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Montana Supreme Court upholds anti-vaccination law for now but sends case back to district court – Daily Montanan

The Montana Supreme Court has found that a Richland County District Court judge did not abuse her discretion when she refused to stop a controversial vaccination law.

The plaintiff in the case, Donald Netzer and his Glendive-based law firm, asked the court to temporarily repeal or stay the law while the case went through trial.

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

The law was passed in response to the COVID-19 pandemic but went further and covered vaccinations against communicable diseases. But the law provides exceptions for nursing homes and schools, and lawmakers said it protects citizens from discrimination based on religious or other deeply held personal beliefs.

The law firm Netzer, which includes three lawyers and two paralegals, claimed the law illegally violated the country’s constitution and property rights. Lawyers claim the law violates Netzer’s authority to maintain a healthy environment and violates his right as an employer to conduct business on his property.

Matters became even more complicated when a federal judge issued an injunction on the same law, but only for healthcare workers. They were subject to state law that conflicted with temporary federal government regulations during COVID outbreaks. Federal District Court Judge Donald Molloy temporarily halted the law, but only for certain healthcare workers.

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

And while the state’s highest court also found that Rieger made no mistake by missing a restraining order, it sent back part of the case for review, opening the door to the law imploding on a technicality.

Netzer’s attorneys appealed three counts against her original decision, including whether she failed to obtain an injunction and whether Rieger failed to conduct proper legal scrutiny of the matter because the issue, namely the law to a clean, healthy environment, had touched on a state constitutional issue.

The court found that Rieger’s logic was justified, but asked her to consider the first appeal question, which focused on whether HB 702 was legal, because the bill’s title did not appear to accurately describe the subject matter of the bill. The Montana Constitution requires that all bills have the purpose “clearly expressed in their title.” The Supreme Court found that many laws were struck down for failing to meet this constitutionally required provision.

Rieger will now examine this part of the law before proceeding.

A decision, but not the final one

Either way, Rieger’s decision to issue an injunction would not have been the final decision on the validity of the law. An injunction might have temporarily suspended the rule’s enactment, but only until the court heard the entire case for a decision. Both the court’s decision and that of the Montana Supreme Court noted that the granting of an injunction is not an indication of whether the Netzer law firm will ultimately succeed or fail. Instead, restraining orders stop or “preserve” the status quo to give the court time to make a decision.

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

However, in her ruling upheld by the Supreme Court, Rieger said that although the state has made it illegal to require vaccinations as a condition of employment, it does not prevent Netzer from making changes or rules to protect the employees and customers who work there.

The five-member panel of the 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 that Netzer alleges would have occurred even if the injunction had been granted. For example, if Netzer could impose vaccination requirements on its employees, the company would likely still have to provide masks to customers and guests, as well as employees. Similarly, Netzer has not presented sufficient facts to show that enforcing vaccination orders would allow the company to avoid office closures due to outbreaks. The court noted that such closures could take place where people are being vaccinated.”

The court also found that the law did not prevent law firms from enjoying a “clean and healthy environment.”

“(HB 702) did not prevent Netzer or other employers from taking myriad actions to reduce the likelihood that the indoor environment would pose a threat to an employee’s health,” the Supreme Court ruling said.

And the court also sided with Rieger and said Netzer could not prove why the law prevented him from running his business.

“The court argued that Netzer failed to demonstrate how the inability to fire and hire employees based on immunization status would prevent him from pursuing the ownership and operations of his company,” the decision reads. “The Court concluded that (HB 702) does not prevent workers and employers from taking myriad steps to reduce the likelihood of exposure to the COVID-19 virus. The court argued that the purpose of the law, to protect the public interest by reducing a form of discrimination in the workplace, is an appropriate exercise of state police power.”

Chief Justice Mike McGrath wrote the court’s ruling, which was agreed by Justices Laurie McKinnon, Ingrid Gustafson, Beth Baker and Jim Rice.

Law challenged on three fronts

The controversial law, often cited as the toughest anti-vaccine law in the country, has been challenged on multiple fronts, including two other cases still pending in federal courts.

The first case, brought by the Montana Medical Association and the Montana Nurses Association and several others, will be heard by Molloy. They brought the lawsuit after the conflict between state and federal law when he issued a temporary restraining order.

Recently, however, the Blackfeet Nation has joined a lawsuit, also filed in federal court, alleging HB 702 violated tribal sovereignty by imposing sanitation regulations on lands on the reservation.

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