Montana Supreme Court upholds anti-vaxx law for now, but sends the case back to district court

By: - November 24, 2022 10:23 am

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

The Montana Supreme Court has determined that a Richland County district court judge did not abuse her discretion when she declined to stop a controversial vaccination law.

The plaintiff in the case, Donald Netzer and his Glendive-based law firm, asked the court to temporarily enjoin or stop the law while the case was being litigated.

The ruling is the latest in a host of legal challenges to a law passed by the 2021 Legislature and being challenged in three different courts. The law, which began as House Bill 702, prohibited employers or businesses from requiring vaccinations as a part of employment.

The bill was passed in response to the COVID-19 pandemic, but went farther than that, covering vaccination for any communicable disease. However, the law has exceptions for nursing homes and schools, and lawmakers said it protects citizens from being discriminated against because of religious or other deeply held personal beliefs.

The Netzer Law Office, which includes three attorneys and two paralegals, claimed the law impermissibly violates the state’s constitution and property rights. Attorneys claim that the law violates Netzer’s power to maintain a healthful environment and violates his right as an employer to conduct business on his property.

The issue became even more complicated when a federal judge issued a temporary injunction on the same legislation, but just for employees in healthcare settings. They were subject to state law, which conflicted with temporary rules issued by the federal government during COVID outbreaks. Federal District Court Judge Donald Molloy halted the law temporarily, but only for certain healthcare workers.

Judge Olivia Rieger’s decision not to stop the vaccine law on a larger statewide scale was challenged by the Netzer Law firm, but the Montana State Supreme Court found that she had made a legally justifiable decision by not issuing an injunction. However, the court noted the final outcome of the case still awaits trial.

And while the state’s highest court also found that Rieger didn’t err by failing to grant an injunction, it sent back part of the case for evaluation, opening the door that the law may implode on a technicality.

Attorneys for Netzer appealed three issues from her original decision, including whether she failed to issue a preliminary injunction, and if Rieger failed to apply the correct level of legal scrutiny to the issue because the subject, namely the right to a clean, healthful environment, had touched on a state constitutional issue.

The court found that Rieger’s logic was justifiable, but asked her to consider the first question on appeal, which centered on whether HB 702 was legal because the title of the bill did not seem to accurately describe the bill’s subject. The Montana Constitution requires that all bills have the purpose “clearly expressed in its title.” The high court noted that many laws have been struck down because they failed to meet this constitutionally mandated provision.

Rieger will now consider this portion of the law before moving on.

A decision, but not the final one

Either way, Rieger’s decision on the issue of a preliminary injunction would not have been the final decision on the validity of the law. A preliminary injunction may have temporarily suspended the rule from going into effect, but just until the court would have heard the full case for a decision. The court’s decision and the one from the Montana Supreme Court both pointed out that granting a preliminary injunction is not an indication of whether the Netzer Law Firm will ultimately succeed or fail. Instead, preliminary injunctions stop or “preserve” the status quo so that the court can have time to make a decision.

This means that a case and trial challenging HB 702 is still likely.

However, in her ruling – affirmed by the Supreme Court – Rieger said that even though the state has made it illegal to require vaccines as a condition of employment, it doesn’t stop Netzer from making modifications or rules to protect the employees and clients who work there.

The five-member panel of the state Supreme Court said:


“The District Court relied on substantial evidence, such as evidence from the Centers for Disease Control and Prevention, to reach its conclusion that the potential economic losses alleged by Netzer would have occurred even if the injunction had been granted. For example, if Netzer could enforce vaccine mandates on its employees, the firm would likely still have to provide clients and guests, as well as employees, with masks. Similarly, Netzer failed to set forth sufficient facts to show that enforcement of vaccine mandates would allow the firm to avoid office closures due to outbreaks. The court noted that such closures could occur where individuals are vaccinated.”

The court also determined that the law had not prevented the law offices from enjoying a “clean and healthful environment.”

“(HB 702) did not prevent Netzer or any other employer from taking myriad measures to reduce the odds of the indoor environment being a threat to the health of any employee,” the Supreme Court ruling said.

And the court also sided with Rieger, saying Netzer had not been able to prove how the law prevented him from operating his business.

“The court reasoned that Netzer had not demonstrated how the inability to fire and hire employees based on vaccination status would prevent him from pursuing the ownership and operation of his business,” the decision said. “The court concluded that (HB 702) does not stop employees and employers alike from taking myriad steps to reduce the odds of their exposure to the COVID-19 virus. The court reasoned that the purpose of the statute, protecting the public’s welfare by reducing a form of discrimination in the workplace, is an appropriate exercise of the state’s police power.”

Chief Justice Mike McGrath wrote the opinion of the court, with Justices Laurie McKinnon, Ingrid Gustafson, Beth Baker and Jim Rice concurring.

Law challenged on three fronts

The controversial law, often referred to as the strictest anti-vaccine law in the nation, has been challenged on several fronts, including two other cases still ongoing in federal court.

The first case, brought by the Montana Medical Association and the Montana Nurses Association and several other individuals, is being heard by Molloy. They brought the suit after the conflict between state and federal law, when he issued a limited preliminary injunction.

Recently though, the Blackfeet Nation has joined a lawsuit, also filed in federal court, which challenges HB 702 as violation of tribal sovereignty because it makes health rules for lands on the reservation.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.