The MT Lowdown is a weekly digest that showcases a more personal side of Montana Free Press’ high-quality reporting while keeping you up to speed on the biggest news impacting Montanans. Want to see the MT Lowdown in your inbox every Friday? Sign up here.
Score one for the Fourth Estate.
That was my reaction when I found out last week that a Helena district court judge ruled in favor of the Choteau Acantha and Montana Free Press in our lawsuit challenging aspects of the process Gov. Greg Gianforte uses to select candidates for vacant judicial positions, ruling his advisory committees can’t interview applicants in private without an explicit reason.
In March, Acantha editor Melody Martinsen and I attended a meeting of an advisory council tapped by Gianforte to help him winnow down candidates for an open judicial position in Montana’s 9th Judicial District, which covers Toole, Pondera, Glacier and Teton counties. Gianforte has appointed such councils for several judicial vacancies over the last two years or so, the result of a 2021 law that eliminated a body called the Judicial Nomination Commission and gave the governor direct appointment power to the bench. Gianforte doesn’t have to listen to the recommendations these councils provide, but they ostensibly offer community members and the public the opportunity to weigh in on the judicial selection process.
But in this case, the public had no such chance. The council was set to interview two candidates for the position. Before it began, though, the council’s presiding officer said it would enter into executive session to conduct interviews and deliberations away from the public. Both candidates, the presiding officer said, had invoked their right to privacy, though it wasn’t clear exactly why.
The Montana Constitution provides a balancing test for situations much like these:
“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.”
Martinsen and I protested the presiding officer’s decision, arguing that nobody had clearly articulated a specific privacy interest that would justify closing the meeting to the public. How could a balancing test be conducted if nobody could identify what the demand for individual privacy exactly was?
Nevertheless, the council went into executive session, ultimately recommending both candidates to the governor. After the meeting, we got hold of the questions members had asked. In our view, there was nothing in there that would constitute such handwringing over privacy rights. When I later interviewed an advisory council member named Dan Jones, an attorney from Conrad who seemed sympathetic to our argument, I asked if the meetings with the candidates had dredged up any sensitive information.
“No. Flat out, no,” he responded.
And so we took our protest to court. Interviewing a would-be judge is much different from interviewing a low-level bureaucrat, we felt, and those deliberations should be open to the public as much as possible.
Lewis and Clark County District Court Judge Mike Menahan evidently agreed, writing that “in putting themselves forward to be considered for a public official position, the candidates knowingly and willingly subject themselves to public scrutiny.” While his ruling doesn’t change the result of the appointment process, it does at least establish that judicial candidates do not have a blanket expectation of privacy when being interviewed for a seat on the bench.
This is, though, not a settled issue. Representatives from the governor’s office told us this week they plan to appeal the decision to the Montana Supreme Court.
—Arren Kimbel-Sannit, Reporter
The Viz 📈
The first water supply report of the year, out Thursday, paints a grim picture of Montana’s snowpack. At the end of December, about half of the basins that contribute water to the state’s rivers were posting record-low levels of snow water equivalent, a measure that indicates how much water the snow stores.
Some of the lower-elevation snow-monitoring stations were completely dry as of Jan. 1, according to NRCS water supply specialist Eric Larson, who noted that 110 of the 175 stations included in the report are showing the lowest or second-lowest snow water equivalent on record. Most of those stations, Larson added, have been recording snowpack levels for 40 to 60 years.
Larson told MTFP that there’s still time to make up some of the deficit as winter continues but noted some of the driest basins in the region would require record precipitation in the coming months to approach normal levels.
Thin snow cover has beleaguered Montana ski areas, several of which have too little snow to open. It’s also a source of anxiety for industries reliant on a robust high-elevation snowpack to support summertime streamflows, including agriculture, hydroelectric power generation and various forms of water-based recreation. A lack of precipitation also contributes to drier vegetation, which could spell trouble when fire season arrives this summer.
