Matter of Districting Apportionme

IN THE SUPREMECOURT OF THE STATE OF MONTANA

IN REiTHE SELECTION OF A FIFTH MEMBER
TO THE MONTANA DISTRICTING i ORDER
AND APPORTIONMENT COMMISSION 1

On April 21, 1999, Joe Lamson, Sheila Rice, Elaine Sliter, and Jack Rehberg,
members of the Montana Districting and Apportionment Commission informed the Court by
letter that they had been unable to select the fifth member and presiding officer of the
Commission within the time allowed under Article V, Section 14(2) of the Montana
Constitution and Section 5-1-I 02(l), MCA.
Under Article V, Section 14(2) of the Montana Constitution and $ 5-l-102(1), MCA,
if the first four designatedmembers of the Commission fail to select the fifth member within
the time prescribed, a majority of the Montana SupremeCourt shall select the fifth member.
The Court having now considered various~
recommendations,
IT IS ORDERED that Dr. JaninePease-PrettyOn Top is selectedas the fifth member
and presiding officer of the Montana Districting and Apportionment Commission,
DATED this 9 day of’&?999
> .
Justice JamesC. Nelson specially concurs and dissents.

Introduction

I concur with this Court’s appointment of Dr. Janine Pease-PrettyOn Top to be the

fifth member and chairperson of the reapportionment commission. I strongly dissent,

however, from the manner in which we have exercised our power of appointment under

Article V, Section 14(2) of the Montana Constitution. This entire process of appointment,

including all of this Court’s deliberationson this matter, should have been open to the public.

In this regard, and as pointed out by the specially concmring Justices,my dtssent does

not arise from a ruling by this Court in responseto an original proceeding or suit to open to

the public our deliberations on this matter. Rather, the genesisof my disagreement is the

5-2 rejection of my motion, made before we began our discussionson this appointment, that

we conduct our deliberations and make our decision on this particular matter in open

sessions. As noted, the more conventional route for raising this issue would have been an

adversary proceeding filed in or against this Court. Notwithstanding, in the twenty-seven

years since the adoption of the 1972Constitution, no one has seenfit to file such a challenge.

Why, I do not know, but I suspectthat the reason for this failure goes more to the politics of

not wanting to go head-to-head with the highest court in this State on a controversial issue

directly affecting the fundamental way we conduct our business,rather than it does with the

merits of the constitutional arguments for and against.

More to the point, however, how this issue was raised is of little consequence.The

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;-~
I fact of the matter is that no one and no organization should have to sue us or even request
I
that we conform our own operations to the clear and unambiguous mandate of the

Constitution. As we stated in Associated Press v. Bd. of Public Educ. (1991), 246 Mont.

386,391, 804 P.2d 376,379, “[flirst and foremost, is the realization that the Constitution is

the supreme law of this State. Its mandate must befollowed by each of the three branches

ofgovernment.” [Emphasis added]. Therefore, it is with this mandate that I begin.

Discussion

Article II, Section 9 of the Montana Constitution provides:

Right to know. No person shall be deprived of the right to examine
documentsor to observe the deliberations of allpublic bodies or agenciesof
state government and its subdivisions,except in casesin which the demand of
individualprivacy clearly exceedsthe merits ofpublic disclosure. [Emphasis
added.]

My researchrevealsno Montana caselaw ruling on the applicability or inapplicability of this

constitutional provision to the judicial branch or, more specifically, to the proceedings and

deliberations of this Court. Therefore, I turn to the rules of constitutional construction.

In resolving disputes of constitutional construction, this Court applies the rules of

statutory construction. Under those rules, the intent of the framers of the Constitution is

controlling and that intent must first be determined from the plain language of the words

used. Butte-Silver Bow Local Govern. v. State (1989), 235 Mont. 398,403,768 P.2d 327,

330 (citation omitted). Moreover, under these rules, if the language is clear and

unambiguous, no further interpretation is required. Love11v. State Comp. Mut. Ins. Fund

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(1993), 260 Mont. 279, 285, 860 P.2d 95, 99 (citation omitted). The courts may not go

further and apply any other means of interpretation, Tongue River Elec. Coop. v. Mont.

Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864 (citation omitted), nor may a

judge insert into a constitutional provision what has been omitted or omit what has been

inserted, see 5 l-2-101, MCA.

Applying these well-settled rules of constitutional construction, it is clear that the

plain language of Article II, Section 9, does not exempt this Court from the provision’s

mandate. Rather, Montana’s constitutional “right to know” unambiguously covers the

deliberations ofallpublic bodies of state government.

Nonetheless,even ignoring the clarity of Article II, Section 9, and the dictates of our

constitutional construction jurisprudence, the proceedings of the 1972 Constitutional

Convention also lead to the conclusion that the “right to know” requirements do not apply

exclusively to the legislative and executive branchesof state government and its subdivisions

to the exclusion of the judicial branch.

In point of fact, the delegatesto the Constitutional Convention amendedthe language

of what becameArticle II, Section 8 of the Montana Constitution, which gives the public the

right to participate in the operations of governmental agencies, on Delegate Berg’s motion,

so as to exclude the judicial branch. See Montana Constitutional Convention, Verbatim

Transcript, March 7,1972, pp. 1663-67(comments ofDelegates Berg, Dahood, and McNeil).

Notwithstanding that these same delegates discussedthe language of what became Article

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II, Section 9 of the Montana Constitution on the same afternoon that they amended the

language of what became Article II, Section 8, they did not even discuss amending the

language of what became Article II, Section 9, so as to exclude the judicial branch. See

Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1667-1680.

Delegate Berg, however, subsequentlymoved to amend the languageof what became

Article II, Section 9, out of his concern that the phrase “public bodies” could be interpreted

to include juries, grand juries, or the deliberations of this Court. Montana Constitutional

Convention, Verbatim Transcript, March 16, 1972, pp. 2499-2501. Delegate Dahood stated

that he agreed with Delegate Berg and that the committee was “not trying to upset any

traditional rule of procedure with respectto anything within thejudiciary.” Notwithstanding,

Delegate Dahood statedthat he would not amendthe section as Delegate Berg had suggested.

Delegate Berg then stated in his closing statement in support of his motion that “my purpose

in asking to delete the word[s] ‘bodies or’ is to eliminate the potential interpretation that it

might include juries, grand juries, [or] Supreme Court deliberations.” Montana

Constitutional Convention, Verbatim Transcript, March 16, 1972, p. 2501. Despite Delegate

Berg’s concerns, his motion failed. Montana Constitutional Convention, Verbatim

Transcript, March 16, 1972, p. 2501.

Thus, even though Delegate Berg expressedthe same concern with regard to what

became Article II, Section 8, and what became Article II, Section 9, the delegatesamended

only the languageof what becameArticle II, Section 8, so as to exclude the judicial branch.

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 __..~ ~~_-- ~.~ __._,~~.~.~~,..~. _. ~,~~~~

More to the point, the delegatesdeclined to amend the language of what became Article II,

Section 9, so as to exclude the judicial branch even though faced with the sameconcern that

prompted them to amend what becameArticle II, Section 8.

Hence, not only the plain language but also the constitutional history of these

companion provisions of the Montana Constitution show that Article II, Section 9, is broader

than Article II, Section 8. Article II, Section 9, gives the public the right to observe the

deliberations of allpublic bodies and agencieswhile Article II, Section 8, gives the public

the right topnvticipnte only in the operationsof agencies. That, of course, begs the question

whether this Court is a “public body.” The answer to this question is undeniably “yes.”

