The Montana Supreme Court is starting the new year off on the right foot. It has already struck a couple of blows for transparency and openness in government that deserve to be noted – and applauded.
For one, the court put together a proposal to require its own justices and judicial candidates to follow the same financial disclosure rules as other elected officials.
For another, it issued a 6-0 ruling that upholds the right of any average citizen to bring a lawsuit against any government agency suspected of ignoring Montana’s right-to-know laws, even if the person bringing the suit cannot prove that he or she has a personal stake in the agency’s secret meetings.
Either of these actions is significant on its own. Taken together, they may very well usher in a whole new era of open government for Montana’s highest court.
The court’s latest decision thankfully undoes a 2006 ruling that required plaintiffs to show some evidence of direct interest or personal injury relating to an open government complaint “beyond the common interest or injury of all citizens or taxpayers.”
This made it difficult for, say, the average county resident to sue his county commissioners over an action taken without any prior public notice, without opportunity for public participation or comment. This is, in fact, exactly what drove Custer County resident Brian Schoof to sue his county commissioners. After commissioners adopted a policy during a closed, unannounced meeting in 2007, Schoof sued to force the commission to undo their decision, arguing that they had violated right-to-know, right-to-participate and open meetings laws as described in the Montana Constitution.
Montana has exceptionally strong right-to-know laws, but they don’t do a lot of good if the courts prohibit most Montanans from using them. And in keeping with the court’s 2006 precedent, Schoof’s suit was rejected at first by a district judge who determined that Schoof did not have any standing in the case. On appeal, however, the Supreme Court was given the opportunity to reverse this obvious mistake – and did so.
“We believe such requirements impose standing thresholds that are incompatible with the nature of the particular constitutional rights at issue,” Justice Jim Rice wrote in the majority opinion.
These “particular constitutional rights” are particularly important ones. They ensure strong public access and participation in government. When public information is kept from the public, the very foundations of our democracy are weakened.
The same holds true for the judicial branch. Late last year the Center for Public Integrity, a national nonpartisan nonprofit, released a report on financial disclosures by Supreme Court judges in each state. It gave Montana and two other states – Idaho and Utah – a failing score of zero for its lack of disclosure.
Montana’s Supreme Court candidates, like other candidates, must file campaign spending reports during an election period. Once a candidate is elected, however, there is no rule requiring public disclosure of potential financial conflicts. The Code of Judicial Conduct, which requires justices to recuse themselves from cases in which they might have a direct personal stake, is entirely self-determined. There is no public scrutiny or accountability.
Amazingly, the Supreme Court is taking it upon itself to rectify this.
If a Jan. 2 proposal signed by Chief Justice Mike McGrath is ultimately adopted, justices and candidates alike will turn in financial statements to the state commissioner of political practices. These statements would include a list of past and present employers, other business interests and other sources of financial benefits. Those who failed to file a statement would not be allowed to act as a judge until that information was turned in. And best of all, the information would be made available to the public.
The court is currently gathering public comment on the proposal, making this a great time for “average” Montanans to let it be known just how welcome this proposal is.
EDITORIAL BOARD: Publisher Jim McGowan, Editor Sherry Devlin, Opinion Editor Tyler Christensen