ARBITRATION: UM women’s head basketball coach did not knowingly waive right to bring Title VII sex discrimination claim in Federal Court, arbitration clauses at most gave notice that she was agreeing to arbitrate contractual disputes regarding employment agreement… Christensen.

In 7/16, Robin Selvig, UM head women’s basketball coach for 38 years, announced his retirement. UM hired Shannon Schweyen a month later to be the new head coach. They executed an employment agreement making her head coach 9/1/16 to 6/30/19 and providing:

12. DISPUTE RESOLUTION

a. If any dispute arises under this Agreement, the parties agree to attempt to resolve the dispute in good faith as follows:

1. First, by informal negotiation.

2. If informal negotiations fail to resolve the dispute, the parties agree to seek mediation using a mediator acceptable to both parties.

3. If mediation fails to resolve the dispute within 30 days of initial mediation session, the parties agree to submit to binding arbitration under the provisions of the Montana Uniform Arbitration Act, Title 27, chapter 5, MCA.

Schweyen admits that she read this language but states that UM never explained it to her and she did not understand what it meant or the effect it would have on a future sex discrimination claim. She also asserts that she had never negotiated an employment agreement before and did not feel comfortable negotiating with UM to get “more favorable terms in the agreement.” She did not consult an attorney and alleges that when she told the Athletic Director this he stated, “Good. I’m not going to give you more money anyway.”

Schweyen served as head women’s basketball coach through expiration of her agreement in 6/19. She and UM executed a 2nd agreement keeping her on until 6/20. This agreement contained an identical version of the dispute resolution clause. Once it expired it was not renewed. She sued UM in 11/21 alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 by more harshly evaluating her performance compared to that of her male counterparts, targeting her for criticism because of her sex, and not renewing her contract because of her sex. UM moved to compel arbitration based on the dispute resolution clauses in the employment agreements. Schweyen argues that they are unenforceable for a variety of reasons.

The FAA’s “primary substantive provision,” AT&T Mobility (US 2011), provides at 9 USC 2:

A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

To avail itself of this provision, UM must demonstrate that: (1) there is “a valid, written agreement to arbitrate;” and (2) “the agreement to arbitrate encompasses the dispute at issue.” Ashbey (9th Cir. 2015).

Nobody disputes that the employment agreements have dispute resolution clauses outlining a grievance process that culminates in arbitration. Instead, Schweyen argues that these provisions are unenforceable because (1) the Franken Amendment in the 2010 Defense Appropriations Act bars UM from requiring mandatory arbitration of her Title VII claim, (2) UM cannot demonstrate that she knowingly or voluntarily waived her rights under Montana law in agreeing to the clauses, and (3) UM cannot demonstrate a knowing & explicit waiver of her rights to bring her Title VII claims in Federal Court.

The Franken Amendment provides:

SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:

(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VIII of the Civil Rights Act of 1964; or

(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964.

This has remained in subsequent defense appropriations.

In Schweyen’s view, the Franken Amendment forbids UM from compelling arbitration of her Title VII claim because it has “been a federal contractor subject to the appropriations act restrictions since at least May 2019.” She points to a 5/19 cooperative agreement with DOD, a 9/19 contract with DOD, and a series of DOD contracts in 2020.

UM contends that even if the Franken Amendment applies to Schweyen’s claim it does not invalidate the dispute resolution provisions or otherwise relieve her from her contractual duty to arbitrate. It further argues that the amendment is inapplicable because none of its DOD contracts falls within its scope or otherwise incorporates the prohibition on inclusion or enforcement of Title VII arbitration claims. And it argues that the amendment is inapplicable because the arbitration clause at issue was not a condition of Schweyen’s employment but a negotiated term. The Court agrees with UM.

