UNREASONABLE FORCE ARREST: Sanction designating that officers used unreasonable force to arrest Plaintiff imposed for failure to preserve security camera video of Probation & Parole Office parking lot where arrest occurred… issues of causation, injury, damages, and whether officers acted with malice reserved for jury… Morris.

Carrie Gregory moved for sanctions against the State due to its failure to preserve security camera video of the parking lot of its Probation & Parole office in Great Falls which would have captured the events of 5/15/20 when she brought her son Daniel to the office that led to his arrest and alleged injuries to her. The Court held a hearing 9/27/21 and announced that it would grant her motion and directed the parties to filed briefs as to the appropriate sanction. The briefs have been filed.

It appears that Gregory got out the driver door of her car when the officers arrested Daniel. She alleges that PO Tomeka Williams approached her and forced her onto the hood of another car. Williams alleges that Gregory failed to respond to her instructions to stay back and that Gregory pushed and hit her. Gregory alleges that she suffered a fractured elbow and a sprained wrist from the encounter and injuries to her knee when Great Falls Officer Scott Fisher forced her into a police car. The City filed misdemeanor obstruction charges against Gregory.

Security cameras captured the events from several angles. Gregory’s counsel in the obstruction case instructed Dep. P&P Chief Wayne Bye to preserve the video evidence. He failed to preserve the video before the 17-day auto-deletion and instead used his cell phone to record the altercation as it played on his computer monitor. The City dismissed the obstruction charges against Gregory after it discovered that the State failed to preserve the videos.

Gregory now alleges constitutional violations and tort claims against the State, City, Williams, Bye, and Fisher, and assault & battery against Williams and Fisher. The Court dismissed Counts II & III against the State on the grounds that it does not qualify as a “person” for §1983 purposes.

A similar issue was faced in Spotted Horse (Mont. 2015) where machinist Mark Spotted Horse sued BNSF for injuries suffered when the rope used to lower the engine compartment hatch allegedly slipped through a co-worker’s hand causing the hatch to strike Spotted Horse on the head. BN had video cameras throughout the shop stalls. The system overwrote footage every 15-30 days. Spotted Horse claimed that he requested a copy of the video during his post-accident interview and had renewed the request several times during discovery. BN provided several photos from the cameras but never any video footage. The foreman acknowledged that he “probably watched about 15 minutes” of video from a camera closest to the incident but not request a copy because “there was no evidence to preserve” as it failed to capture the alleged injury. Neither the foreman nor any investigator from BN ever requested the video before the system overwrote it. Judge Macek denied Spotted Horse’s motion for default judgment for failure to present sufficient evidence to warrant “the most drastic of all sanctions, default judgment,” and instead prohibited BN from introducing or referring to any testimony or evidence that any employee had watched the video footage. The Supreme Court deemed this sanction inadequate. It recognized that as “a sophisticated and recurrent party to litigation” BN knew of its obligation to preserve evidence. It rejected the notion that BN unilaterally was entitled to “determine which evidence is relevant or valuable when investigating an alleged work-related accident.” Its conduct, whether intentional or inadvertent, had “effectively undermined the ‘search for the truth’ of what actually transpired.” Id. (quoting Oliver (Mont. 1999)). It remanded for the trial court to fashion an appropriate remedy “commensurate with the significance” of BN’s actions in allowing the evidence to be destroyed and that would “satisfy the remedial and deterrent goals of sanctions for spoliation of evidence.”

The State is similarly a sophisticated and recurrent party to litigation. It should have known of its obligation to preserve evidence. It does not get to determine unilaterally “which evidence is relevant or valuable” when investigating the incident. and similar to Spotted Horse, the Court declines to impose an outright default judgment for spoliation of the security camera video recording. The Court instead designates for purposes of this case that Williams and Fisher used unreasonable force to effect Gregory’s arrest. The Court reserves to the jury the issues of causation, injury, and damages. It also reserves to the jury whether Williams and Fisher acted with malice. The Court deems this sanction “commensurate with the significance” of the State’s actions in allowing the evidence to be destroyed and also believes that it would “satisfy the remedial and deterrent goals of sanctions for spoliation of evidence.”

The Court recognizes that its sanction effectively grants summary judgment to Gregory on the issue of unreasonable force. The Court has carefully considered the analysis of Halaco Engineering (9th Cir. 1988) and Leon (9th Cir. 2006). Application of these factors by Magistrate Lynch in Peschel (D.Mont. 2009) supports this remedy. The City of Missoula failed to preserve video recordings of an arrest that resulted in a series of injuries to Peschel. Lynch concluded that it had a duty under Montana law to preserve the videos throughout an investigation when the prospect of a suit was “reasonably foreseeable.” The City had proposed as a sanction prohibiting “the officers from testifying as to what they saw on the video.” Lynch rejected this as not sufficiently punishing it for its spoliation and not serving “as a sufficient disincentive to destroy evidence” and instead determined that a conclusive finding regarding the arresting officers’ use of unreasonable force was the most appropriate sanction. A similar sanction would be appropriate here.

The Halaco and Leon factors:

Extraordinary Circumstances. The State’s spoliation of the videos severely disrupted the ordinary administration of justice. A simple case has grown complicated due to the spoliation. The fact-finder could have watched the videos as part of its determination of the level of force used to effectuate Gregory’s arrest. The spoliation has jeopardized accuracy of the fact-finding process to Gregory’s prejudice. A lesser sanction would cause the trial to become divorced from the merits and focused instead on the spoliation.

Willfulness, bad faith, or fault. While Gregory cannot establish gross negligence or willfulness by the State, the evidence supports a determination that the spoliation arose from its recklessness in failing to take appropriate steps to preserve the videos. The Court rejects out of hand the State’s claim that Bye’s efforts to record the videos on his cell phone what watching them on his monitor provides an adequate substitute for the real thing.

