Skip to content
Skip over table of contents to continue reading article

Montana

Open Courts Compendium

Compare

Author

Peter Michael Meloy, Esq.
MELOY LAW FIRM
P.O. Box 1241
Helena, Montana 59624-1241
mike@meloylawfirm.com

Last updated January 2018

Compare

I. Introduction: Access rights in the jurisdiction

Compare

A. The roots of access rights

Montana's populist roots promoted early adoption of statutory open meetings and open records mandates. Montana's first open records law was passed six years after statehood in 1895 and guaranteed:

Every citizen has a right to inspect and to take a copy of any public writings of this state … [and] [e]very public officer having the custody of a public writing … is bound to give [citizens] on demand a certified copy of it.

Mont. Code Ann. § 2-6-102. (emphasis added).

This statutory provision was replaced in 2015 by Mont. Code Ann. § 2-6-1006 which similarly requires government records to be open for public inspection upon demand.

In 1963, the legislature statutorily required open governmental meetings. The legislative purpose of the 1963 law tracks the populist philosophy which serves as its underpinning:

It is the intent of this part that actions and deliberations of all public agencies [in Montana] shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Towards these ends, the provisions of the part shall be liberally construed.

Mont. Code Ann. § 2-3-201.

The "part" referred to above requires that all meetings of governmental bodies "supported in whole or part by public funds or expending public funds" must be open to the public. This statutory provision is among the broadest in the nation with respect to the deliberative bodies it touches.

Finally, when the 19th century Montana Constitution was re-written in 1972, this statutory philosophy was raised to constitutional levels. The 1972 Constitution, Article II, § 9 reads:

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.

Since the adoption of this provision the Montana Supreme Court has fairly consistently enforced this right holding that all records and meetings are presumed to be open and the custodian has an “affirmative duty” to permit access unless the demands of individual privacy clearly exceed the merits of public disclosure. Great Falls Tribune v. Montana Pub. Serv. Comm'n, 2003 MT 359, ¶ 13, 319 Mont. 38, 43, 82 P.3d 876, 879

While the Court has been vigilant in enforcing the Constitutional guarantee for executive branch state and local agencies, it has declined to open its conferences to the public.  See In re Selection of A Fifth Member to Montana Districting. 1999 WL 608661 (Mont. Aug. 3, 1999).  However, it has recognized that court records are subject to the open meetings and records guarantees.

Compare

B. Overcoming a presumption of openness

The courts utilize a “3-step analysis:” to resolve a disclosure challenge under Article II, Section 9:

First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure.

Becky v. Butte-Silver Bow Sch. Dist. No. 1.  274 Mont. 131, 136–37, 906 P.2d 193, 196–97 (1995).

In resolving whether a protectable privacy interest exists, the courts use a “two-part test”:

First, we determine whether the person has a subjective or actual expectation of privacy. Next, we evaluate whether society is willing to recognize that expectation as reasonable.

Great Falls Tribune Co. v. Cascade Cty. Sheriff, 238 Mont. 103, 105, 775 P.2d 1267, 1268 (1989).

Compare

C. Procedural prerequisites to closure

Compare

II. Procedure for asserting right of access to proceedings and records

Compare

A. Media standing to challenge closure

The media is presumed to have standing to pursue a right-to-know challenge. Any “person” has the right to expect openness and therefore has standing to pursue a closure decision.
Krakauer v. Comm’r of Higher Educ., 381 P.3d 524 (2016).

Compare

B. Procedure for requesting access in criminal cases

The court may be petitioned to open a record or hearing. This can be accomplished by seeking leave to participate in the criminal matter for the purpose of requesting an open session or record, and then filing a simple petition requesting the relief.

Compare

C. Procedure for requesting access in civil matters

In most jurisdictions, a simple petition is filed with the district court seeking access to the records or proceedings.  Several district courts have adopted a procedure which permits a requestor to simply file a letter with the Clerk of Court.  This can be done without a formal lawsuit and is generally done pro se.

Compare

D. Obtaining review of initial court decisions

Review of initial court decisions may be made by appealing the decision to the Montana Supreme Court.

