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The Montana Supreme Court has upheld a Billings lawmaker’s right to review a child-neglect-and-abuse case that the Gianforte administration had denied, citing attorney-client privilege.
On Friday, the Montana Supreme Court unanimously sided with Rep. Bill Mercer, R-Billings, and aligned with the Lewis and Clark District Court Judge Michael McMahon’s order to turn over the documents related to the case.
The case focuses on a provision in Montana that allows lawmakers to review otherwise confidential cases of child abuse or neglect handled by the Montana Department of Public Health and Human Services. The privilege is narrow and only pertains to members of the Montana Legislature or Congress, and only applies when a family member asks in writing for the lawmaker to review the case. The purpose is part of the checks and balances in Montana, allowing the legislative branch to check the executive, but also serves the function of helping lawmakers craft better guidelines and law during the legislative session, which the justices on the Montana Supreme Court affirmed.
Lawmakers who review the documents and cases pertaining to the otherwise confidential information that the DPHHS has must keep it confidential, and, according to the case, Mercer signed an agreement to keep any information private.
Because all other information pertaining to the case is confidential, it’s not known specifically what case Mercer was seeking, but it is identified as a case that came from Valley County, and believed to be a high-profile case where a transgender teenager was sent out of state to a Wyoming facility and was later transferred to the care of a biological parent in Canada. The case drew outrage from some members of the Republican legislature and was even reviewed by Lt. Gov. Kristen Juras because of allegations by the family that state officials from DPHHS were interfering with their religious rights, which included not recognizing transgender therapy or medicine.
Juras concluded DPHHS followed state policy in the matter.
However, the Montana Supreme Court case focused on the file that was turned over, in part, to Mercer. However, Mercer contends in court filings that documents, text messages and other communications that the department had were not included in the case file.
“Upon review of the documents provided, Rep. Mercer requested additional records that he believed were required to be produced including emails, text messages, case notes, memorandums, and all other communications,” the opinion said. “The department denied the request, maintaining the statute required production only of the more formal ‘case record,’ which it had additionally provided to Rep. Mercer.”
The open-record privilege that Mercer and other lawmakers can use is only valid for six months, so Mercer was forced to ask to the courts for additional help because the window of time was narrowing. In August, McMahon granted Mercer’s mandatory injunction, which the state then appealed to the Supreme Court.
The DPHHS didn’t dispute that it had withheld other documents from Mercer, but argued it did so because of an attorney-client privilege.
The court sided with Mercer, saying that as a lawmaker, he was already bound to confidentiality for anything that was in the file, and furthermore, McMahon had ordered at least three documents in the case off-limits due to the attorney-client exception.
The justices went one step further saying that he had already suffered possibly irreparable damage because the Gianforte administration had not turned over the documents, and the Legislature has already begun its biennial session, with a transmittal deadline looming. Transmittal is roughly the half-way point of the Legislature, and all bills that do not involve major budget implications must make it through one chamber of the lawmaking body to survive.
“Thus, irreparable injury without the issue of the mandatory injunction is clear — the legislative session is now underway, and the review must occur,” the opinion said. “Even with this court’s imposition of the stay of time limit, the same harm Rep. Mercer alleged in his briefing remains — and ‘legislation that is not drafted in January or February of 2025 will not survive the transmittal deadline for general bills.”
A five-member panel unanimously upheld the decision, including Rice, the opinion’s author. The other justices who signed the opinion are Laurie McKinnon, Beth Baker, Ingrid Gustafson and James Jeremiah Shea.