HELENA, MT – In a decision that is both technical and gives both sides a sort of victory, the Montana Supreme Court has ordered part of an anti-vaccine law restored, while opening the door for other legal challenges to the state’s policy of not discriminating against citizens due to their vaccination status.

The Montana Supreme Court unanimously ruled on a lawsuit originally filed during the height of the COVID-19 vaccine controversy, which was happening during the 2021 Legislature. Republican-led lawmakers made it illegal for most businesses to require employees to disclose their vaccination status or treat them differently.

While the law said employers and businesses could require masks, it could not treat people differently based on their vaccine status or require them to be vaccinated as part of their employment. The law created carve-outs for healthcare facilities.

Netzer Law Firm of Billings had challenged the measure, saying it violated a number of state constitutional rights, as well as jeopardized the health and safety of its employees.

It was one of several lawsuits filed during the COVID-19 pandemic, and ultimately state district court Judge Olivia Rieger did not issue an injunction against the law, allowing it to go into effect. The case wound its way to the state’s only appellate court, the Montana Supreme Court, which reviewed the case, determining that Rieger did not abuse her judicial discretion by not issuing an injunction, but sent the case back to be heard on the merits.

However, it was what Rieger did when the case came back to her that became the subject of the appeal the Supreme Court decided on Tuesday. In that decision, the unanimous court said that both attorneys for Netzer and the judge incorrectly interpreted their order by dismissing several components of the constitutional challenge.

It also ruled that Rieger unreasonably struck down a portion of the law the dealing with experimental or emergency vaccines, like the types developed to halt the COVID virus.

Two different problems, two different mistakes

The court said just because it had ruled that Rieger did not abuse her judicial discretion by failing to issue a preliminary injunction that would have stopped Montana’s vaccine discrimination law, it didn’t mean that the court was ruling on the merits of the argument. Instead, justices said that Rieger should have heard those challenges and determined the facts surrounding the case.

However, after the Supreme Court sent the case back to the district court, attorneys with Netzer withdrew the bulk of its challenges, believing that to be consistent with the high court’s wishes.

But in its ruling Tuesday, the Supreme Court said that its original order only analyzed the circumstances surrounding the preliminary injunction, and not necessarily the merits of the legal argument of the case.

However, because the attorneys and the judge had dismissed those portions and they were not part of the appeal, the Supreme Court could not and would not analyze those arguments, leaving open that a future lawsuit may be able to challenge the vaccine discrimination law.

“Throughout our opinion, we reiterated that our review did not resolve the underlying merits of Netzer’s claim…(The court) concluded without addressing the merits of Netzer’s claims that House Bill 702 violated none of their fundamental constitutional rights,” the Supreme Court order said. “Its failure to address Netzer’s claims on their merits was a procedurally erroneous treatment of (the case) and a misapplication of our instructions on remand. The District Court’s initial order partially dismissing Netzer’s claims was a procedural error and a manifest error of law.”

Montana was the first state to enact a vaccine discrimination law.

The order also puts some of the error back on the attorneys for Netzer, saying that they did not challenge the district court’s conclusion, and instead rescinded part of their case. Because of that, the Supreme Court said it would not address those arguments, but left the issue open.

Part of vaccine law likely coming back

The one part of the bill that Netzer challenged in district court successfully was also overturned.

Originally, the Netzer attorneys said that a section of the law that dealt with experimental or emergency vaccines strayed too far outside the title of the original legislation and therefore should be struck down, an argument Rieger affirmed.

The language of the Section 4 of the bill, which was being challenged is:

Montana’s Constitution, like many states, says bills must contain a single subject and clear title. Netzer attorneys argued experimental vaccines or those issued as part of an emergency were too far afield from the topic of vaccine discrimination.

“The District Court reasons that Subsection 4’s prohibition against requiring vaccines at certain regulatory stages was unrelated to the title’s anti-discrimination purpose,” the court file said.

However, the Supreme Court said the two subjects were reasonably connected, and that decades of case law have been developed around the legal topic. In short, even if the judges could think of better titles or edit the words to provide more clarity, courts cannot substitute their own word preferences for those of lawmakers.

In its ruling, the Supreme Court said the average citizen might expect some rules or policies about vaccines in a general bill about vaccine discrimination. The title of House Bill 702 was, “An Act Prohibiting discrimination Based on a Person’s Vaccination Status or Possession of an Immunity Passport; Providing and Exception and an Exemption; Providing an Appropriation; and Providing Effective Dates.”

“When questioning whether an act’s title is misleading, actual deception is not part of our test. We instead apply an objective standard and assess whether the title is ‘reasonably calculated to give notice of the contents of the bill’ to interested individuals so that they may follow ‘intelligently,’” the court opinion said. “HB 702 does not ‘completely fail’ because the plain language of its title gave interested members of the public and Legislature notice and opportunity to intelligently follow HB 702.”

The Supreme Court sent the case back to Rieger, saying that Netzer failed to meet its “heavy burden” showing the title was unconstitutional, and called it an error to strike that part of the law.

“We express no view on any other constitutional challenges or claims not properly presented,” said the opinion, authored by Justice Beth Baker.

House Bill 702 was originally sponsored by Rep. Jennifer Carlson, a Manhattan Republican.

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