Media groups sue lawmakers for closed meetings

More than a dozen outlets say practice shuts out public from discussion

By: - February 16, 2021 7:25 pm

The Montana Capitol at Night (Photo by Darrell Ehrlick of the Daily Montanan).

More than a dozen media organizations, including the Daily Montanan, have filed suit against Republicans in the legislature for meeting privately to determine the outcome of bills before they take action on them, which the lawsuit alleges is unconstitutional.

The lawsuit, filed on Friday in Lewis and Clark County, alleges that an informal practice of convening large groups of Republicans but not quite enough to trigger a quorum — the number of people needed to officially take action — violates the state constitution because it doesn’t allow the public to see the deliberations and the decision-making process.

Specifically, attorney Mike Meloy, who represents the media organizations including the Associated Press, the Montana Newspaper Association, the Montana Free Press, the Montana Broadcasters’ Association, Lee Newspapers, and the Daily Montanan, argues that Article II, Sections 9 and 10, were violated as the lawmakers gathered in rooms, without notice, to discuss the fate of bills. The complaint was filed against Rep. Barry Usher, R-Billings, as the chairman of the House Judiciary Committee.

The crux of the case centers on two portions of the Montana Constitution, the first of which is Article II, Section 9: “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.”

The court documents also said Article V, Section 10 requires “the sessions of the legislature and the committee of the whole, all committee meetings and all hearings shall be open to the public.”

When reached by the Daily Montanan, leadership said it was unable to comment on pending litigation.

Lawmakers have told reporters that they’ve met informally in party caucuses to discuss bills, careful to ensure that there are not enough members to trigger a public meeting. Mara Silvers, a reporter for the Montana Free Press, was not allowed in one of those meetings.

She documented Rep. Derek Skees, R-Kalispell, walking into a meeting of the House Judiciary Committee where nine Republicans were present. He went into the meeting, counted the members and came back out so as to avoid what appeared to be an open meeting.

Yet, the lawsuit alleges that because 12 of the committee’s 18 members are Republican, whenever a majority of the committee’s Republicans meet to discuss bills, that deliberation and conversation about laws should be open since the party has enough representation to control the fate of almost any pending bill.

Silvers’ account is included in the court filing, and she said Usher told her that he had intentionally only invited nine members “on purpose” to discuss the bills, and to avoid scrutiny.

“He told me he did this on a normal basis, not just controversial bills,” Silvers said.

Usher later said, when he reconvened the entire House Judiciary Committee, that he has caucused like that for awhile, and “that’s the way I was taught.”

“Some of the things we have to talk about when we’re talking and discussing how we’re going to vote are personal and you know, as you can see, our committee does get a little emotional,” Usher said.

“That’s the age-old argument,” said Meloy. “That you have better discussion in private, but in Montana, we don’t permit that.”

Meloy said the open meeting laws and the Constitution are meant to stop behavior like this.

“The right to know in this state was developed at a time when there was great mistrust of government because up until that point, it had been controlled by big mining interests,” Meloy said. “They wanted to make sure that people could see how the sausage was made, so to speak, so that we could make sure we wouldn’t be poisoned. The electorate needs to be confident in what the government is doing.

“We need to see what they’re doing and why they’re doing it. The deliberation is what the public needs to see to understand how the decision is made. Otherwise, there’s no reason to talk. They can just go in, vote, and control the government.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.