Efficacy of lesser sanctions. The rebuttable presumption created by an adverse inference instruction proposed by Defendants would not punish the State sufficiently for its spoliation or serve as a deterrent in future cases. The State would be permitted to proceed to trial where it would pit its witnesses against Gregory, “unphased by its spoliation of the video recording.” Peschel. It would also fail to cure prejudice to Gregory from loss of the best evidence of what happened during her arrest. It would be effective only if coupled with admission of the spoliation, forcing the jury to focus on computer forensics rather than the merits of the case and require evidence relating to Bye’s computer capabilities and purported motive to allow the recordings to be deleted. Introduction of these matters would degrade the truth-finding process.

Nexus between the misconduct and matters in controversy. Whether the misconduct relates “to matters in controversy in such a way as to interfere with the rightful decision of the case” is the most critical criterion. No dispute exists that the spoliation relates to the principal matter in controversy: whether the officers used unreasonable force to arrest Gregory. The videos would have provided the best evidence of what happened in the parking lot and arrest. Spoliation of the videos has interfered with the rightful outcome.

Prejudice to Gregory. The injuries allegedly suffered by Gregory suggest that the degree of force during the arrest may have been more than necessary. Absent the videos to establish this, she would be left with the difficult task of rebutting the officers’ testimony that the force was reasonable.

Public policy favoring disposition of cases on their merits. Public policy normally favors disposition of cases on their merits. This policy provides little weight here. The public also possesses a strong interest in the fair & accurate resolution of disputes arising from encounters between law enforcement officers and the public. The videos would have provided the best evidence of what happened. The spoliation removes this best evidence and hinders the most accurate determination of the case on its merits.

Sanctions more substantial than an adverse inference instruction are appropriate. They include the following actions:

1. Williams and Fisher used unreasonable force in Gregory’s arrest.

2. The Court will not permit testimony about the original video’s contents before spoliation.

3. The Court reserves to the jury issues of causation, injury, and damages.

4. The Court reserves to the jury issues of actual malice by Williams and Fisher.

5. The Court will not allow the parties to present Bye’s cell phone recording of the video to the jury.

Gregory v. Montana, Great Falls, Williams, Bye, and Fisher, 44 MFR 271, 2/3/22.

Daniel Flaherty & Paul Gallardo (Flaherty-Gallardo Lawyers), Great Falls, for Gregory; Courtney Cosgrove (Tort Defense), for the State, Williams, and Bye; Kevin Meek (Ugrin Alexander Zadick), Great Falls, for Great Falls; Todd Hammer & Marcel Quinn (Hammer, Quinn & Shaw), Kalispell, for Fisher.

INSURANCE: Insurer had no obligation under UTPA to advance-pay 3rd-party medical bills absent explicit request, demand, or claim, also had reasonable basis for not making advance payments… common law bad faith claim time-barred… DeSoto’s 56(a) ruling not precluded by Lynch’s prior 12(b)(6) ruling… DeSoto/Morris.

Brandon Moe was injured in 3/15/15 when a GEICO insured struck from behind a vehicle in which Moe was a passenger. He began receiving treatment and remained in limited contact with GEICO as to payment of his medical bills. He testified in his deposition that he understood that GEICO would be responsible for his medical bills but never explicitly requested that it pay in advance of final settlement. GEICO offered to settle for $1,000 plus outstanding medical bills 12/7/15. Moe rejected the offer.

Moe failed to respond to GEICO’s attempts to reach him after he rejected its offer. He hired Mark Luebeck in 10/16, a month after his outstanding medical bills had been sent to collection. Luebeck asked GEICO why it refused to pay his bills. GEICO responded 1/12/17 that it “did not refuse payment from Mr. Moe’s medical bills, Ridley was not requested,” citing Ridley (Mont. 1997).

Luebeck submitted a specific Ridley demand letter 6/29/17 requesting that GEICO pay Moe’s accident-related medical bills and lost wages. GEICO paid sums to Moe that he claims did not include the amounts of medical bills and lost wages for the time that he was not represented.

GEICO removed this case from Montana’s 18th Judicial District Court 5/17/19 and this Court has dismissed several of Moe’s claims. Magistrate DeSoto entered findings & recommendations for GEICO’s motion for summary judgment on Moe’s remaining claims and recommended that this Court dismiss the case. Moe raises 4 objections.

Moe asserts that earlier rulings by Magistrate Lynch, adopted by this Court, represent the law of the case that conflicts with DeSoto’s recommendation. Lynch recommended that the Court deny GEICO’s motion to dismiss Moe’s claims under the UTPA and for common law bad faith, reasoning that “no formal demand using the terms Ridley and Dubray” were needed to trigger GEICO statutory obligations to make advance payments. The Court adopted Lynch’s recommendations regarding his analysis of Ridley.

The 9th Circuit, along with other Circuits, has recognized that the prior law of a case does not apply when the prior ruling is based on a different legal standard. Peralta (9th Cir. 2014). Lynch based his earlier rulings on the Rule 12(b)(6) motion to dismiss pleading standard as opposed to the Rule 56(a) motion for summary judgment standard. As DeSoto emphasized, these standards are “fundamentally different” from each other, and the prior Rule 12(b)(6) ruling does not apply at this stage.

Moe does not attempt to distinguish the cases DeSoto cited that undermine his law of the case argument, but asserts that because the facts in issue have remained the same throughout the proceedings, the prior law should be applied. However, the factual record remaining substantially the same for the 12(b)(6) and 56(a) motions is not dispositive in applying the prior ruling.

Further, DeSoto’s findings do not conflict with the law of the case. Moe brings up issues that were already decided by DeSoto. He argues that her findings conflict with Lynch’s findings & recommendations that this Court adopted. However, as noted by DeSoto, Lynch stated that “the mere fact that a medical provider submits bills for payment would not, standing alone, necessarily trigger an insurer’s obligations under the UTPA.” He did not decide that Moe made a claim for advance payment, but that the facts taken as true at the time of his ruling would not be sufficient to show that a claim had been made for advance payments. DeSoto’s findings do not conflict with Lynch’s ruling and the Court rejects Moe’s law of the case argument.

