After more than three decades of being an editor and co-owner of the Choteau Acantha, Melody Martinsen found herself feeling nervous.
She introduced herself as Melody Martinsen and mentioned that she was currently unable to produce saliva in her mouth. Reluctantly, she expressed her dislike for the task ahead of her.
Then, standing before a panel of 11 Montanans appointed by Gov. Greg Gianforte to recommend whether attorneys Dan Guzynski or Greg Bonilla replace retiring Judge Robert Olson of Montana’s 9th Judicial District, Martinsen made her case.
The Montana Constitution grants citizens the right to observe the actions of their government, she said. But it also provides for a right to individual privacy. When those rights come into conflict, case law and the Constitution provide for a balancing test: The right to know prevails “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”
During the March 23 meeting in Conrad, Martinsen informed the council that two attorneys from Helena are asserting their right to privacy in their interviews. However, Martinsen expressed his disagreement with this claim, stating that society does not recognize their privacy right as appropriate. He further explained that the attorneys are not undergoing a performance review with their superior, nor are they seeking employment in the private sector or a public employee position. Instead, they are applying for an elected position where every individual in the 9th Judicial District effectively becomes their boss.
Martinsen’s claim caused confusion and uncertainty among the council, led by Deputy Teton County Attorney Jennifer Stutz, for a duration of 45 minutes. One council member raised concerns about the potential legal consequences of keeping the interviews and discussions closed. Cut Bank Chief of Police Mike Schultz suggested that the council could finalize their questions, present them to the candidates, and then ask if they would like to invoke their right to privacy.
Paul Neal, a council member and private attorney with an office in Conrad, stated that the candidates anticipated a closed proceeding and pressuring them to relinquish their previously claimed privacy right not only puts them in a difficult position but also coerces them.
Neal stated that, based on the current circumstances, he believed it was necessary to maintain closure as initially anticipated.
“I have dedicated significant effort towards advocating for transparency and public involvement. It is unfair and disappointing that it has been abruptly shut down.”
LeAnne Kavanagh, former journalist and member of the advisory council
Even after one advisory council member, former newspaper publisher LeAnne Kavanagh, resigned in protest, Stutz made the decision that the council would proceed as planned. Following confidential interviews with both candidates and private discussions, the council recommended Guzynski and Bonilla, in that specific order. However, the final appointment rests with Republican Gov. Greg Gianforte, who has the choice to consider or disregard the council’s suggestion.
Kavanagh, who had owned multiple local newspapers in the past, including the Cut Bank Pioneer Press, expressed her decision to not be a part of the council on Thursday, stating, “I cannot sit here and witness the meeting being closed. I have dedicated considerable effort to advocate for transparency and public involvement. It is disheartening that this meeting has been closed. The two candidates will now have to handle more challenging questions than the insignificant ones I had prepared.”
Martinsen announced that she has officially hired attorney Mike Meloy from the Montana Freedom of Information Hotline to represent Acantha in its request to have access to the meeting. Additionally, she is contemplating various other possibilities.
Asked whether the council entered into any private or personal territory during its interviews with the two candidates, member Daniel Jones, a Conrad attorney and the son of influential Republican House Rep. Llew Jones, R-Conrad, was unequivocal: “No. Flat out, no.”
A NEW JUDICIAL APPOINTMENT PROCESS
The Judicial Nominating Commission in Montana has been responsible for filling mid-term judicial vacancies for the past 50 years. This commission consists of seven individuals, appointed by the governor and representatives of the court system. Their role includes reviewing applications, seeking public input, conducting interviews, and presenting a list of candidates to the governor, who will then make a selection. All of these processes are carried out transparently in the public domain.
That changed in the Montana Legislature’s 2021 session. Gianforte, only a couple of months removed from his inauguration, signed Senate Bill 140, GOP-backed legislation that eliminated the Judicial Nominating Commission and gave the governor direct power to fill judicial vacancies. The new law still requires an opportunity for public comment and Senate confirmation of judicial appointees, but says little about the vetting process other than that the governor “may authorize investigations concerning the qualifications of eligible persons.”
