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MT Supreme Court allows GOP exclusion of media from legislative meeting

GOP lawmakers met in closed meeting before vote
Posted at 8:10 AM, Feb 10, 2022

HELENA — Excluding reporters from a meeting of Republican committee members discussing bills – prior to a full committee vote -- does not violate constitutional open-meeting guarantees, the Montana Supreme Court has ruled, because the meeting was less than a committee quorum.

In a 6-1 decision, the high court Tuesday upheld last year’s lower-court order that said essentially the same thing: The closed meeting of nine Republican members of the House Judiciary Committee in January 2021 was not a quorum of the full committee, and therefore not subject to open-meeting laws.

Montana Supreme Court Chief Justice Mike McGrath.

“Without a quorum of committee members – without an ability to vote or conduct official business – (the group) was capable of little more than conversing about later decisions that would occur in the public setting,” Chief Justice Mike McGrath wrote for the majority.

The sole dissenter in the decision – Justice Laurie McKinnon – sharply disagreed, saying the court order dealt “a substantial blow” to Montanans’ right-to-know and allows legislators to “conduct public business in secret and without public scrutiny.”

“I would not allow such subterfuge to continue and would instead afford Montanans’ right to know the heightened protection it deserves,” she wrote.

Montana Supreme Court Justice Laurie McKinnon.

The decision came in a lawsuit filed by a dozen print and broadcast Montana media organizations, which sued House Judiciary Committee Chairman Barry Usher, a state representative from Billings.

Usher had arranged the closed meeting of nine GOP committee members before the full panel reconvened to endorse several bills on abortion and transgender issues. The suit sought to declare such meetings open to the public.

In a statement Tuesday, Usher, said he was pleased by the Supreme Court’s decision to uphold a District Court ruling in his favor.

“Accusations against me by the media were proven wrong and common sense prevailed in court,” he said.

Shortly before the House Judiciary Committee voted in January 2021 on the abortion and transgender bills, Usher recessed the full committee and convened a closed meeting of nine of the House Judiciary Committee’s 12 Republican members in a basement room of the Capitol.

He refused a reporter’s request to cover the meeting, saying it did not constitute a quorum of the full 19-member committee. Democratic members of the Judiciary Committee also were excluded from the meeting.

Directly after the meeting, the GOP members returned to the reconvened, open meeting of the full Judiciary Committee, which proceeded to vote on the bills.

House Republicans on other committees also follow this practice, holding closed meetings of GOP-only members, less than a full quorum, to discuss bills shorty before votes are taken in the full committee.

McGrath’s opinion allowing this action said Usher’s closed meeting was not a structured meeting, but rather “served more as an ad hoc opportunity to talk about the goings-on in the adjacent setting of the formal committee.”

The meeting also had no ability to vote or conduct official business, and therefore is not subject to open-meeting requirements, he wrote.

“This is simply how the legislative process works, with members’ individual and collective private forethought informing their conduct during the official public deliberations and debate that occurs as bills move through (the process),” McGrath said.

McKinnon, however, pointedly disagreed, in a 16-page dissent longer than the majority decision.

She said Usher’s convening of the meeting with one person less than a quorum was specifically meant to keep the media – and the public -- from hearing lawmakers discuss public business.

“Today, the court tells Montana the constitutional right-to-know does not apply because, in short, Usher’s tactics worked,” McKinnon wrote. “It cannot be the case that a duly elected representative, acting in his official capacity and planning to discuss public matters, can evade public scrutiny by deliberate excluding fellow legislators.”

She said the majority decision “rewards tactics designed to avoid constitutional protections” and erodes public confidence in the Legislature and the courts.