Moe argues that DeSoto’s recommendations defeat the purpose of the UTPA, Ridley, and DuBray by transferring duties to claimants imposed by statute and case law on insurers. He asserts that GEICO failed to communicate, investigate, and advance pay his injury claim after a medical provider submitted his claims. He also cites the Ridley 2-part test and points out that an express demand for advance payment is not a requirement.

DeSoto used the plain language of the UTPA and Montana case law to determine that a 3rd-party claimant must explicitly request, demand, or make a claim to trigger an insurer’s duty to make advance payments. Each of the advance pay cases cited by Moe include an express demand by the claimant and a refusal by the insurer. He correctly notes that the UTPA imposes duties on insurers. DeSoto correctly countered that 3rd-party claimants nonetheless maintain the duty to assert a claim. Without a claim by Moe, no obligation exists for GEICO under the UTPA. Coleman Const. (36 MFR 164, 2008); McNeil (Mont. 1992).

Moe’s argument that GEICO violated the UTPA by failing to communicate and investigate also fails. It has demonstrated by undisputed facts that it communicated with him on multiple occasions, it offered to settle his claim but was rejected, and he was unresponsive to numerous attempts to contact him. DeSoto’s findings do not frustrate the purposes of the UTPA, Ridley, or DuBray because Moe failed to make a request for advance payments and GEICO had no obligation to solicit claims from him.

Moe contends that DeSoto wrongly concluded that GEICO had a reasonable basis in law to deny his claims for reimbursement for his medical payments. He reasons that GEICO already used this defense in response to his 2 prior 12(b)(6) motions and this Court decided in his favor both times. He also contends that GEICO failed to investigate and should be held liable under the UTPA’s legal landscape. However, he fails to point to any case law where an insurer was obligated to advance pay to a 3rd-party claimant when no request was made. Even if GEICO’s actions were “ultimately wrong,” there is no indication that they were objectively unreasonable. Freyer (Mont. 2013). Further, DeSoto declared GEICO’s decision to withhold advance payments and refuse payment of medical bills upon receipt from providers objectively reasonable based on the undisputed record. She highlights many facts that favor its position that it had a reasonable basis for not making advance payments.

Finally, Moe suggests that he timely filed his 3rd-party complaint under §33-18-242 12/21/18. He claims that the statute started accruing when GEICO denied coverage in the 1/12/17 letter stating that “Ridley was not requested.” The statute for Moe’s common law bad faith claims is 3 years. Nelson (40 MFR 57, 2012). When a cause “accrues,” meaning “the last fact essential to the cause of action occurs, regardless of whether the damages are complete,” the statute begins to run. Id.; MCA 27-2-102(2). Moe knew that GEICO refused to pay his bills as early as 4/21/15. He did not file this case until 12/21/18. At the time of filing — over 3-1/2 years after the “accrual” point when he received notice that GEICO refused to pay his medical bills — the statute had expired. Accordingly, DeSoto properly found that the statute had run on his common law bad faith claim.

Finding no clear error, the Court adopts DeSoto’s findings & recommendations. GEICO’s motion for summary judgment is granted and the case is dismissed.

Moe individually and on behalf of all individuals of the class similarly situated v. GEICO, 44 MFR 270,1/26/22.

Daniel Buckley (Buckley Law Office), Bozeman, and Mark Luebeck (Angel, Coil & Bartlett), Bozeman, for Moe; Ian McIntosh & William Morris (Crowley Fleck), Bozeman, Courtney Henson (Snell & Wilmer – Tucson), and Sheila Carmody (Snell & Wilmer – Phoenix), for GEICO.

HB 702 VACCINATION RESTRICTIONS challenges mostly survive motions to dismiss on standing and 12(b)(6) grounds… Molloy.

This case challenges MCA 49-2-312 & 313 which catalogue HB 702 (2021) which prohibits persons and entities — with limited exceptions — from withholding goods, services, or employment “based on the person’s vaccination status or whether the person has an immunity passport.” (Emphasis added.) (Although Defendants stated at the 1/21/22 hearing that HB 702 was part of the State’s efforts to respond to COVID-19, “vaccinations” and “vaccines” are not limited to COVID-19 by the text of the statute, but encompass vaccines related to “infectious diseases and pathogens, including, but not limited to, the COVID-19 virus, Hepatitis A, Hepatitis B, Pertussis, Measles, and Influenza.”)

“Vaccination status” refers to “an indication of whether a person has received one or more doses of a vaccine.” “Immunity passport” refers to a form of record “indicating that a person is immune to a disease, either through vaccination or infection and recovery.” School vaccination requirements remain, and “health care facilities” as defined under §50-5-101 are permitted to “ask an employee to volunteer the employee’s vaccination or immunization status” and may “implement reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune.” “Health care facilities” under §312(3) “does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37.” §313 then exempts licensed nursing homes, long-term care facilities, and assisted living facilities (“Exempted Facilities”) from §312. “during any period of time that compliance with [49-2-312] would result in a violation of regulations or guidance by the centers for medicare and medicaid services or the centers for disease control and prevention.”

Multiple parties sued AG Knudsen and Commissioner of Labor Esau. The “Institutional Plaintiffs” include Montana Medical Association, Five Valleys Urology, Providence Health & Services, and Western Montana Clinic. “Individual Plaintiffs” — immunocompromised patients — include Pat Appleby, Mark Carpenter, Lois Fitzpatrick, Joel Peden, Diana Page, Wallace Page, and Cheyenne Smith. The Montana Nurses Association was granted leave to intervene as Plaintiff-Intervenors. (The Institutional Plaintiffs, Individual Plaintiffs, and Nurses are referred to as “Plaintiffs.”) The issue at this stage concerns the viability of Plaintiffs’ claims, not their merits.