Gianforte stated in a press release, upon signing the bill, that in the event of judicial vacancies, he will select highly qualified judges who prioritize the protection and adherence to the Constitution, and who interpret laws rather than legislate from the bench. He expressed his dedication to transparently appointing judges, incorporating substantial public input, and ensuring a diverse range of legal backgrounds and expertise among the appointed judges.
SB 140 led to a legal dispute and a prolonged struggle between legislative Republicans and the judiciary over the separation of powers. However, in the end, SB 140 was deemed constitutional.
In June 2021, the new process underwent its initial test, coinciding with the Montana Supreme Court’s affirmation of its validity.
Following the resignation of Judge Greg Pinski from Montana’s 8th Judicial District the previous year, Governor Steve Bullock, who was a Democrat at the time, appointed Judge Michelle Reinhart Levine as his replacement through the Judicial Nominating Commission’s procedure.
Levine, a former Democratic lawmaker, had been serving for several months when her confirmation as a governor’s judicial appointee was rejected by Republicans in the Senate during the 2021 session. This marked the first instance since the ratification of the Montana Constitution in 1972 where a governor’s nominee failed to pass Senate confirmation.
That left the seat open. The governor then announced how he would wield his new appointment authority — by appointing a 10-person advisory council of Great Falls community leaders to assist him “in identifying exceptional candidates to serve as the district court judge.”
The inaugural advisory council met in June. The ultimate appointee was David Grubich, the district court’s standing master at the time and one of the council’s two front-runners. The meeting was attended by Montana Free Press and other reporters. None of the candidates appeared in person for the meeting.
However, the presiding officer of the council insisted on closing the meeting to discuss the candidates. Journalists expressed their concerns, and after a short conversation that included the possibility of facing legal consequences if the decision was challenged, the council ultimately chose to keep the meeting open.
Olson, the judge currently serving in the 9th District, refrained from commenting on the council’s specific proceedings on March 23. However, he expressed doubts regarding the removal of the Judicial Nominating Commission.
“I simply failed to identify any political concerns associated with it, and I strongly oppose the politicization of anything within the judiciary,” Olson stated in an interview with MTFP on Thursday. “Our duty is to set aside our political ideologies when entering the court and refrain from bringing them into our decision-making process.”
However, he expressed his appreciation for the diverse group of individuals selected to serve on the advisory council in his district.
He stated, “These individuals will carry out the task and provide [Gianforte] with the name they believe possesses the greatest qualifications. However, despite everything I’ve mentioned, I remain undecided about my opinion.”
THE 9TH DISTRICT
Since then, several other district court seats have become available. The local media has covered the establishment of advisory councils and their final suggestions, but no one seems to have questioned the decision to keep the council’s meetings closed.
Not until Martinsen, that is.
Olson, as reported by the Acantha, announced his intention to resign last December. The governor began soliciting replacements at the beginning of this year.
Bonilla and Guzynski were the only two applicants. Guzynski is a prosecutor with the Montana attorney general’s office and a former candidate for Lewis and Clark County Attorney. Bonilla is an attorney for the Montana Association of Counties. (He also serves on the board of directors of Options Clinic, a “crisis pregnancy center” that presents itself as a reproductive health clinic but counsels pregnant women against getting abortions.).
Both individuals were inundated with countless letters expressing support. Olson gave his endorsement to Guzynski.
Martinsen started raising inquiries, including whether the meeting would be open, as the governor’s office unveiled the candidates and the advisory council.
According to emails shared with MTFP, Kaitlin Price, the governor’s spokesperson, stated on March 6 that, similar to previous advisory councils, parts of the meeting will be accessible to the public. However, the interview process and subsequent discussion among council members will be conducted in a closed session to safeguard the privacy interests of the applicants.
