State Con Law Case of the Week: Constructive Quorums

Anthony Sanders · February 11, 2022

I’m sure you’ve heard of the Freedom of Information Act. The law, originally enacted in 1967, and beefed-up following the Watergate scandal, is a vitally important tool for Americans to find out what their government is up to. To give just one example, we at IJ use FOIA all the time and have gone to court to enforce it, including successfully against the IRS when trying to access civil forfeiture data.

States generally have their own versions of FOIA, and they cover a range from effective to not so much. And states also have something very closely related: open meeting laws. These guarantee that the public can watch certain gatherings of public officials. But at either the federal or (generally) the state level, these laws aren’t constitutionally required. Although someone involved in a lawsuit or being criminally prosecuted can often obtain documents relevant to their case through something like a subpoena, a member of the general public—even a member of the press–doesn’t have a constitutional right to get government records or walk into a meeting just because they want to see what’s going on.

Except in a few states there actually is a constitutional right. One of them is Montana. (This article lists the other states with explicit FOIA-type rights in their constitutions as California, Florida, Illinois, Louisiana, New Hampshire, and North Dakota.) Perhaps spurred by Congress’s actions a few years before, when Montana held a constitutional convention in 1972 the delegates drafted a new section in the state’s declaration of rights, the “Right to Know.” Later ratified along with the rest of the constitution, and still the law today, Article II, Section 9 of the state constitution reads as follows:

Right to know. 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 legislature has enacted a series of laws to complement this right, but the Montana Supreme Court has said the provision is self-executing, so even if the legislature didn’t adopt anything, or passed laws that don’t give the full range of access the Right to Know Clause guarantees, citizens could still go to court to open the government’s documents and deliberations up.

But how far does the law go? The Montana Supreme Court grappled with that question this week in Associated Press v. Usher. The case concerned a very simple fact pattern that made it easy for the court to wrap its head around what was going on. But the easy part ended there.

A Majority of a Majority

One day in January 2021, during Montana’s legislative session, a state house committee held a meeting. The committee had 12 Republican members and 9 Democratic members. The relevant open meeting statute requires that a gathering of the members must be open to the public if there’s a quorum, which is defined as a majority of its members. In this case that meant 10 of them. At some point the committee recessed and then nine of the Republican members —just short of a quorum—met privately to discuss tactics for the committee. The AP asked to view the meeting but the chairman, one of the nine, refused. The AP then sued, both regarding that gathering of nine and future similar meetings.

The AP argued that even though the nine-member gathering didn’t constitute a “quorum” under the statute, it still violated the Right to Know Clause because important decisions were being made out of public view. And there was some precedent for this claim, especially a case involving an advisory group for the state’s public college system. In that case the advisory group did not make binding decisions but had considerable influence on state policy and met regularly. The court had ruled that the group’s meetings had to be open to the public. However, another precedent showed the limits of the clause. In that case, members of a commission spoke with each other in various conversations that the plaintiffs argued was a “constructive-quorum.” But the court said that “serial one-on-one conversations” can’t be added up to constitute a meeting that the constitution requires access to. Perhaps there could be a “constructive quorum” that the constitution would apply to depending on the facts, but not if it’s just members speaking to each other one-on-one in various places.

This Is Simply How It Works

In the present case, the AP argued the nine Republicans constituted a “quorum of a quorum” (a majority of the majority party). They were obviously trying to get around the public meeting law and obviously discussing tactics for the actual public meeting. Thus, what was said in that meeting would have an impact, perhaps a determinative impact, on the public meeting. Nevertheless, the court declined to rule that it constituted a “constructive quorum” and the AP should have been allowed access. Most decisive for the court was the fact that the group of nine could not take any binding decisions—any binding vote occurred in the committee which was already public. With a tinge of exasperation it explained that “This is simply how the legislative process works, with members’ individual and collective private forethought informing their conduct during the official public deliberations and debate.” Further it argued that “the alternative is a standardless, case-by-case examination of every legislative conversation.”

Six justices were in the majority. But one did dissent, Justice McKinnon. Her argument was essentially that the actions by the nine legislators were transparently against the spirit of the Right to Know Clause. Although she admitted that random elevator conversations between legislators don’t fall under its purview, a constructive approach must be taken or otherwise tactics like this will grow to avoid the public’s right to know, even if that means that cases have to be decided in a fact-based ad hoc manner. To make her point she quoted from the 1972 reports of the constitutional convention itself and their emphasis on public scrutiny.

I see a lot of merit in both opinions. Subjecting every word in every elevator ride to public scrutiny might well shut down any public body from functioning. But the delegates to the 1972 convention put pretty strong language in the constitution itself by declaring the right to observe “the deliberations of all public bodies.” In any case, it demonstrates that wherever the right line is with a right like this, the need for judicial engagement in policing that line is crucial, and the fact that the line might be hard to draw isn’t a reason for the judiciary not being involved at all. As the court did reaffirm, the clause is self-executing for a reason. Otherwise the legislature has to be expected to police itself—which this case perhaps illustrates it’s not very good at.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.