In Common Cause v. Statutory Committee (1994), 263 Mont. 324,329, 868 P.2d GO4,

607, we noted that the rights which Article II, Section 9, guarantees are protected and

implemented primarily through Montana’s open meeting statutes, codified at 9s 2-3-201, et

seq., MCA. One of these statutes, 5 2-3-203(l), MCA, provides:

All meetings ofpublic or governmental bodies, boards, bureaus,commissions,
agenciesof the state, or any political subdivision of the state or organizations
or agenciessupported in whole or in part by public funds or expending public
funds must be open to the public. [Emphasis added.]

In Conrnzon Cause, we recognized that the legislature did not define “public body” or

“governmental body” in the open meeting statutes. Common Cause, 263 Mont. at 330, 868

P.2d at 608. Thus, we gave the words in these phrases their “plain, ordinary and usual

meaning” and stated that “the common understandingof the phrase ‘public or governmental

body’ would include a group of individuals organized for a governmental or public purpose.”

6,
Common Cause, 263 Mont. at 330, 868 P.2d at 608 (citations omitted). There can be no

doubt, this Court is a group of individuals organizedby and under the Montana Constitution

for a governmental purpose. It follows, then, that this Court is a public or governmental

body.

Similarly, in Grent Fulls Tribune Co., Inc. v. Day, 1998MT 133,y 16,289 Mont. 155,

7 16,959 P.2d 508,~ 16, this Court, in determining whether the Department of Corrections

Committee for Private Prison Screening and Evaluation was a “public body,” looked to the

Montana Procurement Act, which defines “governmental body” as

a department, commission, council, board, bureau, committee, institution,
legislative body, agency, government corporation, or other entity,
instrumentality, or official of the executive, legislative, or judicial branch of
this state, including the board of regents and the Montana university system.

Section 18-4-123(1 l), MCA (emphasis added). We stated that, since the committee was a

committee of the executive branch of government, and a “governmental body” for purposes

of procurement, “it necessarily follows that it is an agency of state government to which

Article II, Section 9, applies.” Great Falls Tribune, 7 17. This Court is clearly an “entity

of the judicial branch of this state,” and, therefore, a “governmental body.” Section

1%4-123( 1l), MCA. Thus, it “necessarily follows” that this Court is a “public body” to

which Article II, Section 9, applies. Great Falls Tribune, 7 17.

The same conclusion can be drawn from our decision in Becky v. Butte-Silver Bow

Sch. Dist. I (1995), 274 Mont. 131, 906 P.2d 193. In Becky, this Court, in determining

whether the records of an organization were “documents of public bodies,” looked to 5 2-6-

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101(2)(a), MCA, which statesthat “public writings” are

the written acts or records of the acts of the sovereign authority, of official
bodies and tribunals, and of public officers, legislative,,judiciaZ,and executive,
whether of this state, of the United States, of a sister state, or of a foreign
country;

Becky, 274 Mont. at 137,906 P.Zd at 197 (quoting 3 2-6-101(2)(a), MCA) (emphasisadded).

Section 2-6-101, MCA, also states that there are four classesof public writings and that

“judicial records” are one of the classes. Section 2-6-101(3)(b), MCA. Finally, although

we recognizedthat “documents of public bodies” is not defined in the Montana Constitution,

we stated that “it must reasonably be held to mean documents generated or maintained by

a public body which are somehow related to the function and duties of that body.” Becky,

274 Mont. at 138,906 P.2d at 197

Applying the definiti,:n of “public writings” found in $2-6-101(2)(a), MCA, it is clear

that most, if not all, of the d’ cuments which this Court generatesand maintains are “public

writings,” and, therefore, a: j: “documents of a public body.” Thus, since the documents

which this Court generates 3nd maintains are “documents of a public body,” it follows

(perhaps backwardly) that 1,lis Court is a “public body” to which Article II, Section 9,

applies.

As these cases de: ronstrate, this Court has been particularly vigilant and

uncompromising in protectin : Montanans’ constitutional “right to know” and in rejecting

other governmental bodies’ at empts to limit or subvert this right. In Great Fulls Tribune,

for example, the committee arg.ted that the public’s right to observe its meetings with private

8
 . .

companies which had submitted proposalsto build a private correctional facility in Montana

and to review the papers associatedwith the companies’ proposals was outweighed by the

companies’ right to privacy in the information that they had submitted. Great Falls Tribune,

18. We held, however, that the Great Falls Tribune had a constitutional right under Article

II, Section 9, to observe the committee’s deliberations and to examine the committee’s

documents, including proposalsthat had been submitted to it. Great Fulls Tribune, 133. We

also stated that the only exception to the public’s right to observe the committee’s

deliberations and documents concerned information to which the companies had a privacy

interest. Great Falls Tribune, 7 33.

In sum, and basedon the foregoing, if there exists somevalid argument for exempting

the deliberations and decision-making processesof this Court from the operation of Article

II, Section 9, the rationale is neither apparent in the tenor of our prior jurisprudence nor,

more importantly, in the plain languageof the constitutional provision itself or in the history

of its adoption.

And, with regard to the latter, while the concurring Justices read the Constitutional

Convention history of Article II, Section 9, a great deal more restrictively than 1 do,

nevertheless that history--and our disagreement over what it means--is largely academic.

For, as we made eminently clear in Associated Press,

[t]he language of [Article II, Section 91 speaksfor itself. It applies to
all persons and all public bodies of the state and its subdivisions without
exception. Under such circumstances, it is our duty to interpret the intent of
the framers from the language of the provision alone and not to resort to

9
 , ‘I .,

extrinsic aids or rules of construction in determining the intent of the delegates
to the Constitutional Convention.

AssociatedPress, 246 Mont. at 392, 804 P.2d at 379 (quoting Great Falls Tribune v. District

Court (1980), 186 Mont. 433,437-38, 608 P.2d 116, 119.

Similarly irrelevant are the concurring Justices’ concerns as to the impact of

complying with Article II, Section 9, on the operationsand functioning of this Court. In this

regard, I make three observations. First, since we are bound by the “right to know” provision

of the Constitution of Montana, we, and litigants, will simply have to deal with the

consequences changesthat flow from opening our deliberationsand operate accordingly.
and

Other public bodies of state government seemto be able to comply with the requirements of

Article II, Section 9, and, yet, function quite well. I find it difficult to believe that, given the

caliber of the justices serving on this Court, that we are not, likewise, up to the task.

Likewise, I refuse to be cowed by the concurrences’
paradeof horribles-internal memos and

proposed opinions being made public, media blitzes, massesof the unwashed converging

upon the Court, cases settling, criminals jumping bail. Good griefl If, before a final

opinion is handed down, litigants want to settle, jump bail or jump off a bridge, for that

matter, they can, and often do that now. If votes change between the time of initial

discussion and final opinion, then those who acted prematurely will have to bear the

consequences their bad or good decision.
of

Second,in my experience,every public body that has been faced with the prospect of

opening its operations to the press and public has put forth a whole list of problems and

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.-__.. ---.__- -

reascms why it is unique; why “right to know” should not apply to it; why the functions and,

perhaps, very existence of the body itself will be compromised by the changesthat will be

forced upon it; and why the public will run amuck or abuse the new found information

gleaned from open meetings. In point of fact, in the many caseswhere we have rejected

these very arguments and have, instead, required compliance with the Constitution, the sky

did not fall; the sun rose the next day; the public body complied; and the business of

government went on. Again, and despite the concurring Justices’ concerns, I suggest that

this Court would continue to function quite effectively and quite well if we opened our

deliberations and proceedings in compliance with Article II, Section 9.

