance, there's no need to bring the statutory employer into the case. But K.S.A. 44-503 allows a contractor's employee to recover workers compensation benefits from either the employee's immediate employer or the principal as long as (1) the work being done by the employee is part of the principal's trade or business, the situation at issue in our case, or (2) the principal has contracted to do the work for a third party, a situation not at issue. Wheeler v. Rolling Door Co ., 33 Kan. App. 2d 787, 792, 109 P.3d 1255 (2005). This statute's purpose is to prevent employers from avoiding liability under the Act by contracting with outsiders to do work which employers have undertaken as part of their trade or business. Robinett , 270 Kan. at 98.

For the portion of the statute at issue in our case, all the statute requires is that the work being done by the employee be part of the alleged statutory employer's "trade or business" and be work undertaken at least in part by the alleged statutory employer. But in a 1966 case considering this statute, Hanna v. CRA, Inc ., 196 Kan. 156, 159-60, 409 P.2d 786 (1966), the Kansas Supreme Court added a gloss to the statute by saying that the work must be either "necessarily inherent in and an integral part of the principal's trade or business" or work that "would ordinarily have been done" by the principal's employees:

"(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? [or] (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?" 196 Kan. at 159-60.

The Hanna court said that these tests are in the alternative, and if either one is answered affirmatively, then the work being done is part of the principal's trade or business. 196 Kan. at 160.

In Bright , 251 Kan. at 399, the court clarified that the first Hanna test isn't concerned with whether the kind of work being done by the injured worker is useful or necessary to the principal's business. Instead, the test asks whether similar businesses use their own employees to do the kind of work being done or whether those businesses contract out that kind of work. The court also held, though, that "[e]ven if other similar businesses would not perform the work through employees, the particular principal may make such work 'a part of its trade or business' by its own past actions." 251 Kan. at 399.

There may be some uncertainty about the continuing viability of the interpretation of K.S.A. 44-503(a) set out in Hanna and Bright . The tests set out there seem to add language that's not found in the statute itself, and more recent Kansas Supreme Court opinions interpreting the Workers Compensation Act have emphasized that we should rely only on the statutory language. Hoesli v. Triplett, Inc. , 303 Kan. 358, 367-68, 361 P.3d 504 (2015) ; Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 610, 214 P.3d 676 (2009) ; Casco v. Armour Swift-Eckrich , 283 Kan. 508, 525, 154 P.3d 494 (2007). Of course, we follow Kansas Supreme Court caselaw unless that court has given some indication that its precedents are no longer valid. State v. Spencer Gifts , 304 Kan. 755, 767, 374 P.3d 680 (2016). That might be the case here with the Hanna test. But we need not decide that question to determine this appeal. Whether we apply only the statutory language or apply the more-stringent test from Hanna , the Board's decision is supported by substantial evidence.

Whether Kelly Was Ramirez' Statutory Employer

If we were to apply only the words in the statute, we would determine whether the work Ramirez was doing was part of Kelly's trade or business. The other parts of the statutory test are either met (Kelly hired Garay's to do work for it on a project in which Kelly served as the general contractor) or aren't at issue. In applying that simple test, it's immediately clear that it's met because building apartments is part of Kelly's business. Here's part of Pat's testimony:

"Q: And Kelly Enterprises actually engages in the building of these properties, don't they?
"A: We do oversee it, that's correct.
"Q: You're acting as a general contractor for your projects, aren't you?
"A: We are.
"Q: And so with respect to Kelly, part of its business is building apartment buildings, correct?
"A: That's correct."

So the work Ramirez was doing-part of the construction of a new apartment building-was part of Kelly's business.

To pass the Hanna test, though, the work must meet one of two additional requirements. It must either be "inherent in and an integral part of the principal's trade or business" or be something that "ordinarily" would have been done by Kelly employees. The testimony was that Kelly employees did maintenance work but not construction work, so only the first of the Hannah tests is relevant here. The question then becomes whether building apartment complexes is inherent in and an integral part of Kelly's business.

The Board said yes, and there's substantial evidence to support that conclusion. Pat testified that building apartment complexes was part of Kelly's business. The company had overseen the construction of all the complexes included with the Kelly properties. In total, the company had built 10 apartment complexes, each time acting as the general contractor. Its office manager, Nina Tobaben, testified that Kelly had 45 full-time employees, and she said that all the company's income came from rent paid by tenants of these apartments. This business thus relied on rental income, making apartments critical, and Kelly built all of the apartment buildings it managed. Kelly made the building of apartments a necessary and integral part of its business.

It's true, as Kelly argues, that no Kelly full-time employee works on apartment construction (aside from Pat's direction of the work). And it may be true that companies like Kelly wouldn't use their own employees to do the construction work, either. But that's only a part of the considerations made under the Hanna test, and the court said in Bright that "[e]ven if other similar businesses would not perform the work through employees, the particular principal may make such work 'a part of its trade or business' by its own past actions." 251 Kan. at 399. Kelly has done that here. It essentially had a division that built apartment complexes-with Kelly (through Pat) acting as the general contractor and hiring out all the other work. See 251 Kan. at 398-99. The building of these apartment complexes wasn't a small task; each project generally took a year or two to complete.

Kelly argues that it could buy apartment buildings rather than construct them, so building the apartments isn't integral to its business. And it notes that it sold three of the buildings. But Kelly needs to have apartment buildings to make money under its own business model. And it has regularly built the buildings it manages.

Kelly's final argument is that it shouldn't be liable because it acted in good-faith reliance on Garay's having workers'-compensation insurance. But there's nothing in K.S.A. 44-503(a) that provides a good-faith exception, and we will not read words into the statute that aren't there. Hoesli , 303 Kan. at 362.

We affirm the Board's decision.


source: Caselaw Access Project

author: Leben, J.:

license: Public Domain

text:
    CREDIT MANAGEMENT SERVICES, INC., Appellee, v. Aisha TAHIRKHELI, Appellant.
    No. 119,671
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Razmi M. Tahirkheli, of Tahirkheli & Premer-Chavez, L.L.C., of Liberal, for appellant.
    Dana Kay Fries, of Grand Island, Nebraska, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Leben, J.:

Aisha Tahirkheli appeals the judgment entered against her for charges incurred at Lawrence Memorial Hospital. The charges were reasonable in amount and she had authorized the treatment. She contends, however, that the hospital (or its successor) must show not only that these were reasonable charges for the services provided to her but also that the services were medically necessary.

But that's not a requirement in a case like this one, in which Tahirkheli authorized the services provided. Because there was no requirement that the hospital provide medical testimony that the treatment provided was medically necessary, the district court properly entered judgment against Tahirkheli.

With that overview, let's review how the case arose in more detail. Tahirkheli went to Lawrence Memorial Hospital five times between September 2015 and September 2016. Each time, the hospital provided services to her, and she consented to the treatment provided.

Four of the visits were to the emergency room, and extensive testing, even including magnetic resonance imaging (MRIs), was done. For the first two of those visits, Tahirkheli had applied for and been accepted into the hospital's financial-assistance program. Under that program, her bills for the first two ER visits were reduced to $50 each. (Before adjustments, the original bills were $4,984 and $10,410.)

A patient's acceptance into the hospital's financial-assistance program lasts for one year. After that, the person must reapply and again provide income information. Tahirkheli didn't reapply, so she was not in the financial-assistance program for her third and fourth ER visits or for some outpatient lab work:

• On the third ER visit, the services included intravenous infusions, and the hospital's total charge was $2,991.30. After insurance payments and adjustments, the hospital billed Tahirkheli $2,033.14.
• On the fourth DR visit, the services included lab work, and the hospital's total charge was $1,904.00. After insurance payments and adjustments, the hospital billed Tahirkheli $298.52.
• Her final visit was for outpatient lab services. The hospital's total charge was $809.00, but after insurance payments and adjustments, the hospital billed her $123.98.

