We thought we won: State argues it shouldn’t be held in contempt for birth certificate rules

Attorneys will face contempt hearing next week in Yellowstone County

By: - May 22, 2023 5:47 pm

Judge Michael Moses of Yellowstone County at a court hearing on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).

Attorneys for the State of Montana have argued that the state should not be held in contempt next week in  Yellowstone County District court because lawyers with the state’s Attorney’s General Office believed a unanimous Supreme Court decision handed them, not the American Civil Liberties Union of Montana, “a win.”

In a case that stretches back several years, the 2021 Legislature changed state laws regarding how gender on birth certificates could be changed. Instead of a one-page document that allowed residents to change it, the Department of Public Health and Human Services, under newly-elected Republican Gov. Greg Gianforte, rewrote the rules to require a more onerous process, which included requirement of surgery and a judge’s order.

Two plaintiffs, represented in part by the American Civil Liberties Union of Montana, filed suit and Judge Michael G. Moses stopped the law from going into effect and also ruled that the state must reinstate the 2017 practice adopted during Steve Bullock administration. Bullock was a Democrat.

However, the state argued that Moses’ injunction left Montana without any policy or procedure for changing a birth certificate, so the Department of Public Health and Human Services created a new procedure for changing a birth certificate.

That kicked off another series of court filings in which Moses ordered the department to revert back to the 2017 rule — the last uncontested process before the new law was passed.

Yet attorneys for the state also said that because the 2021 law and the order commanding the department to reinstitute the 2017 procedure were entirely stopped by the court action that it had no other choice but to issue more rules in 2022. Furthermore, state attorneys also argue that Moses’ order and a subsequent appeal to the Montana Supreme Court didn’t address the 2022 rule, and therefore, they were free to adopt a new policy. Attorneys with the state say the department shouldn’t be slapped with contempt.

“The department believed in good faith that it had the authority under its general rulemaking power to promulgate a new rule to fill the void left by the injunction,” said Kathleen Smithgall, Deputy Solicitor General for the State of Montana. “The department viewed the order (by the Supreme Court) as a win for the department’s rulemaking authority.

“Not until plaintiffs’ counsel reached out, demanding to know why the department was not complying with the 2017 rule did the department become aware that plaintiffs had interpreted the Supreme Court’s order differently.”

Instead, it says that since the ACLU did not challenge the 2022 rule-making process that the state continues to have “an obligation to enforce all of its rules.”

In the Montana Supreme Court decision, which was authored by Chief Justice Mike McGrath on behalf of a five-justice panel in January, it said that the original 2017 rule remains in effect for as long as the preliminary injunction remains valid. The preliminary injunction is still in effect.

“The district court found that it had no jurisdiction over the 2022 Rule. However, it further concluded that the 2022 Rule was issued in violation of the Preliminary Injunction Order, which required DPHHS ‘to return to the status quo and therefore . . . to the 2017 DPHHS regulations.’ Nonetheless, the court did not hold DPHHS in contempt,” the Supreme Court decision said.

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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.