The Franken Amendment forbids executive disbursement of appropriated funds for defense contracts “in excess of $1,000,000” unless the contractor agrees not to compel an employee to arbitrate a Title VII employment discrimination claim. It is a restraint on the executive’s ability to disburse appropriations through defense contracts. This is confirmed by the implementing regulations which limit themselves to dictating inclusion of certain contractual language in DOD contracts. A contractor’s refusal to honor this language, when it has been included in a defense appropriation contract, may very well amount to a breach for contract law purposes but neither the amendment nor the implementing regulations provides Schweyen enforcement rights when UM flouts such contractual obligations. The only contrary authority appears to be Ashford (4th Cir. 2020) (describing the Franken Amendment as a “legal prohibition” that “bars defense contractors from mandating arbitration of Title VII employment claims”). But Ashford is non-binding on this Court and conflicts with the amendment’s plain text which limits its reach to actions of the executive in brokering defense appropriation contracts.

Schweyen’s argument that the arbitration clauses cannot be enforced because she did not knowingly or voluntarily waive her rights under Montana law is specifically foreclosed by 9th Circuit precedent. Because this is a federal question case, federal substantive law — the FAA — governs whether this suit is arbitrable. Mortensen (9th Cir. 2013). Because of this “the FAA” generally “preempts contrary state law” such as the rule invoked by Schweyen. Id.

Without question, under Montana law, because “arbitration agreements constitute a waiver of a party’s fundamental constitutional rights to trial by jury and access to courts,” they are only valid where the agreement is “‘voluntarily, knowingly, and intelligently’ made.” Id. But because this rule “runs contrary to the FAA” it is preempted and becomes inapplicable. Id. Because this Court must apply the FAA to UM’s motion to compel arbitration, Montana’s “fundamental rights rule” cannot be used to defeat UM’s motion. Id. All that remains is Schweyen’s argument that under federal law she did not knowingly waive her right to advance a Title VII employment discrimination claim in this federal forum.

Schweyen argues that the arbitration clauses did not sufficiently inform her that she was forfeiting her right to bring Title VII employment discrimination claims in a judicial forum, such that there was a knowing waiver as required by 9th Circuit precedent. UM responds with divergent interpretations of the cases.

Having reviewed the authority, the question becomes, under the Lai (9th Cir. 1994) to Zoller (9th Cir. 2021) line of cases, did Schweyen knowingly enter into an agreement to arbitrate her Title VII claim advanced in this case? The Court concludes that she did not. The Court excises from its analysis her subjective testimony regarding her understanding of the arbitration clause. Zoller (“Zoller’s alleged subjective misunderstanding of the documents is not dispositive because our analysis rests on the explicit terms of the agreement.”); Renteria (9th Cir. 1997) (finding “Renteria’s subjective knowledge” irrelevant because the analysis “turns instead on the language of the arbitration clauses”). Instead, the Court focuses on the language of the employment agreements.

The only language that could possibly have notified Schweyen that she was agreeing to arbitrate a Title VII employment claim is that extending the dispute resolution language to “any dispute aris[ing] under this Agreement.” This language is insufficient to accomplish a knowing waiver of Schweyen’s ability to advance her claim in this Court.

Nelson (9th Cir. 1997) makes the standard clear: “Any bargain to waive the right to a judicial forum for civil rights claims in exchange for employment or continued employment must at the least be express: the choice must be explicitly presented to the employee and the employee must explicitly agree to waive the specific right in question.” The language in Schweyen’s agreements at most notified her that she was agreeing to arbitrate contractual disputes regarding her agreement to be UM’s head women’s basketball coach. Nothing in the agreement explicitly notified her that non-contractual employment disputes such as a Title VII claim would have to be arbitrated.

If the Lai line of cases requires anything, it requires precision by the employer in occasioning a contractual waiver from employees as to their ability to advance employment discrimination claims in a judicial forum. Schweyen’s agreements lacked this requisite precision. Nothing in them put her “on notice that she was somehow entering into an agreement to waive a specific statutory remedy afforded her by a civil rights statute.” Id. Because of this, UM’s motion must be denied.

Schweyen v. UM, 44 MFR 276, 5/5/22.

Linda Correia & Lauren Khouri (Correia & Puth), DC (Pro Hac Vice) and Devlan Geddes & Katherine DeLong (Goetz, Geddes & Gardner), Bozeman, for Schweyen; Paul Lannon & Andrew Silvia (Holland & Knight), Boston (Pro Hac Vice) and Elizabeth Kaleva & Kevin Twidwell (Kaleva Law Office), Missoula, for UM.