The hospital sent bills to Tahirkheli at the address she had provided; none were returned as misaddressed. Nor did Tahirkheli complain to the hospital about any of the bills; she neither responded nor paid them. After three billings, the hospital's policy is to assign the bills to a collection agency, and the hospital assigned these bills to Credit Management Services, Inc. (Tahirkheli hasn't challenged that assignment.) Credit Management sued to collect the balance due, $2,564.56.

The claim was tried to the court in Douglas County. Credit Management presented only one witness, David Watson, a financial counselor for the hospital. Tahirkheli didn't present any evidence.

Watson identified the bills and explained the hospital's billing practices. He said the hospital hires consultants each year to review its prices within the regional market so that the hospital's charges can be around the market average. He said he had reviewed the bills for Tahirkheli's services and that the charges were reasonable. Watson also identified a consent form signed by Tahirkheli authorizing the hospital to provide services to her each time she incurred charges.

Tahirkheli's attorney cross-examined Watson about whether he had any understanding of the medical nature of the services provided. Watson agreed that he didn't know the reason certain tests were given or whether the specific treatment and tests provided on each date were medically necessary.

The district court found that the hospital had provided the treatment and services set out in the billing statements and that the charges were reasonable. The court entered judgment for Credit Management and against Tahirkheli for $2,564.56, the full amount sought. Tahirkheli then appealed to our court.

On appeal, Tahirkheli raises a single argument-that Credit Management didn't prove any of the treatment was medically necessary. In her appellate brief, she argues: "A very reasonable price of tea in China means nothing to a person who does not need tea .... No one would pay for tires regardless of a reasonable price[ ] if what they need is a car battery." Without evidence that the treatment was medically necessary, she claims that judgment should have been entered in her favor.

But medical necessity was never part of the legal claim Credit Management had made against Tahirkheli. While there are some cases in which a party must make that showing, that's a rule applicable in tort suits, not ones based on contract or quasi-contract like we have here. In a tort suit, such as a claim for negligence, the plaintiff claims that the defendant's negligence has caused the damages being sought. So if the damages are medical bills, the plaintiff must show that the charges were reasonable and that the treatment was necessary in response to injuries caused by the defendant's negligence. Otherwise the damages wouldn't have been caused by the defendant's negligence and couldn't be recovered on a tort claim. See Martinez v. Milburn Enterprises, Inc. , 290 Kan. 572, 589, 233 P.3d 205 (2010) ; PIK Civ. 4th 171.02 (2016).

Here, though, Credit Management's claim was one for quantum meruit, also known as a claim of unjust enrichment or as a quasi-contract claim. See Haz-Mat Response, Inc. v. Certified Waste Services Ltd. , 259 Kan. 166, Syl. ¶ 5, 910 P.2d 839 (1996). To recover, the plaintiff must show that (1) the plaintiff conferred a benefit on the defendant; (2) the defendant appreciated and knew about the benefit conferred; and (3) the defendant accepted and retained the benefit under circumstances that make that retention unjust. University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm'rs , 299 Kan. 942, 960, 327 P.3d 430 (2014) ; Haz-Mat Response , 259 Kan. 166, Syl. ¶ 6. When the plaintiff makes those showings, the plaintiff has a right to recover the reasonable value of the services or benefits provided. See Consolver v. Hotze , 306 Kan. 561, Syl. ¶ 1, 395 P.3d 405 (2017).

Now that we've reviewed the elements of a quantum meruit claim, we can see the problem with Tahirkheli's argument in this appeal: she doesn't negate any of the elements of a quantum meruit claim. Credit Management showed that the hospital had conferred a benefit on her by providing medical treatment and services; that Tahirkheli knew the benefit was being conferred and signed authorizations for it; and that she accepted the services without paying any of the out-of-pocket costs. And Watson's testimony that the charges were reasonable hasn't been challenged.

Rather than discussing the elements of a quantum meruit claim, Tahirkheli cites one Kansas Supreme Court case to support her argument, Via Christi Regional Med. Center v. Reed , 298 Kan. 503, 314 P.3d 852 (2013). But that case enforces a medical-necessity requirement because it arises in the context of a tort claim and because of specific statutory language.

The Via Christi case involved a statute, K.S.A. 65-406, that gives a hospital a lien when the hospital provides treatment to an accident victim and that victim brings a claim against someone else. That claim is almost certain to be a tort claim, so the victim will recover against the other party only if the expenses were reasonable and necessary. Appropriately, the same limitation is put on the hospital when enforcing its statutory lien-something directly set out in the statute. See K.S.A. 65-406(b) ("Such lien shall be to the amount of the reasonable and necessary charges of such hospital for the treatment ...."). Neither Via Christi nor the lien statute apply when, like here, someone goes to the hospital for services and the hospital makes a claim directly against that person.

In sum, Tahirkheli sought treatment and services from Lawrence Memorial Hospital. The hospital has a right to recover the reasonable value of the services provided. See Via Christi , 298 Kan. at 516 ; Hutchinson Hospital Corp. v. Neal , 37 Kan. App. 2d 497, 499, 154 P.3d 521 (2007). The hospital has assigned its claim to Credit Management, and the district court accepted Watson's testimony that the hospital bills were reasonable charges for the services. We affirm the district court's judgment.


author: Per Curiam:

text:
    Christopher BRITT, Appellant, v. STATE of Kansas, Appellee.
    No. 119,638
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Jessica J. Sokoloff, of Olathe, for appellant.
    Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Christopher Britt appeals the district court's dismissal of his latest request for habeas corpus relief. The court dismissed it as untimely because Britt filed for relief nearly three years after the time limit established by statute and didn't show that an extension of that deadline was necessary to prevent manifest injustice. We agree with the district court that Britt hasn't shown manifest injustice and that the district court therefore properly dismissed his claim.

Before we discuss the present claim in more detail, we will first review Britt's convictions and earlier attempts to get relief. He was convicted in a jury trial of rape, aggravated criminal sodomy, and aggravated indecent liberties for acts he committed against his then nine-year-old stepdaughter. Britt appealed the convictions, claiming prosecutorial misconduct in closing argument. But the Kansas Supreme Court affirmed his convictions. State v. Britt , 295 Kan. 1018, 287 P.3d 905 (2012).

Britt then sought habeas corpus relief. He filled out a form that can be used for this purpose and filed the claim about one week before the filing deadline. The district court then appointed an attorney to represent Britt, and the attorney filed a supplemental motion after the deadline; the attorney raised several arguments beyond what Britt had presented. The district court dismissed the additional claims as untimely and found no merit to those Britt had raised. Britt appealed, and our court chose to address the claims the attorney had raised rather than to decide the case solely on the timing of their presentation. We concluded that even if all the issues raised in the supplemental motion were considered on their merits, the outcome of Britt's trial and direct appeal wouldn't have been changed. Britt v. State , No. 112,525, 2015 WL 7693682, at *7 (Kan. App. 2015) (unpublished opinion).

Britt filed a second request for habeas relief-the one now before us-on August 29, 2016. There's a statutorily established deadline that requires habeas claims to be filed within one year of the conclusion of the initial direct appeal of a conviction. See K.S.A. 2018 Supp. 60-1507(f)(1). In Britt's case, the Kansas Supreme Court affirmed his convictions in an opinion issued November 2, 2012, and the mandate formally concluding the case was sent to the district court on November 26, 2012. So Britt's deadline had been November 26, 2013, making his August 2016 claim nearly three years too late.

