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MTFP Montana Free Press

Melody Martinsen, the editor of the Choteau Acantha, poses for a portrait on Thursday, March 24. Credit: Arren Kimbel-Sannit/MTFP

By Arren Kimbel-Sannit - Montana Free Press

An advisory council appointed by the governor to fill a vacancy in the 9th Judicial District held interviews and deliberations this week behind closed doors, despite the efforts of the Choteau Acantha and the resignation-in-protest of advisory council member LeAnne Kavanagh.

“I’m Melody Martinsen. I can’t make spit in my mouth right now. I don’t like to do what I’m about to do,” she said.

Then, standing before a panel of 11 Montanans appointed by Gov. Greg Gianforte to recommend whether attorneys Dan Guzynski or Greg Bonilla replace retiring Judge Robert Olson of Montana’s 9th Judicial District, Martinsen made her case.

The Montana Constitution grants citizens the right to observe the actions of their government, she said. But it also provides for a right to individual privacy. When those rights come into conflict, case law and the Constitution provide for a balancing test: The right to know prevails “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

“In this case, two Helena attorneys are invoking their right to privacy in their interviews with this advisory council,” Martinsen told the council during its March 23 meeting in Conrad. “I do not believe they have a privacy right that society recognizes as appropriate. They are not undergoing a personnel performance review with their boss. They are not applying for a job in the private sector. They are not even applying for a public employee position. They are applying for an elected position, a position in which every person in the 9th Judicial District is their de facto boss.”

Martinsen’s assertion threw the council, presided over by Deputy Teton County Attorney Jennifer Stutz, into 45 minutes of disarray and speculation. Would keeping the council’s interviews and deliberations closed create a legal liability, one member wondered. Could the council finalize its questions, present them to the candidates and then request whether they’d like to invoke their privacy right, Cut Bank Chief of Police Mike Schultz asked.

But the candidates expected the proceedings to be closed, and to “demand” that they waive their previously asserted privacy right puts them on the spot, even “strongarms” them, said Paul Neal, a council member and private attorney with an office in Conrad.

“So at this point I think we have to keep it closed,” Neal said. “That was the expectation.”

“I’ve worked too hard on behalf of the public to fight for transparency and public participation. And I think this is bogus that it’s been closed.” Leanne Kavanagh, former journalist and member of the advisory council.

That, despite the subsequent resignation-in-protest of one advisory council member, former newspaper publisher LeAnne Kavanagh, is what Stutz decided the council would do. After closed-door interviews with both candidates followed by private deliberations, the council forwarded both Guzynski and Bonilla, in that order of preference. The appointment ultimately lies with Republican Gov. Greg Gianforte, who may or may not choose to heed the council’s advice.

“I cannot sit here and have you close the meeting and be a part of that,” said Kavanagh, who previously owned several local newspapers including the Cut Bank Pioneer Press, in announcing that she would not serve on the council Thursday. “I’ve worked too hard on behalf of the public to fight for transparency and public participation. And I think this is bogus that it’s been closed. These two candidates are going to have to deal with a lot more than the piddly questions that I was going to ask them.”

Martinsen said she formally engaged Montana Freedom of Information Hotline attorney Mike Meloy to represent the Acantha in its plea to open access to the meeting, and is considering other options.

Asked whether the council entered into any private or personal territory during its interviews with the two candidates, member Daniel Jones, a Conrad attorney and the son of influential Republican House Rep. Llew Jones, R-Conrad, was unequivocal: “No. Flat out, no.”

A NEW JUDICIAL APPOINTMENT PROCESS

For 50 years, Montana filled mid-term judicial vacancies through the Judicial Nominating Commission, a seven-person vetting panel comprising both gubernatorial appointees and representatives of the court system. The commission sifted through applications, solicited public comment, conducted interviews and then ultimately referred a list of candidates from which the governor was to make a selection, all in the public eye.

That changed in the Montana Legislature’s 2021 session. Gianforte, only a couple of months removed from his inauguration, signed Senate Bill 140, GOP-backed legislation that eliminated the Judicial Nominating Commission and gave the governor direct power to fill judicial vacancies. The new law still requires an opportunity for public comment and Senate confirmation of judicial appointees, but says little about the vetting process other than that the governor “may authorize investigations concerning the qualifications of eligible persons.”

“When judicial vacancies occur, I will appoint well-qualified judges who will protect and uphold the Constitution and who will interpret laws, not make them from the bench,” Gianforte said in a press release announcing his signing of the bill. “I am committed to appointing judges transparently, providing for robust public input, and ensuring judges have a diversity of legal background and subject matter expertise.”

The law sparked a legal challenge and a protracted separation-of-powers fight between legislative Republicans and the judicial branch. But SB 140 ultimately passed constitutional muster.

The first test of the new process came in June 2021, the same month the Montana Supreme Court upheld its validity

The previous year, Judge Greg Pinski of Montana’s 8th Judicial District resigned. Then-Gov. Steve Bullock, a Democrat, selected Judge Michelle Reinhart Levine to take Pinski’s place following the Judicial Nominating Commission’s process.