Plaintiffs set forth 8 claims:

I. §312 violates an employer’s obligation under the ADA to make reasonable accommodations.

II. §312 prohibits compliance with an obligation under the ADA for public accommodations to provide equitable access to individuals with disabilities.

III. §312 violates OSHA because it prohibits employers from providing a workplace free from recognized hazards.

IV. §312 prevents employers from developing plans to reduce the risk of COVID-19 transmission.

V. §312 violates the right to a clean & healthful environment under the Montana Constitution.

VI. §312 violates the obligation to maintain & improve a clean & healthful environment under the Montana Constitution.

VII & VIII: §312 violates equal protection rights under the State and Federal Constitutions.

Defendants seek to dismiss Plaintiffs’ claims. A hearing was held 1/21/22.

Defendants argue that Plaintiffs lack standing and fail to state a claim. But they:

misstate Plaintiffs’ asserted injuries. For example, Defendants state that “Plaintiffs’ only theory of injury is their inability to terminate those employees they cannot force to vaccinate.” The plain text of the Complaint refutes that statement. Such mischaracterizations border on misrepresentation and test the limits of RPC 3.3(a)(1).

overstate Plaintiffs’ requested relief. For example, they state that Plaintiffs “repeatedly express their wish to fire individuals based on vaccination status.” The Complaint is devoid of such an expression and Defendants could not identify this expression when asked at the hearing, but proffered that this “wish” could be inferred from the Complaint. Such an inference is not synonymous with Defendants’ “repeatedly express” language.

engage in argument via proof by assertion. For example, Defendants state that Plaintiffs “read only part of the rule,” “ignore the remainder of the rule,” and engage in “regulatory misreading,” seemingly because Plaintiffs do not cite every provision of the OSHA regulation, but then Defendants provide only a superficial statement that the “provisions harmonize” with §312(3)(a) without further explanation.

Ultimately, the briefing throws into sharp relief that the parties are divided over the efficacy of vaccines and the effect of such vaccines on healthcare employers, employees, and patients. But these disputes are grounded in the merits of this case and beyond the scope of the present motions. For the reasons explained below, Plaintiffs have standing and, for the most part, have stated plausible claims for relief. Accordingly, Defendants’ motions to dismiss are denied as to all claims except for Plaintiffs’ Claim VI and the Institutional Plaintiffs’ Claim V, both of which involve claims under the Montana Constitution’s clean & healthful environment provision.

Defendants contest standing across the board. (They state: “The social compact sometimes requires that citizens forebear [sic] laws they dislike. But neither the plaintiff nor this Court are the State, empowered to make or unmake the policy judgments set forth in the statute. And differing policy preferences don’t grant objectors standing.” But Plaintiffs do not assert standing based on “differing policy preferences,” but by the plain text of their Complaint they assert injuries rooted in federal statutes and regulations and the State and Federal Constitutions. These sorts of injures are the type of “case or controversy” this Court is empowered to adjudicate. Art. III, §2, cl.1. Moreover, contrary to the apparent assertion that a State may insulate itself from review when it enacts a statute, “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobsen (US 1905). Finally, as an aside, “forebear, always a noun, means ‘ancestor’ (usually used in the plural. Forbear is the verb meaning ‘to refrain from objecting to’; to tolerate.” Garner’s Dictionary of Legal Usage. The context of Defendants’ argument indicates they intended the latter.)

First, Defendants do not accept Plaintiffs’ allegations as true, indicating that they challenge the factual underpinnings of the alleged subject jurisdiction. However, as Plaintiffs note, “Defendants have not properly presented affidavits” in support of their arguments. Without supporting evidence, the challenge is not a factual one.

Second, Defendants suggest that the Court may judicially notice certain materials, perhaps in an attempt to “present other evidence” in lieu of affidavits. But the reference to judicial notice is imprecise and the material they apparently wish to judicially note is inappropriate. “A high degree of indisputability is the essential prerequisite” of an adjudicative fact that may be judicially noticed. Rule 201(a) (advisory committee’s notes). The very nature of this case demonstrates that the “facts” that Defendants wish to be judicially noticed — that there is no meaningful difference in transmission risk of COVID-19 between vaccinated and unvaccinated medical workers — are not “undisputed.” Accordingly, these materials do not constitute sufficient “other evidence” to transmute their motion to dismiss to a factual one. The standing challenge is therefore facial.

Next, the general rule recognized in Leonard (9th Cir. 1993) applies. The rule derives from Carey (US 1977) in which the diverse plaintiffs included a nonprofit, a reverend who served as director of an organization, 3 physicians, and an individual. The lower court outlined the differences among their asserted injuries but ultimately concluded that the standing of 1 — regardless of whether his asserted injury was the same as that of the others — sufficed for all. Carey affirmed the approach that so long as 1 plaintiff has the requisite standing courts have no occasion to decide the standing of the others. Leonard adhered to the general rule but progressed beyond it to decide the standing of individuals — despite the organization having standing because of the unique waiver issue in that case. Defendants identify no comparable “waiver issue” that would require the Court to move beyond the general rule from Leonard. Additionally, Plaintiffs are comparable to those in Carey which concluded that the standing of 1 plaintiff was sufficient to encompass all plaintiffs.

Finally, construing the allegations in Plaintiffs’ complaint as true, they have demonstrated associational standing for at least 1 Plaintiff. Five Valleys, Western Montana Clinic, and Providence argue that §312 prevents them from providing a medically safe environment for staff and patients because it bars them from requiring any vaccination for medical workers, which causes harm to others in the clinics by increasing the risk of transmission. Notably, some of the diseases Plaintiffs cite as likely to spread absent vaccination (hepatitis, measles, and influenza) are diseases for which Biden v. Missouri (US 2022) notes “healthcare workers around the country are ordinarily required to be vaccinated against.”