That meant that Britt had to meet the manifest-injustice requirement the statute sets for extending the one-year deadline: "The time limitation ... may be extended by the court only to prevent manifest injustice." K.S.A. 2018 Supp. 60-1507(f)(2). The Kansas Legislature has also defined what is meant by "manifest injustice" in a statutory amendment that became effective before-and thus applies to-Britt's case. See White v. State , 308 Kan. 491, 502, 421 P.3d 718 (2018). Under that statutory definition,

"[f]or purposes of finding manifest injustice under this section, the court's inquiry shall be limited to determining why the prisoner failed to file the motion within the one-year time limitation or whether the prisoner makes a colorable claim of actual innocence. As used herein, the term actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence." K.S.A. 2018 Supp. 60-1507(f)(2)(A).

So we must determine (1) whether Britt has shown a good reason why he filed the claim after the one-year deadline and (2) whether he has made a colorable claim of actual innocence. Because the district court decided this case only from a review of Britt's written submission, we review these questions independently, with no required deference to the district court. See Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018).

He has made no showing at all on the first point. He doesn't explain why he waited so long to bring the claims in his second habeas filing. So that factor doesn't count in his favor.

As for a colorable claim of actual innocence, nowhere in his habeas claim or his brief on appeal does Britt claim that he didn't commit these crimes. That's not necessarily required, of course-he only needs to show that it's probable that no reasonable juror would have convicted him in light of some new evidence.

But Britt has not made a sufficient showing on that point even to justify an evidentiary hearing. The statutory test for actual innocence contemplates some "new evidence," but Britt hasn't pointed to any. Rather, his argument is that the attorney representing Britt at trial did a poor job of cross-examining the State's expert witness and a poor job of presenting competing expert-opinion evidence. In theory, such a claim might warrant an evidentiary hearing to determine whether there's a probability that, with better representation, no juror would have convicted him. An evidentiary hearing is usually required unless the court can conclusively say from review of the habeas claim and the court file that the prisoner isn't entitled to any relief. See Beauclair , 308 Kan. at 293. When considering an actual-innocence claim as the basis for the manifest-injustice exception to the one-year filing deadline, to get an evidentiary hearing Britt needed only to show a probability that any reasonable juror would have had reasonable doubt. See 308 Kan. at 301. But Britt's allegations do not meet that standard.

Aside from the suggestion that his attorney could have done a more effective job, Britt never tells us what additional information would have come to the jury's attention had that happened. Without some new information, we are left merely with the suggestion that perhaps his attorney-somehow-could have done a better job. And without knowing some new information that the jury could have considered, we see no way to conclude that a reasonable juror probably would not have convicted Britt. We therefore do not believe Britt's presentation is enough to pass through the gateway test of showing actual innocence so as to merit further review of his habeas claim. See Beauclair , 308 Kan. at 302-03 (finding mere declaration of prisoner of his innocence insufficient to obtain manifest-injustice review while affidavits from victim recanting allegations combined with prisoner's recantation of his own statements to police warranted an evidentiary hearing).

We affirm the district court's judgment.


text:
    Brian RICHARDSON, Petitioner and Appellant, v. INDEMNITY INS. CO. OF NORTH AMERICA, Respondent and Appellee.
    DA 18-0594
    Supreme Court of Montana.
    Submitted on Briefs: April 24, 2019 Decided: July 16, 2019
    For Appellant: Larry W. Jones, Wills Law Firm, P.C., Missoula, Montana
    For Appellee: Joe C. Maynard, Adrianna Potts, Crowley Fleck PLLP, Billings, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Brian Richardson filed a Petition for Hearing with the Workers' Compensation Court in July 2013, arguing that he was entitled to have Indemnity Insurance Company of North America ("Indemnity") accept his claim for workers' compensation benefits. Indemnity had denied his claim on the grounds that he had failed to provide his employer timely notice and that his claim filed almost four years after the alleged accident was untimely. The Workers' Compensation Court granted summary judgment to Indemnity, holding that Richardson had failed to give timely notice and that he had failed to timely file his claim. Richardson raises numerous issues on appeal, but we affirm on the following issue:

Whether the Workers' Compensation Court held correctly on summary judgment that Richardson had not timely filed a written claim for benefits under § 39-71-601, MCA (2005).

Given our disposition of this issue, we decline to reach the other issues Richardson raises.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On November 29, 2006, Richardson worked the graveyard shift at the Billings Clinic as a security guard for Securitas. At about 1:25 a.m., Richardson and other security guards responded to an altercation involving a psychiatric patient in the emergency department. Restraining violent patients was within the course and scope of Richardson's employment as a security guard. Afterwards, Richardson and his fellow guards noted the altercation in their Daily Activity Report as follows:

?

The first two lines in the activity column state: "STAT ED #12, Pt out of control when told by Pysch Dr. had to stay, tried fighting way out, had to restrain." Each of the remaining four lines begins with the initials of the security guards that were involved in restraining the patient. The entry regarding Richardson states: "BR = Hits = 5 (mouth upper) ribs, stomach Missed = 3." Richardson's shift supervisor wrote the description of the incident and Richardson filled in the details of where he was hit. Richardson initialed the Daily Activity Report in the lower right-hand box along with his colleagues, indicating that he reviewed the report. Richardson attested that the day after the altercation he told Ron Berglund, the site manager, that the patient's elbow had hit him in the nose. Richardson attested that Berglund told him that he did not need to fill out additional paperwork unless he was seeking medical treatment. Richardson did not file additional paperwork at that time. Richardson left Securitas for a position with another company in June 2008.

¶3 On June 17, 2008, Richardson saw Dr. Cynthia Kennedy for an evaluation of his chronic headaches and nasal obstruction. Dr. Kennedy attributed Richardson's symptoms to a nasal fracture from the 2006 incident. Richardson attested that this is the first time he had medical confirmation that a blow to his nose during work in November 2006 was the cause of his symptoms. Dr. Kennedy performed surgery on June 25, 2008. In August or September 2008, Richardson learned that his private insurance would not pay for the entire surgery, and he approached his former supervisors at Securitas about filing a workers' compensation claim. Richardson attested that Mike Anderson, the Securitas branch manager, told him it was too late to file a claim at that time.

¶4 Richardson attested that he had to stop working in September 2010 due to symptoms related to the 2006 injury to his nose. He filed a First Report of Injury with Securitas in October 2010, seeking workers' compensation benefits. His former employer's insurance, Indemnity, denied the claim due to lack of notice and untimely filing.

¶5 Richardson filed a petition for hearing with the Workers' Compensation Court in July 2013, arguing that he was entitled to acceptance of his claim. Richardson moved for summary judgment on the issues of timely notice under § 39-71-603(1), MCA (2005), and timely claim filing under § 39-71-601, MCA (2005). Indemnity filed a cross-motion for summary judgment on the ground that, because Richardson had filed his First Report of Injury nearly four years after the alleged incident, Richardson had failed to file a claim for compensation within the thirty-six-month time period prescribed by § 39-71-601, MCA (2005). The Workers' Compensation Court issued two orders in response to the motions. In its first order, the Workers' Compensation Court denied Richardson's motion regarding timely notice, explaining that there were disputed issues of material fact regarding whether Richardson was injured during the 2006 altercation and, regardless, that Richardson had failed to submit notice within thirty days of learning of his injury in 2008. In its second order, the Workers' Compensation Court denied Richardson's motion regarding timely claim filing and granted Indemnity's cross-motion on the same. The District Court explained that the Daily Activity Report was insufficient to be considered a claim under § 39-71-601(1), MCA (2005), and that Richardson filed his First Report of Injury after the statute's absolute deadline of thirty-six months from the date of the happening of the accident.