HB 702 VACCINATION RESTRICTIONS: Enforcement of MCA 49-2-312 as it relates to COVID-19 vaccine against Montana healthcare facilities preliminarily enjoined for so long as CMS’s Interim Final Rule remains in effect… Molloy.

The 2021 Montana Legislature passed HB 702 which is codified at MCA 49-2-312 & 313. §312(1) makes it “an unlawful discriminatory practice” for any person, governmental entity, or public accommodation to deny benefits or services or condition such benefits or services “based on the person’s vaccination status or whether the person has an immunity passport.” (Timing suggests it is meant to address COVID-19 vaccination mandates or concerns but “vaccine” has a broader meaning: “a preparation that is used to stimulate the body’s immune response against diseases. Vaccines are usually administered through needle injections, but some can be administered by mouth or sprayed into the nose.” CDC Definition of Terms.) An “immunity passport” is “a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery,” while “‘vaccination status’ means an indication of whether a person has received one or more doses of a vaccine.” §312(5). The statute exempts schools and permits “health care facilities, as defined in 50-5-101” to ask an employee or volunteer for their vaccination status, but the employee or volunteer need not answer such inquiry. §312(2), (3). A “health care facility” “does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37, including licensed addiction counselors.” §50-5-101(26). A non-answer to a vaccine inquiry may be treated as an indication that an employee or volunteer is not vaccinated, and that indication may inform an employer’s decision to implement reasonable accommodations. §312(3). §312(4) prohibits private employers and others from imposing the requirement of an vaccine that is authorized under an “emergency use” designation.

The Exempted Facilities are included in §313. They are “exempt from compliance with 49-2-312 during any period of time that compliance with 49-2-312 would result in a violation of regulations or guidance issued by the centers for medicare and medicaid services or the centers for disease control and prevention.”

The Centers for Medicare & Medicaid Services (CMS) is responsible for establishing health & safety standards with which healthcare facilities must comply in order to receive Medicare and Medicaid funding. In 11/21 CMS issued an Interim Final Rule (IFR) which “requires most Medicare- and Medicaid-certified providers and suppliers to ensure that their staff are fully vaccination for COVID-19.” 86 Fed. Reg. 61,568. (The IFR “directly applies only to the Medicare- and Medicaid-certified providers and suppliers [identified in the Rule]. It does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.”) The IFR notes that employers must comply with federal anti-discrimination and civil rights protections and “provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.” 2 groups of states including Montana challenged the IFR and courts in Louisiana and Missouri enjoined it. Biden v. Missouri (US 2022 per curiam). The 5th and 8th Circuits denied the US’ request for a stay of the preliminary injunction and the US successfully appealed the denial.

The Supreme Court determined that the Secretary of HHS did not exceed his authority in promulgating the IFR and that he issued it based on his “determination that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” It noted that “vaccination requirements are a common feature of the provision of healthcare in America; Healthcare workers are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, or rubella.”

CMS issued a “Guidance for the Interim Final Rule” 1/14/22 stating that it “specifically applies” to a number of states including Montana. It establishes benchmarks for compliance on 30-day, 60-day, and 90-day intervals with penalties for non-compliance. The 30-day deadline for compliance was 2/3/22. To be in compliance with the 30-day benchmark, facilities must demonstrate that policies & procedures are in place “for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19” and that “100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC.” If either the 1st or 2nd requirement is not met the facility is not in compliance with the IFR. If a facility fails to meet the 30-day benchmark — or the 60- or 90-day benchmarks — it is subject to “enforcement actions” that include “plans of correction, civil monetary penalties, denial of payment, or termination.”

In the week after the Guidance issued surveys were conducted on 6 long-term care facilities and a home health agency. 5 were compliant with the IFR and 2 were noncompliant as to vaccination deficiencies.

Private physician offices, the MMA, and individuals sued the Montana AG and Commissioner of Labor. The Montana Nurses Association appeared as a Plaintiff-Intervenor. Plaintiffs seek to preliminarily enjoin enforcement of the statute. A motion hearing and argument occurred 3/3/22.

