Should courts be subject to right to know?

Days before the 2025 legislative session ended, our legislators passed Senate Bill 40, which makes Montana Supreme Court deliberations subject to the right to know. Once the law goes into effect in October, Montanans will be able to submit information requests inquiring into the deliberations and communications of our Supreme Court.  

The problem? The law is on a collision course with the Supreme Court’s own position on the right to know. Just recently in O’Neill v. Gianforte — a case we’ve written about previously — the Court reinforced the idea that the right to know does not apply to courts, juries, or other judicial entities.  

The Montana Constitution states simply that the right to know applies to “all public bodies or agencies of state government and its subdivisions.” The court will need to determine whether that statement includes the court itself.  

Regardless of whether Senate Bill 40 is constitutional, this bill raises the question as to whether our right to know should extend to the judiciary, or whether judicial deliberations should be kept private.  

Sen. Greg Hertz, R-Polson, the bill’s sponsor, said that the bill will apply to the deliberations of the Supreme Court, including the court’s closed meetings. He likened the bill’s effects on the Supreme Court to the public recording of legislative meetings. When legislators meet in committees or on the floor, the sessions are recorded and made available for public review. But when legislators meet individually or informally (such as talking in the hallway or among their partisan caucuses) those meetings are not recorded.  

Senator Hertz argued that it is helpful for citizens to have recordings of legislative debates because it gives us more information on what the law means, where it applies and why our elected representatives voted how they did. For those reasons, Hertz argued that it would be helpful to understand the background behind the decisions of our Supreme Court.  

But opponents argued that releasing deliberations would not be helpful. First, the deliberations might include reasoning that the justices ultimately did not accept, and so releasing those rejected reasonings might make the final decision harder to understand.  

Second, judicial deliberations are not law in the way that legislative deliberations are. Knowing legislative deliberations is helpful, because the written law must be applied to unexpected and complex facts. Understanding what legislators thought and why they passed a law can give insight into how that law should be applied.  

But courts aren’t making law, they’re only applying the law given to them. As is sometimes said, courts are only supposed to be calling balls and strikes. Releasing full deliberations complicates that picture.  

Finally, opponents of the bill argued that releasing these judicial deliberation files would make Supreme Court deliberations more partisan, because justices would need to pay attention to public opinion, rather than focusing only on the law.  

Beyond these arguments, it is hard to know how Senate Bill 40 will impact the Supreme Court. Will the court publish records of deliberations, or are all the court’s formal meetings already considered publicly accessible? Will the court’s internal deliberations help clarify judicial decisions or will they only make them more confusing? 

Whether the law goes into effect or not, how the court responds to this bill and any information requests that come out of it will change the scope of our right to know.  

Jacob Linfesty is president of the Montana Transparency Project.