STANDARDS OF REVIEW

¶6 We review a grant of summary judgment de novo. Dvorak v. Mont. State Fund , 2013 MT 210, ¶ 15, 371 Mont. 175, 305 P.3d 873. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Dvorak , ¶ 15. We review legal conclusions for correctness. Dvorak , ¶ 15.

DISCUSSION

¶7 Whether the Workers' Compensation Court held correctly on summary judgment that Richardson had not timely filed a written claim for benefits under § 39-71-601, MCA (2005).

¶8 Richardson first argues that the Daily Activity Report was sufficient to meet the claim filing requirements of § 39-71-601, MCA (2005). He maintains, however, that if the Daily Activity Report was not sufficient then the time period for filing his claim should be tolled under the principle of equitable estoppel or because he did not have knowledge of his disability until he had to stop working in 2010.

¶9 Richardson relies on two cases to support his argument that the Daily Activity Report met the requirements for filing a claim under § 39-71-601(1), MCA (2005): Scott v. Utility Line Contractors , 226 Mont. 154, 734 P.2d 206 (1987), and Weigand v. Anderson-Meyer Drilling Co. , 232 Mont. 390, 758 P.2d 260 (1988). Richardson maintains that the Daily Activity Report provided sufficient information for Securitas to investigate a claim and prepare a defense.

¶10 Section 39-71-601(1), MCA (2005), states:

(1) Except for a claim for benefits for occupational diseases pursuant to subsections (3) and (4), all claims in the case of personal injury or death must be forever barred unless signed by the claimant or the claimant's representative and presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act on the claimant's behalf.

¶11 In Scott , the injured worker went to the emergency room for an injury to his right arm and shoulder three days after an incident at work. He had the bill and medical report sent to the Workers' Compensation Division, and the State Fund paid the bill. Several weeks later, Scott assisted his supervisor in completing the employer's first report form, but he did not file the standardized workers'

compensation claim form from the Workers' Compensation Division for the injury. The employer's first report included his name, social security number, address, date of birth, and wages; information about how the accident occurred and how he was injured; the name of a witness; the name of the physician and the place the injury was treated; and information about the employer. The State Fund alleged that Scott had failed to file a claim within one year, because he had not filed the standardized workers' compensation claim form. We held that Scott presented his claim within one year, because the report "contained ample information to clearly inform the employer and the division of the nature and basis of Mr. Scott's possible claim," and the "medical report prepared three days after the injury also gave indications that a claim could likely result out of this injury." Scott , 226 Mont. at 157, 734 P.2d at 208.

¶12 In Weigand , the injured worker injured his knee when he fell at work in 1982, requiring surgery. Weigand immediately returned to work after surgery on his knee. Weigand and his employer completed and filed the employer's first report with the insurer. Weigand's surgeon also filed a physician's first report, and the surgeon and hospital submitted their bills to the insurer, which the insurer paid. Weigand did not file the standardized workers' compensation claim form from the insurer. Weigand was unable to continue working in any of his former occupations by 1985 due to complications with his knee. The insurer denied Weigand's claim for additional benefits, arguing that he had not filed the claim within one year. The Court held that filing the standardized workers' compensation claim form was not the exclusive method for filing a claim. The Court explained that, similar to Scott , the employer's first report and the medical report from his surgeon provided the insurer with "ample information to be informed of the nature and the basis of Weigand's possible claim." Weigand , 232 Mont. at 394, 758 P.2d at 262. The Court explained that the employer and insurer had received "information in writing[,] which gave all the details that a further form" from Weigand would have given. Weigand , 232 Mont. at 394, 758 P.2d at 262. The object of the statute is "to give the employer written notice of a worker's claims within twelve months of the injury or accident in order to allow the employer to investigate the claim and if necessary prepare a defense," and that object was achieved. Weigand , 232 Mont. at 394, 758 P.2d at 262.

¶13 Scott and Weigand are readily distinguishable. Unlike the injured workers in those cases, Richardson did not seek medical care for his alleged injuries within twelve months. He and his employer did not complete or file the first report of injury with the insurer. The Daily Activity Report that Richardson and his colleagues initialed provides almost none of the information described in Scott . It does not even contain Richardson's full name or indicate that he was in fact injured in the altercation. Further, Richardson's claim is that his injury was caused by a blow to his nose, but the body parts listed after "BR = Hits = 5" does not list Richardson's nose. Though the statute does not require an injured worker to use a specific claim form, the documents provided to make a claim must "contain[ ] ample information to clearly inform the employer ... of the nature and basis of [a] possible claim." See Scott , 226 Mont. at 157, 734 P.2d at 208. The six lines of the Daily Activity Report, identifying the initials of four employees involved in the incident, contain no information indicating that anyone, including Richardson, was injured in the altercation, much less that he suffered a potential compensable injury. Securitas was not put on notice that it should "investigate the claim and if necessary prepare a defense." Weigand , 232 Mont. at 394, 758 P.2d at 262. The Daily Activity Report does not constitute a claim under § 39-71-601, MCA (2005).

¶14 Richardson argues that if the Daily Activity Report is not a written claim, then the filing period should be tolled, both under principles of equitable estoppel and because he lacked knowledge of his disability. Richardson avers that his supervisor told him the day after the altercation that he did not need to fill out workers' compensation paperwork unless he was seeking treatment, which Richardson maintains is a misstatement of law. Further, Richardson relies on Tinker v. Montana State Fund , 2009 MT 218, 351 Mont. 305, 211 P.3d 194, to argue that he did not know he was disabled until he suffered wage loss from his injury when he had to leave his job in 2010 due to his symptoms. He maintains that his First Report of Injury filed in October 2010 was timely.

¶15 Indemnity counters that Richardson's arguments fail on the merits, but that even if Richardson's claim were tolled under § 39-71-601(2), MCA (2005), his claim still was filed too late. Indemnity argues that subsection (2) extends the twelve-month filing period up to an additional twenty-four months for a maximum of thirty-six months. Richardson filed his claim in October 2010, more than thirty-six months after the accident in question. We agree.

¶16 Section 39-71-601(2), MCA (2005), states:

(2) The insurer may waive the time requirement up to an additional 24 months upon a reasonable showing by the claimant of:
(a) lack of knowledge of disability;
(b) latent injury; or
(c) equitable estoppel.

¶17 What is now § 39-71-601(1), MCA, was first enacted in 1915. See 1915 Mont. Laws ch. 96, § 10. It provided, "In case of personal injury or death, all claims shall be forever barred unless presented within six months from the date of the happening of the accident." 1915 Mont. Laws ch. 96, § 10. The only tolling the statute allowed was for mentally incompetent or minor injured workers without guardians. 1915 Mont. Laws ch. 96, § 10.

