Montana
Law firm asks judge to compel Gianforte, Brereton to produce communications – Daily Montanan
Attorneys for a Helena law firm have asked for summary judgment in a lawsuit against Montana Gov. Greg Gianforte and Department of Public Health and Human Services Director Charlie Brereton in an effort to compel them to produce records the firm requested but have been denied over claims of executive and attorney-client privilege.
Upper Seven Law asked Lewis and Clark County District Court Judge Christopher Abbott to grant its request in a filing Thursday, which came three months after the firm first sued Gianforte and Brereton in an attempt to obtain the records.
“The governor believes that holding the highest office in the state insulates him from the Montana Constitution’s transparency provision,” said Upper Seven Law Executive Director Rylee Sommers-Flanagan. “But the power of this office is precisely what the framers contemplated when they guaranteed Montanans a right to know. The governor’s policy decisions go to the heart of his service to Montana.”
The law firm in August asked the Governor’s Office and DPHHS for correspondence involving Gianforte’s General Counsel Anita Milanovich that referenced Senate Bill 458, a bill Gianforte signed that defines Montanans’ sexes as either male or female only, or SF-424 forms, which some state departments are required to fill out when applying for federal grants.
The form requires applicants to attest they will follow federal laws and standards, including anti-discrimination laws.
The firm specifically asked that the records custodian exclude communications directly from Milanovich to Gianforte and didn’t ask for emails exchanged with Brereton to try to avoid attorney-client privilege claims, according to court filings.
Upper Seven Law was looking for the communications because the firm was preparing to possibly sue over SB 458 (it did so in October) and had learned from social media posts that Milanovich had possibly “instructed Montana agencies to refuse to assure compliance with federal nondiscrimination law,” according to the lawsuit.
But the legal counsel for the Office of Public Information Requests denied the firm’s request, saying executive privilege had been asserted and that there were possibly documents that would be covered by attorney-client privilege. The governor is appealing a 2022 decision out of Lewis and Clark County District Court in which a judge ordered Gianforte to release records requested about bill tracking in the 2021 legislative session.
“We are aware that executive privilege is the subject of litigation and will reconsider this response if necessary on the final resolution with the Montana Supreme Court,” Office of Public Information Requests legal counsel Rebecca Narmore wrote, according to exhibits contained in the lawsuit.
DPHHS also denied the request on claims of executive and attorney-client privilege.
When the firm sued in October, it said the Governor’s Office and DPHHS had not provided any redacted documents or privilege logs — a list of records it considers private — and there was thus no way they could know if the documents were truly privileged or being withheld illegally on executive privilege claims the firm says do not exist under Montana law.
Three months later, the firm says nothing has changed, and Gianforte and Brereton continue to violate the public’s right to know under the state constitution.
The firm asked Judge Abbott to order they provide the court with the documents requested in camera so he can review them and see if any are truly covered under attorney-client privilege. It also asked him to order the two to produce a privilege log for any privileged documents and to provide any that are not covered to the firm.
In the request for summary judgment this week, the firm again asserted there is no executive privilege in Montana, that attorney-client privilege only shields legal advice between an attorney and their client and not all communications between them, and that even if there are privileged records, Gianforte and Brereton’s offices need to provide a privilege log or redacted responsive records under the law.
The request says the 1972 Constitutional framers did not contemplate any sort of executive privilege and the same court has recently upheld that notion, saying if there was executive privilege, it would be unclear whether any documents involving the Governor’s Office could be subject to the right to know.
“While the attorney-client privilege could theoretically protect a responsive email or a portion of the contents of the withheld communications, that possibility does not justify Defendants’ outright refusal to respond to Upper Seven’s requests and concomitant failure to produce a privilege log and redacted documents,” the filing says. “Twice in the last year, this Court has ordered that the executive branch must produce privilege logs in response to right to know requests.”
It also notes that lawmakers passed a bill in the 2023 session that further clarified how public information requests must be fulfilled, including procedures for the executive branch.
“Without a privilege log — or even a recognition that attorney-client privilege is distinct from the rejected executive privilege — it is impossible to know whether any of the requested documents may be shielded from disclosure,” Upper Seven Law attorneys wrote in Thursday’s request. “It is exceedingly unlikely that the requested documents are privileged.”
The law firm said that state agencies’ decisions not to comply with federal antidiscrimination law would also be a political decision and not legal advice, and that the right to know as it applies to the executive branch would be gutted if everything subject to potential future legal action triggered attorney-client privilege.
“The governor and DPHHS cannot withhold documents merely because they were produced by lawyers or discuss the law,” the filing says. “Here, the purpose of any guidance regarding SF-424 forms was to further the executive branch’s policies on discrimination — not to provide privileged legal advice.”
DPHHS and the Governor’s Office have said regarding the case that it does not comment on pending litigation.
In addition to the request that Abbott order a review of the documents and their release, the law firm has asked for a hearing in the event Abbott rules in their favor to ask for attorney’s fees.
2024-01-18 – SF-424 Brief in Support of Motion for Summary Judgement – FILED
Montana
University of Montana president job draws high interest • Daily Montanan
The search for a new University of Montana president has drawn more than 60 applicants, according to a spokesperson for the Office of the Commissioner of Higher Education.
“We do not have an exact count at this time, as several applications are still being completed and additional submissions are expected,” said spokesperson and Deputy Commissioner Galen Hollenbaugh in an email earlier this week.