It remains uncertain if the two candidates had indicated their intention to exercise their privacy rights by that time.
Martinsen contacted the governor’s office to arrange a meeting with Lt. Gov. Kristen Juras, expressing her intention to find a mutually agreeable resolution that would involve public involvement while simultaneously respecting individual privacy concerns. Additionally, she requested a Zoom link to participate in the council’s organizational meeting, where Gianforte and Juras were scheduled to discuss the council’s activities with the appointed members.
Martinsen expressed his objection when Juras called on March 15 and informed him that he would not be able to attend the organizational meeting. In response, Juras advised Martinsen to obtain an injunction in order to halt the meeting. Martinsen acknowledged this and reiterated his protest.
Martinsen informed MTFP, “I expressed my gratitude for your prompt response and bid farewell with an ‘OK, alright, thank you, goodbye’.”
Afterwards, she contacted Meloy who proceeded to send a letter to Stutz, the council’s presiding officer. In the letter, Meloy referenced two cases indicating that advisory committees must comply with open-meeting laws.
“Not only are Bryan and Crofts controlling on the issue of whether an advisory council’s meetings must be open to the public, but additional factors exist here which demand transparency,” Meloy wrote. “The Governor is filling an elective office and the Advisory Council’s predecessor conducted all of its meetings in public. There can be no question that the Council’s meetings should be open, both as a matter of law and good public policy.”
Stutz informed that she had sent Meloy’s letter to the governor’s office.
Gianforte’s office stated that the organizational meeting was ultimately canceled because of a scheduling change.
In addition, Martinsen asked for a compilation of the inquiries that the council intended to pose to the candidates.
She told MTFP that the questions cannot be private, only the answers can be private. She added that she didn’t think there was any privacy issue here.
Price, with the governor’s office, told Martinsen there was no predefined set of questions. And, Price said, “the presiding officer will determine at the meeting whether the demands of individual privacy exceed the merits of public disclosure,” citing state statute to that effect.
According to emails shared with MTFP, Kavanagh, the advisory council member and former journalist, expressed her concerns and contacted Hannah Slusser, the governor’s boards and appointments advisor, to advocate for an open meeting on March 23 for the council.
The lieutenant governor and the governor’s office understand the importance of balancing job applicants’ privacy rights and public engagement. They acknowledge that job applicants have a reasonable expectation of privacy, and they take this matter seriously. When recommending candidates to the governor, the 9th Judicial District Advisory Council will likely discuss various aspects such as employment history, temperament, character, honesty, interpersonal relationships, skills, personality, and performance criticisms. The Montana Supreme Court has recognized that these topics are of a sensitive and private nature, deserving reasonable privacy protection.
She continued, “Both applicants have informed the lieutenant governor that they are not waiving their privacy interests.”
The emails from Kavanagh also included a compilation of general questions for judicial candidates, which had been submitted to council members by the governor’s office.
MARCH 23
Kavanagh started asking questions as the meeting on March 23 began, even before Martinsen could read her remarks.
She suggested that if the candidates were aware of the questions in advance and if privacy was a concern, would they choose to wait and exercise their right at that time?
Stutz resisted.
“She said that Guzynski and Bonilla believed it was a closed meeting, so that’s the understanding. She clarified that she couldn’t compel them to conduct an open meeting.”
Martinsen proceeded to present her argument. [Editor’s note: MTFP reporter Arren Kimbel-Sannit also publicly supported the idea of granting access to the meeting].
Attorney Paul Neal was the initial individual to respond.
He expressed his general support for freedom of press but made an exception in this particular case. He believed that the issue at hand was related to employment and not an elected position, which meant that employee matters were not typically open to the press. Additionally, he had been informed that these meetings would be closed, adding to his perspective on the matter.
He pointed to questions on the application for the position that could be sensitive, such as questions about past censure or legal trouble. But as reporters in the room pointed out, those applications — and their answers — were already available online. Guzynski wrote in his application that in his first year of law school, he intervened when a friend was being sexually assaulted and was arrested for disorderly conduct. The charges were dropped.
