The Montana state Capitol in Helena on Jan. 2, 2023. (Photo by Blair Miller, Daily Montanan)
The director of Legal Services within the Legislative Services Division explained to the Legislative Council on Thursday why it no longer will automatically make all bill draft files available to the public, as they have been for nearly 30 years, and will instead default to them not being public unless a lawmaker signs a waiver.
Legal Services Director Todd Everts told the council, which is composed of Republican and Democratic leadership from both chambers, that he and others did a “deep dive” into the issue of whether so-called “junque files” – which contain the full file of a bill’s drafting, communications sent between a legislator, lobbyists, interest groups and others – are public documents subject to the right to know and fall outside of a legislator’s immunity from testifying about their lawmaking in courts.
His team’s review was prompted by a recent court decision in Helena in which a judge reversed the longstanding understanding that the files, often utilized by lawmakers, journalists, lobbyists and other members of the public, were open to the public under the right to know in the Montana Constitution.
There was no vote at hand in the meeting; Everts said it was an “informational session.” But several Democrats on the committee, and some through public comment, voiced strong opposition to the move and unsuccessfully asked for it to be reversed.
Everts said since there are sitting senators not up for re-election who can already start drafting bills, and some lawmakers who face no opponents in November’s election, those bill requests are already coming in, as are the requests for the junque files for those bills.
Legal Services Director Todd Everts explains to the Legislative Council why his office made changes to transparency regarding junque files in response to a court decision. Screenshot courtesy MPAN)
“So, we had to respond to this court order, which we are obligated to do on your behalf. And we set up a process to follow that order to ensure that each individual legislator’s constitutional privilege would be protected,” Everts explained.
In July, as part of a fight over discovery matters in a lawsuit involving a Public Service Commission redistricting map crafted and passed during the 2023 legislative session, Lewis and Clark County District Court Judge Christopher Abbott issued an opinion saying the Montana Constitution’s right to know did not supersede a legislator’s constitutional immunity from being questioned outside the legislature about their deliberations or motives behind a bill.
He said that forcing a legislator’s junque files to be public would be “tantamount to questioning a legislator about their motivations and deliberations as to core legislative acts.” That meant, according to his order, that the production of junque files could be barred by what he called “legislative privilege.”
The solution, according to Everts, was to come up with a waiver system in which lawmakers would have to sign an agreement to allow their junque files to be released to the public when requested. Lawmakers may also decline to sign the waiver, indicating they intend to keep the information from the public. The office also said in the waiver that if it fails to receive a response, it will assume the lawmaker does not want their junque files to be public.
Legal Services Deputy Director Jaret Coles said the office last week sent emails to 22 lawmakers who have already requested bill drafts for next year’s session and followed up with phone calls.
As of two days ago, Coles said, six lawmakers had chosen not to make their junque files public; two had apparently said they would choose whether they would be public on a “case-by-case basis”; and only one had signed the waiver to make their junque files public. Sen. Mary Ann Dunwell, D-Helena, would later in the meeting say she was that lone lawmaker.
Everts said he and his staff did account for a 1995 Lewis and Clark County District Court decision, which Abbott did not include in his opinion and order in July, that found junque files were public documents except in cases where a person’s individual privacy is implicated. Everts was an attorney for a government agency that lost that case 29 years ago. The government did not appeal the decision.
Everts told the council that since that decision, Legislative Services had “basically always” handed out full junque files to the people who requested them. He said Abbott’s decision “deviated” from the 1995 decision but that Legal Services had concluded the two orders were not in conflict because Abbott’s decision cited separate case law from the Montana Supreme Court.
Everts told the council Legislative Services was in the process of setting up a way for staff and legislative attorneys to sort out communications and junque files between legislators that agree to have their files public and those that don’t. He said that could also lead to communications between one legislator who wants their files public, and another who doesn’t, being off limits to the public because the latter lawmaker did not opt in through the waiver.
He told the committee ahead of a question-and-answer session with lawmakers that the change was “critical” because Legal Services attorneys must adhere to rules of professional conduct to not reveal information “subject to a legal privilege” or which is “otherwise confidential.” Nor could they ignore a court order, he said.
“We set this process up so that you, as an individual legislator, would be totally protected, and that we would be protected from the requirements that we were obligated to provide you and not get sanctioned or disbarred for doing that,” Everts said.
Sen. Shannon O’Brien, D-Missoula, said she wanted to return to the former junque file system – a common refrain through the rest of the meeting that came primarily from Democrats, who are in the minority in both the House and Senate.
“The Montana people expect to know who is writing their laws. And I think it’s up to us to allow for that,” she said. “There’s a right to know … I understand that Mr. Everts has a job to do, and I believe that Montanans deserve to know what’s happening.”
Everts told lawmakers he believed that Abbott’s order was binding on the law and the full case – which is currently set to go to trial in December – did not need to be resolved before the order went into effect. Since the order involved discovery, it cannot be appealed until the district court case is resolved.
Sen. Mary Ann Dunwell, D-Helena, testifies about the move to make junque files privileged at a Legislative Council meeting on Oct. 3, 2024. (Screenshot courtesy MPAN)
He said the Legislative Council did not have the authority to waive privilege for all legislators because that power belongs to each lawmaker. But he added that it could be possible for the full body to pass a bill starting in January.
Rep. Derek Harvey, D-Butte, asked if Legislative Services planned to post on the legislature’s website the choices of each lawmaker when it comes to waiving privilege, so the public knows that is the case when they come asking for a junque file. Everts said they’ve already created a table showing how lawmakers are responding and hope to build out a system from there.
“Until a court takes a look at this decision and order and says otherwise, it’s our assessment through legal staff that this is the process that we have to put forward,” Everts said.
The public comment period included two citizens not tied to other groups who both said they opposed the changes; Jim Strauss, who spoke on behalf of newspaper and broadcasting organizations; and two Democratic state senators.
“When I see something like this come out, where my legislators are sent an email saying, ‘You have to tell us whether you want to be out and open with what’s going on and what you’re doing in the legislature, or you want to close up and cover up?’” said Mary Harlow. “That bothers me. As a taxpayer, I want to know what my legislators are doing for me when I elect them.”
Dunwell showed that she had signed the waiver but heavily criticized the move, saying she felt that it meant lawmakers would violate the Constitutional right to know if they do not make their junque files public. She encouraged all lawmakers to sign the waiver.
Derf Johnson, an attorney and the deputy director of the Montana Environmental Information Center, which was the plaintiff in the 1995 case that opened junque files to the public, said the changes marked a “dark day in government for Montana.”
He said he believes Abbott got the order wrong and that the changes were going to create problems for how the legislature operates and how the public can engage with it. He also said he disagrees with Everts’ interpretation of the ruling and said Legislative Services and the legislature needed to figure out a remedy as soon as possible.
“Respectfully, the way that Mr. Everts has interpreted this, I disagree with,” Johnson said. “I think that these two opinions are in conflict, and that at this time, Mr. Everts has chosen to follow one path, and that is not the path that protects Montana citizens and their access to government documents.”