Third, the concurring Justicesraise the specterof opening to the press and public the

deliberationsof trial juries. In doing so, they read more into my dissent than I have written.

My present concern is with the applicability of Article II, Section 9, to the operations of this

Court. I agree that there are fundamental differences in the functioning of trial juries that

may well, if not likely, preclude the provision’s applications to those bodies. That, however,

has absolutely nothing to do with the matter at issue. I believe that the requirements of

Article II, Section 9, apply to the operationsof this Court, and that is all this dissentis about.

Finally, even assumingnrgtle/zdo,that somehow the “right to know” provisions of the

Montana Constitution do not apply to the judicial deliberations and decision-making

processesof this Court, the exercise of our power of appointment under Article V, Section

14(2), is not a judicial function but is, rather, an administrative one. We are not here called

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upon to decide a justiciable controversy, to rule on a legal question, to interpret the law or

the Constitution, to issue a writ, to discipline an attorney, to make rules governing the

practice and procedure before the courts of this State, or to appoint persons to committees

and commissions that directly affect the operation of the courts and the administration of

justice--all traditional judicial functions.

To the contrary, we are here simply executing a default power to appoint the fifth

person to a bi-partisan commission whose decisions will impact primarily the legislative

branch and the future balance of political power between the Democrat and Republican

parties, between urban and agriculture interests, and between Indians and non-Indians in this

State. Requiring judges to make an appointment to a non-judicial, political commission--

even where that requirement is basedin the Constitution--does not make the appointment or

the process and deliberations leading up to it a judicial function any more than is a judge’s

performance of the administrative act of hiring, supervising, demoting or tiring a judicial

employee a judicial function. Simply put--and the law is clear on this point--not every

official act required of a court is a judicial function becausethe act in question happens to

be performed by a judge. SeeForrester v. White (1988), 484 U.S. 219,227, 108 S.Ct. 538,

544, 98 L.Ed.2d 555; Clarkv. Dussault (1994), 265 Mont. 479, 487-88, 878 P.2d 239, 244;

C/ark, 265 Mont. at 490-93, 878 P.2d at 246-48 (Nelson, J., concurring).~

Indeed, in this context and recognizing the exercise of our appointment authority

under Article V, Section 14(2), for what it is--an administrative decision impacting primarily

12
the legislative branch--I find it ironic, to say the least, that decisions of this Court and the

district courts have preserved Montanans’ “right to know” and to observe the making of

similar sorts of decisions in the pre-session and in-session political party caucusesagainst

legislative attempts to keep those proceedings and deliberations closed to the press and

public. SeeAssoc. Press v. SenateRepublican Caucus (1997), 286 Mont. 172,95 1 P.2d 65.

Yet, this Court is unwilling to subject its own processes and deliberations involving

essentially the samesort of decisionto the constitutionally-mandatedpublic scrutiny that we

have held applies to the legislature. I cannot accept this double standard.

Justice Leaphart, however, believesthe doublestandardis justified--in fact, mandated-

-because our appointment authority is grounded in the Constitution itself. I cannot agree.

There is no basis for concluding that the discharge of our obligations under Article V,

Section 14(2)--whether those are characterized as judicial or administrative--and under

Article II, Section 9, are incompatible or are mutually exclusive. Indeed, the fallacy of this

argument is that it assumesthat this Court will be unable to act “judicially”; that we will be

unableto perform “uniquely judicial” functions; that somehow we will be less “independent”

or not as “apolitical”; and that we will fail the test of “impartiality” if we open our

proceedings and deliberationsto the public, as the Constitution, Article II, Section 9, clearly

requires. Nonsense.

I cannot for a moment believe that the members of this Court will suddenly transform

into a bunch of political hacks, unable to render impartial, independent decisions--judicial

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 . . I.

. I ,.

or administrative--subject to the pressures of lobbying and paralyzed by an inability to

entertain thoughtful discussions, if we open our decision-making processes to public

scrutiny. In fact, if anything, the opposite is the more likely consequence. Like Justice

Trieweiler, I can think of no better guarantee of impartiality, of prepared, thoughtful

discussionand comment and ofjudicious decision-making than knowing that the collective

processesand individual comments and opinions of this Court’s members will be subject to

observation and probing analysis and reporting by the media and careful examination by

interested members of the public. I can think of no better guarantee against litigants and

attorneys lobbying the members of this Court (assuming arguendo that anyone would be

unethical and, frankly, stupid enoughto do that) than their knowing that such efforts would

most likely headline the morning paper.

why, after all, did the framers include Article II, Section 9, in the Constihltion? The

answer is self-evident. Elected officials, government bureaucratsand public officers are less

likely to cut deals and comers if they have to operate in a fish bowl. Very simply, when

public employees and officials--judges included--perform the public’s business, the public

is entitled to observe and to understandhow they are going about it. More to the point, if,

as Justice Leaphart argues, the judiciary is, by its very nature and as a distinct branch of

government, already pure of purpose, intention and action, what conceivable harm would

follow in simply letting the press and public observe that first-hand? If we’ve nothing to

hide, then what need have we of secrecy? Is this Court incapableof complying with the right

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 , . 4.
‘I, .
’ I *
*. . I .

. .

to know provision of the Montana Constitution, yet balancing at the times needed,that right

with the right of individual privacy? We should all resign if we are that inept. Contrary to

the concurring Justice’s comments, open deliberations will not make this a less effective

Court; it will make us all better justices.

Likewise, I am similarly unpersuadedby Justice Leaphart’s reliance on the fact that

other courts have determined that ‘Ijudicial deliberations are confidential.” Our obligation

to open our deliberations is, as I have discussed at length above, required by Article II,

Section 9, of the Montana Constitution. Justice Leaphart appears to concede that this

provision is broader than similar provisions in other states. That should end the discussion.

This Court is bound by this State’sConstitution not some other state’s or by common law

tradition. Moreover, how many times has this Court announcedits determination to find its

own unique path in the requirements of Montana’s own unique Constitution, proudly--nay,

defiantly--“refusing to march lockstep” with other jurisdictions, state and federal? There is

no good reason, much less a legal one, why we must suddenly fall in behind the parade on

this issue either.

Finally, as to Justice Leaphart’s discussion of the reach of other provisions of

Montana’s Constitution, I can only note that we have not determined the scope of those. I

am not willing to offer any opinion at this time as to how those provisions might or might not

be read. We have, however, and as pointed out above,unequivocally held that the language

of Article II, Section 9, speaks for itself without reference to extrinsic aids, rules of

15
 . . .

construction or resort to the history of the Constitutional Convention; that these provisions

apply to all persons and all public bodies of the state without exception; and that the

mandates of Article II, Section 9 must be followed by each of the three branches of

government. AssociatedPress, 246 Mont. at 391-92,804 P.2d at 379. Either we meant what

we said, or, at the earliest opportunity, we should overrule these statements as meaningless,

sanctimonious, claptrap.

