House GOP meets in secret, after-hours caucus meeting

About 50 Republican members of the House gathered late Thursday for an after-hours, off-site caucus meeting to discuss the upcoming 2015 legislative session.

The meeting, held in a hotel basement outside of public view, gave a few clues as to what might be on the majority party’s agenda in the upcoming session.

Republicans control both houses of the Legislature by wide margins.

The recently elected lawmakers were in the state capital this week to elect party leadership and participate in orientation sessions in advance of the session, which convenes Jan. 5.

Newly elected House Majority Leader Keith Regier, R-Kalispell, presided over the secret meeting in the basement of Jorgenson’s Inn & Suites. At least 52 people were present at the meeting, though it is not clear if all of those in attendance were elected House lawmakers.

In 1995, 22 Montana news organizations sued the four caucuses of the Montana Legislature declaring the party caucuses must be open to the public under the Montana Constitution’s right-to-know provision. 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.”

Helena lawyer Mike Meloy, who serves as the Montana Newspaper Association’s Freedom of Information Hotline attorney, said he believes the caucus violated the 1998 district court ruling in the case that found legislative caucuses were subject to Montana’s right-to-know laws.

“Caucuses are clearly covered by the open meetings law, both Article II Section 9 of the Montana Constitution, but also the legislative article which requires all meetings of the Legislature to be open, no exceptions,” Meloy said.

At the meeting, Regier handed out a one-page, two-sided questionnaire to lawmakers seeking their opinions on various issues that could come before the Legislature.

The document, which was labeled “11-13-14 Republican House Caucus,” hints at issues the GOP leadership consider priorities heading into January.

One issue included the transfer of public lands, which was a hot-button issue in the 2014 election season.

“The Transfer of Public Lands (TPL) will be debated in the coming session. What are your thought on this issue?” the questionnaire asked Republican lawmakers.

Another question asked for Republican lawmakers’ thoughts on issues Democratic Gov. Steve Bullock has identified as priorities, including preschool, the Confederated Salish and Kootenai Water Compact, expanded Medicaid and “Campaign Dark Money.”

Lawmakers also were asked to give their opinions on what to do with the ending fund balance, and whether they support increasing or decreasing the state budget. Regier asked that the worksheets be returned to him by Nov. 21.

Acting on a tip, reporters from the Great Falls Tribune and the Helena Vigilante arrived at the meeting, which was not noticed to the public, shortly after 8 p.m.

The meeting was underway and ended within minutes of the reporters’ arrival, with very little discussion taking place.

Regier said the sole purpose of the meeting was to hand out the survey, not to discuss legislation. Regier insisted that the Republican lawmakers did not plan to discuss issues, only survey members of the caucus.

“We don’t know where the caucus is going. We have no idea where it’s going,” Regier said. “Plus, getting a facility to put us all in here is a problem.”

Republican Sen. Jeff Essmann, a Billings attorney, said the meeting did not fall under the state’s open meetings law because lawmakers were not on public property, the doors were not closed, and the caucus was not making decisions on legislation.

“I think the critical question is whether democracy is improved or hindered if people can’t have frank discussions,” said Essmann, the former president of the 2013 Montana Senate, said. “The purpose of the open meeting laws, where we decide things, which we do in committee and on the floor, are open.”

Thursday’s meeting was not noticed to the public. According to sources, the House Republican whips handed out slips of paper to GOP members earlier in the day notifying them of the caucus meeting.

In an interview Friday, House Minority Leader Chuck Hunter, D-Helena, admitted that Democrats, too, occasionally gather outside of the official announced caucus meetings. But Hunter denied the caucus violates the 1998 court ruling when they do get together.

Hunter said it’s clear to him that the courts have ruled that when legislators gather to do business — whether in official caucuses or to do the public’s business — those meetings need to be open to the public and properly noticed.

“Beyond that, there are times when legislators gather that I don’t believe are really having to do with legislative business,” Hunter said. “We have had occasions where we have broken the group up into small components just to let folks know what’s going on. Most of the situations deal with issues that are procedural rather than subject matter. The process stuff is really about the only place where that kind of meeting in a small group really happens.”

Senate Minority Leader Jon Sesso, D-Butte, said Senate Democrats occasionally split into “pods” to discuss certain issues outside the view of the public. Sesso claimed those situations are limited and don’t involve legislative business.

“I think if any citizen wanted to participate, any member of the press, there’s really never much we talk about in private that shouldn’t be kind of an open book,” Sesso said. “Strategy sessions are are just as much a part of representing our citizens and constituents, letting them know how we’re going about our business. I think people have a right to know that.”

Meloy said it doesn’t matter lawmakers are discussing when they gather, the law requires that they do their business in full view of the public.

“It’s the discussion the people are entitled to observe, not the topic of the discussion,” Meloy said.