She served for several months, but in the 2021 session, Republicans in the Senate voted down the confirmation of Levine, who had been a Democratic lawmaker a decade earlier. It was the first time a governor’s judicial appointee had failed to make it through Senate confirmation since the ratification of the Montana Constitution in 1972.

That left the seat open. The governor then announced how he would wield his new appointment authority — by appointing a 10-person advisory council of Great Falls community leaders to assist him “in identifying exceptional candidates to serve as the district court judge.”

The inaugural advisory council met in June. The ultimate appointee was David Grubich, the district court’s standing master at the time and one of the council’s two front-runners. The meeting was attended by Montana Free Press and other reporters. None of the candidates appeared in person for the meeting.

Nonetheless, the council’s presiding officer sought to close the meeting for deliberations on the candidates. Reporters stated their objections, and after brief discussion — which included the prospect of potential legal liability should the process be challenged — the council decided to leave its proceedings open.

Olson, the outgoing judge in the 9th District, had no comment on the specific proceedings of the council on March 23. But he said he was skeptical about the elimination of the Judicial Nominating Commission.

“I just didn’t see where there were any political issues with it, and I don’t like anything in the judiciary being politicized at all,” Olson told MTFP Thursday. “Our job is to take our political beliefs, come to court, and leave them at the door.”

But he said he liked the array of people picked to serve on the advisory council in his district.

“These people will do the job and they’ll give [Gianforte] the name they think is best qualified,” he said. “Having said all that stuff, I think the verdict’s out for me.”

THE 9TH DISTRICT

A handful of other district court seats have opened since. Local media has reported on the formation of the advisory councils and their ultimate recommendations, but nobody appears to have challenged the closure of the council’s meetings.

Not until Martinsen, that is.

Olson, as reported by the Acantha, announced his intention to resign last December. The governor began soliciting replacements at the beginning of this year.

Bonilla and Guzynski were the only two applicants. Guzynski is a prosecutor with the Montana attorney general’s office and a former Democratic candidate for Lewis and Clark County Attorney. Bonilla is an attorney for the Montana Association of Counties. (He also serves on the board of directors of Options Clinic, a “crisis pregnancy center” that presents itself as a reproductive health clinic but counsels pregnant women against getting abortions.).

Both received reams of letters of support. Olson endorsed Guzynski.

As the governor’s office announced the candidates and the advisory council, Martinsen began asking questions, including whether the meeting would be open.

“As has been the case with previous advisory councils, I anticipate portions of the meeting will be open to the public, but the interview process and ensuing discussion among council members will be a closed session to protect the privacy interests of the applicants,” Kaitlin Price, a spokesperson for the governor, told Martinsen on March 6, according to emails Martinsen shared with MTFP.

It’s not clear whether the two candidates had expressed their intent to invoke their privacy rights at that point .

Martinsen reached out to the governor’s office to set up an appointment with Lt. Gov. Kristen Juras, writing that she wished to seek a collaborative solution that allowed public participation while also respecting individual privacy concerns. She also asked for a Zoom link to attend the council’s organizational meeting, where Gianforte and Juras were set to discuss the council’s work with the appointed members.

On March 15, Martinsen said, Juras called and said Martinsen would not be able to attend the organizational meeting. Martinsen protested. Juras told Martinsen she’d have to obtain an injunction to stop the meeting, Martinsen said.

“I said, ‘OK, alright, thank you for getting back to me, goodbye,’” Martinsen told MTFP.

She then reached out to Meloy, who sent a letter to Stutz, presiding officer of the council. Meloy pointed to two cases suggesting that advisory committees are subject to open-meeting law.

“Not only are Bryan and Crofts controlling on the issue of whether an advisory council’s meetings must be open to the public, but additional factors exist here which demand transparency,” Meloy wrote. “The Governor is filling an elective office and the Advisory Council’s predecessor conducted all of its meetings in public. There can be no question that the Council’s meetings should be open, both as a matter of law and good public policy.”

Stutz said she forwarded Meloy’s letter to the governor’s office.

The organizational meeting was ultimately canceled “due to a scheduling change,” Gianforte’s office said.

Martinsen also requested a list of questions that the council planned to ask the candidates.

“For God’s sake, the questions can’t be private, only the answers can be private — if there’s any privacy issue here, and I don’t think there is,” she told MTFP.

Price, with the governor’s office, told Martinsen there was no predefined set of questions. And, Price said, “the presiding officer will determine at the meeting whether the demands of individual privacy exceed the merits of public disclosure,” citing state statute to that effect.

Meanwhile, Kavanagh, the advisory council member and former journalist, was raising her own concerns, according to emails shared with MTFP. She reached out to Hannah Slusser, the governor’s boards and appointments advisor, to advocate that the council’s March 23 meeting be open.

