By John S. Adams Montana Free Press

Montana Democratic legislators are slated to gather for a “caucus retreat” at Fairmont Hot Springs Resort in February. According to an email party leaders sent to Democratic lawmakers on Dec. 26, the purpose of the Feb. 6 retreat is to prepare for the 2017 legislative session by establishing the party’s priorities ahead of the 2016 election season.

But at least one Democratic lawmaker objects to House and Senate caucuses gathering outside of the public view.

Great Falls Sen. Mary Sheehy Moe in a Jan. 7 interview confirmed she raised her objections with party leaders. Moe said she believes caucus meetings are subject to the right-to-know provisions of the Montana Constitution, which requires advance public notice of official meetings so any member of the public may attend.

“I find the whole definition of the political caucus as part of a body that is covered by the open meeting law,” Moe said.

Off-site party caucuses have been at the center of debates – and legal battles – over the past two decades.

In the late 1990s, 22 Montana news organizations successfully sued the four caucuses of the Montana Legislature to force the caucuses to open their meetings to the public. The courts found that “the party caucuses were public bodies and were subject to the provisions” of Montana’s right-to-know laws.

In 1998, District Judge Thomas Honzel ruled in favor of the news media and declared all legislative caucus meetings must be open to the public.

“Clearly, legislators gather at caucuses to discuss the public’s business,” Honzel wrote in his decision. “When they do so, the public has a right to observe their discussions and to be informed about what happens at those meetings.”

The issue was brought to the fore again just prior to the 2015 Legislature when the House Republican caucus gathered in the basement of a Helena restaurant without notifying the public. Two reporters discovered the caucus and dropped in on it, at which point party leaders abruptly brought the meeting to a close.

Following the House GOP’s secret caucus meeting, 21 Montana news groups sued again, this time asking the court to hold the House GOP caucus in contempt of Honzel’s 1998 ruling.

District Judge Kathy Seeley dismissed the complaint in January 2015. Seeley said caucus meetings should be open to the public, but that Honzel’s 1998 ruling did not specifically require the meetings be noticed to the public ahead of time.

Peter Michael Meloy, the attorney who represented state news organizations in both the 1998 lawsuit and the more recent action, said Seeley’s ruling put the issue of open caucuses “back where it started.

“There is a district court ruling saying that all caucuses should be open,” Meloy said.

Moe said she doesn’t like the court ruling, but until the law changes, Democrats need to follow it.

“I feel that at some point we need to go to the court and say that we are really a political entity, we’re not a public body, but until I get word from the courts … I just feel we need to be very careful that we make sure we notice [caucus meetings],” Moe said.

How many lawmakers will attend the Feb. 6-7 “Blues Working Group” caucus retreat, and whether their numbers will constitute a quorum, remains to be seen, said Democratic Rep. Jenny Eck, of Helena.

“We are still working to have enough people to make it a worthwhile gathering,” Eck said in a Jan. 7 interview, adding that so far only a handful of lawmakers have registered for the event, and she’s not sure if many more will.

Members of both major political parties argue that the public is better served when lawmakers have the opportunity to gather privately – without the scrutiny of their opposition or the public – to set their policy agenda and discuss ideas.

“I’m not horrified by the fact that [the Democrats] are trying to come together and work together. I think that’s a good thing,” said Billings Republican Rep. Jeff Essmann.

Essmann was present at the November 2014 GOP caucus meeting and, at that time, defended the party’s right to gather away from the state Capitol without notifying the press or the public.

In a Jan. 7 interview, Essmann said the context of the Democrats’ planned caucus retreat is the beginning of an election cycle, which he says is a “competition of ideas.”

“At this point you’re talking about coming up with ideas to compete in an election with hopes of advancing your interest in the election,” Essmann said. “I think it’s a far different cry from meeting during a Legislature, in the Capitol, to discuss how to vote on a particular bill.”

Montana State University political science professor David Parker agrees that lawmakers should have a forum in which they can meet privately, without the scrutiny of the public. Parker likened the Montana court’s ban on closed caucuses to the federal ban on congressional earmarks in Washington, D.C.

“What happened as a result of the elimination of earmarks is they still exist, they just exist in a different way, a less transparent way,” Parker said. “I think one of the problems with a lot of these open meetings laws is that the stuff still happens in private, just in different ways. Perhaps, I would argue, in much more inefficient ways.”

Democratic leaders said they don’t expect enough House or Senate Democrats to show up at next month’s caucus retreat to constitute a quorum. If a quorum is present – half of the Democratic body of each house, meaning 21 from the House and 11 from the Senate – the meeting will be open to the public, Democrats said.

“We’re committed to doing what is expected of the law,” Eck said. “We will be transparent as we always are.”

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