HELENA – District Judge Nels Swandal, running for a seat on the state Supreme Court, said Friday that the justices should open their deliberations to the public.
Swandal is running against Helena attorney Beth Baker for the seat being vacated by Justice William Leaphart. Both have been competitive with fundraising and collecting endorsements.
Baker said she would have to consider arguments both for and against before making a decision on the issue.
Swandal said it is wrong for the state’s high court to reach its decision on important constitutional issues behind closed doors. He said the Montana Constitution requires decision-making bodies to keep their meetings open to the public, and believes citizens deserve to know how the court reaches such important decisions.
“Transparency is a good thing in all facets of government,” Swandal said.
Over the years the Montana Supreme Court has forced many other governmental bodies to open their doors to the public and the press citing the Montana Constitution’s right-to-know provision.
“I don’t see anything in the Constitution that excludes the court from the transparency required,” Swandal said.
Baker said she thinks it’s possible that opening the proceedings could jeopardize the independence of the judiciary.
She said that preliminary votes made on cases in deliberation among justices can change as opinions and arguments are fully flushed out. Information released to the public on such initial votes could cause outside pressure to be brought on the justices, or even prompt a party in the case to prematurely enter a settlement with the other side.
“I am open to considering ways to deal with that concern, but I think the bottom line is that is not an issue that lends itself to an 11th hour campaign sound bite,” Baker said.
Periodically, lawmakers and some justices have argued that the court conferences should comply with the open meetings law and citizens’ constitutional right to know. The only exemption to that right is an individual’s right to privacy — generally not an issue when the court’s decisions are based solely on public records.
But the court has resisted opening its deliberations, although in 2004 former Supreme Court Chief Justice Karla Gray opened the court’s administrative meetings that deal with planning and such issues to the public.
She remained adamant at that time that the more newsworthy deliberations on cases, where judges meet to vote on the final court opinion, should remain closed. Gray said she did not believe the constitution required those meetings to be open.
Current Supreme Court Chief Justice Mike McGrath did not return a call seeking comment.
Swandal, a former Army colonel who still lives on his family ranch, has illuminated his conservative credentials throughout the campaign — such as in statements in support of gun rights and in a television advertisement where he mentions past support of Republicans.
Baker has focused more on highlighting backing from both high-profile Republicans and Democrats — including the likes of former Republican Gov. Marc Racicot and former Attorney General Joe Mazurek.
The Supreme Court justice seat is a nonpartisan race.