A judge is considering a request by a Helena bar to release information after the family of a woman killed in a 2021 crash claimed they served the driver of the vehicle she was in — who was not of legal age to drink — earlier in the evening.
Attorneys for the owners of the Sapphire Bar, the state and for the family of Bridget Marie Kirby appeared Thursday before Lewis and Clark County District Court Judge Kathy Seeley to debate the sharing of information when no official legal action had yet been filed.
Seeley took the information and said she would review the statute.
Kirby, 20, was killed On Nov. 19, 2021, when fellow Carroll College student Hunter Nicely was driving a vehicle that rolled over and ejected her from the vehicle at Cedar Street and Interstate 15 in Helena. She wasn’t wearing a seatbelt.
Kirby, Nicely and another person who was in the vehicle were all celebrating Nicely’s 20th birthday. Nicely was in possession of a fake ID, authorities said.
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G. Patrick HagEstad, attorney representing the Knights of Pythias Sapphire Lodge, submitted the petition for seeking confidential criminal history record information and confidential criminal justice information, after the Sapphire received a “notice of claim” from the Kirby estate that it intended to pursue civil action against the bar.
“The Estate claims Sapphire served Mr. Nicely with alcohol with knowledge that either he was underage or without making reasonable attempt to determine his age, or that Sapphire served Mr. Nicely while he was visibly intoxicated …” which holds the owners legally responsible, the July 28 petition reads.
HagEstad said the estate has been given access to materials, and there is some indication his client is involved. He said they have not received the information that they need to continue their own investigation because the estate said there are privacy issues.
“It can’t be used as a shield and sword, where you say you have these materials but not let the other side have it,” HagEstad said, adding the request could be tailored so the other victim’s privacy would be protected.
Seeley asked if it was possible through the discovery process, in which the information would be shared once a lawsuit is filed. HagEstad said there is no provision in the notice of claim statute that says information can be shared before there is official legal action.
Fallon Stanton, deputy county attorney for Lewis and Clark County, said no civil litigation has followed even though the notice of claim was filed Jan. 19, 2022. She said there was no mention of the Sapphire Bar in the state’s case against Nicely.
“There is nothing in the state’s file that says anything about them,” she said, but added the Sapphire Bar is between two “establishments” known to be involved. She did not name the two establishments.
The Sapphire Bar has since closed.
Stanton gave Seeley a bound copy of the printed discovery.
“This is no dispute the vehicle was going more than 90 mph, launched, and one individual was thrown from the vehicle,” she said.
She said witnesses’ interviews and officers’ interviews and body cam evidence are preserved should it be needed later for a civil case in which simple discovery could be used.
“We are skewing idea that Sapphire Bar has an interest to investigate their liability,” Stanton said, saying the court needs to decide if public right to know outweighs privacy interests.
Riley Wavra, the attorney representing the Kirby family, said the Sapphire Bar was served notice to protect the Estate’s interest.
Stanton said there is preserved information, adding it was a thorough investigation. Officers went to where they were being served and investigated whether IDs were checked.
Seeley said she would do a review of the state’s file and file a decision later.
“I don’t see how I can just look at it and say disclosure outweighs privacy rights,” she said.
A few hours later on Thursday, after the morning hearing, Nicely appeared via Zoom in Seeley’s courtroom and pleaded guilty to vehicular homicide while under influence. He will be sentenced March 30. The case was prosecuted by Stanton.
Assistant editor Phil Drake can be reached at 406-231-9021.
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