¶18 Despite the "forever barred" language of the statute, this Court first recognized an equitable estoppel exception to the limitations period in Lindblom v. Employers' Liability Assurance Corp. , 88 Mont. 488, 295 P. 1007 (1930). The version of the statute interpreted in Lindblom contained no exceptions to the statutory time limit on filing a claim other than those for the mentally incompetent or minors. This Court concluded that the Workers' Compensation Act was enacted for the benefit of the employee, but the section limiting the time within which a claim could be made was designed for the benefit of the employer. Lindblom , 88 Mont. at 498, 295 P. at 1010. The Court reasoned that the employer or insurance carrier could waive the benefit of that section through equitable estoppel. Lindblom , 88 Mont. at 498, 295 P. at 1010. Applying Lindblom , this Court explained in Ricks v. Teslow Consolidated , 162 Mont. 469, 481, 512 P.2d 1304, 1311 (1973), that "the doctrine of estoppel [applies] only where there have been affirmative acts before the statutory period has run which either prevent the claimant from filing or lead him to believe he need not do so."

¶19 That same year, the Legislature added what is now subsection (2)(a), "lack of knowledge of disability," as an exception to the one-year filing requirement, allowing "up to an additional 24 months" to file a claim. See 1973 Mont. Laws ch. 264, § 1. In Bowerman v. Employment Security Commission , 207 Mont. 314, 318-19, 673 P.2d 476, 478 (1983), this Court determined that the "lack of knowledge of disability" described in subsection (2) and its twenty-four-month extension limitation did not apply to latent injuries. The Court explained that it "would prefer a specific enactment by the legislature of a statute of limitations relating to latent injury claims." Bowerman , 207 Mont. at 319, 673 P.2d at 478. Citing this Court's decision in Johnson v. St. Patrick's Hospital , 148 Mont. 125, 417 P.2d 469 (1966), in which the Court's decision "had the effect of prodding the legislature into providing expressly for an extended period of limitations," and its duty to interpret the provisions of the Workers' Compensation Act liberally, this Court held that "in cases of latent injury, ... the time period for notice of claim does not begin to run until the claimant as a reasonable man, should recognize the nature, seriousness and probable, compensable character of his latent injury." Bowerman , 207 Mont. at 319, 673 P.2d at 479.

¶20 The Legislature did act after our decision in Bowerman . It added two more exceptions to toll the statute-latent injury and equitable estoppel-and applied the same twenty-four-month limitation it applied to lack of knowledge of disability. See 1989 Mont. Laws ch. 254, § 1. The statute in force at the time of Richardson's injury, § 39-71-601(2) MCA (2005), thus provided for "an additional 24 months upon a reasonable showing by the claimant of: (a) lack of knowledge of disability; (b) latent injury; or (c) equitable estoppel."

¶21 We must read § 39-71-601, MCA (2005), in its entirety. Subsection (1) maintains the same strong language first adopted in 1915: all claims "must be forever barred" unless filed "within 12 months from the date of the happening of the accident." Subsection (2) specifies exceptions allowing "[t]he insurer" to "waive the time requirement up to an additional 24 months upon a reasonable showing by the claimant of" one of three enumerated grounds: "(a) lack of knowledge of disability; (b) latent injury; or (c) equitable estoppel." Subsection (3) applies to claims for occupational disease and is not applicable here. Subsection (4) vests the Workers' Compensation Court with jurisdiction over "[a]ny dispute regarding the statute of limitations for filing time," thus recognizing that the parties may raise disputes of fact or law regarding the application of subsection (2)'s three exceptions.

¶22 Since Bowerman , the Legislature explicitly has provided for the filing period to be tolled for twenty-four months-not only for lack of knowledge of disability, but also for latent injuries and for equitable estoppel. Bowerman was decided in 1983; "prior to the overhaul of the workers' compensation statutes in 1986, rules of liberal construction guided the courts in interpreting [the] Workers'

Compensation Act." Hardgrove v. Transp. Ins. Co. , 2004 MT 340, ¶ 30, 324 Mont. 238, 103 P.3d 999 (Cotter, J., dissenting). We no longer liberally construe the Worker's Compensation Act in favor of the worker; rather, the act "must be construed according to its terms and not liberally in favor of any party." Section 39-71-105(5), MCA (2005). Read as a whole, the plain language of § 39-71-601, MCA (2005), allows the period of limitations to be extended no longer than twenty-four months for those three enumerated grounds-for a total limitations period of thirty-six months.

¶23 Workers' compensation law is statutory. The parameters of the law are defined by the Legislature, limited only by constitutional restraints. Over the years, the Legislature has incorporated exceptions to the twelve-month statute of limitations, but has limited tolling for the enumerated exceptions to an additional twenty-four months. We apply the statute as written.

¶24 Richardson's reliance on Tinker to argue that the limitations period is tolled until he suffered wage loss in 2010 is misplaced. The injured worker in Tinker filed his claim about two years after the accident at work occurred. Tinker , ¶ 6. Richardson filed his claim almost four years after the incident in question. This is more than the thirty-six months provided for in the statute for lack of knowledge of disability. Thus, Indemnity properly rejected coverage for his claim as "forever barred."

¶25 Richardson also challenges the Workers' Compensation Court's holding that he did not provide timely notice to Securitas. Section 39-71-603, MCA (2005), requires a worker to provide "notice of the time and place where the accident occurred and the nature of the injury" to the employer or insurer within thirty days of the incident alleged to have caused the injury. This notice requirement "is a separate and distinct statutory time requirement" from the twelve-month period of limitations to file a claim under § 39-71-601, MCA (2005). Siebken , ¶ 17. To bring a workers' compensation claim, an injured worker must comply with both §§ 39-71-601 and -603, MCA (2005). Because we hold that Richardson failed to file a timely written claim under § 39-71-601, MCA (2005), we decline to address his arguments regarding the timeliness of his notice under § 39-71-603, MCA (2005).

CONCLUSION

¶26 The orders of the Workers' Compensation Court are affirmed.

We Concur:

MIKE McGRATH, C.J.

JIM RICE, J.

INGRID GUSTAFSON, J.

LAURIE McKINNON, J.

      We apply the statutes in effect at the time the alleged injury occurred. See Siebken v. Liberty Mut. Ins. Co. , 2008 MT 353, ¶ 10, 346 Mont. 330, 195 P.3d 803.

      In his reply brief, Richardson argues that this interpretation of § 39-71-601(2), MCA (2005), treats the statute as a date-certain statute of repose. He argues that such an interpretation would constitute a violation of his constitutional right to equal protection, citing Henry v. State Compensation Insurance Fund , 1999 MT 126, 294 Mont. 449, 982 P.2d 456. However, we will not address an argument raised for the first time in a reply brief. See M. R. App. P. 12(3) ("The reply brief must be confined to new matter raised in the brief of the appellee.").


text:
    Connie CRITES, in her capacity as the Personal Representative of the Estate of John Michael Crites, Petitioner and Appellant, v. LEWIS AND CLARK COUNTY, BY AND THROUGH its COUNTY ATTORNEY, Respondent and Appellee.
    DA 18-0372
    Supreme Court of Montana.
    Submitted on Briefs: January 23, 2019 Decided: July 16, 2019
    For Appellant: Jesse C. Kodadek, Worden Thane P.C., Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Assistant Attorney General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellant Connie Crites, in her capacity as the Personal Representative of the Estate of John Michael Crites (Estate), appeals the Order of the First Judicial District Court, Lewis and Clark County, denying the Estate's Complaint and Petition (Petition) for Release of Confidential Criminal Justice Information (CCJI). We address the following issue on appeal:

Whether the District Court erred when it denied the Estate's Petition for Release of Confidential Criminal Justice Information without conducting an in camera review.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In late May 2011, John Michael Crites was sued by his neighbors Dennis Shaw, John Mehan, and Katy Wessel. Shaw, Mehan, and Wessel sought compensatory and punitive damages after Crites allegedly threatened and accosted his neighbors in their neighborhood in Lewis and Clark County (County).

