Montana court rules against media in closed meeting case

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

Tuesday’s 6-1 decision 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.”

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


The Associated Press and other news outlets filed a complaint after Rep. Barry Usher of Billings closed a meeting of nine of 12 Republicans on the House Judiciary Committee in January 2021. He said he excluded three Republicans , so the rally did not include a majority of the 19-member committee and could therefore be closed without violating open meeting 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 media groups argued the meeting should be treated as official committee deliberations.

The case weighs Montana’s constitutional right “to observe the proceedings of all public bodies” against a state law that defines such bodies as only those that constitute a “quorum of constituent members.”

“While it’s true that Usher’s gathering was deliberately called to include just under a quorum of committee members and was certainly a larger group than one might encounter chatting in elevators, the group’s posture was closer to typical unofficial legislative chatter than to formal public affairs,” Chief Justice Mike McGrath wrote for the majority.

“Only by examining the partisan composition of the participants and speculating on how the conversation might influence the committee’s in-session work could one reach the AP’s conclusion on the level of ‘control. “of the group,” he wrote.

The media groups, McGrath wrote, asked the court “to make perceived partisan secrecy the position against which we interpret,” the right-to-know provision of the state constitution. This would create “a case-by-case review without a standard of every legislative conversation”, he warned.

“I am pleased to see that the Supreme Court of Montana upheld the District Court’s decision,” Usher said in an emailed statement. “The accusations made against me by the media were proven to be false and common sense prevailed in court.”

McKinnon, however, argued that the court’s decision creates a judicial exception to the public’s right to know and reverses the intent of the 1972 Constitutional Convention delegates for open government.

“I would reverse and maintain that the exclusion of legislative committee members, done for the express purpose of avoiding a quorum, violates Montana’s constitutional right to know,” McKinnon wrote.

The court rulings said the constitution’s right-to-know provision is self-executing, meaning it doesn’t require legislation to take effect, McKinnon noted.

The Supreme Court is “burdened with the responsibility of defining the scope of a fundamental right directly implicated where there has been a deliberate and express action, indeed common practice, to infringe upon it,” McKinnon wrote.

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

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