Kavanagh received support from certain council members.
Attorney Daniel Jones stated that the public’s right to know takes precedence over a public official’s personal expectation of privacy.
Others observed that interviews with various community leaders such as police chiefs, school board officials, tribal judges, and others are accessible in their respective communities.
“The Blackfeet Tribe ensures that every meeting is open,” stated K. Webb Galbreath, the tribe’s deputy water director and an ex-GOP Public Service Commission candidate.
Bonilla sat in the room, patiently anticipating the beginning of his interview, as the back-and-forth continued.
He expressed his discomfort, stating that the situation was quite awkward for him. If it were solely a matter concerning him, he could handle it differently. However, he felt caught in a difficult position when the lieutenant governor contacted him, revealing that Mr. Guzynski had already exercised his right to privacy. Moreover, the governor suggested that this meeting should be kept confidential. This predicament not only affected him but also placed Mr. Guzynski in a challenging situation.
He mentioned that he was faced with making a decision for three individuals – himself, Guzynski, and the governor, with one of them holding the authority to appoint him as a judge.
Martinsen consistently emphasized that the council cannot decide in advance to conduct a closed meeting without allowing the public to voice their objections. Furthermore, she reaffirmed her belief that, in this particular situation, the public’s right to information outweighs the right to privacy, unless there is compelling evidence to suggest otherwise.
In brief, there was a state of confusion. The law does not provide a clear procedure for the advisory council. Each person seemed to have their own understanding of the applicable legal precedents and who held the power to decide whether the meeting should be closed. Surprisingly, Bonilla had been present in the room for 45 minutes without being posed a single inquiry.
The council took a short break before reconvening, during which Stutz came back and upheld her initial decision.
In response to questions from MTFP, Price stated that the presiding officer is solely responsible for making the decision to close the meeting. The presiding officer must carefully consider the candidates’ claim of their privacy right versus the public’s right to be informed. Additionally, the lieutenant governor had contacted council members and candidates beforehand, but solely to discuss materials and explain the procedure.
However, what occurred on Thursday contradicts this. Upon their return, the council declared their decision and engaged in a conversation regarding the awkwardness and lack of clarity during the procedure.
During the conflict discussion, Stutz pointed out the challenge faced by council members and candidates when they wish to request the meeting to be open, especially when the person responsible for its appointment has already declared it will remain closed.
In my opinion, the process is not good.
Guzynski refused to comment when questioned about whether the governor’s office informed him about the meeting being open or closed. Bonilla could not be contacted for comment following the meeting.
After the meeting had ended, Jones elaborated on his endorsement of opening it.
He stated that public officers must understand that their privacy rights are limited by the public’s constitutional right to be informed and engaged. Additionally, in Montana, unlike any other state in the country, there is a greater emphasis on active involvement with the government.
After her efforts to promote transparency were obstructed, Martinsen returned to the Acantha office. This unique establishment, once a mortuary but now providing office supplies, printing services, and a weekly newspaper, required her attention. There were urgent local news issues to tackle, specifically covering the grand opening of a new dog park in the town.
“This week, she expressed her belief to MTFP that our Constitution is a blessing. She highlighted how it establishes conflicting rights to privacy and public access, which provides a contextual framework whenever any of us encounter situations similar to this. As a newspaper owner and reporter, she believes it is her duty to advocate for transparency in government actions, particularly when there is no justifiable expectation of privacy.”
This story was updated March 24, 2023, to clarify the attribution of a paraphrased quote and to link to relevant statute.
This story was updated March 26, 2023, to correct an error. The original version of this story stated that Dan Guzynski is a former Democratic candidate for Lewis and Clark County Attorney. Voters made that position nonpartisan starting in 2020. Guzynski campaigned for the position in 2022 without partisan affiliation.
