Netzer Law Office, P.C. v. State
| Citation | 410 Mont. 513,520 P.3d 335 |
| Decision Date | 16 November 2022 |
| Docket Number | DA 22-0109 |
| Parties | NETZER LAW OFFICE, P.C. and Donald L. Netzer, Plaintiffs and Appellants, v. STATE of Montana BY AND THROUGH Austin KNUDSEN in his official capacity as Attorney General and Laurie Esau, Montana Commissioner of Labor and Industry, Respondents and Appellees. |
| Court | Montana Supreme Court |
For Appellants: Jared R. Wigginton, Good Steward Legal, PLLC, Whitefish, Montana, Joel G. Krautter, Netzer Law Office, P.C., Sidney, Montana
For Appellees: Austin Knudsen, Montana Attorney General, David M.S. Dewhirst, Solicitor General, Brent Mead, Assistant Solicitor General, Helena, Montana, Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana
¶1 This is an appeal from a Seventh Judicial District Court order denying an application filed by Netzer Law Office, P.C. and Donald L. Netzer (collectively, "Netzer")1 to preliminarily enjoin the State of Montana from enforcing House Bill 702, as enacted by the Montana State Legislature and signed by the Governor.
¶2 We restate the issues on appeal as follows:
We affirm in part and remand for further proceedings consistent with this Opinion.
¶3 During the 2021 legislative session, the Montana State Legislature passed HB 702, codified as § 49-2-312, MCA. The bill was titled "An act prohibiting discrimination based on a person's vaccination
status or possession of an immunity passport; providing an exception and an exemption; providing an appropriation; and providing effective dates." Sections 1, 2, 4, 5, and 6 of the bill went into effect on May 7, 2021; Section 3 went into effect on July 1, 2021.
¶4 The bill declared the following as unlawful discriminatory practices:
(a) a person or a governmental entity to refuse, withhold from, or deny to a person any local or state services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on the person's vaccination
status or whether the person has an immunity passport;
(b) an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment based on the person's vaccination status or whether the person has an immunity passport; [and]
(c) a public accommodation to exclude, limit, segregate, refuse to serve, or otherwise discriminate against a person based on the person's vaccination status or whether the person has an immunity passport.
Section 49-2-312(1)(a-c), MCA. The statute allows employers to recommend that an employee receive a vaccine and provides certain accommodations for health care facilities to obtain the vaccination
status of employees, but does not allow those facilities to require employees, patients, or visitors to be vaccinated. Section 49-2-312(3)(a-b), MCA.2 That prohibition does not apply to schools or daycare facilities. Section 49-2-312(2), MCA.
¶5 As noted by the District Court, the COVID-19 pandemic continues to spread across Montana.3 The SARS-Co-V-2 virus, which causes COVID-19 infections, transmits itself through respiratory fluids. Exposure to the virus occurs predominately through three ways: inhalation of respiratory droplets and aerosol particles; droplets and particles encountering exposed mucous membranes; and the touching of hands spotted with virus-containing respiratory fluids to mucous membranes. Though HB 702 became law during the COVID-19 pandemic, its provisions apply to all vaccines.
¶6 The Center for Disease Control (CDC) identified numerous ways to prevent the spread of COVID-19. Vaccination
is one such way but breakthrough infections—instances in which vaccinated individuals are infected by the virus and have the capacity to spread the virus to others—do occur. Furthermore, vaccines vary in their effectiveness based on the reaction of each person's body; no vaccine is 100% effective against a disease. Regular testing, wearing a mask, washing hands, and working from home are strategies that vaccinated and non-vaccinated individuals can use to reduce the odds of being infected with and spreading COVID-19.
¶7 Netzer is an employee and majority shareholder of Netzer Law Office, which employs three attorneys and two legal assistants. On October 26, 2021, in response to the ongoing COVID-19 pandemic, Netzer sought to preserve the ability to enforce a vaccine mandate on current and prospective employees by filing this action and simultaneously applying to enjoin the State's enforcement of HB 702. Netzer alleged that the statute violated several of his fundamental rights as set forth in the Montana Constitution. On November 15, 2021, the State responded by opposing the application for a preliminary injunction and moving to dismiss the case.