“As they weigh the privacy interests of job applicants and public participation, the lieutenant governor and the governor’s office take very seriously job applicants’ reasonable expectation of privacy,” Slusser wrote back. “In making its recommendation to the governor, the 9th Judicial District Advisory Council will likely discuss the employment history, temperament, character, honesty, interpersonal relationship, skills, personality and performance criticisms of the applicants. The Montana Supreme Court has characterized all of these topics as matters of a sensitive and private nature subject to a reasonable expectation of privacy.

“Both applicants have advised the lieutenant governor that they do not waive their privacy interests,” she continued.

(Kavanagh’s emails also contained a list of general questions for judicial candidates submitted to council members by the governor’s office).

MARCH 23

Even before Martinsen could read her remarks, the meeting on March 23 began with Kavanagh asking questions.

“If the candidates knew what the questions were — if there was a privacy issue, would the candidate wait and invoke their right then?” she suggested.

Stutz resisted.

“That’s the understanding, is [Guzynski and Bonilla] thought it was a closed meeting. I can’t open it and force them to do an open meeting,” she said.

Martinsen then made her case. [Editor’s note: MTFP reporter Arren Kimbel-Sannit also publicly advocated opening access to the meeting].

The first to respond was attorney Paul Neal.

“So, generally, I am in favor of freedom of press,” he said. “As a matter of fact, this is the only time I’m going to take a position that is different from that. I think this is in fact an employment issue. That’s why we’re here today. The position that’s being sought is actually being hired. It’s not an elected position at this point. So these are employee issues and those are consistently not open to the press. On top of that, the information that I had coming here was that these would be closed meetings.”

He pointed to questions on the application for the position that could be sensitive, such as questions about past censure or legal trouble. But as reporters in the room pointed out, those applications — and their answers — were already available online. Guzynski wrote in his application that in his first year of law school, he intervened when a friend was being sexually assaulted and was arrested for disorderly conduct. The charges were dropped.

Some council members sided with Kavanagh.

“A public’s right to know would trump a public official’s subjective expectation of privacy,” attorney Daniel Jones said.

Others noted that in their communities, interviews with police chiefs, school board officials, tribal judges and more are open.

“Every meeting at the Blackfeet Tribe is open,” said K. Webb Galbreath, the tribe’s deputy water director and a former GOP Public Service Commission candidate.

The back-and-forth went on. Sitting in the room, awaiting the start of his interview, was Bonilla.

“This is all very awkward for me,” he said. “If it was just a function of me … that would be one thing. But when the lieutenant governor called, informed me that Mr. Guzynski had already invoked his right of privacy, and the governor’s recommendation was that this meeting be closed, it puts me between a rock and a hard place, puts Mr. Guzynski between a rock and a hard place.”

He said he was being asked to make a decision for three people — himself, Guzynski and the governor. And one of those people has the power to appoint him to the bench.

Martinsen repeatedly asserted that the council could not determine ahead of time to hold a closed meeting without giving the public the opportunity to protest. And she reiterated her position that the public’s right to know, without evidence to the contrary, exceeds the right to privacy in this case.

There was, in short, some confusion. The law doesn’t outline a specific process for the advisory council. Everybody seemed to have a different interpretation of the relevant case law, and of who had authority to determine that the meeting could be closed. Bonilla had been in the room for 45 minutes without having been asked a single question.

The council briefly stood at ease. Stutz returned and maintained her original decision.

Price, in response to questions from MTFP, said the decision to close the meeting lies solely with the presiding officer, who must weigh the candidates’ assertion of their privacy right against the public’s right to know. The lieutenant governor had previously reached out to council members and the candidates, but only to go over materials and describe the process, she said.

But that doesn’t seem to jibe with what happened on Thursday. As the council returned and announced its decision, the members discussed the clunkiness and confusion of the process.

As they discussed the conflict, Stutz noted that it’s difficult for a member of the council — or the candidates — to ask to open the meeting when “the person who appointed this has said it will be closed.”

“It’s a bad process, in my opinion.”

When later asked if he was told by the governor’s office whether the meeting would be open or closed, Guzynski declined to comment. Bonilla could not be reached for comment after the meeting.

Jones explained his support of opening the meeting after its conclusion.

“Public officers, they need to come into it knowing that their privacy rights are stymied by the public’s constitutional right to know and participate,” he said. “And in Montana, unlike every other state in the Union, we have a higher expectation of participation with our government.”

With her push for openness thwarted, Martinsen drove back to the Acantha office, a former mortuary that also offers office supplies and printing services in addition to a weekly newspaper. There were pressing matters of local news to address: She had to cover the opening of a new dog park in town.

“God bless our Constitution, right?” she told MTFP this week. “It sets up competing privacy and public right-to-know rights, so every time any of us runs into something like this, we do it with the backdrop of that in our Constitution. I just think that as a newspaper owner and reporter it is my job to fight to keep government actions in the public when I truly believe that in a case like this there is no reasonable expectation of privacy.”

This story was updated Fri., March 24, 2023, to clarify the attribution of a paraphrased quote and to link to relevant statute.