In closing, I am satisfied that the person this Court has appointed is well-qualified to

chair the reapportionment commission. Her vote will likely be crucial on many important

decisions to be made by the commission in the coming months. But, the names of other

well-qualified persons’were also placedbefore this Court for considerationand were, in fact,

fairly considered. Had the process been open, the public would have been informed and

would have benefited from our discussionsand deliberations. Had we simply complied with

Article II, Section 9, the integrity of the entire appointment process would have been

enhanced and verified. And, unfortunately, since we did not open our deliberations and

discussions to the public, those who will now speculate and criticize our choice will find

ample fodder in the ignorance which is always bred of secrecy.

We, as a Court, had a unique chance--certainly one unprecedented in Montana and,

’ Thoseinclude:E. Edwin Eck, Dean of the~Schoo1 Law, University of Montana; J.
of
Martin Burke, Professor,Schoolof Law, University of Montana; Don Sollars,former Chief
Judge,BlackfeetTribal Court; H.J. Pinsoneault,Attorney; Tom Cherry, Management
Consultant.

16
 perhaps,even in this country--to practice~the
principles of open government that we so often
/

preach. Sadly, we squanderedthis opportunity. In that I dissent.

Justice Terry N. Trieweiler concurs in the foregoing special concurrence and dissent.

17
 Justice Terry N. Trieweiler specially concurs and dissents.

I likewise concur with this Court’s appointment of Dr. Janine Pease-PrettyOn Top

to be the fifth member and chair of the reapportionment commission.

I also concur, however, with Justice Nelson’s dissent from the manner in which this

Court has made its decision.

JusticeNelson hasaccuratelyand capablyanalyzedthe constitutional requirement that

this Court’s deliberations be subject to public observation. I would simply like to add my

personalobservationregardingwhat I believe would be practical benefits from greater public

scrutiny of this Court’s performance.

I have now served on this Court for eight and one-half years. During that service,

there have been times when I felt the Court did not function well as an institution. During

those times, greater public scrutiny would have led to constructive criticism and ultimate

improvement in the processby which this Court arrived at its decisions.

At other times, it has been my opinion that this Court has performed with unique

distinction. Public scrutiny at those times, would have enhancedpublic confidence in the

Court as an institution and the process by which many significant issues in this State have

been decided.

I do not agree with those who suggest that the members of this Court could not

function as candidly and effectively as they do now if the Court’s deliberationswere open to

the public. While certainly over the course of eight and one-half years remarks have been

18
 madc during conf‘crcnce which wouldn't have been made with reporters present, no one can

seriously contend that those remarks contributed anything of a positive nature to the decision

making process.

Furthermore, it has always mystified me how this Court can continue to operate

privately in the face of an obvious constitutional mandate to the contrary on the basis that it

is simply a more effective way to proceed, when at the same time the judiciary prohibits

school boards from discussing collective bargaining strategy privately (set Great Fulls

Tribune v. Great Falls Pz&. SC/Z.(1992), 255 Mont. 125, 841 P.2d 502); tells local

government that it cannot discusslitigation strategy privately (see The Associated Press I/.

the Bomd ofPub. Educ. (1991), 246 Mont. 386, 804 P.2d 376; and prohibits the legislative

caucusesfrom discussingpartisan strategy privately (see The Associated Press v. Montam

SenateRepublican Cuztczls, CDV 95-218 (Lewis and Clark County Dist. Ct. filed June4,
No.

1998). Certainly, these public bodies felt strongly that these functions could be performed

more “effectively” without public scrutiny.

I concur with JusticeNelson’sconstitutional analysisof our obligation to conduct our

business publicly, and simply add that openness is not only constitutionally required, I

believe it would lead to a consistently better product and a judicial institution in which the

public has greater confidence.

e----
MT&

/ Y Justice

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 . 1,
, c
.’ ’
I

Justice Jim Regnier specially concurs.

1 enthusiastically concur in the Court’s appointment of Dr. Pretty On Top to this

important position. I alsojoin my colleagues,
JusticesNelson and Trieweiler, in their strong

belief in open government. It is not only the right view, it is mandated by our Constitution.

As Justice Nelson correctly notes regarding Montana’s constitutional Right to Know, this

Court has been “vigilant and uncompromising in rejecting other governmental bodies’

attempts to limit or subvert this right.” For the reasonsstatedbelow, however, I do not share

the dissenting view that Article II, Section 9 of Montana’s Constitution applies to the

deliberations of the Montana SupremeCourt.

At the outset, I think that it is important to appreciatethe context in which this matter

is before us. This Court is exercisingits power of appointmentpursuant to Article V, Section

14(2) of Montana’s Constitution and Title 5, Chapter 1 of the Montana Code Annotated.

Theseprovisions provide that the Montana SupremeCourt shall appoint the fifth member of

the Montana Districting and Apportionment Commission in the event the Commission is

unable to reach agreement on a fifth member. The issue addressedby the dissent, that is

whether the deliberations of the Montana Supreme Court regarding this appointment are

subject to Article II, Section9, is not before us as a contestedissue. In the usual case,parties

to a dispute tile briefs with this Court setting forth legal argumentsto support their respective

positions. When we were informed that the Commission was unable to select a fifth

member, we proceededto place this matter on our weekly agendain the samemanner as any

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other matter is addressedby this Court. No person or entity has filed an original action in

this Court contesting the manner in which we determined to proceed.

1 recognize that some may interpret my view that the deliberations of this Court are

exempt from the provisions of Article II, Section 9, as disingenuous. Indeed, many may

criticize such a position when this Court has forced other public bodies to open up their

deliberations to public view and the necessary scrutiny that follows. However, after

reviewing the applicabletranscript of the Constitutional Convention, it seemsclear to me that

the Delegates never intended the provisions of Article II, Section 9 to apply to the

deliberationsof this Court. Furthermore, in my view, opening the conferences of this Court

to the public would detract from, rather than improve, our ability to servethe citizens of this

state.

Any scrutiny of a constimtional provision must begin with an examination of the text

in question. The dissent suggeststhat a plain reading of Article II, Section 9 leads one to the

inescapable conclusion that the provision applies to the deliberation of judicial bodies, in

particular, the deliberations of this Court. Therefore, under our accepted rules of

construction, the dissent argues we should go no further in our analysis. From my reading

of the provision, however, it is not clear that the phrase “deliberations of all public bodies”

found in Article II, Section 9, includes the deliberations of the Montana Supreme Court.

Since the adoption of our current Constitution, I am unaware of any actions filed in this

Court or any district court in this state contending Montana’s constitutional Right to Know

21
 .

includesthe right to observethe deliberationsof this Court. The absenceof such a challenge

suggests to me that it is not clear and unambiguous that this provision applies to such

deliberations. As the dissent points out, Article II, Section 9 has been the subject of

considerablelitigation as it appliesto various governmentalbodies. No litigation, however,

has ever alleged that the proceedings of this Court were in violation of the provision.

Although we have defined “public body” in a variety of ways as contested cases were

presentedto us, none of thesecasesinvolved the preciseissueaddressedhere, that is whether

this Court is considered a “public body” for the purposes of Article II, Section 9.

A review of the transcript of the Montana Constitutional Convention of 1972 is

helpful in analyzing this important question. Justice Nelson correctly points out that the

Delegates to the Constitutional Convention specifically amended the language of what

becameArticle II, Section 8 of the Montana Constitution which gives the public the right to

participate in the operations of governmental agencies.

Article II, Section 8 of Montana’s Constitution provides:

Right of participation. The public has the right to expect governmental
agenciesto afford such reasonableopportunity for citizen participation in the
operation of the agenciesprior to final decision as may be provided by law.