¶4 On June 28, 2011, Crites was reported missing. On October 8, 2011, Crites's dismembered remains were found in black plastic trash bags near MacDonald Pass. Crites's skull was later found on the west side of MacDonald Pass. To date, nobody has been charged with Crites's murder.

¶5 On March 27, 2012, the County issued a death certificate for Crites. On April 19, 2012, Crites's sister, Connie Crites, was appointed personal representative of his Estate. On January 9, 2018, the Estate requested that the County release Crites's investigative file for the purposes of defending itself in the ongoing lawsuit and to pursue a civil wrongful death action. On January 19, 2018, the County responded to the Estate's request with a letter from County Attorney Leo Gallagher that it could not release Crites's investigative file because release "would jeopardize the State's ability to prosecute someone for the homicide and the investigation is ongoing."

¶6 On March 9, 2018, the Estate filed a Petition in District Court, seeking release of the investigative file. The Estate requested, pursuant to § 44-5-303, MCA, the Uniform Declaratory Judgment Act, and Article II, Section 9 of the Montana Constitution that the District Court conduct an in camera review of the CCJI associated with Crites's file and to release information under seal that is relevant to the Estate's claims and defenses in the ongoing lawsuit. The County opposed the Estate's request and argued that releasing CCJI to the Estate would compromise its investigation. In its response, the County submitted an affidavit from Detective Dan O'Malley that stated the Crites homicide investigation was active and ongoing. The affidavit further specified that the investigative file contained: ninety-five reports regarding Crites's homicide investigation, totaling over 1000 pages of documents; at least twenty search warrants; thousands of phone records; multiple reports from the Montana State Crime Lab; digital evidence, including audio recordings and photographs; and interviews of dozens of people.

¶7 On June 19, 2018, the District Court denied the Estate's Petition. The District Court determined that § 44-5-303, MCA, does not allow for the release of CCJI if the prosecutor determines dissemination would jeopardize an active investigation. Consequently, the District Court declined to conduct an in camera review of the CCJI contained in Crites's investigative file.

STANDARD OF REVIEW

¶8 We review a district court's conclusions of law to determine whether the district court's interpretation of the law is correct. Billings Gazette v. City of Billings , 2013 MT 334, ¶ 10, 372 Mont. 409, 313 P.3d 129 (citing Jefferson County v. Mont. Stand. , 2003 MT 304, ¶ 9, 318 Mont. 173, 79 P.3d 805 ). This Court "exercises plenary review over matters of constitutional interpretation." Nelson v. City of Billings , 2018 MT 36, ¶ 8, 390 Mont. 290, 412 P.3d 1058 (citing Cross v. VanDyke , 2014 MT 193, ¶ 5, 375 Mont. 535, 332 P.3d 215 ).

DISCUSSION

¶9 Whether the District Court erred when it denied the Estate's Petition for Release of Confidential Criminal Justice Information without conducting an in camera review.

¶10 The Montana Criminal Justice Information Act of 1979 (Act) sets forth the criteria that a district court employs when considering a motion for release of CCJI. See § 44-5-303, MCA. CCJI may be disseminated only: (1) to another criminal justice agency; (2) to "those authorized by law to receive it"; and (3) to those a district court authorizes to receive it "upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure." Section 44-5-303(1), MCA. CCJI includes criminal justice information, records made confidential by law, and any other criminal justice information not clearly defined as public criminal justice information. Section 44-5-103(3), MCA. The Act allows for any individual or an organization to file an action for dissemination of CCJI that the individual or organization considers "appropriate and permissible." Section 44-5-303(6), MCA.

¶11 Section 44-5-303(2), MCA, grants an exception to the general dissemination provision contained in § 44-5-303(1), MCA. Section 44-5-303(2), MCA, provides: "If the prosecutor determines that dissemination of [CCJI] would not jeopardize a pending investigation ... the information may be disseminated to a victim of the offense by the prosecutor or by the investigating law enforcement agency after consultation with the prosecutor."

¶12 When conducting an in camera review of CCJI, a district court is required to balance the conflict between the "right to know" and the "right to privacy" to determine whether dissemination of CCJI is warranted. Mont Const. art. II, §§ 9, 10 ; § 44-5-303(1), MCA; see also Mont. State Fund v . Simms , 2012 MT 22, ¶ 21, 364 Mont. 14, 270 P.3d 64 ; Lincoln Cty. Comm'n v. Nixon , 1998 MT 298, ¶¶ 26-28, 292 Mont. 43, 968 P.2d 1141 ; Bozeman Daily Chronicle v. City of Bozeman , 260 Mont. 218, 229, 859 P.2d 435, 442 (1993).

¶13 The party requesting CCJI must make an initial showing in its petition that it is authorized by law to receive the sought-after material. Bozeman Daily Chronicle , 260 Mont. at 224, 859 P.2d at 439 (citing In re Lacy , 239 Mont. 321, 325-26, 780 P.2d 186, 188-89 (1989) ). If the requesting party makes that initial showing, the burden then shifts to the State to demonstrate that the requested CCJI should not be released because the rights of individual privacy outweigh the merits of public disclosure. Bozeman Daily Chronicle , 260 Mont. at 227, 859 P.2d at 441 (citing In re Lacy , 239 Mont. at 325-26, 780 P.2d at 188-89 ). After conducting an in camera review of the CCJI sought, the district court may authorize release of appropriate portions of the requested CCJI. Section 44-5-303(1), MCA ; Bozeman Daily Chronicle , 260 Mont. at 229, 859 P.2d at 442.

¶14 The Estate filed a petition arguing it was entitled to the CCJI in Crites's investigative file under Article II, Section 9 of the Montana Constitution and as a person seeking dissemination pursuant to § 44-5-303(6), MCA. The County responded to the Estate's request with a letter indicating that the County believed release of CCJI related to the Crites investigation would jeopardize its investigation. The County submitted an affidavit in its response to the Estate's Petition that demonstrated Crites's investigative file was extensive.

¶15 Based on the County's assertion that release of the information would jeopardize an ongoing investigation, the District Court concluded that § 44-5-303, MCA, did not allow the Court to release the information. In its Order on Release of Confidential Criminal Justice Information, the District Court interpreted § 44-5-303(2), MCA, to provide that "[i]f either the Court's analysis favors privacy or if the prosecutor determines that the dissemination would jeopardize the investigation, the statute does not allow the information to be released." (Emphasis in original.) The District Court thus concluded that since the prosecutor had determined that release of the information would jeopardize the investigation, it "need not reach the analysis of balancing the merits of privacy and disclosure ...."

¶16 The District Court's conclusion that § 44-5-303(2), MCA, prohibited it from releasing CCJI over a prosecutor's determination that dissemination would jeopardize an ongoing investigation is incorrect. Section 44-5-303(2), MCA, allows a prosecutor to disseminate CCJI to the victim of an offense without obtaining the district court authorization that would otherwise be required by § 44-5-303(1), MCA, if the prosecutor determines that dissemination would not jeopardize a pending investigation or other criminal proceeding. Section 44-5-303(2), MCA, acts as an exception to the restrictions regarding the dissemination of CCJI set forth at § 44-5-303(1), MCA.

Section 44-5-303(2), MCA, does not allow the prosecutor to supersede the district court's decision to allow for CCJI dissemination when the requesting party is a victim. Such an interpretation of the statute would lead to the incongruous result in which any person or organization could conceivably obtain CCJI via district court order pursuant to § 44-5-303(1), MCA, but § 44-5-303(2), MCA, could deprive a crime victim of the same right, if the prosecutor asserted that dissemination would jeopardize a pending investigation.

