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Bill to record and disclose judicial deliberations prompts constitutional and privacy concerns
Summary
SB 40 would require recording and retention of Supreme Court closed conferences and make those records public after a case becomes final, with redactions for privacy. Chief Justice Corey Swanson warned the committee that open deliberations are uncommon nationally, highlighted internal process and confidentiality concerns, and committee members pressed on scope and potential privacy risks.
Senate Bill 40, presented by Senator Greg Hertz and requested by the Senate Select Committee on Judicial Oversight, would revise public-record laws to require electronic recording and a written record for closed Supreme Court deliberations and make those records available to the public once the case becomes final, allowing redaction where privacy clearly outweighs disclosure.
In opening remarks the sponsor argued Article II, Section 9 of the Montana Constitution grants citizens a broad right to know and that the judiciary should not be categorically excluded. Hertz said recordings and written records preserve history and provide transparency about how decisions are reached.
John Marshall (online) and other opponents said existing opinions and published majority/dissenting opinions already provide the public with judicial reasoning and questioned the necessity of the bill. Chief Justice Corey Swanson, appearing as an informational witness, declined to discuss the bill’s merits but explained the court’s internal processes: case conferences, preliminary reading of briefs, assignment of opinion authors, multiple drafting and revision steps, and safeguards for confidentiality. He told members he was not aware of any federal or state court that publicly opens deliberations.
Committee members repeatedly questioned whether opening deliberations would expose sensitive personal information in cases such as child custody or mental-health proceedings. The chief justice answered that many case records and briefs are public and that the court uses initials and redactions in certain contexts; he warned the court’s conference is a working process with drafts and iteration that might be affected by mandatory public access.
Members asked about a recent Montana Supreme Court opinion (O'Neil v. Gianforte) that included language suggesting a broad exemption for judiciary records; one senator asked for a legislative-service legal review note but the chair declined to ask staff to prepare one on short notice. The hearing closed with the sponsor urging the committee to consider amendments and the chief justice having provided several procedural answers about the court’s internal rules.
No committee vote was taken on SB 40 during the hearing.
