The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
Montana lawmakers might have to sign a waiver to allow the public to see written communications between them, legislative staff, lobbyists and others that detail how bills are crafted and written, and who is involved in behind-the-scenes discussions that influence the laws legislators create every two years.
Last week, the Legislative Services Division, which writes bills for lawmakers, sent emails to senators who are not up for re-election this year and who have requested bill drafts for next year. They said that legal staff interpreted a Lewis and Clark County District Court judge’s decision from July to mean that those communications, compiled in what is called a “junque file,” are privileged and off limits to the public.
“The takeaway from our analysis of the opinion is that you are entitled to claim legislative privilege for certain correspondence and information that is gathered while drafting legislation,” the letter said.
The Montana Free Press first reported the changes by Legislative Services last week.
Legislative Services Division officials and attorneys are set to discuss the changes with the Legislative Council at a hearing on Thursday. The changes stem from a July court decision, but in that decision, the judge did not address a 1995 decision from the same court that found junque files must be open to the public under the Montana Constitution in most instances.
Changes to junque file transparency
Emails were sent to lawmakers who had already filed bill draft requests on Sept. 25 telling them they could waive the “legislative privilege” by signing a waiver or responding to the email. The email said lawmakers could also choose not to waive their privilege, but said there was no guarantee that information would stay privileged in the future, and that the court ruling was still subject to a possible appeal.
The email and the waiver both cite a July 12 opinion from Lewis and Clark County District Court Judge Christopher Abbott in a discovery fight between lawyers for the state and for a group of voters who have sued over the Public Service Commission redistricting map redrawn during last year’s session by Sen. Keith Regier, R-Kalispell, through his Senate Bill 109.
Abbott in February found the map is likely unconstitutional and appears to be gerrymandered to favor Republicans. But he declined to toss the map out and set an expedited schedule for the suit, which is currently set to go to trial in December.
But attorneys with Upper Seven Law who are representing the plaintiffs had tried to subpoena Regier in May for a deposition and to get ahold of the full junque file for the bill. The firm had previously requested the junque file, but the file the attorneys received contained only different versions of the bill draft and no communications about the bill.
Reporters, lobbyists, and members of the public commonly request and receive junque files during legislative sessions to learn more about the stakeholders behind a bill, to determine whether it is “copycat” legislation also being proposed in other states, and to glean information about how and why changes were made to a bill’s language. The Daily Montanan and other Montana news outlets reported several times during the 2023 session on the contents of junque files.
“Plaintiffs have requested the ‘junque file’ from the Legislature, but the file contains no correspondence or other background materials that would shed light on legislative intent for the districts adopted,” Abbott noted in his July opinion.
Subpoena fight in PSC redistricting lawsuit
The subpoena from Upper Seven had asked for anything Regier possessed relating to documents and communications involving the bill and maps, and communications with other lawmakers, officials and outside people or groups about how the maps came together.
Regier objected to the subpoena and filed a motion to quash it, arguing that the Montana Constitution provides him legislative privilege from compulsory testimony and the production of documents akin to that provided to members of Congress by the Speech and Debate Clause of the U.S. Constitution.
Upper Seven argued that the Montana Constitution did not contain the same privilege, that any privilege would have to be qualified, and that any privilege would have to be considered alongside the Montana Constitution’s right to know.
Article V, Section 8 of the Montana Constitution provides some privilege for lawmakers: “A member of the legislature is privileged from arrest during attendance at sessions of the legislature and in going to and returning therefrom, unless apprehended in the commission of a felony or a breach of the peace. He shall not be questioned in any other place for any speech or debate in the legislature.”
Regier cited common law, the U.S. Constitution’s Speech and Debate Clause, and that section of the Constitution to argue both that he should not be required to testify at a deposition and should not have to produce communications about the crafting of SB 109 because it involved things said during the legislative session.
Upper Seven had argued it was entitled to the public documents under Article II, Section 9 of the state Constitution – the right to know – which says: “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.”
Upper Seven attorneys argued the court needed to consider the legislative privilege in conjunction with the right to know. But Abbott’s opinion said they were incorrect.
“They emphasize that nothing in the limited (Constitutional) Convention record on this provision suggested an intention for legislative immunity to create an exception to the right to know,” Abbott wrote. “In this Court’s view, Plaintiffs have the analysis exactly backwards.”
Abbott found that the state constitution does confer “an absolute testimonial privilege” for state legislators to not be forced to testify when it comes to their legislative acts, and agreed that Regier should not be subject to a deposition, quashing the subpoena.
But he wrote that the question over the junque file documents was a “somewhat more complicated” matter, saying there has not been a Montana Supreme Court decision about such a question since the state Constitution was re-written in 1972.
He said that requiring a lawmaker to understand that “every scrap of paper” involving the construction of a bill could be open to the public might potentially chill legislative activity, and noted the Constitution says members “shall not be questioned” over their legislative acts.
But he also wrote that the legislature has long considered itself subject to the right to know, that full junque files, fiscal notes and legal review notes have long been public, and that the legislature chose not to exempt itself from judicial enforcement of public records laws.
“Thus, recognition of a legislative nontestimonial privilege does not imply that the legislature is exempt from the right to know or the public records statutes of the state,” Abbott wrote. “At the same time, the right to know does not abrogate a legislator’s protection from being ‘questioned’ outside the legislature about the legislator’s deliberations, thoughts, or motives underlying the drafting, sponsorship, amendment, support, or opposition to legislation.”