¶17 Although the District Court incorrectly concluded that § 44-5-303(2), MCA, prohibited it from releasing CCJI over the prosecutor's determination that dissemination would jeopardize an ongoing investigation, our analysis does not end there. We have not previously considered whether the presence of an active criminal investigation negates the requirement of an in camera review, or the need to conduct the balancing test between the "right to know" and the "right to privacy," called for in § 44-5-303, MCA. Article II, Section 9 of the Montana Constitution provides: "No person shall be deprived of the right to examine documents ... 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." However, the "right to know" is not an absolute right, and it must be weighed against the demands of individual privacy. Lincoln Cty. Comm'n , ¶ 15 (quoting Mont. Const. art. II, § 10 ) (" '[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. ...' "); Bozeman Daily Chronicle , 260 Mont. at 228, 859 P.2d at 441 ; Engrav v. Cragun , 236 Mont. 260, 262-63, 769 P.2d 1224, 1125-26 (1989). Moreover, as we recently observed in Nelson v. City of Billings , the right to know is "subject to interpretation and considered together with other constitutional rights and existing laws." Nelson , ¶ 19 (citing Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1679).

¶18 The intent of the Framers controls this Court's interpretation of a constitutional provision, such as the "right to know." Nelson , ¶ 14 (citing Cross , ¶ 10 ; Butte-Silver Bow Local Gov't v. State , 235 Mont. 398, 403, 768 P.2d 327, 330 (1989) ; Keller v. Smith , 170 Mont. 399, 405, 553 P.2d 1002, 1006 (1976) ). We generally discern the Framers' intent from the plain meaning of the language used and may only resort to extrinsic aids if the express language is vague or ambiguous. Nelson , ¶ 14 (citing Cross , ¶¶ 10, 21-28 ; State ex rel. Racicot v. Dist. Ct. of the First Jud. Dist. , 243 Mont. 379, 386-88, 794 P.2d 1180, 1184-86 (1990) ;

Butte-Silver Bow Local Gov't , 235 Mont. at 403-05, 768 P.2d at 330-31 ; Keller , 170 Mont. at 404-09, 553 P.2d at 1006-08 ). We have previously held that the language of Article II, Section 9 is "unique, clear, unambiguous, and speaks for itself ...." Nelson , ¶ 12 (citations omitted). However, even in the face of clear and unambiguous language, we have held that that we must additionally determine constitutional intent "in light of the historical and surrounding circumstances under which the Framers drafted the Constitution, the nature of the subject matter they faced, and the objective they sought to achieve." Nelson , ¶ 14 (citations omitted).

¶19 We have held that Article II, Section 9 creates " 'a constitutional presumption that every document within the possession of public officials is subject to inspection.' " Nelson , ¶ 17 (quoting Bryan v. Yellowstone Cty. Elem. Sch. Dist. No. 2 , 2002 MT 264, ¶ 39, 312 Mont. 257, 60 P.3d 381 ). But in crafting the "right to know," the Framers recognized that Article II, Section 9 may yield to countervailing societal interests-beyond the right to individual privacy-that were recognized at the time the Montana Constitution was adopted. See Nelson , ¶¶ 18-20 (citing Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1679). Such interests include those " 'necessary for the integrity of government.' " Nelson , ¶ 20 (quoting Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1678).

¶20 One specific interest the Framers considered as "necessary for the integrity of government" was that " 'all rights have to be balanced against a police power.' " Nelson , ¶¶ 19-20 (quoting Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1678-79); see also Nelson , ¶ 55 (McKinnon, J., concurring) ("special exceptions [to Article II, Section 9 ] are made to accommodate the exercise of constitutional police power and other competing constitutional interests....") (internal citations omitted). Pertinent to the issue before us, the Framers explicitly considered how the "right to know" would apply to the protection of CCJI. See Nelson , ¶ 19 (quoting Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1679). The Framers' deliberations on CCJI and "the right to know" indicate that they did not intend for the drafting of Article II, Section 9 "to abolish, supersede, or alter preexisting legal privileges applicable to government proceedings and documents." Nelson , ¶¶ 20-22 (citing Montana Constitutional Convention, Verbatim Transcript, March 7, 16, 1972, pp. 1673-74, 1677-80, 2494-2500).

¶21 In that vein, we have previously observed in our application of § 44-5-303, MCA, that "[p]ublic exposure of law enforcement files relating to ongoing criminal investigations would ... have a disastrous effect upon law enforcement agencies in the performance of their duty ...." Engrav , 236 Mont. at 264, 769 P.2d at 1227 (emphasis added). We reaffirmed this concern in Bozeman Daily Chronicle v. City of Bozeman . Bozeman Daily Chronicle , 260 Mont. at 228, 859 P.2d at 441 (citing Engrav , 236 Mont. at 264, 769 P.2d at 1227 ) ("[w]hile not directly related to privacy concerns, we also pointed out in Engrav that public exposure of law enforcement files relating to ongoing criminal investigations would have a disastrous effect upon law enforcement agencies in the performance of their duty ....").

¶22 The Estate argues that whenever a request for CCJI is made, a district court must conduct an in camera review of the information sought, and balance the right to know against the right to individual privacy. Section 44-5-303(5), MCA, is the only subsection that expressly provides for a district court to conduct an in camera review after a request has been made for CCJI. The Estate acknowledges that § 44-5-303(5), MCA, is inapplicable here because it applies only to a request "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 ...." Although the Estate has expressed understandable frustration that charges have not been filed against anyone for Crites's murder, it does not contend that the criminal investigation has been terminated. The Estate requests release of the CCJI pursuant to § 44-5-303(6), MCA, and contends that "when a private citizen or an entity files a petition under § 44-5-303(6), MCA, a district court is required to conduct an in camera review of the information ...." (Emphasis added.) We disagree.

¶23 An in camera review of CCJI sought pursuant to § 44-5-303(6), MCA, may often be appropriate; however, neither the plain language of § 44-5-303(6), MCA, nor our interpretation of it, has ever "required" an in camera review. While § 44-5-303(5), MCA, expressly provides for an in camera review for CCJI relating to a criminal investigation that has been terminated, § 44-5-303(6), MCA, provides an alternative to the procedures set forth in § 44-5-303(5), MCA. Nothing in the language of § 44-5-303(6), MCA, suggests that courts superimpose the procedures of § 44-5-303(5), MCA, upon a request made pursuant to § 44-5-303(6), MCA, and we decline to do so here.

¶24 By the same token, § 44-5-303(6), MCA, does not prohibit an in camera review and, indeed, such a review may well be indicated given the circumstances of a particular case. Thus, the issue here is whether the circumstances of this particular case warranted an in camera review before the District Court declined to order production of the requested CCJI.

¶25 Although the District Court in this case incorrectly relied upon § 44-5-303(2), MCA, for its conclusion that it was prohibited from releasing the CCJI over the prosecutor's determination that dissemination would jeopardize the ongoing investigation, it was entirely correct, and indeed necessary, for the District Court to consider the prosecutor's assertion to that effect, which was supported by an affidavit from the detective assigned to the case. Such consideration is consistent with both the Framers' intent that "all rights have to be balanced against a police power," Nelson , ¶ 19, and our concern that "public exposure of law enforcement files relating to ongoing criminal investigations would have a disastrous effect upon law enforcement agencies in the performance of their duty," Bozeman Daily Chronicle , 260 Mont. at 228, 859 P.2d at 441.