The relevant transcript relating to Section 8 disclosesthat DelegateBerg was concernedthat

an earlier draft which used the word “government” rather than “governmental agencies”

might reasonablybe interpreted to include the judiciary which unquestionably is a branch of

the government. Delegate Berg pointed out that this provision could be interpreted to mean

22
that the public would not only have the right to observetrials and other judicial proceedings,

but would also have the right, in some fashion, to participate in the judicial process such as

preparing jury instructions or providing input to the court in the preparation of the court’s

orders. Delegate McNeil had a similar concern that the provision might be interpreted as

providing the public the right to actually participate by way of vote in the legislature or the

Montana Supreme Court. Addressing these concerns, the text was ultimately amended by

substituting the term “governmental agencies” for “government.” See Montana

Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1663-67.

The dissent posits that Delegate Berg’s proposed amendment to Section 8, and its

acceptance the Delegates,shedslight on the ultimate breadth and meaning of Section 9.
by

Delegate Berg also moved to amend the language of what becameArticle II, Section 9 out

of concern that the phrase “public bodies” might be interpretedto include juries, grandjuries,

or the deliberations of this Court. Delegate Dahood, Chairman of the Bill of Rights

Committee, responded:

And.I think the interpretation that he has given could possibly be laid against
this section, but I am very reluctant to rise in opposition to Delegate Berg on
this issuebecauseI’m certainly in accord with everything that he says, except
I’m not satisjied in my mind andjudgment that a court could conceivably give
that interpretation to ‘bodies”. We are referring there to public bodies;
perhaps city councils,perhaps some bureaucratic groups or some bureau that
may have beenestablishedperhapsfor someparticular specialpublic purpose
I think our commentsclearly indicate that we are not trying to upset any
traditional rule ofprocedure with respect to anything within the judiciary.

23
(Emphasisadded.) See Montana Constitutional Convention, Verbatim Transcript, March 16,

1972, at 2499-500.

From the actions of the Delegatesrelating to Delegate Berg’s proposed amendments

to Sections 8 and 9 of Article II, the dissent reasons that since the Delegates accepted

Delegate Berg’s argument and amendedArticle II, Section 8, but refused to amend Article

II, Section 9 wher Delegate Berg made a similar suggestion, the conclusion is that the

Delegates intended that Article II, Section 9 be broader in scopethan Section 8.

My review of the transcript indicates that there were logical reasons to support the

Delegates’ action of voting in favor of Delegate Berg’s proposed amendment to Section 8,

while rejecting his proposedamendmentto Section9. There is no questionthat a preliminary

draft of Section 8 which used the term “government” might very legitimately have been

interpreted to include the judiciary, which unquestionably is a branch of the government.

Thus, it is clear to me that the Delegates felt that Delegate Berg’s concerns about Section 8

were justified.

Notwithstanding their vote on the Section 8 amendment,my reading of the transcript

discloses that the Delegates did not intend that Article II, Section 9 should apply to

deliberations of this Court, juries or grand juries. In fact, very little discussion took place

after Delegate Dahood, a lawyer, seemedto convince the Delegates that no “court could

conceivably give that interpretation to ‘bodies’ [and that] our comments clearly indicate

that we are not trying to upset any traditional rule of procedure with respect to anything with

24
 . .

the judiciary.” My interpretation of this dialogue at the Convention is that the Delegates

were apparently persuaded that Delegate Berg’s proposed amendment to Section 9 was

unnecessary. 1 seenothing in the transcript to suggestthat the framers ever intended that

Article II, Section 9 be interpreted as the dissent suggests.

The reasoningof Delegate Dahood was sound at the Convention and is sound today.

If we were to conclude that Article II, Section 9 applies to the deliberations of the Montana

SupremeCourt, the judicial processof this institution, aswe know it, would be significantly

different and, in my view, compromised. It is not uncommon for this Court to deliberate on

a particular casefor months, even after the briefing is completed and oral argument has been

conducted. During this time additionalresearchis pursued,the transcript of the proceedings

below is reviewed by the Justices, and proposed opinions and dissents are circulated and

discussed during Court conferences. Preliminary votes quite often change as the case

progressesto a final written opinion. If the public, which of course includes the parties to

the litigation, were able to observethese deliberations, there is no question in my mind that

the parties would act in anticipation of the Court’s decision. The opinion ultimately handed

down by this Court, in many instances,may be entirely different than the parties’ prediction.

I don’t believe such a processwould benefit anyone.

My other major concern is that the judicial process itself would be detrimentally

impacted by the public attention that would no doubt be directed to the Court as it deliberates

over cases. Efforts to lobby the Court both directly and indirectly would inevitably occur

25
especially in high profile or controversial matters. Unlike the legislative process, where

continuousinteraction with the citizenry is desirable,
judicial decision making functions best

in an environment where such influences are avoided. Soundjudicial decisionsare made by

reflecting on principles of law, hopefully unswayedby public opinion. In fact, many judicial

decisions are unpopular, as members of this Court are acutely aware. However, the

unpopular decision is more often than not the legally correct one. I believe our ability to

function in such a fashion would be significantly jeopardized by open conferences.

Finally, under the analysis of the dissent, one might logically suggestthat the entire

jury deliberation processwould necessarily also be open to the public. It is hard for me to

imagine how such a jury system could function. Ordinary citizens who are called to jury

duty are the true heroesin our system ofjustice. Jurors make difficult decisions that affect

the very liberty and property of the persons involved in the litigation. The time-honored

tradition in this country has always been that no one, not the lawyers, the judge, the media,

or anyone, is allowed to observe, participate or invade jury deliberations. Imagine, for

instance,the spectacleof a criminal jury sitting in judgment of an accusedwho is present in

the jury room during deliberations.

JusticeNelson points out that even if one concedesthat the Right to Know provisions

do not apply to judicial deliberations, our function in making this appointment to the

Montana Districting andApportionment Commission was purely administrative in nature and

most certainly subject to the provisions of Article II, Section 9. This Court is involved in

26
 . ‘1 .

many functions which are not technically judicial, such as adopting rules governing the

procedure of the Court and making appointmentsto various commissions of the Court, only

to name a few. I think it would be an unwieldy process if we were to attempt to segregate

out our judicial functions from administrative ones for the purpose of Article II, Section 9.

My interpretation of Delegate Dahood’s comments that “we are not trying to upset any

traditional rule of procedure with respect to anything within the judiciary” applies to our

administrative functions as well.

In my view, Article II, Section 9, commonly referred to as Montana’s constitutional

Right to Know provision, does not and was never intended to apply to deliberations of the

Montana Supreme Court.

Chief Justice J. A. Tumage, JusticeW. , and Justice Karla M. Gray
join in the foregoing specially concurring opinion of Justice Jim Regnier.

/ h++e-v-
Justice

Jus ‘ce

27
 0
Justice W. William Leaphart, specially con&rmg.,

I find myself in the anomalousposition of replying to a dissent in a matter in which

there is no opinion by the Court and no adverseparties who have tiled briefs and framed the

issues. Despite this unusual posture, the dissenters have sua sponte raised some very

profound issues about the deliberative process of judges and juries in light of the

constitutional right to know andI take this opportunity to expressmy disagreementwith their

interpretation of our constitutional guarantees.

