BILLINGS -- The state of Montana has spent more than $1 million so far defending a lawsuit brought by a former Billings man who spent 15 years in prison for a crime he did not commit.

No trial date has been set in the three-year-old suit brought by Jim Bromgard, now of Kalispell. The case remains active and voluminous, with more than 280 documents comprising thousands of pages filed in the case. Parties last week filed motions for judgments and recently attended a settlement conference.

The magistrate judge hearing the case also has ordered many documents in the case to be made available to the public. The ruling came after the state sought to seal the entire case. The Billings Gazette entered the suit challenging the protective order.

Bromgard is seeking $16.5 million in damages, claiming the defendants were negligent and violated his constitutional rights. Named as defendants are the state, former Attorney General Mike Greely, former state crime lab director Arnold Melnikoff, Yellowstone County and Commissioners Jim Reno, Bill Kennedy and John Ostlund.

A jury convicted Bromgard in 1987 of raping an 8-year-old girl in Billings and a judge sentenced him to 40 years in prison. Testimony by Melnikoff on hair analysis helped convict Bromgard but was later discredited by a panel of national forensic experts. Bromgard served 15 years before DNA tests showed he did not commit the crime. Bromgard was exonerated and was released from prison in 2002. He filed suit two years later.

The Williams Law Firm of Missoula is representing the state. As of Sept. 20, the state has paid $755,169 in attorney fees; $43,548 for reimbursement of costs; and $249,073 in expert witness fees and costs. The state also has incurred fees and costs totaling $38,065 from the Department of Justice's Agency Legal Services Bureau. The total is about $1.1 million.

The costs are being paid by the state's self-insurance program. Brett Dahl, administrator of the Risk Management and Tort Defense Division of the Department of Administration, said Wednesday the state is self-insured and administers a plan for auto, property and liability claims on behalf of state agencies and universities.

The state has been self-insured since the 1980s and uses in-house attorneys and hires outside lawyers, Dahl said. A settlement against the state would be paid by the program.

Yellowstone County is using in-house attorneys to defend itself. As of June, the county's costs were about $13,400 for travel and transcripts.

Chief Deputy County Attorney Dan Schwarz and Deputy County Attorney Kevin Gillen are working on the case.

Yellowstone County taxpayers could be liable for any possible settlement involving the county because it was self-insured at the time. The county has since purchased umbrella coverage.

Rulings sought

In the latest action, the state and Bromgard each filed motions last week for rulings in their favor on various claims. A judge can rule on claims when there are no issues of fact and a party wins as a matter of law.

The state said Melnikoff and Greely are immune from liability because they were acting in the course of the jobs. As a witness, Melnikoff, and therefore the state, also has absolute immunity in civil rights claims based on their trial testimony, according to the state's motions.

Bromgard's attorneys, Ron Waterman of Helena and Peter Neufeld of New York, are seeking a ruling on the issue of actual innocence. The county and state told a district judge in the case that, based on DNA results, Bromgard could not have committed the crime, and the judge set aside the conviction.

The state is now trying to contest's Bromgard's innocence and should not be allowed to change its position, Bromgard's attorneys said. "Defendants have changed their position simply to avoid liability for the wrongful conviction of an innocent man and the damages suffered as a result," Waterman said in court records.

Earlier this year, the county tried unsuccessfully to be dismissed from the case. The county argued that its only responsibility in the indigent defense system at the time was to pay the lawyer who defended Bromgard. State district judges were responsible for hiring and supervising the lawyers, the county said. The court rejected that argument.

Meanwhile, the parties have had two settlement conferences with a third scheduled for Dec. 7 before U.S. Magistrate Judge Keith Strong of Great Falls. The parties' most recent conference was earlier this month. At such conferences, the parties meet with a mediator -- Strong in this case -- to try to settle the suit without going to trial. Strong has ordered the parties to have representatives with ultimate settlement authority to be present and to send him confidential statements on their positions beforehand. He also encouraged the parties to exchange initial settlement offers before mediation.

Public information

Also this month, U.S. Magistrate Judge Carolyn Ostby of Billings, who is presiding in the case, resolved issues over what information may be protected during the discovery phase and what information must be open to the public.

The parties, including The Gazette, agreed that Bromgard's juvenile, jail and prison and psychological records should be protected during discovery. The parties further agreed that criminal files from 1987 should be private.

Ostby allowed protection of certain other private information within documents, such as Social Security numbers, telephone numbers and the names of victims. Melnikoff's personnel records and the state's spreadsheet on its investigation also are privileged.

In a 33-page ruling, Osbty said parties may release to the public any information not covered by the revised protective order. Documents filed with the court also must be open to the public unless parties show there is a compelling reason to seal it.

The Gazette's attorney, Martha Sheehy, said she was pleased with the ruling.

"With the guidance provided by the court, I am certain that the public will have access to documents and testimony necessary for meaningful scrutiny of this case," she said.

The fight over the confidentiality of documents blew up this summer when the state's attorneys asked the judge to enforce a protective order against Bromgard's attorneys for allegedly violating the order by releasing Montana Attorney General Mike McGrath's deposition in the case to the media. The state also tried to seal the file, claiming publicity would harm its right to a fair trial. Bromgard's attorneys denied violating the order and objected to sealing the file.

The Gazette challenged the protective order and an amendment that broadened the protection to include all documents produced in discovery by all parties. The newspaper said the state had not shown good cause why the documents should be protected and objected to closing the file.