Chairman Barry Usher, R-Roundup, presides over a hearing of the House Judiciary Committee on Jan. 6, 2021 Credit: Austin Amestoy / UM Legislative News Service

Montana Free Press this week joined 11 Montana news organizations and media companies in a lawsuit against House Judiciary Committee Chair Barry Usher, R-Roundup. The petition claims Usher and House Republicans conducted a secret meeting in violation of the state Constitution’s right-to-know and open-meeting laws.

The claim stems from a Jan. 21 Judiciary Committee meeting regarding several House bills addressing abortion and health care for transgender people. The complaint alleges that after convening the meeting, but before calling a vote on the bills, Usher recessed the meeting to discuss the vote privately with Republican members of the committee. 

MTFP reporter Mara Silvers followed the recessing Republican committee members to a room in the Capitol basement to observe their deliberations. The complaint says Usher denied Silvers entry, claiming he had excluded three members of the Republican committee caucus from the room so as to avoid a quorum and skirt the state’s open meeting requirements. Republicans hold a 12-7 majority on the committee, so if 10 or more Republican committee members are gathered, state law says that meeting must be open to the public. 

According to the complaint, Usher “explained that he did this ‘on purpose’ so the meeting could be conducted in private. He told [Silvers] he did this on a normal basis, not just on controversial bills.”   

After the meeting, the petition claims, Usher reconvened the Judiciary Committee and explained to the committee, “We just always have, that’s the way I was taught. Some of the things we have to talk about when we’re talking and discussing how we’re going to vote are personal and you know, as you can see, our committee does get a little emotional.”

According to the official legislative recording of the reconvened committee meeting, Usher said, “It is my policy that when we do caucus, we will not have 50% or more of our caucus, so it is not considered an open meeting.”

Lee newspapers reported on the incident Jan. 21. 

The petition claims the meeting violated Article II, Section 9 of the state Constitution, which reads: “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.”

The complaint also alleges a violation of Article V, Section 10(3), which states, in part, that “all committee meetings, and all hearings shall be open to the public.” It asks the court to declare that the Jan. 21 meeting violated the media’s constitutional right to know and order Usher not to conduct future meetings in closed session. 

Usher could not be immediately reached for comment. 

Plaintiffs to the suit, which was filed Feb. 11 in Lewis and Clark County’s First Judicial District Court, are the Associated Press, Billings Gazette, Bozeman Daily Chronicle, Helena Independent Record, Missoulian, Montana Standard, Ravalli Republic, Lee Enterprises, Hagadone Media Montana, Montana Broadcasters Association, Montana Newspaper Association and Montana Free Press. They are represented by Peter Michael Meloy of the Meloy Law Firm in Helena. 

Disclosure: The Lee and Donna Metcalf Charitable Trust is a financial supporter of Montana Free Press. Peter Michael Meloy is the trustee of the Lee and Donna Metcalf Charitable Trust.

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Brad Tyer manages the MTFP newsroom and coordinates freelance reporters, special projects and collaborations. He edited the Missoula Independent from 2002 to 2007 and 2016 to 2018. He's also done two stints as managing editor of the Texas Observer in Austin, and has freelanced widely. Contact Brad at btyer@montanafreepress.org or 406-465-3386 ext. 1.