—Amanda Eggert, Reporter
Glad You Asked 🙋🏻
PornHub, probably the internet’s most prominent pornographic website, blocked access to Montana-based users late last month, instead displaying a message directing would-be viewers to direct any frustrations toward Montana’s elected officials (here’s a safe-for-work screenshot hosted on MTFP’s server).
While not named explicitly in the company’s message, the likely explanation for the change appears to be last year’s Senate Bill 544, which was sponsored by Missoula Democratic Sen. Willis Curdy and passed the Legislature with overwhelming bipartisan support. The law, which supporters described as an effort to make it harder for children to access sexually explicit material, requires websites where more than a third of the content is pornographic to verify users are at least 18, either by reviewing an identification card such as a driver’s license or using “transactional data” such as education or employment records.
“Today, a significant number of our children have the ability to access websites, which promote sexual and physical activities, which have a corroding effect on minor children’s health and well-being,” Curdy said during a March legislative hearing.
Curdy said the bill was modeled on laws from other states, including Louisiana, where a similar bill took effect last year to criticism from digital privacy advocates concerned that provisions requiring companies to delete user data after verifying ages are practically unenforceable.
In its message, Pornhub makes a similar argument. “While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk,” the company writes. It adds that it believes the legislation will have the effect of driving users to less responsible sites that don’t comply with the new law.
According to web analytics company Semrush, PornHub was the sixth-most-trafficked website in the U.S. last October with about three billion visits that month — ranking it above Twitter and Wikipedia and just behind Facebook and Amazon.
The homepages of two other pornographic sites on Semrush’s top-20 list, XVideos and XNXX, remained publicly accessible in Montana without requesting age verification this week.
Similarly to Montana’s stalled TikTok ban, which was blocked by a judge before it could take effect Jan. 1, the age verification law doesn’t provide any penalty for individual Montanans who circumvent the ban, for example by using a virtual private network that makes their web traffic appear like it is coming from another state.
—Eric Dietrich, Deputy Editor
Following the Law ⚖️
Speaking of the TikTok ban, the office of Montana Attorney General Austin Knudsen this week appealed the judicial injunction that kept the state’s ban on the Chinese-owned social media platform from taking effect this month.
A brief outlining the arguments Knudsen’s office will make in the appeal hasn’t yet been filed, but the case docket indicates his Department of Justice has retained outside counsel from Consovoy McCarthy PLLC, a Virginia-based law firm that has in recent years championed conservative causes in several high-profile lawsuits — including the case where the U.S. Supreme Court ruled against allowing affirmative action in college admissions.
DOJ’s communications staff didn’t immediately provide MTFP with a copy of a contract that could indicate how much the state is paying for those lawyers, but a spokesperson, Emilee Cantrell, said hiring outside counsel is a longstanding practice for the agency.
“The sooner the law goes into effect the better,” Cantrell said in an email, “as it protects Montanans from the Chinese Communist Party obtaining and using their data.”
—Eric Dietrich, Deputy Editor
Happenings 🗓️
Following last month’s gripping 31-29 semifinal victory over North Dakota State University, the University of Montana’s Grizzly football team is preparing to square off Sunday against the top-seeded (and undefeated) South Dakota State Jackrabbits in the 2023-24 FCS Championship. The Griz flew to Frisco, Texas, earlier this week ahead of the matchup, and untold numbers of fans are winging their way down from Montana to join in the pre-game festivities.
The game itself kicks off Sunday at noon, and it’s bound to be quite a show. UM snagged its last FCS Championship win more than 20 years ago — in 2001, to be exact — and hasn’t lost to the Jackrabbits once across eight previous contests. For those looking to tune in to the action at home, Sunday’s game will stream live on ABC and ESPN+.
UM’s Alumni Association has also compiled a list of bar-based watch parties across the state and nation, from Sidney to Hamilton and Fort Lauderdale to Oahu. (So far no listings have popped up in Bozeman, the home turf of the Grizzlies’ immutable in-state rivals, the MSU Bobcats.)