It is unclear whether Plaintiffs want to enjoin §313 in addition to §312. In any event, §313 is not enjoined because it is not preempted by CMS’s 11/21 IFR which “requires most Medicare- and Medicaid-certified providers and suppliers to ensure that their staff are fully vaccinated for COVID-19.” The plain text of §313 exempts compliance with §312 when such compliance would contradict “regulations or guidance issued by the centers for medicare and medicaid services or the centers for disease control and prevention.”

Nor can §313 be enjoined at this point on the basis that Plaintiffs are likely to succeed on the merits of their equal protection claim. They did not make any arguments as to those claims as they related to the preliminary injunction factors or irreparable harm and the public interest, and they made only passing reference to them as they relate to the balance of the equities. To the extent that they seek an injunction of §49-2-313, that request is denied.

In addressing §49-2-312 the threshold question is whether the preliminary injunction standard or more onerous permanent injunction standard applies. The former standard governs.

A preliminary injunction requires that a plaintiff “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter (US 2008). “To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.” Edmo (9th Cir. 2019). The Edmo standard is applicable when the court “advances the trial on the merits and consolidates it with the hearing” on a motion for preliminary injunction. Rule 65(a)(2). Where consolidation is considered “the court should provide the parties with clear and unambiguous notice of the intended consolidation either before the hearing commences or at a time which will afford the parties a full opportunity to present their respective cases.” ALPA (9th Cir. 1990). Rule 65(a)(2) makes clear that any consolidation may occur “before or after beginning the hearing on a motion for a preliminary injunction.”

After the Court issued notice that it was considering consolidation, Plaintiffs argued at the 3/3 hearing that consolidating the preliminary injunction hearing with a trial on the merits of Count VIII was appropriate. Count VIII alleges that §49-2-312 is preempted by 42 CFR Part 482 of which the IFR is part, so that §312 is invalid and unenforceable as a consequence of the Supremacy Clause. Defendants restated their objection to proceeding on the merits based in large part on timing. While the Court indicated that it was considering consolidation the day before the hearing was entirely permissible under Rule 65(a)(2), following argument and after reviewing the limited record, consolidation on the merits is not warranted. Accordingly, the preliminary injunction standard based on the familiar Winter factors applies.

Under the Winter evaluation each factor tips in Plaintiffs’ favor. Because of federal preemption they are likely to succeed on the merits of Count VIII. They also demonstrate that they are likely to suffer irreparable harm absent preliminary relief. The balance of equities and public interest both inure to Plaintiffs. As to the scope of the injunction, Defendants are correct that it should be narrow in duration and substance, so §49-2-312 is enjoined only so long as the IFR remains in effect.

Plaintiffs allege multiple preemption claims but the only one relevant is Count VIII: that §49-2-312 is preempted by the IFR. The language of the rule makes it likely that Plaintiffs will succeed in showing that it is “impossible for a private party to comply with both [the Montana] and federal requirements.” English (US 1990). For example, the Guidance requires that facilities demonstrate that all staff have received a vaccine for COVID-19 or applied for or received a qualifying exemption, while §49-2-312(3) prohibits healthcare facilities from meaningfully inquiring into the vaccination status of their employees. While the statute permits facilities to “ask an employee to volunteer the employee’s vaccination or immunization status for the purpose of determining whether the health care facility should implement reasonable accommodation measures,” it does not require that the employee respond. §49-2-312(3)(b)(i). Basically, no meaningful answer is required. Consequently, even though the statute permits facilities to consider a refusal to answer about his or her vaccination status as an indication that the employee is unvaccinated, that “consideration” is not a suitable substitute for the data required for a facility to prove compliance with the IFR. Without such data it will be nearly impossible for facilities to demonstrate compliance during the unannounced surveys that investigate records and interview staff.

Moreover, the Supreme Court in the recent Biden case noted that the IFR was implemented because it was “necessary to promote and protect patient health and safety in the face of the ongoing pandemic.” The “clear and manifest purpose” of the IFR is public health. By contrast, Defendants previously emphasized at the motion to dismiss stage an argument that Montana’s statutory scheme was enacted to promote one’s right to privacy, placing the individual’s interest on a pedestal of importance exceeding public healthy & safety in a pandemic. While those purposes are not inherently irreconcilable, the current codification of the State’s attempt to elevate individual privacy rights above all other rights is likely to be superseded by the clear purpose evinced in the IFR. Ultimately, given the clear preemption language in the Guidance, Plaintiffs have demonstrated they are likely to succeed on the merits of Count VIII as it relates to §49-2-312.