Compare

III. Access to criminal proceedings

Compare

A. In general

Implicit in the right-to-know provision of the Montana Constitution is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

Compare

B. Pretrial proceedings

Implicit in the right-to-know provision of the Montana Constitution is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

Compare

C. Criminal trials

Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

Compare

D. Post-trial proceedings

Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

Compare

E. Appellate proceedings

Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

Compare

IV. Access to criminal court records

Compare

A. In general

In Montana ex rel The Missoulian v. Montana Twenty-First Judicial District, 933 P.2d 829 (Mont. 1997), the Montana Supreme Court ruled that orders sealing evidence in a homicide prosecution and restricting dissemination of information about the case violated the Montana Constitution and statutory law because no evidentiary hearing was held, no findings were made, and tests for closure and a gag order were not met.

Compare

B. Arrest records

Generally, courts do not maintain arrest records.

Compare

C. Dockets

All dockets are open to the public.

Compare

Warrants, wiretaps and related materials are confidential and rarely contained within the court record.

Compare

E. Discovery materials

Discovery materials are generally not filed with the court.  If they are, they are open to public inspection.

Compare

F. Pretrial motions and records

Based upon the right-to-know provision of the Montana Constitution and the right of access recognized under the First and Fourteenth Amendments to the United States Constitution, the Montana Supreme Court has held that the public and press may be excluded from a pretrial suppression hearing only if dissemination of information acquired at the hearing would create a clear and present danger to the fairness of the defendant's trial, and no reasonable alternative means can be utilized to avoid the prejudicial effect of such information.  State ex rel. Smith v. Dist. Court of Eighth Judicial Dist., 201 Mont. 376, 385, 654 P.2d 982, 987 (Mont. 1982).

Compare

G. Trial records

Unless the court seals the record, all trial records are open to the public.

Compare

H. Post-trial records

Unless the court seals the record, all post-trial records are open to the public.

Compare

I. Appellate records

All appellate records are open to the public.

Compare

J. Other criminal court records issues

Youth court records are open until the youth turns 21, and then the file is sealed.

Compare

V. Access to civil proceedings

Compare

A. In general

Although there are no court decisions on access to civil proceedings, statutory provisions require court proceedings to be open, with a few exceptions.  Mental commitment proceedings and youth court proceedings involving a youth in need of care or supervision and dependent/neglect proceedings are closed.

Compare

B. Pre-trial proceedings

Compare

C. Trials

Compare

D. Post-trial proceedings

Compare

E. Appellate proceedings

Compare

VI. Access to civil records

Compare

A. In general

Although there are no court decisions on access to records of civil proceedings, statutory provisions require court records to be open, with a few exceptions.  Records of mental commitment proceedings, dependent/neglect and youth court proceedings involving a youth in need of care or supervision are closed.  The clerks of court redact certain information from some court records before they are disclosed, such as social security numbers and income tax information.

Compare

B. Dockets

All docket records are open to the public.

Compare

C. Discovery materials

Compare

D. Pre-trial motions and records

All pre-trial motions and records are open to the public unless the trial is closed.

Compare

E. Trial records

All trial records are open to the public unless the trial is closed.

Compare

F. Settlement records

Settlement records of civil cases in which a governmental entity is a party are open unless the court determines some individual privacy right clearly exceeds the merits of public disclosure.  § 2-9-303 MCA.  Settlement records of civil cases involving only private litigants are rarely filed with the court.  The only record will be an order of dismissal reflecting a settlement of the case.

Compare

G. Post-trial records

All post-trial records are open to the public unless the trial is closed.

Compare

H. Appellate records

All appellate records are open to the public unless the court has sealed some document or record.

Compare

I. Other civil court records issues

Compare

VII. Jury and grand jury access

Montana rarely commences criminal proceedings through a grand jury.  Almost all criminal prosecutions are initiated by an information containing an affidavit of probable cause filed by the prosecution.  The affidavit and information are open for inspection.