Thus these 3 Institutional Plaintiffs satisfy associational standing because the alleged injury of not being able to inquire about the vaccination status of or require vaccinations for healthcare workers to reduce transmission risk is directly traceable to the statutory prohibition on such action for healthcare workers, and that injury may be redressed by a favorable decision in this Court. Moreover, the members of these Institutional Plaintiffs would have standing to sue in their own right. They argue that §312 prohibits providers from complying with “generally accepted standards of practice” because they are prohibited from inquiring about employees’ vaccination status, which prevents them from exercising their medical judgment to make decisions about how care is distributed. Moreover, the interests they seek to protect — keeping staff and patients healthy — are germane to their purposes. And neither the claims asserted nor the requested injunctive relief requires participation of individual members.

Similarly the Nurses demonstrate associational standing. They allege that §312 disrupts the relationship between vaccine requirements and “the provision of reasonable accommodations to nurses who cannot be vaccinated.” And they allege that it disrupts this relationship because it denies healthcare facilities the power to implement vaccine requirements based on science to best balance health & safety with reasonable accommodations. It is inapposite whether the Nurses control or have the capacity to impose vaccination requirements. Finally, and related to redressability, they request injunctive relief, which traditionally satisfies the last prong of the associational standing inquiry. Accordingly, Plaintiffs have standing.

Defendants further argue that dismissal is appropriate under Rule 12(b)(6). Their motion succeeds only as to Plaintiffs’ Claim VI and Institutional Plaintiffs’ Claim V.

Plaintiffs make a plausible showing at this stage that §312 conflicts with ADA’s “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” because they state facts to support their allegation that the statute prohibits certain health care providers, including Institutional Plaintiffs, from making reasonable accommodations. They similarly make a plausible showing that it conflicts with the public accommodations provision of the ADA because they state facts to support the allegation that it prevents health care providers, including Institutional Plaintiffs, from “taking such steps as may be necessary to ensure that no individual with a disability is excluded or otherwise treated differently,” 42 USC 12182(b)(2)(A)(iii), as it prohibits employers like Institutional Plaintiffs from inquiring into employees’ vaccination status, which prevents Institutional Plaintiffs from taking steps to limit immunocompromised patients’ contact with unvaccinated healthcare workers.

Plaintiffs allege that §312 conflicts with OSHA’s requirement that employers provide a workplace free from recognized hazards. Biden recognized that healthcare workers are generally required to be vaccinated against transmissible diseases, which indicates that such diseases are a workplace hazard that healthcare employers are obligated to address. Because §312 prevents healthcare employers such as Institutional Plaintiffs from requiring vaccinations against any disease, there is a plausible argument that it conflicts with OSHA. Relatedly, OSHA regulations require employers to implement a COVID-19 plan, which involves inquiring into healthcare employees’ vaccination status. Yet §312 specifically excludes healthcare providers such as Institutional Plaintiffs from making that inquiry. Thus Plaintiffs allege a plausible claim that it conflicts with OSHA regulations.

Plaintiffs fail to state a claim under Art. IX §1 (“each person shall maintain and improve a clean and healthful environment”) because the legislative history and text of the provision indicates that it applies exclusively to the natural environment. Similarly, Institutional Plaintiffs have failed to state a claim under Art. II §3 (guarantees a “clean and healthful environment”) on the same grounds. However, Individual Plaintiffs and Nurses have sufficiently alleged a claim under Art. II §3 which embodies the “fundamental right to seek health,” Cannabis Industry (Mont. 2012), because they have alleged facts that support their claim that unvaccinated medical workers prevent them from obtaining or providing safe healthcare in a safe workplace.

Institutional Plaintiffs’ claim is subject to rational basis equal protection review because no fundamental right is implicated. But it survives at this stage because Plaintiffs allege facts showing 2 groups that are “identical in all other respects.” Health care services such as Institutional Plaintiffs and Exempted Facilities are subject to different treatment simply because of the statutory exemption for the latter. (Defendants seemingly make an upside-down argument as to the interest of the State to exercise its police power in favor of prioritizing the individual choice over the collective good. Given the traditional description of a state’s police power as “embracing, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety,” Jacobsen, there is a question at this stage about the nature & weight of the State’s interest.) Individual Plaintiffs’ and Nurses’ claims are subject to strict scrutiny because a fundamental right is implicated. Individual Plaintiffs state the claim that 2 groups that are “identical in all respects,” immunocompromised patients who are treated by Exempted Facilities and those who are not, are treated differently as a result of §§ 312 & 313’s different treatment of healthcare providers. Their claims survive at this stage.

Defendants’ motions to dismiss are granted on Institutional Plaintiffs’ Claim V and Plaintiffs’ Claim VI and denied in all other respects. Given the parties’ representations about the trajectory of this case, an expedited trial schedule shall be set.

Montana Medical Association et al v. AG Knudsen et al, 44 MFR 269, 1/25/22.

Justin Cole & Kathryn Mahe (Garlington Lohn & Robinson), Missoula, for Plaintiffs; Alwyn Lansing, Brent Mead, and David Dewhirst (Montana AG’s Office).

CLEAN CAMPAIGN ACT: Requirement that political committees contemporaneously provide a candidate any campaign advertisement published within 10 days of an election if it refers to, but does not endorse, the candidate, does not pass constitutional muster… Molloy.

Montana Citizens for Right to Work challenges the “Fair Notice” provision of Montana’s Clean Campaign Act (MCA 13-35-402) on 1st Amendment and equal protection grounds.

Montana Citizens is registered as an incidental political committee. 6 days before the 11/20 election it sent 16,000 mailers to voters in 20 legislative districts with 3 components:

(1) 2020 candidate surveys with information on where local candidates stood on issues related to organized labor and union dues;

(2) letters elaborating on the candidate survey results and urging voters to express their views on right to work issues to the candidates;

(3) surveys to be returned that indicate whether the voter contacted the local candidates about right-to-work issues.