He wrote that the right to know cannot compel the production of documents from a junque file because that would be “tantamount to questioning a legislator about their motivations and deliberations as to core legislative acts” and said he disagreed with Upper Seven that qualified legislative privilege could be overcome by the right to know.
“The constitutional prohibition on subjecting a legislator to questioning about their motivations in connection with legislative acts is an absolute protection,” Abbott found.
He said he understood that the motivations behind the maps are especially important in a gerrymandering case, as it would provide evidence for the plaintiffs, but said allowing that to happen would “create an exception” to the legislative privilege.
“In sum, the Court will find requests for production to be barred by legislative privilege where the request seeks nonpublic information that necessitates disclosure of a legislator’s motivations or deliberations or is tantamount to questioning the legislator about their motivations and deliberations,” Abbott wrote.
He quashed most parts of the subpoena; but he did find that a lawmaker’s communications with the Public Service Commission and state and local executive branch officials would be public because it would constitute that lawmaker waiving legislative privilege.
1995 court decision found junque files should be public in most cases
But Abbott’s opinion did not include discussion of a 1995 order from a Lewis and Clark County District Court judge that did find the public’s right to know outweighed legislative privilege in most instances involving junque files. None of the parties had included the order in their briefs either; two attorneys told the Daily Montanan the case was not entered into the online system attorneys and paralegals use to conduct legal research.
The Montana Environmental Information Center had sued the Environmental Quality Council and Montana Legislative Council in 1995 after it tried to get ahold of the junque file, or bill draft file, for a bill a Deer Lodge senator had been working on to revise the Metal Mine Reclamation Act. The EQC and Legislative Council, as arms of the legislature, denied the request until the bill-drafting process was complete, and told the court that legislative employees are immune from suit under the state Constitution, common law and statute.
Judge Thomas Honzel found the issues in the case involved not just an argument over that lone bill draft, but whether the right to know extends to junque files “in the hands of the Legislative Council, EQC, or any other government agency or subdivision.”
The judge wrote the question would “undoubtedly surface again during future legislative sessions.” He wrote in the order that resolution of the question depends on the “interplay” of the right to know and the legislative immunity provisions of the Constitution – the same two issues at play in the case Abbott presided over.
But Honzel found those provisions were not in conflict, saying the suit did not involve questioning legislators about “speech or debate” in the legislature or otherwise get in the way of their duties.
“The issue presented relates only to whether the MEIC or any other member of the public is entitled to examine documents in the files of two statutorily created councils during the bill-drafting process,” Honzel wrote.
He cited a U.S. Supreme Court decision that found legislative employees – not members of Congress – were not immune from suit under the federal Speech and Debate Clause to say that legislative employees were not either.
The order said the bill-draft files of the Legislative Council and EQC should be public except in specific cases where a person’s individual privacy is implicated. But some have interpreted his order as going beyond those legislative employees.
“Respondents seem to suggest that early public knowledge of what may come before the legislature would somehow be detrimental. The Court does not share that view. Neither did the framers of our constitution,” Honzel wrote.
“They declared that the public has the right to examine documents held by public agencies which do not touch upon matters of individual privacy. The framers did not except bill drafts or bill-draft requests from that right, and the Court is not authorized to find such an exception where one does not exist,” he concluded.
Response to junque file changes
Anne Hedges, the director of policy and legislative affairs for the MEIC, was early in her career with the organization at the time. She, along with the MEIC’s attorney and another attorney, confirmed this week the state never appealed Honzel’s order.
“They lived with the decision because it didn’t cause any conflict; it didn’t cause any problems,” Hedges said. “I spent a decade saying ‘you’re welcome’ to people in the Capitol who are like, ‘God, this is really helpful to have,’ and now we’re moving in the opposite direction.”
Hedges noted that Todd Everts was counsel for the EQC on that case. He is now the Director of Legal Services and Code Commissioner for the Legislative Services Division and was copied on the emails to lawmakers notifying them of the changes.
Hedges said she was “incensed” about the changes after 30 years of the junque files being public and said that Everts should have known about the decision when Legislative Services was crafting the changes.
“This just takes us back to smoke-filled rooms where the public doesn’t have access to information it needs to know whether its elected officials are acting in the public interest, in their constituents’ best interest,” Hedges said.
Legislative Services Division Executive Director Jerry Howe said the division was reacting to Abbott’s decision with the changes and said people would “get everything you want to know” at Thursday’s meeting.
“Our legal team has been reading the opinion, and of course we want to be able to comply with a court order,” he said. “The legal team read that opinion and have been contemplating how to proceed.”
George Wolcott, the spokesperson for the Senate Democrats, said Democratic senators were upset at the move by Legislative Services and felt that it got in the way of the public’s right to know. He said the caucus would be having conversations about how to address the issue.
“We believe that transparency shouldn’t be a partisan issue, and I hope that the whole legislature should take the time now to recommit to the values of public participation,” Wolcott said.
A spokesperson for Senate Republicans said Wednesday he had been out of the office for some time, would be back on Thursday, and was unaware of the changes surrounding junque files. Members of the House did not receive the emails last week because they are all up for re-election, but the waiver, email draft, and Abbott’s decision have now been posted on the Legislative Council’s website ahead of the Thursday meeting.
Hedges said there have been discussions ongoing about whether to take the changes to court.
“We don’t have time to wait, and the legislative session is knocking at the door, and this is a critical issue for the public interest – for every public interest group, everyone who is not a powerful moneyed interest that works in the Capitol,” she said.