Compare

A. Access to voir dire

Voir dire examinations are open to the public.  Local district court rules generally restrict the media from televising or broadcasting voir dire.

Compare

B. Juror identities, questionnaires and other records

Juror identities and questionnaires are open to the public.

Compare

C. Grand jury proceedings and records

Montana rarely commences criminal proceedings through a grand jury.  However, the charging documents filed with the court are open.

Compare

D. Interviewing jurors

The court usually leaves it up to the juror to decide whether to permit an interview.

Compare

VIII. Proceedings involving minors

Records of dependent/neglect and youth court proceedings involving a youth in need of care or supervision are closed.

Compare

A. Delinquency

Juvenile delinquent proceedings are open.

Compare

B. Dependency

Closed.

Compare

C. Other proceedings involving minors

Youth in need of care or supervision proceedings are closed, as are dependent neglect proceedings.

Compare

D. Prohibitions on photographing or identifying juveniles

None.

Compare

E. Minor testimony in non-juvenile courts

A court may close a portion of a proceeding if it determines the demands of individual privacy clearly exceed the merits of public disclosure.  A court will routinely close such proceedings when mental health evaluations of the juvenile are discussed.

Compare

IX. Special proceedings

Compare

A. Tribal Courts in the jurisdiction

Open or closed wholly at the discretion of the tribal judge.

Compare

B. Probate

Open.

Compare

C. Competency and commitment proceedings

Closed.

Compare

D. Attorney and judicial discipline

Attorney discipline is handled by the Montana Supreme Court.  Any court proceeding in which the court disciplines an attorney must be open.

Compare

E. Immigration proceedings

N/A

Compare

F. Other proceedings

Compare

X. Restrictions on participants in litigation

Pretrial proceedings and records of those proceedings are open to the public, unless the court determines dissemination of information would create a clear and present danger to the fairness of the trial and the prejudicial effect of the information on trial fairness cannot be avoided by any reasonable alternative means.  § 46-11-701 MCA.

Compare

A. Media standing to challenge third-party gag orders

The media has standing to challenge a gag-order by means of supervisory control. Montana ex rel The Missoulian v. Montana Twenty-First Judicial District, 933 P.2d 829 (Mont. 1997).

Compare

B. Gag orders on the press

46-11-701 MCA contemplates that a court may request the media to cooperate in restricting dissemination of some material to preserve trial fairness, but no gag orders may be enforced against the press.

Compare

C. Gag orders on participants

A court may impose gag orders on trial participants, including attorneys, the parties and witnesses.

Compare

D. Interviewing judges

There are no restrictions on approaching a judge for an interview.  But the court has discretion to decline an interview.

Compare

XI. Other issues

Compare

A. Interests often cited in opposing a presumption of access

Under Article II, Section 9 of the Montana Constitution, individual privacy is the only exception to the right to know.  Accordingly, a court could close a proceeding if it determines a privacy interest is involved in a record or a portion of the proceedings and finds the demands of privacy clearly exceed the merits of disclosure.  Trade secrets may also justify closure.  See Great Falls Tribune v. Montana Pub. Serv. Commn, 82 P.3d 876, 885 (2003).  However, mere economic disadvantage to a party does not justify closure.  Great Falls Tribune Co. v. Day, 959 P.2d 508 (1998).

Compare

B. Cameras and other technology in the courtroom

Courts may restrict recording or cameras in the courtroom to the extent it is necessary to preserve courtroom decorum, in which case the location or number of cameras may be restricted by court or a “pool” camera may be required.

Compare

C. Tips for covering courts in the jurisdiction

Montana has a structured court system including:  municipal court exercising jurisdiction over traffic and other minor offenses occurring within a city; a small claims court operated by a county justice of the peace; justice of the peace handling criminal misdemeanors and civil matters involving claims of $10,000 or less; district courts (courts of record) handling all civil and criminal matters; and a Supreme Court handling all appeals from courts of record.  Montana is a small enough state for the reporter to become personally acquainted with a judge or clerk of court.  That relationship may dictate how much access the reporter may have with records and court hearings.  The better the relationship, the better the access.

Compare