Photograph Source: amanderson2 – CC BY 2.0
I usually refrain from criticizing opinions issued by the Montana Supreme Court (the Court). I cannot stand silent, however in the face of the Court’s recent evisceration of Montana’s fundamental constitutional Right to Know, Article II, section 9.
This provision guarantees that “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.”
In O’Neill v. Gianforte, decided January 2, 2025[1] the Court was faced with a simple question: whether the Governor was entitled to assert “executive privilege” to shield from public examination Agency Bill Monitoring Form(s) [(“ABMs”)] and/or emails referring to [the ABMs] sent to or from (1) any member of the Governor’s legal staff or (2) Lieutenant Governor Juras.” In short, Governor Gianforte was seeking a blanket exemption from Montana’s Constitutional Right to Know as regards the ABMs.
The District Court ruled that that there is no executive or gubernatorial privilege that shields the Governor from complying with the right to know. But the Court, seeking to carve out an exception to that Constitutional Right, held that the District Court erred when it found that Montana law does not recognize any form of gubernatorial privilege, but correctly determined that that the Governor’s assertions of privilege were subject to in camera [i.e. by the District Court] review.
The Court’s opinion was signed by four justices. Justice Laurie McKinnon wrote a scathing, well-reasoned dissent and was joined by one other justice and a District Court judge sitting for Chief Justice McGrath.
While in decline, bamboo scaffolding is still in use and has been used to erect 70 story buildings.[2] The Court’s opinion essentially weaves around the Right to Know, a bamboo scaffold providing the Governor with some amorphous sort of executive privilege, the assertion of which, at least as regards ABMs, is subject to in camera review—meaning that the Governor may have the “privilege” of not complying with the Right to Know, depending on what he wants to shield from public disclosure.
I suggest that the bamboo scaffold is an apt analogy, because, to get to where the Court ends up, one has to climb his or her way, bar by bar, through a complicated framework of discussion of other privileges such as the attorney/client, doctor/patient, and pastor/penitent privileges, which have long and well-established standing in the law–but which the claim of Gubernatorial executive privilege never has.
Worse, at the end of the tedious climb, one winds up 70 stories above the ground with nothing more than the certainty that there will be one lawsuit after another every time a citizen or the press makes a right to know demand for public documents that the Governor wants to hide from public examination. And, typically, when the years of expensive litigation is concluded, the original demand to review will be rendered meaningless.
Justice McKinnon’s dissent starts and ends with the plain and unambiguous language of Article II, section 9. There is no blanket executive privilege exemption from the public’s Right to Know, subject to the one, and only, exception that the Constitution, itself, provides: that being where “the demand of individual privacy clearly exceeds the merits of public disclosure.” All public documents are presumed to be subject to the right to know, with that one and only exception—an exception which the Court—until now—has narrowly interpreted and jealously guarded from abuse. Importantly, individual privacy is a right belonging to each of us as human beings; it does not belong to the government, to corporations or to public officials.
The Court’s opinion strikes the public’s Right to Know with a grievous and totally needless wound. Sadly, Justice McKinnon was one only vote short of the right opinion.
Notes.
[1] https://caselaw.findlaw.com/court/mt-supreme-court/116829700.html,
[2] https://scaffoldpole.com/bamboo-scaffolding/
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