The “mailer would not qualify as a direct endorsement of any particular candidate/s, and none directly call for the election of any candidate/s or the defeat of other candidate/s.” (As a point of interest, in Bayless (9th Cir. 2003) — a suit challenging a similar statute in Arizona — the plaintiff complied with the law and only then challenged its constitutionality. Doing so did not prejudice the plaintiff’s standing but “demonstrated a commendable respect for the rule of law.”)

On 10/30/20 Trent Bolger of the Montana Democratic Party filed a complaint with CPP Mangan alleging that Montana Citizens violated the Fair Notice provision under §13-35-402 when it did not notify the candidates identified in the mailers. Mangan upheld Bolger’s complaint and offered to settle the controversy if Montana Citizens agreed to an $8,000 fine. Montana Citizens instead sued Mangan 9/13/21 and requested summary judgment. A hearing was held 11/30/21 following which the parties were ordered to file supplemental briefing on Bayless.

Montana Citizens first argues that the Fair Notice provision violates the 1st Amendment, insisting that because it is a content-based restriction that is not viewpoint neutral it must meet the requirements of strict scrutiny and fails to do so. Mangan argues that the lower standard of “exacting” scrutiny is the proper measure because the provision is merely a disclosure statute and, under this standard, it is constitutional. Alternatively, he takes the position that any offending part of the statute can be severed to meet the 1st Amendment’s strictures. Montana Citizens has the better argument on both points. When all is said and done, a statute is presumptively constitutional if it “applies to particular speech because of the topic discussed or the idea or message expressed. Reed (US 2010). Because the Fair Notice provision is content-based, strict scrutiny applies. (The fact that “exacting scrutiny” also requires that the law be “narrowly tailored,” Bonta (US 2021), diminishes the import of this conclusion. Thus the provision would fail under either standard.)

To survive strict scrutiny Mangan must show that §13-35-402 is narrowly tailored to achieve a compelling state interest. Victory Processing (9th Cir. 2019). The statute does not survive such scrutiny.

Mangan insists that the provision serves 3 compelling interests: “deterring corruption or the appearance of corruption,” “providing the electorate with information,” and “protecting candidates’ right to respond late in a campaign.” He presents no evidence that the disclosure of negative campaign ads to individual candidates combats corruption and fails to connect the provision to an informed electorate. That leaves only the State’s purported interest in giving candidates a right to respond to negative campaign ads on the eve of an election. In a perfect political place that makes sense. But last-minute negativity is a reality whether endorsed or not. Mangan has not shown that last-minute ads are more or less likely to contain “false” information than any other advertisement. His reliance on Alvarez (US 2012) to show that the right to respond is a compelling interest is misplaced. Although Alvarez stated that “the First Amendment itself ensures the right to respond to speech we do not like,” “it is key that the regulatory scheme in Alvarez dealt entirely, and only, with false speech.” 281 Care Comm. (8th Cir. 2014). And as explained in McIntyre (US 1995), a case challenging an Ohio law prohibiting anonymous campaign literature, the state “cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” Based on the record in this case, the “right to respond” does not provide a compelling interest justifying the burdens that Montana has placed on “negative” campaign speech. Mangan “has simply decried ‘negative campaigning’ in general, and while the Court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core first amendment rights.” Shrink Missouri Gov’t PAC (ED Mo. 1995).

Moreover, even if the State’s identified interest was compelling, Mangan has not shown that the statute is narrowly tailored to achieve that interest. It requires disclosure in all contexts except endorsements. A mailer that merely outlined voting records of 2 candidates on an issue with no further commentary would be subject to disclosure. Thus the law is overbroad. It is also underinclusive. It only applies in the last 10 days of an election, an omission that is particularly problematic under Montana law as absentee ballots are mailed 25 days before an election. It also does not cover certain types of communication. Mangan provides no evidence that oral communication is inherently different from print. Disclosure is not required if a candidate or PAC went to a town hall meeting and disparaged an opponent, even falsely.

Mangan’s principal argument is premised on the unique interest a candidate has in responding to negative advertisements. He argued at oral argument that it was not underinclusive because it need not include endorsements to achieve the State’s interest. Thus extending the statute to include disclosure related to endorsements would frustrate the very purpose of the law. Therefore it cannot be made constitutional through severance.

Montana Citizens also challenges the Fair Notice on equal protection grounds. It alleges that 2 groups are not subject to the provision: speakers who are not candidates or political committees and mailers that endorse candidates. For purposes of the Fair Notice, political committees and candidates are not “similarly situated” to other individuals. Montana Citizens’ argument as to endorsing and non-endorsing political committees raises a closer question as they represent similarly situated groups that are classified based on their viewpoint on a candidate and that distinction is fundamental to the stated interest behind the provision. Mangan provides no argument to support a compelling interest in such viewpoint discrimination. Absent any argument or evidence as to how a compelling state interest is served in treating PACs espousing different messages incongruously, the law violates the Equal Protection Clause.

Many would agree that while Montana’s desire to promote discourse in response to negative campaign advertisements is laudable, but the 1st Amendment cannot be so easily overcome. “The First Amendment requires that politicians ‘tolerate insulting, even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.’” Bayless (quoting Boos (US 1988)).

§13-35-402 is facially unconstitutional and its provisions cannot be severed.

Montana Citizens for Right to Work v. CPP Mangan, 44 MFR 268, 1/18/22.

Matthew Monforton (Monforton Law Offices), and Quentin Rhoades (Rhoades, Siefert & Erickson), Missoula, for Montana Citizens; Jaime MacNaughton (Office of CPP) and John Morrison & Anne Sherwood (Morrison, Sherwood, Wilson & Deola), Helena, for Mangan.

