When Montana Democrats gather at Fairmont Hot Springs next month for a “caucus retreat,” a tally of names on the attendance sheet will dictate whether the meeting is open to the public.
Either way, the topics of discussion — preparing a coordinated message for 2016 campaigns and drafting priorities for the 2017 Legislature — will be the same.
It is tricky to delineate between political strategizing and public business, said Sen. Mary Sheehy Moe, D-Great Falls.
“I see the caucus as a political body, not a public one,” Moe said, personally disagreeing with Montana courts that have ruled caucuses are indeed public. “Like many political bodies we often deal with public business.”
In the 1990s Montana news media filed lawsuits for public access to legislative caucuses, culminating in a 1998 ruling that found “the public has a right to observe their discussions” and that House and Senate caucuses are subject to the state constitution’s right-to-know provisions. Specifically, the public has the right to attend any meeting where enough legislators gather to constitute a quorum, whether in a capitol hearing room or a residence’s living room.
Some see a 2015 case as a setback reversing transparency gains presumably gained in the 1998 ruling.
Just before the 2015 session, Republican legislators gathered in the basement of a restaurant without notifying the public as required by open meetings law. The meeting was cut short when two reporters, who learned of the caucus, showed up to cover the gathering. Montana news media followed with a lawsuit seeking to hold the caucus in contempt of the 1998 ruling. District Judge Kathy Seeley dismissed the case in January 2015, saying that caucus meetings must be open to the public but that the 1998 ruling did not specifically require caucuses to provide advance notice to the public.
“After Seeley’s ruling, public notice requirements remain a gray area,” said Rep. Jennifer Eck, D-Helena.
Eck confirmed she has just “a handful” of reservations so far for the Feb. 6 retreat. Just to be safe and to head off transparency concerns, Eck said the party will issue public notice about the meeting and open it to anyone who wants to attend should the count pass 11.