Six months ago, Lewis and Clark County District Court Judge Mike Menahan sent the eyes-a-twitching and the nostrils-a’flaring of Montana mainstream media sources after he dismissed a case they brought against GOP Rep. Barry Usher.
Committee Republicans were gathered in the basement of the Capitol hashing out some details on a couple of controversial abortion and transgender bills that were about to be voted on. Not wanting the media around to freely ply their special brand of duplicity and antagonism, Usher, in his role as chairman of the House Judiciary Committee, had three Republican members intentionally leave the room and hang out outside.
As a result, this brought their numbers down low enough so that they according to state law, they had less than a majority of members, and therefore the reporters had no right to attend. Had all members remained inside, the press, and a Montana Free Press reporter in particular, would have had free reign to accompany them listen in, as it would have been considered an “open meeting” and subject to their discretion.
This brilliant little maneuver didn’t sit well with the plaintiffs (The Helena Independent Record, Bozeman Daily Chronicle, Montana Free Press, The Billings Gazette, Montana Standard, and the Missoulian) who argued that the GOP meeting should have been at the very least considered a subcommittee which they would have access to under Montana’s ‘right-to-know provisions. Menehan disagreed, sending them packing with tails between their legs and their snout smarting from the hard smack it received, while Usher commented:
“I’m a big supporter of the public’s right to observe what its government is doing. Montana’s Constitution and state law spell out what is and isn’t a meeting that’s open to the public. I’m glad to see the court agree with the very clear fact that a fraction of a quorum is not a quorum and the members of my committee talking together followed Montana law.”
Not one to so readily give up in defeat, they escalated to the Montana Supreme Court, where they got not only their snout smacked, but their tail stepped on, after the court decided on Tuesday 6-1 against them, upholding Menahan’s ruling where he determined that a quorum could not be defined as a “majority of a majority”, no matter how bad they wanted it to.
Chief Justice Mike McGrath, writing in the majority opinion, explained:
“While it is true that Usher’s gathering was deliberately convened to include just under a quorum of committee members and was certainly a larger group than one might encounter for elevator chit-chat, the group’s posture was more in kind with typical, unofficial legislative chatter than with formal public business…Only by scrutinizing the partisan make-up of the participants and speculating about how the conversation might influence the in-session work of the committee could one reach the (the news outlets’) conclusion about the group’s level of ‘control.”