Netzer firm asks for hearing at ‘earliest opportunity’ on preliminary injunction

AG’s Office argues injunction on HB702 would undermine public interest

By: - December 3, 2021 5:18 pm

The Netzer Law Office, a plaintiff in a case alleging House Bill 702 is unconstitutional, has asked the Richland County District Court for summary judgment following an earlier request for a preliminary injunction on the legislation, which it describes as a “reckless law.”

The State of Montana, on the other hand, filed a motion to dismiss the case and its “threadbare allegations,” and it argues the state has an interest in protecting HB702, which prohibits discrimination based on vaccination status.

In a cross-motion filed this week, the Netzer Law Office requests the court hold, at its earliest opportunity, a hearing on the motion for a preliminary injunction. In part, the plaintiff argues its business is growing, its owners don’t want to hire new employees who are unvaccinated, and they want to require current workers to be vaccinated against COVID-19 — and possibly against other diseases in the future.

Generally, the law firm, with offices in Sidney and Billings, and Donald Netzer, 70, argue the law violates numerous rights in the Montana Constitution, including the owners’ and employees’ “inalienable rights to a clean and healthful environment.”

“Although the Montana Supreme Court has not delineated the contours of what is encompassed within the term ‘environment,’ existing precedent and the history of the 1972 Constitutional Convention support Netzer Law’s assertion that the term includes indoor environments, like Netzer Law’s business offices,” said a brief filed by Joel Krautter of the Netzer Law Office.

The plaintiffs also note the Montana Constitution establishes the right to defend one’s life and right to “fully possess and protect property,” among other rights. The filing noted both a business and leased office space constitute property protected by the Constitution.

“HB702 substantially burdens Netzer Law’s and its owners’ constitutional right to fully possess and protect its business and office spaces by preventing them from managing this property safely amid the ongoing pandemic,” said the plaintiffs.

But the Attorney General’s Office argues the plaintiffs “wish to discriminate” based on people’s vaccination status despite the new law, and a preliminary injunction is an “extraordinary remedy” that should only be granted with caution, and not in this case.

The defendants in the case are the State of Montana via Attorney General Austin Knudsen and Commissioner of Labor and Industry Laurie Esau.

“The State of Montana put forward a clear policy that Montanans cannot be denied their fundamental right to pursue employment based on vaccination status,” the state said.

The State of Montana also argues an injunction would undermine the public interest and mean all employers in Montana could start discriminating. And the state argues the plaintiffs fail to demonstrate how the law infringes on any right, “fundamental or not.

“Nevertheless, the State has a compelling interest in preventing discrimination and protecting individual privacy,” argued the defendants in a brief supporting dismissal of the case and opposing a preliminary injunction.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”