But a lawyer for the press counters that was by design, meant to bar the public from what should have been an open deliberation.
In February, a dozen news media organizations objected to a closed-door meeting of Republicans on the House Judiciary Committee, saying it violated right-to-know laws.
The meeting in question came when the House Judiciary Committee broke to caucus in January before voting on controversial legislation.
Committee chair Rep. Barry Usher, a Republican who represents rural Yellowstone and Musselshell counties, kept reporters from the GOP caucus meeting. Usher said he purposefully capped attendance at nine Republicans, one less than a quorum of the 19-member committee, so that the meeting would not be public.
A quorum is the minimum number of lawmakers needed for a committee to take action, in this case a majority of the committee's members. It's common for party members on legislative committees to caucus before acting on major bills to discuss how they'll vote.
The media organizations sued Usher in Lewis and Clark County District Court. The organizations signing on include The Associated Press, The Billings Gazette, Bozeman Daily Chronicle, Helena Independent Record, Missoulian, Montana Standard, Montana Free Press, Ravalli Republic, Lee Enterprises, Hagadone Media Montana, Montana Broadcasters Association and Montana Newspaper Association.
Lee Enterprises, of which the Montana State News Bureau is part, owns The Billings Gazette, Helena Independent Record, Missoulian, Montana Standard and Ravalli Republic.
In his counter to the lawsuit, filed April 1, Usher's attorney argues the media's claims about public access aren't valid since the meeting was not public by the definition of a lack of a quorum.
"By Petitioners’ own admission, no quorum was present at the alleged Jan. 21, 2021 discussion and, thus, there was no meeting or deliberation in violation of Montana’s open meeting laws," assistant state attorney general Aislinn Brown argued in the filing, representing Usher.
Brown called the meeting a "private discussion with eight other members of the 19-member committee." Brown also pointed to the House's own rules passed this session defining a quorum as a "majority of members of the committee."
But Mike Meloy, the lawyer representing the media outlets, argued there was no quorum by design in a move intended to keep media out. Usher told a reporter for the Montana State News Bureau the day of the meeting that it was his "policy that when we do caucus, we will not have 50% or more” of the committee to sidestep press access.
"(Usher's) purpose in convening one member short of a quorum was to conduct a meeting to discuss important legislation in private, outside the scrutiny on the public," Meloy wrote in a court filing dated April 1. "Recognizing that a public body might seek to evade the open meeting requirements of the statute, the Legislature adopted an amendment to clarify that any subgroup would also be subject to the law."
Anticipating a challenge to the claim that Republican members of the committee are not considered a subcommittee appointed by a public body, Meloy cited a prior case in which the state Supreme Court declared meetings with the former Commissioner of Higher Education and a rotating group of university presidents and chancellors to discuss the operations of the university system should have been public.
The high court found the meetings qualified as public because they were a were among public officials acting in their official capacity, the meetings were paid for with public funds and the group met to inform their decisions.
Meloy argued because the House Judiciary Committee includes public officials in their official capacity, meeting before votes were taken, and that the group through its majority power can out-vote minority Democrats to have the power to decide the fate of legislation, the January GOP gathering of committee members fell under right-to-know requirements.
"It is quote conceivable that after discussing the legislation in the closed meeting, the members could appear in open session and vote without ever disclosing the reasons or rationale for their action," Meloy wrote. "Indeed, this is likely why the practice first evolved. The only way the public can be privy to the reasons for the members' votes is to observe the matters discussed in the closed session, which as evidenced by this lawsuit, has been obstructed."
Brown, in her filing, however, objects to that classification, saying nine GOP lawmakers couldn't have acted on pending legislation.
"Simply put, the Republican Party is not 'a public body or agency of state government,'" Brown wrote. " ... The statutory quorum requirement ... requires a majority of the decision-making body itself (here the committee) to be present for there to be a meeting, not a majority of a particular faction of the body."
Brown also said Meloy's arguments could "lead to absurd results."
"For example, under Petitioners’ theory, if 10 members of a 19-member committee were from the same party, just six of those members discussing committee issues would constitute a constructive quorum, even though that is less than a third of the committee membership," Brown wrote.
Even if the media outlets made a case for a quorum, lawmakers would be protected by legislative immunity, Brown continued, asking for the lawsuit to be dismissed.