¶8 On December 14, 2021, the District Court held a hearing on Netzer's motion for a preliminary injunction. On February 1, 2022, the court issued its Findings of Fact, Conclusions of Law, and Order Denying Plaintiffs’ Application for Preliminary Injunction. The court concluded that Netzer failed to satisfy his burden of establishing a prima facie case that he will suffer irreparable harm caused by the implementation of the law prior to the final resolution of the case on the merits. Given that shortcoming, the court did not assess which level of constitutional scrutiny should apply to the law. The court dismissed Netzer's claim that the title of HB 702 violated Article V, Section 11(3), of the Montana Constitution as "redundant" because the bill's title does not appear in the codified text, § 49-2-312, MCA.
¶9 We review a district court's grant or denial of a preliminary injunction for a manifest abuse of discretion. Stand Up Mont. v. Missoula Cty. Pub. Schs., 2022 MT 153, ¶ 6, 409 Mont. 330, 514 P.3d 1062. This review does not include a review of the underlying merits of the case. Benefis Healthcare v. Great Falls Clinic, Ltd. Liab. P'ship , 2006 MT 254, ¶ 19, 334 Mont. 86, 146 P.3d 714. A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason, resulting in a substantial injustice. Stand Up Mont. , ¶ 6. The abuse of a district court's discretion must be obvious, evident, or unmistakable to constitute a manifest abuse of discretion. Stand Up Mont. , ¶ 6.
¶10 The legal conclusions of a district court receive de novo review by this Court. Stand Up Mont. , ¶ 6. If a district court relied on legal conclusions to rule on a motion for preliminary injunction, we review whether the district court correctly interpreted the law. Driscoll v. Stapleton , 2020 MT 247, ¶ 12, 401 Mont. 405, 473 P.3d 386. A district court's findings of fact receive clear error review. Larson v. State , 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241. Clearly erroneous findings of fact lack support by substantial evidence, result from the district court's misapprehension of the effect of evidence, or emerge from what this Court is convinced was a mistake by the district court. Larson , ¶ 16.
¶11 Issue One: Did the District Court err by not evaluating whether House Bill 702 contained only one subject, clearly expressed in its title, as required by Article V, Section 11(3), of the Montana Constitution ?
¶12 Netzer argues that the District Court should have voided HB 702 because its title misled the public and members of the Legislature about the subjects it embraced in violation of the Montana Constitution. Netzer specifically claims that the title violated Article V, Section 11(3), of the Montana Constitution, which requires that:
Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.
According to Netzer, a constitutionally permissible title would have referred to the effect the bill had on vaccine mandates. The District Court did not examine this issue because it determined that the codified version of HB 702 did not contain the bill's title, which rendered Netzer's claim "redundant."
¶13 Codification of a bill does not render a court's analysis of whether a bill's title satisfies the single-subject requirement moot or "redundant." For many years, this Court has assessed the constitutionality of a bill's title, despite the codification of that bill. See, e.g., State v. Cunningham , 35 Mont. 547, 90 P. 755 (1907).4 Nothing in the record or in the briefs of the respective parties justifies the district court abandoning that practice. This Court remands with instructions for the District Court to evaluate HB 702 under Article V, Section 11(3), of the Montana Constitution, as it considers the merits of Netzer's other claims.
¶14 Issue Two: Did the District Court manifestly abuse its discretion in declining to preliminarily enjoin § 49-2-312, MCA, based on alleged infringement of Netzer's fundamental rights?
¶15 This issue turns on whether Netzer has demonstrated that the District Court manifestly abused its discretion in determining that Netzer will not suffer harm prior to final resolution on the merits of each of his claims of infringement of his...
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