The dissent argues that all deliberations of this Court should be open to the public

under the right to know provision of the Montana Constitution.’ In particular, JusticeNelson

contendsthat our appointment of a fifth commissioner to the reapportionment commission

is, like the hiring or firing of a court employee,an administrative matter that should be open

to the public. As I will elaborate below, I disagreethat our deliberations are subject to the

right to know provision. Furthermore, I do not agree that our constitutional obligation to

appoint a commissioner is, asthe dissent argues,a mere administrative matter like the hiring

or firing of a court employee.

Whether this Court’s appointment of a fifth member of the reapportionment

commission is a judicial action should turn on whether that action is judicial in the sensethat

it is unique to this Court. Is the action of a distinctive nature that no other governmental

’ For convenienceI have denoted Justice Nelson’s special concurrence and dissent
as “the dissent,” becauseJustice Trieweiler, in his special concurrence and dissent, states
that he is in agreement with Justice Nelson’s constitutional analysis of the right to know
provision.

28
entity can perform?

I submit that the answer to the inquiry is readily apparent: Montana’s Constitution

expresslyprovides that when the legislative appointeescannot agree on the appointment of

a fifth member to the reapportionment commission, “a major@ of the supreme court shall

select&n.” Art. V, Sec. 14(2), Mont. Const. (emphasisadded). The Constitution mandates

that this Court and no other entity perform the appointment task.

Although we could end the inquiry here, I note that the Constitutional Convention

history shows that the framers intended that this Court’s appointment of fifth commission

members embody the institutional characteristicsthat uniquely distinguish the judiciary. The

Montana Constitutional Convention Comments provide:

The committee considers reapportionment and redistricting to be a
troublesome and time consuming matter for a legislative body becauseof the
legislature’s difficulty in being objective. . . The committee recognized that
redistricting and reapportionmenthas political repercussions,so the proposed
section provides for bipartisanism in the method of selection of the first four
members. The fifth member of the commission becomesthe key vote and his
selection by the other four members is to insure impartiality.

I Montana Constitutional Convention, Comments, p. 393. Thus, the Constitutional

Convention framers’ commentsmake clear that in the eventthat legislative appointeescannot

agree on a fifth member for the commission, our Constitution’s framers intended that an

apolitical, independent entity make the appointment: Montana’s Supreme Court.

It strains credulity to supposethat the framers intended that this Court make such

appointments without observing the very judicial traditions that enable it to operate as an

29
 apolitical and independentbranch of government. As Montana SupremeCourt justices who

are constitutionally required to make this appointment when the partisan legislative

appointeescannot agreeamong themselves,I submit that we act in our judicial capacity and

not as mere administrators.

Turning then to the broader question of whether our deliberations of judicial matters

are subject to the right to know provision, I am not aware of any appellate court that allows

the public to observe its deliberations. I am also not aware of any other state that has a

similarly broad constitutional right to know provision. ’ However, other state courts have
I
expressly affirmed the common-law tradition ofprivate judicial deliberations. For example,

in In Re Inquiry Concerning a Judge, Gridley (Fla. 1982), 417 So.2d 950, 955, the court

observedthat “judicial deliberations are confidential.” In People v. Mallory (Mich. 1967)

147N.W.2d 66 (Souris, J. concurring), a judge offered a cogent discussionof that common-

2 Other states’constitutional right to know or observeprovisions are expressly
limited. Article XI, Section 5 of North Dakota’s constitution provides that “‘[u]nZess
otherwise provided by law, all meetings of public or governmental bodies, boards,
bureaus, commissions, or agenciesof the state or any political subdivision of the state, or
organizations or agenciessupported in whole or in part by public funds, or expending
public funds, shall be open to the public.” Art. XI, Sec. 5, N.D. Const. (emphasis added).
Similarly, Article XII, Section 3 of Louisiana’s constitution provides that “[n]o person
shall be denied the right to observe the deliberations of public bodies and examine public
documents, except in casesestablished by law. Art. XII, Sec. 3, La. Const. (emphasis
added). Part one, Article 8 of the New Hampshire constitution provides that “[a]11power
residing originally in, and being derived from, the people, all the magistrates and officers
of government are their substitutes and agents, and at all times accountableto them.
Government, therefore, should be open, accessible,accountable, and responsive. To that
end, the public’s right of accessto governmental proceedings and records shall not be
unreasonably restricted.” Pt. one, Art. 8, N.H. Const. (emphasis added).

30
 .
. I, *

law tradition:

It has been my understanding that views expressedby judges of an appellate
court while deliberating upon their decisionsare confidential until they appear
in an opinion, if they ever do, over the signature of the author. Such privacy
permits judges to discuss freely among themselves all issues involved in a
case, to advancetentative views for the sometimes enlightening reactions of
wiser colleaguesand to criticize candidly and sometimes bluntly the notions
offered by other colleagues, all without fear of subsequentembarrassment to
any member of the Court by public disclosure of anything said or written
which does not survive the ordeal as a subscribed formal opinion. In my
judgment such freedom of expressionin camera should be encouragedamong
Justiceswhose duty it is to strive, at least, to reach majority accord when that
can be achievedwithout compromise of legal principles.

Mallory, 147 N.W.2d at 74.

Federal courts have also affirmed the confidentiality of judicial deliberations,

recognizing that candiddeliberations areessentialto an independentjudiciary and suggesting

that there is a judicial privilege. In United Statesv. Nixon (1974), 418 U.S. 683,94 S.Ct.

3090,41 L.Ed.2d 1039, the Court recognized that

[h]uman experience teaches that those who expect public dissemination of
their remarks may well temper candor with a concern for appearancesand for
their own interests to the detriment of the decisiomnakingprocess. Whatever
the nature of the privilege of confidentiality of Presidential communications
in the exercise of Art. II powers, the privilege can be said to derive from the
supremacyof eachbranch within its own assignedareaof constitutional duties.
Certain powers and privileges flow from the nature of enumerated powers.

Niuon, 418 U.S. at 705,94 S.Ct. at 3106,41 L.Ed.2d at 1062. The Nixon Court concluded

that “[t]he expectation of a President to the confidentiality of his conversations and

correspondence,like the claim of confidentiality ofjudicial deliberations, for example, has

all the values to which we accord deferencefor the privacy of all citizens.” Nixon, 418 U.S.

31
 , ,,‘s

‘/ . * ,.”

at 708,94 S.Ct. at 3107,41 L.Ed.2d at 1063-64(emphasisadded). The Eleventh Circuit has

recognized a judicial privilege in confidential judicial communications. See Matter of

Certain Complaints Under Investigation (1 lth Cir. 1986), 783 F.2d 1488, 1520 (concluding

“there exists a privilege . protecting confidential communications among judges and their

staffs in the performance of their judicial duties. . . In the main, the privilege can extend

only to communications amongjudges and others relating to official judicial business”).

In two fundamental respects I disagree with the dissent. First, when Montana’s

constitutional right to know provision (hereafter, right to know provision) is read with regard

to established canons of construction and to the interdependent structure of Montana’s

Constitution, it is clear that judicial deliberations fall well outside the scope of the public’s

right to know. Second, to treat Montana’s judiciary as a “public body” would do real

violence to the Montana Constitution’s requirement of an independentjudiciary that serves

as a distinct branch of government.