¶26 The circumstances of the present case do not demonstrate that the District Court erred in declining the Estate's request for an in camera review before denying its application for the CCJI. The record before us supports the County's determination in its letter to the Estate, and in Detective O'Malley's affidavit, that dissemination of the CCJI contained in Crites's investigative file would jeopardize its murder investigation. The County's affidavit specifically illustrates the vast nature of Crites's investigative file, the substantial amount of time needed to conduct a review of the file, and that the County is actively investigating Crites's murder.

Crites's murder occurred in 2011. Though eight years is a noteworthy length of time, there is no statute of limitations on homicide, and the Estate does not dispute that the investigation is ongoing.

¶27 "Because the judiciary has authority over the interpretation of the Constitution, it is the courts' duty to balance the competing rights at issue in order to determine what, if any information, should be given to a party requesting information from the government." In re Lacy , 239 Mont. at 326, 780 P.2d at 389. Irrespective of whether or not a prosecutor asserts that dissemination of CCJI would jeopardize a criminal investigation, a district court always retains the authority to conduct an in camera review, and to determine what, if any, information should be released to the requesting party. Notwithstanding its mistaken conclusion to the contrary, however, the District Court correctly agreed with the County's assertion that dissemination threatened the County's active investigation in its Order. We will not reverse where the district court reached the correct result, albeit for the wrong reason. State v. Ellison , 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citation omitted). The Estate's interest in the CCJI contained in Crites's investigative file must yield to the State's police power to conduct investigations in this instance, which includes the County protecting CCJI of its active investigation into Crites's murder. See Nelson , ¶¶ 18-20 ; Bozeman Daily Chronicle , 260 Mont. at 228, 859 P.2d at 441 ; Engrav , 236 Mont. at 264, 769 P.2d at 1227. The District Court did not err in denying the Estate's Petition. See Billings Gazette , ¶ 10 ; Jefferson County , ¶ 9.

CONCLUSION

¶28 The District Court did not err in denying the release of CCJI from Crites's active investigation file to the Estate. We affirm.

We Concur:

MIKE McGRATH, C.J.

JIM RICE, J.

BETH BAKER, J.

LAURIE McKINNON, J.


author: PER CURIAM:

text:
    Gerardo PEREZ, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 75001
    Supreme Court of Nevada.
    FILED JULY 03, 2019
    Justice Law Center and Bret O. Whipple, Las Vegas, for Appellant.
    Aaron D. Ford, Attorney General, and Jessica Perlick, Senior Deputy Attorney General, Carson City, for Respondent.
    BEFORE HARDESTY, STIGLICH and SILVER, JJ.
   PER CURIAM:

Appellant Gerardo Perez is serving a sentence for using a deadly weapon in the commission of a second-degree murder in 2003. In a postconviction petition for a writ of habeas corpus, Perez challenged the computation of time he has served. He claimed, in relevant part, that the credits he earns under NRS 209.4465 must be applied to the minimum term of his enhancement sentence. The district court rejected that argument, concluding that the applicable sentencing statute specified a minimum term that Perez had to serve before becoming eligible for parole and therefore NRS 209.4465(7)(b) precluded respondent from applying the statutory credits to the minimum term of Perez's enhancement sentence. Perez argues that the district court erred because the sentencing statute is silent as to parole eligibility. We disagree because the statute that specified the sentence for the primary offense (second-degree murder) also specified the sentence for the weapon enhancement and that statute specified a minimum term that Perez had to serve before becoming eligible for parole.

DISCUSSION

NRS 209.4465(7)(b) provides that statutory credits may be applied to the minimum term of an offender's sentence "unless the offender was sentenced pursuant to a statute which specifies a minimum sentence that must be served before a person becomes eligible for parole." (Emphasis added.) Pointing to NRS 193.165 as the statute under which he was sentenced for the weapon enhancement, Perez argues that it says nothing about parole eligibility and that the parole-eligibility requirement in the sentencing statute for the primary offense should not be read into NRS 193.165 because this court has said that the sentence for the primary offense and the sentence for a weapon enhancement "are separate and distinct," Nevada Dep't of Prisons v . Bowen, 103 Nev. 477, 481, 745 P.2d 697, 699 (1987).

When interpreting a statute, we focus on its plain language. State v . Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). At the time of the offense, NKS 193.165(1) expressly relied on the sentencing statute for the primary offense to set the sentence for the weapon enhancement. 1995 Nev. Stat., ch. 455, § 1, at 1431; see also State v . Second Judicial Dist . Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008) (holding that the 2007 amendments to NRS 193.165 do not apply to offenses committed before the amendments' effective date). In particular, it required that the enhancement sentence be "equal to ... the term of imprisonment prescribed by statute for the crime" during which the weapon was used. 1995 Nev. Stat., ch. 455, § 1(1), at 1431. We conclude that NRS 194.165(1)'s plain language incorporated the sentence prescribed by statute for the primary offense. Bowen does not undermine that interpretation. The holding in Bowen that the primary-offense sentence and enhancement sentence are "separate and distinct" does not mean that those sentences are prescribed by separate and distinct statutes. Take a simple example: consecutive sentences for multiple counts of robbery are "separate and distinct" sentences, yet they are prescribed by the same statute. Considering the plain language of NRS 193.165(1) before the 2007 amendments, we conclude that the relevant sentencing statute for purposes of NRS 209.4465(7)(b) is the one that prescribed the sentence for the primary offense.

Here, NRS 200.030(5) prescribed the sentence for the primary offense of second-degree murder: either life with the possibility of parole or a definite term of 25 years, both "with eligibility for parole beginning when a minimum of 10 years has been served ." NRS 200.030(5)(a), (b) (emphasis added). Perez therefore was sentenced for the weapon enhancement pursuant to a statute that specified a minimum sentence-10 years-that he had to serve before becoming eligible for parole on the enhancement sentence. See Williams , 133 Nev. at 597-98, 402 P.3d at 1262-63 (explaining the difference between parole-eligibility statutes, which "delineate a [maximum sentence], with eligibility for parole beginning when a minimum of [x] years has been served," and minimum-maximum sentencing statutes, which are silent as to parole eligibility (alteration in original) (internal quotation marks omitted)). As such, NRS 209.4465(7)(b) precludes respondent from applying Perez's statutory credits to the minimum term of his weapon enhancement sentence. The district court did not err in so holding and thus denying the postconviction habeas petition. We therefore affirm the judgment of the district court.

      We previously decided this matter in an unpublished order but then granted respondent's motion to publish the decision as an opinion.

      Perez has not raised any issues related to the other computation claims in his petition.

      The exceptions to NRS 209.4465(7) that are set forth in NRS 209.4465(8) do not apply here because the offense at issue was committed before the effective date of NRS 209.4465(8). See Williams v. State, Dep't of Corr., 133 Nev. 594, 595 n.1, 402 P.3d 1260, 1261 n.1 (2017).

      The analysis is different under NRS 193.165(1) as amended in 2007 because those amendments eliminated the "equal" sentence language and replaced it with minimum-maximum penalties that do not mention parole eligibility. Those amendments do not apply here. Pullin, 124 Nev. at 572, 188 P.3d at 1084.

      Perez's reliance on our unpublished decision in Garcia v. Baca , Docket No. 70874, 2017 WL 4950044 (Order Vacating and Remanding, Oct. 30, 2017), is misplaced. That case involved a weapon enhancement sentence where the statute that prescribed the sentence for the primary offense did not specify a term that the offender had to serve before becoming eligible for parole. But notably, we looked to the statute that prescribed the sentence for the primary offense to determine whether NRS 209.4465(7)(b) allowed the offender's statutory credits to be applied to the minimum term of the enhancement sentence-the same as we do here.