Law firm appeals to Montana Supreme Court over vaccination discrimination law

By: - March 4, 2022 3:39 pm

A vial of COVID vaccine (Illustration by Carlos M. Vazquez II via | CC-BY-SA 2.0)

A private law firm with offices in Sidney and Billings is taking its request that a preliminary injunction be granted against House Bill 702 to the Montana Supreme Court after a Richland County District Court denied the motion.

Plaintiffs the Netzer Law Office and Donald Netzer, 70 at the time the case was filed in October, argued they have the right to protect the business and maintain a clean and healthful environment for employees and clients. But they said HB702, which prohibits discrimination based on vaccination status, unlawfully prevents them from doing so.

On Feb. 1, Judge Olivia Rieger denied the plaintiffs’ request for a preliminary injunction, finding in part that the Montana Legislature has named “vaccination status” a “protected right” in the Montana Human Rights Act.

“While the best way to prevent the spread of COVID-19 may be vaccination, it is not the only way,” the order said.

The judge also said Netzer hasn’t shown that he’s been economically injured to the point a preliminary injunction would be in order: “He has not demonstrated a prima facie showing of a great or irreparable injury and is therefore unlikely to succeed on the merits.”

On March 3, the plaintiffs’ attorneys Joel Krautter of the Netzer firm and Jared Wigginton of Good Steward Legal filed a notice of appeal with the Montana Supreme Court. The case was filed against Attorney General Austin Knudsen and Labor and Industry Commissioner Laurie Esau.

In the order, the judge agreed with some of the plaintiffs’ arguments, but disagreed they meant she should grant an injunction. For example, Netzer argued clean and healthful environments include indoor spaces, and the court agreed. The order noted that Montana Code Annotated refers to the word “environment,” and in many cases it isn’t referring to only “natural resources found in outdoor settings.”

But the order said the law in question does not prevent Netzer from enjoying a clean and healthful environment, but from hiring and firing employees based on their vaccination status: “Donald L. Netzer is entitled to a clean and healthful environment, but it is an impossibility for that right to depend solely on a person’s vaccination status.”

Netzer additionally alleged future economic injuries from office closures, reduced business opportunities, and potential liability due to outbreaks, but the judge didn’t agree injuries would be linked to the new law: “These potential injuries could occur whether individuals are vaccinated against infectious diseases or not.”

In its earlier petition, the Netzer firm noted it’s a growing business and wants to require workers to be vaccinated against COVID-19 and possibly against other diseases — HB702 would prohibit any vaccination requirement by employers, not just for COVID-19. The plaintiffs also want to be able to protect their property and said the owners have a constitutional right to do so.

(The law exempts some types of facilities, such as schools and day care facilities, but the Netzer Law Office is not among those exempted.)

The Netzer firm referred to HB702, now MCA 49-2-312, as a “reckless law,” but the State of Montana described the complaint as having “threadbare allegations.”

In its defense, the State of Montana argued it has a compelling interest in preventing discrimination and protecting privacy: “The State of Montana put forward a clear policy that Montanans cannot be denied their fundamental right to pursue employment based on vaccination status.”

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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.”