It should be apparent that the meaning of “public bodies” is ambiguous: if nothing

else, the long arduous procession of decisions cited by the dissent evinces the patent

ambiguity of that phrase. NOTare those casesin agreement about the meaning of the right

to know provision’s recognition of public bodies and agenciesof state government. FOT

example, in SJL of Montana Assoc. v. City of Billings (1993), 263 Mont. 142, 867 P.2d

1084, the Court examined the constitutional history of the right to know provision for

guidance in determining the elusive statutory meaning of “agency” under Montana’s open

32
 , ,, .

meeting laws and concluded:

The following remarks exemplify the thrust of the debate on “governmental
agencies”: DELEGATE DaHOOD: . . Once again, I want to point out, we
have in mind the governmental agenciesthat are miniature legislatures who
put together rules and regulations that affect us all.

DELEGATE MCNEIL: . . I think . . [governmental agencies] is what the
committee intended to reach with this, and that is appointive commissions,
bureaus, so forth.

SIL, 263 Mont. at 148, 867 P.2d at 1087-88. The SJL Court concluded that “[i]t is obvious

from these and other remarks that the framers of the Constitution were concerned with

governmental entities which had rule-making authority and regulatory powers.” SJL, 263

Mont. at 149, 867 P.2d at 1088. However, in a dissentingopinion, Justice Trieweiler argued

that “[t]he majority opinion ignores the plain language of Article II, Section 9, Montana

Constitution. . . . What was prohibited fey a previous decision of the Court] is exactly what

was done in this case.” SJL, 263 Mont. at 150-51, 867 P.2d at 1089 (Trieweiler, J.

dissenting). I raise SJL not to argue the merits of that decision but rather to show that the

meaning of the phrase, “public bodies or agencies, is hardly plain and unambiguous.
”

Moreover, it is an established rule of construction that words in a statute or

constitution not be treated as mere surplusage;we presume that each word has a particular

and intended significance. However, the dissent urges that this Court is simply “a group of

individuals organized by and under the Montana Constitution for a governmental purpose”

and that the Court is a “public body” under the right to know provision. Thus, under the

dissent’s construction, a “public body” is the substantive equivalent of a branch of

33
government. The dissenthas therefore renderedArticle III, Sectionl’s recognition of distinct

branchesof government mere surplusage. SeeArt. III, Sec. 1, Mont. Const. (providing that

“[t]he power of the government of this state is divided into three distinct branches”)

(emphasis added). I do not agree that the Montana Constitution’s separation of powers

provision can be so easily dismissed.

Yet another establishedrule of construction is that when statutory or constitutional

language is ambiguous, a court may consider the intent of its drafters. The Montana

Constitutional Convention Comments to the right to know provision provide in part that it

is a companion to the right of participation and that

Both arise out of the increasing concern of citizens and commentators alike
that government’ssheerbignessthreatensthe effective exercise of citizenship.
. . The provision stipulates that persons have the rights to examine
governmentaldocumentsand the deliberationsof all public bodies or agencies
except to the extent that the demandsof individual privacy outweigh the needs
of the public right of disclosure. . . . The committee intends by this provision
that the deliberation and resolution of all public matters must be subject to
public scrutiny.

II Montana Constitutional Convention, Comments, p. 631 (emphasis added). This

constitutional history establishesthat the delegateswere concerned with the dangers of a

large complex government that could secretly undertake actions that affect the public.

However, the Constitutional Convention Delegates’ legitimate concerns about the

dangersof a secretive large government simply do not implicate the judiciary. The judiciary

is perhapsunique among Montana’s three branches of government in that it cannot secretly

take actions that affect the public. Montana’s Constitution expressly requires that “[a]

34
 , ,,‘,

~, , , 0 , , I.

majority [of the Supreme Court] shall join in and pronounce decisions, which must be in

writing.” Art. VII, Sec. 3, Mont. Const. The decisions of Montana’s Supreme Court are

public, open to public scrutiny, and subject to challenge. Further, Montana Supreme Court

justices are individually accountablefor their decisions.

Although the dissentdisregardsthe structure of the right to know provision, a cogent

logical structure underlies and organizesthe right to know provision’s requirement that the

deliberations of all public bodies be open unless “the demand of individual privacy clearly

exceedsthe merits of public disclosure.” Art. II, Sec. 9, Mont. Const. The structure of the

right to know provision presupposes an independententity will balance individual rights
that

to privacy with the merits of public disclosure.

Montana’s Constitutional Convention Delegates explicitly presumed that Montana’s

judiciary would be the entity that balancesinterestsin privacy and public disclosure. During

discussionofthe right to know provision, Convention DelegateCate proposedan amendment

that would allow the legislatureto “set the situations in which individual privacy exceedsthe

merits of public disclosure.” V Montana Constitutional Convention, Verbatim Transcript

(hereafter, transcript), p. 1671. Arguing in opposition to Delegate Cate’s proposed

amendment,Delegate Foster responded“Now, it was the thinking of the committee that, in

fact, the courts would have to strike the balancebetween the merits of public disclosure and

the merits of privacy, and our committee had faith in our courts to strike this balance. And

we did not feel that this particular provision should be left to the Legislature to interpret.”

35
See transcript at 1672. Even the delegates who voiced support for Delegate Cate’s

amendmentrecognized that the judiciary would balanceindividual privacy with the merits

of public disclosure. For example, Delegate Loendorf expressedapprehensionthat if an

agency barred his attending a public meeting on the grounds that his attendance would

violate the privacy of an individual, he would “have to go to court and attempt to get an order

allowing [him] to attend.” See transcript at 1674. Arguing as well for Delegate Cate’s

proposedamendment,DelegateBrown cautionedthat he could seewhere “this [right to know

provision] would be abusedby a County Commissioner, a Governor, other state officials,

using this exception in our present Constitution to deny accessto public documents. As a

result, you’d have to go to court and end up ultimately with the Supreme Court.” See

transcript at 1677. Delegate Cate’s amendment was defeated.

Our Constitutional Convention history clearly establishes that the Constitutional

Delegates intended that Montana’sjudiciary balance individual privacy and the merits of

public disclosure. 1 conclude that to construeMontana’sjudiciary as a “public body” would

give an unconstitutional effect to the right to know provision. If this Court ruled that its

conferences were open to the public, the Court would violate the constitutional mandate,

which is clearly established by the structure of the right to know provision and by its

constitutional history, that this Court balance individual needsfor privacy with the merits of

public disclosure. Again, in determining that the judiciary must balance those interests, the

Constitutional Delegates recognized that the Court was no “public body” but rather was a

36
 . #, .

distinct branch of government.

I emphasizethat the dissenthas investedthe right to know provision with an absolute

reach. Under the dissent’s interpretation, “public bodies” describe any group of people

organized for a governmental purpose. If other parts of Montana’s Constitution were also

interpreted without regard for and independent of the structure of Montana’s Constitution,

we would have surprising results. Consider, for example, Article II, Section 12, which

provides in part that the right to bear arms “in defense of [one’s] own home, person, and

property shall not be called in question.” Art. II, Sec. 12, Mont. Const. (emphasis

added). If that constitutional provision were accorded an absolute reach, the phrase “shall

not be called in question” would enableindividuals to openly carry firearms in any situation

or setting.j Defendants on trial for murder could insist upon the right to brandish firearms

during their trials. Consider, too, Article II, Section 13, which provides that “[a]11 elections

shall be free and open, and no power, civil or military, shall at any time interfere to prevent

the i?eeexerciseof the right of suffrage.” Art. II, Sec. 13, Mont. Const. (emphasis added).