In January, then-UM-President Seth Bodnar announced his resignation to pursue other public service. Wednesday, the final day of filing, he announced he was running as an independent for the U.S. Senate to try to unseat Republican incumbent Steve Daines.
Commissioner of Higher Education Clayton Christian earlier said that with the advice of AGB Search, a firm that’s helped the Montana University System conduct other executive searches, he would undertake an expedited process to appoint a new president.
Christian has been providing brief updates on a website dedicated to the search. Last week, he said he and AGB Search are reviewing applications, and the pool of candidates was “strong and diverse.”
The commissioner also announced he was convening a small working group to assist in the search, members who “represent a variety of perspectives to assist in vetting and narrowing this field of exceptional candidates.”
In an email this week, Hollenbaugh identified the members of the working group who are assisting Christian with application review as:
- Community member and former Regent Joyce Dombrouski
- Faculty Senate Chairperson Valerie Moody
- Staff Senate President Dominic Beccari
- Administration Representative John DeBoer (Vice President of Academic Affairs)
- ASUM (Associated Students of the University of Montana) President Buddy Wilson
Hollenbaugh declined to comment on the way the rest of the process would unfold or the role the working group members would play.
Christian earlier said he anticipated an appointment within one to three months, or as soon as early this month.
Montana
Montana Supreme Court allows ballot measure on initiative process to move forward
HELENA — The Montana Supreme Court has ruled in favor of a proposed ballot measure intended to simplify the process for introducing ballot measures in the future.
Justices ruled 5-2 that the measure, currently called Ballot Issue #8, did not violate state requirements that a single constitutional amendment can’t make multiple separate changes to the Montana Constitution.
“We’re very grateful to the Montana Supreme Court for agreeing with us that the attorney general’s finding of legal insufficiency for Ballot Issue #8 was incorrect,” said SK Rossi, a spokesperson for Montanans Decide, the group sponsoring the measure.
Montanans Decide argues the Montana Legislature has passed laws making it harder for the public to propose and pass ballot issues. The Montana Constitution already guarantees the people the right to pass laws and amendments through ballot measures, but Ballot Issue #8 would expand that to include a right to “impartial, predictable, transparent, and expeditious processes” for proposing those measures. It would seek to prevent “interference from the government or the use of government resources to support or oppose the ballot issue.”
Attorney General Austin Knudsen’s office argued the measure “implicitly amended” multiple provisions in the state constitution, including by limiting the “power and authority of public officials to speak officially on ballot issues that affect those officials’ public duties” and by putting restrictions on judges and on the Legislature. Montanans Decide, the group sponsoring Ballot Issue #8, disagreed – and the majority of justices sided with them.
“Its provisions operate together to define and protect a single constitutional right—the people’s exercise of initiative and referendum,” wrote Justice Katherine Bidegaray in the majority opinion. “They are closely related components of one constitutional design.”
Bidegaray’s majority opinion was joined by Justices Jim Shea, Laurie McKinnon, Beth Baker and Ingrid Gustafson.
Chief Justice Cory Swanson and Justice Jim Rice each wrote dissenting opinions, saying they would have upheld Knudsen’s decision to disallow Ballot Issue #8. Rice said the language restricting government interference with a ballot issue was not closely related and should have been a separate vote. Swanson agreed with Rice and said the measure’s attempt to fix a timeline for legal cases surrounding ballot measures was also a separate substantial change.
In a statement, Chase Scheuer, a spokesperson for Knudsen’s office, reacted to the decision.
“This decision only further muddies the courts’ jurisprudence on ballot issue questions,” he said. “This initiative would violate the separate vote requirement by amending multiple parts of the Montana Constitution, but the court contradicted its prior rulings. Attorney General Knudsen will continue to neutrally apply the separate vote requirement in his review of ballot initiatives.”
The court’s decision means that Knudsen’s office will now need to approve ballot language for Ballot Issue #8. Once that language is finalized, Montanans Decide could begin gathering signatures to qualify the measure for the November ballot.
However, last year, sponsors of another initiative went to the Supreme Court to argue that the ballot statements Knudsen prepared were misleading. If Montanans Decide object to their ballot statements, that could further delay signature gathering while the case plays out in court.
“Regardless, we’re going to push as hard as we can to get those petitions into the hands of voters and let them sign and support if they so choose,” said Rossi.
Rossi said the legal battle this measure has gone through – and the possibility of more to come – shows why Ballot Issue #8 is needed.
“The state Legislature, and also statewide elected officials, have taken every opportunity to create burdens and hurdles and rigamarole for campaigns to get through in order to just get to the signature gathering phase, and then to get through the signature gathering phase onto the ballot, and then get through the election phase,” said Rossi. “The reason we filed this initiative is just to make sure that the process is simple, that the timeline is clear, and that Montanans can have their will heard when they want to propose and pass laws that they deem worthy.”
Montana
Christi Jacobsen enters race for Western House seat
HELENA, Mont. — Montana Secretary of State Christi Jacobsen is running for Montana’s Western Congressional District seat, entering the race a day after U.S. Rep. Ryan Zinke announced he would not seek reelection.
Jacobsen’s announcement sets up a new contest for the open seat after Zinke, a Republican, said he would seek reelection.
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“As your Secretary of State, I’ve stood up to Washington overreach, defended election integrity, and delivered real results for Montanans. In 2020, voters gave me a mandate to clean up our elections, grow Montana business, and push back against radical liberal special interests. I delivered. Now it’s time to take that same results-driven, America First leadership to Congress.”
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