Photo illustration by Getty Images.
Are hospitals working behind the scenes to influence health care legislation in a way that shorts taxpayers and benefits themselves?
Is NorthWestern Energy putting its fingerprints on bills about power regulation?
These are a couple of questions longtime Montana political reporter Mike Dennison said he might find answers to in “junque files,” a compilation of information collected by the Legislative Services Division about bills in the making at the state’s Legislature.
Friday, a couple of reporters, a lobbyist and the deputy director of legal services for the Montana Legislature testified about those files in Cascade County District Court.
For at least 30 years, and as long as 50, information in those files has been open to the public, but this year, the Legislative Services Division largely closed off access, citing a new court decision.
The new decision was by Judge Christopher Abbott in Lewis and Clark County District Court.
It found a legislator whose map of Public Service Commission boundaries landed in court couldn’t be forced to testify about it because he had “an absolute testimonial privilege.”
The decision said junque files were more complicated, but it didn’t specifically address whether they are “privileged.” It said junque files have long been public, and the legislature doesn’t consider itself exempt from the right to know, but legislators are protected from being questioned about their motivations.
In light of the order, the Legislative Services Division stopped giving members of the public, including lobbyists and journalists, full contents of those files.
A citizen and the Montana Environmental Information Center, a nonprofit that lobbies the Montana Legislature on energy issues, sued in response.
News organizations, including the Daily Montanan, also are participating in the lawsuit, arguing the records must remain public under the state Constitution’s “right to know.”
In court on Friday, the parties argued about whether information in those files should continue to be public, and Judge John Kutzman quizzed witnesses about how they used the information in their work.
On behalf of the Legislative Services Division, Jaret Coles, deputy director of legal services, generally agreed that the files have been treated as public records for years, as noted in a statement from his former supervisor, Susan Fox, who retired in 2024.
Representing the news organizations, lawyer Kyle Nelson of the Goetz, Geddes and Gardner firm read the statement from Fox to Coles: “Throughout her career in government, she cannot remember a time where the public could not freely request and receive copies or otherwise examine junque files.”
Coles agreed. However, he also said his team conferred following the new court decision, and it found itself in a difficult situation, facing an interpretation that “drastically” changed legislative privilege in the way they understood it, and, in Montana, no ability to get an advisory opinion.
On behalf of the plaintiffs, Derf Johnson, deputy director of the MEIC, said a high volume of bills comes up during a legislative session — the current tally of bills in the works is 4,235, according to Montana Legislative Services.
He said the public can be in the dark about them, and at times, junque files reveal nothing insightful about a bill.
Other times, however, the files indicate a powerful lobbyist is working on legislation, and it’s sure to move quickly, he said. Johnson said he’s even seen the files reveal a bill in question is a copycat bill produced outside Montana, despite a claim to the contrary by its sponsor.
In that respect, he said, the files allow the public to hold legislators accountable.
The judge, though, wanted to know the reason that seeing the contents of the files ahead of the session helps the organization participate.
Johnson said a public that isn’t informed also isn’t able to meaningfully participate in the process, and a hearing can be otherwise “a little bit performative.” Montanans have a Constitutional right to participate in their government.
Editor and reporter Eric Dietrich, with lead intervening plaintiff the Montana Free Press, said property taxes are a hot topic, and he tried to get information about a bill described as a property tax exemption for wireless infrastructure.
Dietrich said he was curious about whether the bill was designed to be a carveout for an industry sector.
He received information in response to his request for the junque file, but he said important records that he would have received in the past were redacted. He said the omitted information included contact information that could have been for a lobbyist the bill requestor wanted the bill drafter to work with.
Dietrich said he called the legislator and never heard back. The legislature is a firehose of information, he said, and junque files help lobbyists, journalists and members of the public identify relevant information.
“It is a tool that sometimes gets us access to things that we wouldn’t otherwise have access to, especially early in the process,” Dietrich said.
On behalf of the MEIC, lawyer Rylee Sommers-Flanagan said that in Montana, members of the public are the bosses of the legislators, and the Constitution in Montana gives them the right to know what their lawmakers are doing.
Sommers-Flanagan, with Upper Seven, also argued the delegates to the 1972 Montana Constitutional Convention repeatedly said they wanted transparency, not secrecy, and not millionaires quietly dealmaking in backrooms.
“We are the state that believes that politicians should not be free to wheel and deal — and to do so in secret,” Sommers-Flanagan said.
On behalf of the Legislative Services Division, however, lawyer Blake Koemans said reporters can’t subpoena legislators and force them to answer questions, and he said part of the legal services the division provides includes keeping confidences with legislators confidential.
Lawyer Brent Mead, on behalf of defendant the state of Montana, said the Legislative Services Division is appropriately applying the rationale from the earlier order, to quash the subpoena in the separate case about a PSC map. He said the privilege protects the legislator’s “mental impressions,” whether through depositions, forced production of documents, or legislative staff.
“I think it applies in full force in this case, that Legislative Services is correctly following the reasoning and logic of that order,” Mead said.
Earlier this week, the Montana Supreme Court said Gov. Greg Gianforte can’t claim executive privilege to withhold public records just because he’s the governor. However, the court also said the district court needs to privately review the records in question, bill tracking forms his office used in 2021, to see if other privileges apply.
Judge Kutzman said he won’t be able to issue an order in the lawsuit before the Montana Legislature starts on Monday. The plaintiffs want him to reset the status quo, for the time being, so junque files are as available to the public as they historically have been.
The lawyers agreed to submit proposed orders to him within one week, which the judge said would allow him to make a timely ruling. Kutzman said if the lawyers want to submit briefs on the decision related to executive privilege, he would take them.