Individuals could read the phrase “shall [not] at any time interfere” to provide that they are

free to vote whenever their consciencesdictate, in November or in August, and at any time

of the day or night. I submit that Montana’s Constitution must be construed as a coherent

integrated structure and that divesting phrasessuch as “public bodies” from their structured

context also divests them of their intended and appropriate meanings.

3I recognize that this provision does not allow the carrying of concealed weapons.

31
 Finally, the right to know provision upon which the dissentrelies in arguing for open

conferences guaranteesnot only the right to “observe the deliberations of all public bodies

or agenciesof state government” but also the right to “examine documents” of such public

bodies. Art. II, Sec. 9, Mont. Const. If, as the dissent argues, the courts of this State are

consideredpublic bodies or agencies,then all internal working papers of the courts should

be subject to public examination. Thus, when a justice of this Court prepares a proposed

opinion in a matter before the Court, that proposed opinion (historically circulated only to

other justices) would have to be made available to the public. If the proposed opinion

pertainedto a matter of public concern,members of the public and interest groups would be

inspired to support or oppose the proposed opinion by writing letters to the justices, by

conducting a media blitz, or by appearing en masse at the court conference where the

proposed opinion is to be discussed. Perhapsmore importantly, when parties to an appeal

read such a proposed opinion, they will have seenthe proverbial “writing on the wall” and

be inclined to settle the case or take evasive action based on the views expressed in the

proposed opinion, ignoring the fact that the votes could changein subsequentconferences

when the proposed opinion is discussed. A defendant facing serious criminal charges who

sees an adversepreliminary vote or proposed opinion may well jump bail or worse, again

ignoring the fact that a preliminary vote or opinion might not accurately reflect the final

published decision.

In contendingthat subjecting our decision making processto probing analysis by the

38
 >, .
’ .

news media and to searchingexaminationby the public would benefit this Court, the dissent

has misconstrued the nature of judicial decision making and advanced the notion of an

independentyet receptive-to-public-opinionjudiciary that cannot withstand serious scrutiny.

This Court’s decisions already receive probing analysis by the media and searching

examination by the public. Every decision of this Court is published and available to the

public. Thus, there is a disingenuouscharacter to the dissent’s argument that this Court’s

opinions will benefit from public scrutiny, becausethat public scrutiny occurs with every

decision of this Court. The real questionthen is not whether public scrutiny will benefit this

Court: as a matter of judicial tradition, public scrutiny attends every judicial decision.

Rather, the real question is whether public scrutiny of this Court’s private deliberations is

appropriate. For all the reasonsthat I discuss elsewhere in this concurring opinion, I am

convinced that openingjudicial deliberationsto the public would damagethe independence

of this Court as a separatebranch of government. Further, I believe that the dissent has

embraced a rose-colored conception ofjudges that belies human reality. It cannot be true

that justices will be positively influenced by opening our deliberationsto the public yet also

be true that justices, as elected officials, will never be negatively influenced by inevitable

pressures to make decisions based on political considerations rather than legal principles.

1 emphasizethat as a Court, we already receive the benefit of public scrutiny. There being

no further benefit that we can anticipate, it would be senseless invite probing analysis of
to

our deliberations by the news media and by concerned members of the public in the

39
expectation that we will, if we humanly can, turn a deaf ear to those analyses when

considering proposed opinions and preliminary votes on pressing social issues. Were I a

litigant advocating an unpopular legal position, I would not want to advancemy cause in

such an atmosphere.

In my view, the framers of our Constitution did not envision the deliberations of

judges being made in such a politically charged environment. Furthermore, the framers

would not have chosento abandonthe centuries-old common-law tradition of confidential

judicial deliberations without even five minutes of discussion to suggest that they intended

such a momentous changein judicial decision making. In responding to concerns that the

right to know provision might be interpreted to include juries, grand juries, and the

deliberations of the Supreme Court, Delegate Dahood opined that no “court could

conceivably give that interpretation to ‘bodies.’ ” VII Montana Constitutional Convention,

Verbatim Transcript, pp. 2499-2500. I agree with Justice Regnier that the absenceof any

farther discussion on this point indicates that the delegateswere persuaded by Delegate

Dahood’scomments and that they did not intend to take the unprecedented step of opening

jury and court deliberationsto the public. Although Justice Nelson eschewsthe suggestion

that his application of the right to know, without exception, necessarily extends to the

opening ofjury deliberations, the fact is that juries clearly fit his definition of a public body

subject to the right to know, in other words, a “group of individuals organized for a

governmental purpose.”

40
 To sum up, I do not believe that this or any other court may strip itself of the privacy

of its judicial deliberations yet serve as an effective, independent and distinct branch of

government. The common-law tradition of private judicial conferences reflects this

fundamental truth. Openingjudicial conferencesto public observationwould thwart fruitful

candid discussion of issues; exposejustices to political pressures;and encourageparties to

act upon conference votes and proposed opinions that often differ from final published

judicial decisions. Moreover, establishedcanonsofjudicial construction, the interdependent

structure of Montana’sConstitution, andMontana’sConstitutional Convention history all lead

to the conclusion that judicial deliberations fall outside the scope of the public’s right to

know. Contrary to the dissent, I am persuadedthat this conclusion strengthens the right to

know provision and its express concern for individual privacy interests. As the

Constitutional Delegates wisely acknowledged, an independentjudiciary is necessary to

balance interests in privacy and public disclosure.

Chief Justice J. A. Tumage, Justice Karla M. Gray and Justice Jim Regnier, join in Justice
W. William Leanhart’s foregoing special concurrence. 17
 Constit~onal
Districting and and Stetutory
\

Apportionment C/ration:
Article V,
Co.mmission. section 14,
Montana
Membership ConszituZion;
JOE LAMSON 51-IOI
612 TOUCHSTONE CIRCLE through 5-?-
HELENA, MT 59601 lfT.MCA ,’
HOME: 442-7378
WORK: 4443160 The Montana
e-mail: jlamson@state.mt.us Constitution and Montana Code Annotated provide that
jlamson@mcn.net~lafier 1 Districting and Apportionment Commission be
1/1/20001 appointed in the legislative session preceding each
ederal population census. Four members must be
SHEILA RICE Ippointed by legislative leadership and those appointees
1501 4TH AVENUE NORTH nust select the fii member who is also the presiding
GREAT FALLS, MT 59401 dficer. The Constitution directs the Commission to
HOME: 453-0198 ‘prepare a plan for redistricting and reapponioning the
WORK: 791-7506 state into legislative districts and a plan for redistricting
e-mail: SMRice@EWST.com :he state into congressional districts.” \:
ELAINE SLITER The Commission has specific deadlines for filing final
P.O. BOX 118 clans for congressional and legislative districts once
SOMERS, MT 59932 2000 census fig&es are released during the first few
HOME: 857-2148 nonths of 2001. Prior to receiving census data and
e-mail: esliter@cyberport.nel lnce the Commission’s fifth member is chosen by the
jupreme Court, the group will meet to make decisions
JACK REHBERG m data and methodology and to adopt a timetable for
2922 GLENWOOD LANE preparing and submitting the redisuicting plans.
BILLINGS, MT 59102
HOMEt 252-l 350 sraff
e-mail: JRehberg@aol.com Susan’fox, Research Analyst, Legislative Services
Division

.lohn MacMaster, Attorney, Legislative Services Division

39
 DR JANINB PEASE-PRETTY
ON
LITTLE BIGHORN COLLEGE
$&;- ,-ROW AGENCY MT 59022

1501 4TH AVE NORTH
GREAT FALLS MT 59401