PERSONAL JURISDICTION declined over Idaho wolf advocates’ alleged infringement of Montana wolf advocates’ website and “relistwolves” trademark in a video… Christensen.

(For purposes of this motion the Court takes as true the “uncontroverted allegations in the complaint” but does not “assume the truth of allegations which are contradicted by affidavit.” Mavrix Photo (9th Cir. 2011). Any factual disputes are resolved in WOTR’s favor. Id.)

Wolves of the Rockies complains that Suzanne Stone and the International Wildlife Coexistence Network are infringing on its trademarks in violation of Montana and federal law. WOTR is a Montana corporation; IWCN is an Idaho corporation; Stone resides in Idaho and is IWCN’s executive director.

Without a doubt the parties share a passion for the conservation of wild wolves in western America, but, unsurprisingly, they do not always agree on how to accomplish their shared objectives. The record reflects a history of conflict between WOTR and Stone. An affidavit by WOTR Pres. Marc Cooke recounts an incident from 2010 when he ran into her at a hearing in the Federal Courthouse in Missoula. Their conversation was “very short and ended rudely” with Stone “curtly turning her back” after he revealed his affiliation with WOTR. An affidavit from WOTR VP Kim Bean recounts an incident at Chico Hot Springs in 3/13 during a wolf preservation event organized by Stone. Stone asked Bean “who I was and my affiliation.” When Bean said she was with WOTR, Stone said she was not welcome and had to leave. She complied.

Stone contacted WOTR “out of the blue” in 3/21 stating that she was interested in collaborating to protect “wolves in Montana and the Northern Rockies.” WOTR was preparing to launch a “wolf protection campaign” in response to Montana legislative efforts to authorize wolf hunting. The campaign included the phrase #RelistWolves and a video designed to “educate the public about the plight of wolves in North America.” The parties began chatting about WOTR’s “objectives and plans over the next year” including the #RelistWolves campaign and video. Stone transmitted a variety of plans to WOTR and suggested that it bring in a public relations firm named Resolve. In one proposal WOTR would have paid Resolve $167,000 for 6 months of services. WOTR rejected this proposal because it was uncertain where the money would be going.

Stone followed up with another proposal in 5/21 whereby WOTR would have paid $184,250. WOTR discovered that $86,250 would go directly to IWCN. WOTR then began to believe that Stone was suddenly eager to work with them because she and IWCN could monetarily benefit. No deal was struck but Stone continued to submit project proposals to WOTR.

On 10/19/21 WOTR participated in a National Wolf Call hosted by the Endangered Species Coalition. It appears to be a recurring call involving “about 50 participants or organizations that work on wolf preservation matters.” During this call WOTR was supposed to occupy a “prominent position in the agenda” to lay out its #RelistWolves strategy” but Stone apparently hijacked this time to show a video she had created which related to “the same subject matter” that WOTR previously discussed with her and used, without WOTR’s permission, its website relistwolves.org. Many people in Montana attended this call.

WOTR confronted Stone about her video’s use of its relistwolves.org. She removed it from her video but registered her own website, relistwolvesnow.org. This common use of “relistwolves” in their websites created confusion among wolf advocates, and Cooke received inquiries about whether WOTR, Stone, and IWCN were associated.

Stone continued using the “RelistWolves” trademark that WOTR claims to possess, including on her own and IWCN’s website and social media pages. WOTR asked her to stop using it but she refused. On 11/16/21 WOTR sued Stone and IWCN complaining that they are infringing on its trademarks and engaging in unfair competition in violation of Montana and federal law. (The crux of these claims is Defendants’ alleged misappropriation of WOTR’s intellectual property: the ostensible trademarks “RELISTWOLVES” and “#RELISTWOLVES.”) WOTR sought preliminary injunctive relief and the Court set a hearing for 1/26/22. Defendants moved to dismiss and submitted an affidavit from Stone establishing that she does not have an office or residence in Montana and does not “own, use, possess, or rent any property in Montana” and she has never “acted as a director, manager, trustee, or other officer of a Montana corporation or other entity with its principal place of business in Montana” or been a personal representative for a Montana estate or insured anything within the state. IWCN’s contacts with Montana appear to be similarly sparse. Stone’s affidavit provides that IWCN is not affiliated with any Montana corporation, “has not offered, sold, or distributed any merchandise, printed materials, or other goods in Montana,” and does not insure “any person, property, or risk located within Montana.” It does appear that IWCN maintains a website but it is accessible to anyone in the world.

Defendants move to dismiss for lack of personal jurisdiction and improper venue. The Court need only address personal jurisdiction. WOTR bears the burden of establishing personal jurisdiction over Defendants but because the Court has not held an evidentiary hearing it “need only make a prima facie showing of jurisdictional facts.” Schwarzenegger (9th Cir. 2004). Jurisdictional facts are derived largely from the complaint unless controverted by a declaration of affidavit. Id. Applying this standard, the Court must grant Defendants’ motion.

The Court finds no basis for the exercise of general personal jurisdiction over Defendants. They are not at home in Montana; they are at home in Idaho. Stone resides in Idaho, IWCN is organized there and maintains its principal place of business there. WOTR appears to recognize this and instead argues that general personal jurisdiction exists because this is the sort of exceptional case contemplated by the 19th footnote in Daimler (US 2014). The crux of this argument is that Defendants have regularly solicited business in Montana and otherwise routinely entered Montana in furtherance of their “wolf-related activities.” Defendants respond that “a handful of discrete Montana-related contacts that supposedly occurred over the past eleven years” are insufficient to render them “at home” in Montana. The Court agrees. (Defendants also argue that because WOTR did not plead general personal jurisdiction in its complaint, just specific, it cannot level that argument now. The Court disagrees. The personal jurisdiction analysis may, and indeed must, extend beyond the complaint. Data Disc (9th Cir. 1977); Schwarzenegger (a plaintiff “cannot simply rest on the bare allegations of” the complaint).