—Alex Sakariassen, Reporter
By the Numbers 🔢
Changes to Montana’s income tax system authorized by the 2021 and 2023 Legislatures took effect on Jan. 1, cutting rates, reducing the number of income brackets to two, and making other changes intended to simplify tax season by aligning Montana’s tax math with the federal system.
The changes mean, among other things, that unemployment benefits and tip earnings, which have historically been subject to federal but not state income taxes, are now taxable at both levels. The state will also now require taxpayers to use the same filing status for state taxes that they use on their federal return.
Starting in 2024, Montanans who file taxes as individuals will be taxed at 4.7% on income up to $20,500 and at 5.9% on any income beyond that amount.
The new rates mean an individual taxpayer with $50,000 in taxable income will see their state income taxes decline from about $2,719 in 2023 to $2,704 in 2024. A taxpayer with $200,000 a year in taxable income will see their taxes decline from about $12,844 to $11,554.
Through the end of 2023, Montana had seven income brackets, with the prior top-bracket rate of 6.75% applying to incomes beyond $21,600.
Scaling back income tax rates has been a signature policy for Gov. Greg Gianforte and other Republicans, who have maintained that simplifying the system and reducing top-bracket tax rates will bolster the state’s economy by attracting entrepreneurs. Democrats have generally criticized that shift, arguing it would be fairer to shift more of the cost of funding public programs onto higher earners by taxing higher incomes at higher rates.
—Eric Dietrich, Deputy Editor
Verbatim 💬
“You have a commission trying to identify the gaps in mental health service delivery around the state and come up with solutions … Well, here’s one: Pay your bills.”
—Jen Gursky, executive director of Helena’s YWCA, speaking to the Independent Record about delayed payments from the state Department of Public Health and Human Services for contracted work the nonprofit provides for children and pregnant and postpartum women.
As the IR reports, several other community providers have experienced similar delays arising from the state’s new contract review process.The commission Gursky referred to, the Behavioral Health System for Future Generations, is scheduled to hold a public town hall at the Billings Public Library on Jan. 10 at 1 p.m., and a two-day public meeting in Billings at the Boys and Girls Ranch of Yellowstone County on January 11 and 12.
On Our Radar 
Amanda – The Casper Star-Tribune published an insightful piece this week on what the energy sector’s transition to renewables means for Wyoming’s coal industry — and the state’s school system, which draws a significant portion of its funding from taxes levied on the fossil fuel industry.
Alex — It was a long, lonely drive to North Dakota for the holidays. Fortunately I stumbled last month into a 2022 podcast that had slipped my radar: Land Grab, a Missoula-based series that kicks off with a 10-episode study of the formation of the Flathead Indian Reservation and the turn-of-the-century rise of Montana’s famous — or, rather, infamous — Missoula Mercantile.
Arren — While we were twiddling our thumbs on vacation last week, Lee newspapers Montana State News Bureau published this excellent piece on Dakota Adams, the son of Stewart Rhodes, who founded the far-right group Oath Keepers. Adams, who lives in Montana outside of Eureka, is planning to run for Legislature.
Mara — Anyone following the Medicaid redetermination process in Montana — and wondering what is happening to the more than 100,000 people who lost coverage throughout 2023 — might glean insight from this study conducted by the Utah Medicaid program. The study, obtained by KFF Health News, asked about what contributed to people losing coverage and where they later turned to find health insurance. One finding: While some former Medicaid participants found coverage through an employer or the federal HealthCare.gov marketplace, 30% became uninsured.
Eric — Remember Buzzfeed? This book, “Traffic,” by former Buzzfeed News Editor (and later New York Times media columnist) Ben Smith is by far the sharpest chronicle I’ve seen about how technology, political ambitions and economics combined to drive the viral news era of the Internet to boom and eventual bust.
*Some stories may require a subscription. Subscribe!