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Senate bill would open court deliberations to public inspection; Supreme Court and legal groups urge caution (SB 40)
Summary
Sen. Greg Hertz’s SB 40 would require recording and public disclosure, with redactions, of Supreme Court deliberations after cases become final; Chief Justice Corey Swanson and others warned it could undermine internal deliberative processes and raised confidentiality concerns.
Senator Greg Hertz, Senate District 7, presented Senate Bill 40 to require the Montana Supreme Court to record closed meetings that concern judicial deliberations and to make those records available to the public once a case becomes final, subject to redaction for matters that “clearly merit” privacy.
Hertz said the bill implements the state constitution’s “public’s right to know” and argued that withholding judicial deliberations is inconsistent with the framers’ intent. He described sponsor amendments intended to clarify when a case is “final,” including after the time for review in the U.S. Supreme Court or any other court with subject‑matter jurisdiction has expired.
Chief Justice Corey Swanson appeared as an informational witness and declined to address the bill’s merits, but described the court’s internal processes: briefs are read and records reviewed before a case conference; multiple drafts and revisions of an opinion can follow; and the conference is an early stage in a long drafting and circulation process. Swanson said he was not aware of any federal or state courts that hold open deliberations and urged committee members to review the court’s internal operating rules.
Opponents, including John Marshall, said the bill would be duplicative because court opinions already explain reasoning. Supporters, including the sponsor, argued public confidence and historical recordkeeping justify recording and retention, coupled with redaction authority for confidential matters.
Why it matters: SB 40 raises questions about the balance between judicial transparency and the need for candid internal deliberation. Chief Justice Swanson said routine internal conference discussions are critical to functioning and that making them public may affect how justices and staff deliberate.
No committee vote on SB 40 was recorded in the transcript; members debated requesting a legal review note and asked staff to circulate a fiscal note and related materials.