Cases in which a defendant who does not live in Montana, is not organized here, and does not maintain a principal place of business here, and has such substantial contacts with Montana to be subject to general personal jurisdiction are exceedingly rare. That Stone, on behalf of IWCN, may have traveled to Montana in furtherance of their organizational activities periodically in years past and otherwise offered her services to Montana organizations is not sufficient to render her or IWCN at home here. Martinez (9th Cir. 2014) (a French corporation having contracts in California worth “$225 to $450 million” and routinely advertising and soliciting business in California is not the “exceptional case” to which the Daimler exception applies). In short, general personal jurisdiction does not exist.

“Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims.” Ford. The exercise of specific personal jurisdiction generally turns on whether the defendant has had some contact with the forum state and the suit stems from that contact. Id. Proper exercise of specific personal jurisdiction is a matter of both state law and the Constitution. Caddy (9th Cir. 2006).

Defendants contend that none of the circumstances in MRCivP 4(b)(1)(B) applies and even if they did the exercise of personal jurisdiction would offend due process. WOTR contends that its claims arise from Defendants’ “intentional acts” of trademark infringement and misappropriation of intellectual property directed into Montana.

Because any exercise of personal jurisdiction under Montana law must comport with due process the Court begins (and ultimately ends) its inquiry there. King (9th Cir. 2011). Turning to the 1st factor — purposeful availment — because this case involves intellectual property torts and the “allegedly tortious conduct took place outside the forum” but apparently had “effects inside the forum,” the Court applies an “effects test” established in Calder (US 1984) under which “a defendant purposefully directs its activities toward the forum when the defendant has (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Ayla (9th Cir. 2021).

Conduct is not expressly aimed at the forum state just because the defendant knows the plaintiff resides there. Id. (“the plaintiff cannot be the only link between the defendant and the forum”). There must be evidence that the defendant directly targeted its conduct into the forum. Id. Because this is a trademark infringement case arising largely in “the context of cyberspace,” Cybersell (9th Circ. 1997) is instructive. It addressed whether use of an “allegedly infringing service mark” on a passive website “suffices for personal jurisdiction in the state where the holder of the mark has its principal place of business.” It concluded that it did not, holding that the operation of “an essentially passive home page on the web” using an allegedly infringing mark, alone, cannot establish “purposeful availment” for specific personal jurisdiction, emphasizing that the noncommercial nature of the website lacked any deliberate direction toward the forum state.

Subsequent cases are consistent. In Boschetto (9th Cir. 2008), a California plaintiff bought a car on eBay from defendants in Wisconsin. The plaintiff had it shipped to California and it was not what he expected. He sued the defendants in Federal Court in California, but the Court dismissed for lack of personal jurisdiction. The 9th Circuit affirmed, finding that the “one-time contract for the sale of a good [through eBay] that involved the forum state only because that is where the purchaser happened to reside” was insufficient to subject the defendants to the jurisdiction of the Federal Court in California. It recognized the Supreme Court’s “note of caution that traditional jurisdictional analyses are not upended simply because a case involves technological developments that make it easier for parties to reach across state lines.”

Ayla is particularly informative. A California “beauty and wellness brand” sued an “Australian skincare company” for trademark infringement and other violations of the Lanham Act, focusing on the defendant’s online activities including selling and shipping products worldwide through its website. Less than 2% of its sales were to California and it never directed itself primarily to Californians. The 9th Circuit focused on whether the defendant was subject to nationwide personal jurisdiction under Rule 4(k)(2). An indispensable basis for nationwide personal jurisdiction is that the defendant not already be subject to personal jurisdiction in any state. The District Court’s holding went unchallenged on appeal and the 9th Circuit recognized that nationwide personal jurisdiction is reserved for the “unusual” circumstance where “a defendant has the requisite contacts with the United States but not with any one state.”

With this authority in mind, the Court finds that WOTR’s theory of specific personal jurisdiction hits a snag almost right away. To the extent that its claims rest on Defendants’ operation of the relistwolvesnow.org website, exercise of specific personal jurisdiction is foreclosed by the Cybersell line of cases. The website is passive, noncommercial, and broadly advocates for protection of wolves in North America and, more particularly, the West. Nothing in the record establishes that it is directed at Montana or even particularly frequented by Montanans.

Montana is one of many states that is the focus of wolf conservation but the website allegedly bearing an infringing mark is directed at the world at large, or more narrowly, North America, with the hopes of raising awareness about wolf conservation activities. Some of these activities may involve issues in Montana or be of interest to Montanans, but this is not enough to fairly say the website is purposefully directed to Montana. To the extent that WOTR’s theory of specific personal jurisdiction rests on Defendants’ allegedly infringing website, Defendants have not purposefully availed themselves to jurisdiction in Montana so as to satisfy due process.

WOTR’s theory of personal jurisdiction as to Defendants’ alleged use of its “relistwolves” trademarks in a video is similarly unavailing. The infringement allegedly occurred during a phone call between persons and organizations “that work on wolf preservation matters,” with some, but not all, from Montana. Indeed, it appears that the call is focused on nationwide (and even international) wolf conservation activities. This is not enough to find purposeful availment in Montana for specific personal jurisdiction. The Court does not find that the actions of Defendants of which WOTR complains were purposefully directed at Montana. The exercise of personal jurisdiction would not offend due process.

Dismissed for lack of personal jurisdiction. The Court does not reach the issue of venue.

Wolves of the Rockies v. Stone and International Wildlife Coexistence Network, 44 MFR 267, 1/13/22.

Gregory McDonnell (Orr McDonnell Law), Missoula, and Theodore Sabety (Sabety & Associates), NYC, for WOTR; John Kauffman (Kasting Kauffman & Mersen), Bozeman, and Alexander Reid (White & Case), NYC, for Stone and IWCN.