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Montana Supreme Court rules against media in open meetings suit – Daily Montanan

['Arren Kimbel-Sannit', 'More From Author', '- February']

Date: 2022-02-08 00:00:00

The Montana Supreme Court ruled in favor of a state legislative committee chairman on Tuesday in a right-to-know suit brought by Montana media organizations seeking access to closed-door committee deliberations during the 2021 session.

In a 5-1 opinion authored by Chief Justice Mike McGrath, the high court affirmed an earlier ruling dismissing the case and denying claims from the Associated Press, Lee Newspapers, state media associations and other plaintiffs that House Judiciary Committee Chair Barry Usher’s decision to recess and hold a private discussion with fellow Republicans that deliberately threaded the needle of open meeting law violated the Montana state constitution.

The crux of the debate was whether statute defining an open meeting as the convening of a quorum of a public body was — at least in most instances — the ultimate barometer of whether a meeting is open to the public.

“This case concerns a subgroup of a formal public body, which by established rules was unable to act in an official capacity,” the court’s ruling reads. “We cannot transform this informal group into an official one…We could not define some new numerical size at which such an informal subgroup violates the constitutional right to know unless we strayed into arbitrary or speculative judgment.”

In a dissenting opinion, Justice Laurie McKinnon wrote that the court’s majority ruling incorrectly explains away the deliberate effort to skirt public records law as part of standard legislative practice and creates a de facto right-to-know exemption.

“The Court is dealing a substantial blow to the public’s constitutionally protected right to know, allowing the legislature to conduct public business in secret and without public scrutiny,” she wrote.

Media organizations sued Usher, R-Billings, in his capacity as committee chair after he in January denied reporters access to a private meeting of nine Republicans on Judiciary that met during a recess of the regular committee before considering a series of hot-button bills on abortion and access to gender affirming care. He argued to reporters that he was not obligated to let them into the meeting as there was not a quorum of committee members present — in this case, 10. Usher has said, and court records have demonstrated, that he made sure enough lawmakers stayed outside the meeting so as to ensure a quorum wasn’t reached, and that this was his general approach with caucus meetings.

The plaintiffs argued that the constitution’s right to know provision applied even without a quorum, especially given the Republican-leaning partisan makeup of the committee — in other words, even if the caucus meeting consisted of less than a majority of the committee, a majority of the majority party was present.

“No person shall be deprived of the right to examine documents or to observe the deliberations 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,” reads Article II, Section 9 of the state constitution.

The court has held that the right-to-know can apply to informally assembled public meetings in the past, such as in Associated Press v. Crofts, which challenged closed-door advisory meetings between the Commissioner of Higher Education and senior university system employees. But the majority opinion delineated between those meetings and the private caucus meetings.

“Usher’s gathering was by its very nature incapable of results,” the ruling states. “Unlike the policy group in Crofts, the House Judiciary Committee is governed by a formal set of rules, including a quorum requirement, which precludes an unofficial gaggle of committee members from accomplishing anything of substance outside those stricture.”

The court also rebuffed the media organizations’ argument that the 9-7 Republican majority on the committee was such that ad hoc discussions among most of the committee’s Republicans should be treated as official deliberations.

“We decline to judicially superimpose such partisan calculus on our broad statutory and constitutional principles,” the majority ruling reads.

Usher, in a statement released Tuesday evening, said he applauded the court’s decision and said accusations from the media were proved incorrect.

Mike Meloy, an attorney representing the media organizations, could not be reached for comment.

In her dissent, McKinnon disputed the court’s interpretation of Crofts as it relates to this case.

“The Court concludes Crofts is distinguishable because the committee in Crofts met at regular, noticed times, kept agendas, memorialized its meetings, and provided official recommendations to the Commissioner of Higher Education,” she writes. “Here, the House Judiciary Committee members were duly elected legislators acting in their official capacity. The meeting occurred during a publicly funded legislative session. Usher admitted the exclusion of committee members to avoid the creation of a quorum was his regular practice. Logically, the meetings occurred at regular intervals, i.e., when the House Judiciary Committee met to deliberate. The District Court found the apparent reason for these meetings was the deliberation of proposed legislation, which constitutes a matter of policy and not merely ministerial functions.”

She says further that Usher’s very decision to exclude members in order to skirt open meetings law is itself unconstitutional.

“Today, the Court tells Montana the constitutional right to know does not apply because, in short, Usher’s tactics worked,” she wrote. “It cannot be the case that a duly elected representative, acting in his official capacity and planning to discuss public matters, can evade public scrutiny by deliberately excluding fellow legislators.”

The Daily Montanan was not a plaintiff in the suit.

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