Montana court rules against media in closed meeting case

HELENA (AP) — The chairman of a legislative committee who convened a meeting of a majority of the Republican members of the committee — but not a majority of the committee itself — did not violate Montana's open meeting laws when he barred the media from attending, the Montana Supreme Court has ruled.

The 6-1 ruling issued Tuesday upholds a July ruling by District Court Judge Mike Menahan, in which he said he was unwilling to redefine quorum as a "majority of a majority."

Justice Laurie McKinnon dissented, saying the meeting actually violated Montana's constitutional right to know.

The Associated Press and other media outlets filed a complaint after Rep. Barry Usher of Billings closed a meeting of nine of the 12 Republicans on the House Judiciary Committee in January 2021. He said he excluded three Republicans so the gathering did not include a majority of the 19-member committee and thus could be closed without violating open meetings laws.

The committee was preparing to vote on bills dealing with abortion and transgender health care. The nine Republicans held enough votes to overrule the seven Democrats on the committee and the media groups argued the meeting should be treated as official deliberations of the committee.

The case weighs the Montana constitutional right to "observe the deliberations of all public bodies," against a state law that defines those bodies as only those that comprise a "quorum of the constituent membership."

"While it is true that Usher's gathering was deliberately convened to include just under a quorum of committee members and was certainly a larger group than one might encounter for elevator chit-chat, the group's posture was more in kind with typical, unofficial legislative chatter than with formal public business," Chief Justice Mike McGrath wrote for the majority.

"Only by scrutinizing the partisan make-up of the participants and speculating about how the conversation might influence the in-session work of the committee could one reach the AP's conclusion about the group's level of 'control,'" he wrote.

The media groups, McGrath wrote, asked the court "to make perceived partisan secrecy the standing against which we interpret," the right-to-know provision of the state constitution. That would create "a standardless, case-by-case examination of every legislative conversation," he cautioned.

"I'm glad to see the Montana Supreme Court upheld the district court's ruling," Usher said in an emailed statement. "Accusations against me by the media were proven wrong and common sense prevailed in court."

McKinnon, however, argued the court's ruling creates a judicial exception to the public's right to know and upends the 1972 Constitutional Convention delegates' intent for open government.

"I would reverse and hold that the exclusion of legislative committee members, done with the express purpose of avoiding a quorum, violates Montana's constitutional right to know," McKinnon wrote.

Court rulings have stated that the right-to-know provision of the constitution is self-executing, meaning it does not require legislation to take effect, McKinnon noted.

The Supreme Court is "charged with the responsibility of defining the scope of a directly implicated fundamental right when there has been purposeful and express action, indeed a common practice, to encroach upon it," McKinnon wrote.

In addition to the AP, the lawsuit was filed on behalf of all five Montana newspapers owned by Lee Enterprises as well as the Montana State News Bureau; the Bozeman Daily Chronicle; the Montana Free Press; the Daily Inter Lake and other papers owned by Hagadone Media Montana; the Montana Broadcasters Association; and the Montana Newspaper Association.