Early Thursday morning, Republicans on the House Judiciary Committee held a closed-door caucus the chairman said was a legal maneuver to not fall under the state’s open meetings laws.
“Several people, including the press, said for open meeting laws we must say where the meeting is and allow them in. That is true if we’re going to have our caucus, obviously, if we are going to have everyone and we have more than 50% of the committee,” said Rep. Barry Usher, a Republican who leads the committee. “It is my policy that when we do caucus, we will not have 50% or more” of the committee to not be considered an open meeting.
The House Judiciary Committee conveyed at 7 a.m. Thursday to vote on several high-profile, controversial bills, including those that target transgender athletes and would change the landscape for abortion access.
Shortly after gaveling in and taking roll call, Usher told the committee both vice chairs agreed to do 30 minutes of caucusing.
Neither party announced the location of their caucus, though reporters in the room followed lawmakers to their respective meetings. One Republican committee member told a reporter upon leaving the hearing room that the party's caucus would not be open because it would not reach a quorum.
Another reporter was blocked from entering the room where Republicans caucused. Republican committee members said because they kept the number of people in the room below a quorum of the full committee, which is nine of the 19 members, that it was allowed, according to a reporter from the Montana Free Press.
At one point a Republican member entered the meeting, counted that it put the group at a quorum, and left.
Democrats allowed press into their caucusing meeting.
After the House Judiciary Committee meeting, Usher said he was following protocol established by those before him.
"We just always have, that's the way I was taught," Usher said. "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."
Mike Meloy is a Helena attorney who specializes in open government law. He contended Thursday that because the Republicans hold a majority of the committee, their caucus should be considered a subcommittee. That's because they have enough votes to ultimately make the decision for the committee at large.
"It should have been open here," Meloy said. "This meeting falls directly within the statute which covers subcommittees of committees that are formed, regardless of a quorum."
Meloy said this specific question, however, has not been decided by the Montana Supreme Court. On an order from the Montana Supreme Court to reconsider a previous decision, in 1998 a state District Court judge ruled that caucuses during the legislative session are open to the public.
As for Usher's assertion that committees have always followed this rule, Meloy said he has seen local government bodies attempt it, but never the Legislature. Reporters have been blocked in the past through a similar approach, however.
"It is not uncommon for a local governmental unit to do what this committee has done, and that is to form a subcommittee that they think doesn't constitute a quorum and therefore they don't have to leave it open," he said. "I haven’t experienced the Legislature doing this before."
Sen. Greg Hertz, R-Polson, was Speaker of the House in the last session in 2019, and concurred with Usher, that committee chairs had operated under that understanding of open meeting laws during his time as Speaker.
Hertz said his view of the state’s open meeting laws differ from Meloy’s and that caucuses of the House or Senate in whole are subject to open meeting laws but that a gathering of the majority party on a committee is not.
“What they did in the House (Judiciary Committee), that was not a subcommittee, that was just a gathering of members out of that committee,” Hertz said. “To me, it’s the majority of the committee that’s subject to open meeting laws. That’s my understanding.”
A spokesperson for Speaker of the House Wylie Galt, R-Martinsdale, said the understanding from leadership is that a meeting is not open unless a quorum of the committee is present.
“The interpretation — that at least the House majority has been using — is as long as there’s not a quorum of the members present that it doesn't have to be an open meeting because business can’t be conducted,” said Dylan Klapmeier, a spokesperson for House Republicans. “They can’t make a decision, they can’t take any actions, they can’t take any votes if there’s not a quorum of that community present.”
House leadership this session shared that information with committee chairs, Klapmeier said.
“They know that (if) there’s a quorum of their committee present that it needs to be an open meeting because that’s the way we’ve always operated,” Klapmeier said. “From there it’s up to the committee chairs. It’s up to them to decide how they want to run their meetings. ... There’s no caucuses within the committee. There’s the Republicans on the committee and the Democrats on the committee."
Lee Banville, a political analysist and professor at the University of Montana's School of Journalism, said the question of if a party caucus of a committee should be public hasn't been settled in state courts.
While it's unclear if Thursday’s meeting met the requirements in law, Banville said it is clear that it creates a perception that decisions are being made in a way that isn’t accessible to the public.
“This isn’t settled law; instead it’s a question of is your default position to let the public see how decisions are made in Montana or is it not?” Banville said.
The desire to not hash out complicated decisions in public is understandable, Banville said, but Montana has a notable history of bad things happening outside of public view.
“It is absolutely true that it is easier to make decisions and has out differences when you’re doing it behind closed doors,” Banville said. “Montana has a history of knowing when the public or journalists aren’t sitting there, decisions can be made for the wrong reasons, or because of the influence of a donor or because of a commercial interest of a big business, or fill in the blank.”
Montana has some of the strongest public access and open meeting laws in part because of the state’s history through the late 19th and early 20th centuries.
“We had open bribery, we had U.S. senators purchasing their seats with literally packets of cash with their initials emblazoned on them so that you knew who bribed you," Banville said "Montana’s campaign finance laws, open meetings laws, access laws, are all built around the fact that for a long time power rested in the hands of the few and there was a real problem that needed to be fixed. It does make us one of the most open and participatory states in the country, but that also makes it a real pain in the butt to try to hash out deals.”