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How the Montana Supreme Court works – Daily Montanan

['More From Author', 'June', 'John Moore']

Date: 2022-06-08 00:00:00

On May 28, the Daily Montanan featured Steve Corbin’s commentary: “Maybe it’s time to reform the United States Supreme Court.” I’m not taking issue with his ideas; I’m merely aligning one of his statements with the practice of the Montana Supreme Court.

Corbin wrote, “The Supreme Court of the United States is the only public body that holds closed door meetings, a grave violation of every state’s open meeting laws. Hence, the Supreme Court should — like all public bodies in 50 states did by 1976 — hold open meetings of their deliberations so, we the people, will not be blindsided by their discussions and rulings.”

That’s not the case in Montana. And it’s an interesting case.

By virtue of constitutional and statutory law, Montana led the way as a “sunshine state,” making public documents and government meetings open to all. Montana adopted its constitution in 1972. Article II, Section 9 asserts, “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.”

Nine years prior, the Montana legislature enacted the Open Meetings Act in 1963. Section 2-3-203, MCA, lays out the requirement that all government meetings must be open.

The interplay of statutory and constitutional law has given Montana courts plenty to work with during the past 50 years. In 1999, the Montana Supreme Court debated its own “sunshine sufferance” regarding its deliberations.

It came about during a pro forma action: In re the Selection of a Fifth Member to the Montana Districting and Apportionment Commission. This minor measure expanded into a lively debate on whether the Court should open its deliberations to the public.

In Montana, the four members of the commission for legislative redistricting (two Democratic, two Republican) are supposed to choose a fifth member. If they fail to agree, the issue defaults to the Supreme Court. In this case, the Court fulfilled that task in 130 words. The remaining 15 pages argued the issue of Supreme Court deliberations.

Justice Jim Nelson led off with a special concurrence (he agreed with the appointment) and dissent: “This entire process … should have been open to the public.” Nelson argued that the Court’s deliberations should be open, to “conform our own operations to the clear and unambiguous mandate of the Constitution” under the right to know.

Opening up the Court’s operations to public scrutiny should help, rather than hinder, the Court. With “observation and probing analysis and reporting by the media,” the right to know should “make us all better justices,” Nelson wrote. “If we’ve nothing to hide, what need have we of secrecy?”

Justice Jim Regnier disagreed: “I do not share the dissenting view that Article II, Section 9 … applies to the deliberations of the Montana Supreme Court.” Regnier cited transcripts of the Constitutional Convention: “Delegates did not intend that Article II, Section 9 should apply to deliberations of this Court, juries or grand juries.” Doing so would compromise the judicial process. Parties to litigation would be able to observe deliberations, and efforts to lobby the Court “would inevitably occur.”

Justice Bill Leaphart added a special concurrence, addressing the ambiguous term “public body”: “to treat Montana’s judiciary as a ‘public body’ would do real violence to the Montana Constitution’s requirement of an independent judiciary that serves as a distinct branch of government.”

“If this Court ruled that its conferences were open to the public,” Leaphart wrote, “the Court would violate the constitutional mandate, which is clearly established by the structure of the right to know provision and by its constitutional history, that this Court balance individual needs for privacy with the merits of public disclosure.” It would open the Court to letters, media blitzes, and large groups at court conferences. This “would damage the independence of this Court …”

The Court majority sided with Regnier and Leaphart. A few years later, the legislature drew a compromise. It passed a bill in 2005 amending the Open Meetings Act, bringing the Supreme Court into sunshine. The same bill inserted a cloudy subsection: “The Supreme Court may close a meeting that involves judicial deliberations in an adversarial proceeding.”

The upshot is this: administrative actions like “the Selection of a Fifth Member to the Montana Districting and Apportionment Commission” are open meetings. Deliberations on cases appealed to the Court are closed.

What do you think?

John Moore retired as director of the Professional Development Center in the Montana Department of Administration in 2013. For 28 years, one of his most popular classes was “A Delicate Balance: Privacy and the Right to Know,” which elucidated Montana’s constitutional and statutory provisions, court decisions, and attorney general opinions. He sincerely advocates open government. In his dotage, he draws political cartoons.

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