Plaintiffs must establish that the prospect of irreparable harm is not merely possible but that it is “likely.” Winter. Monetary injury alone is not usually considered “irreparable” in the context of an injunction. LAMCC (9th Cir. 1980). A significant concern is whether the moving party has an adequate remedy at law. Morales (US 1992). “When enforcement actions are imminent — and at least when repetitive penalties attach to continuing or repeated violations and the moving party lacks the realistic option of violating the law once and raising its federal defenses — there is no adequate remedy at law.” Id. A constitutional violation alone can suffice to show irreparable harm, as can the loss of business goodwill and reputation. American Trucking Ass’n (9th Cir. 2009).

The American Trucking Association challenged mandatory “Concession Agreements” implemented by California on the basis that they attempted to regulate “the price, route, or service of any motor carrier” in violation of the Federal Aviation Administration Authorization Act. It sought to preliminarily enjoin the agreements, which the Court denied largely based on its finding that they failed to establish irreparable harm. The 9th Circuit reversed on the basis that “a very real penalty attaches to the motor carriers regardless of how they proceed. That is an imminent harm.” The Court emphasized that the plaintiff could refuse to sign “the likely unconstitutional Concession Agreements” and likely face a loss of business goodwill, or it could sign the agreements, in which case “its plight is not much better” because it “will have been forced to sign an agreement to conditions which are likely unconstitutional because they are preempted” and “will be forced to incur such large costs which, if it manages to survive those, will disrupt and change the whole nature of its business in ways that most likely cannot be compensated with damages alone.” The 9th Circuit essentially determined that “motor carriers should not be required to adhere to the various unconstitutional provisions in the agreements, and are likely to suffer irrevocably if forced to do that or give up their business.”

Plaintiffs argue that the “impossible choice” of complying with either the IFR or §49-2-312, but not both, creates irreparable harm. They argue that they will sustain additional harm absent a preliminary injunction including potential termination from Medicaid and Medicare and resulting loss of healthcare capabilities to Montanans. Defendants respond that the alleged harm is too speculative and not “irreparable.” They emphasize that if the IFR preempts §49-2-312, “the Rule acts as an affirmative defense to any action taken by the State pursuant to the statute — a defense that may be raised throughout the administrative process before subjecting Plaintiffs to liability.” (Citing Whole Woman’s Health (US 2021).) They also argue that there is no evidence that compliance with the IFR will result in irreparable harm. That argument seems to be that if charged with wrongdoing, Plaintiffs would not be liable because their preemption argument is probably well-taken.

Plaintiffs demonstrate that irreparable harm is likely absent injunctive relief. Under the Guidance’s 30-, 60-, and 90-day benchmarks for compliance with the IFR, healthcare facilities that fail to demonstrate compliance may be subject to “enforcement action” such as civil monetary penalties. While Defendants correctly note that monetary penalties do not satisfy the irreparable harm showing on their own, like the plaintiff in American Trucking, Plaintiffs face more than mere monetary penalties. Failure to comply with the IFR could result in a wide range of penalties including termination of participation in Medicaid and Medicare. The Guidance also specifically targets Montana as a state to which the IFR and Guidance benchmarks apply. That callout increases the likelihood that penalties will be enforced.

Defendants submitted a letter from Montana Health Network that describes the “difficult position” in which Montana healthcare facilities find themselves given the contradiction between §49-2-312 and the IFR. This emphasizes the Hobson’s choice Montana’s healthcare facilities find themselves facing, similar to the choice in American Trucking. On one hand, facilities can comply with 49-2-312 and violate the IFR, which requires them to “risk being decertified by the CMS program.” But if they ignore the IFR “and continue billing Medicare and Medicaid they are committing fraud against the program which could result in steep fines and jail time for some of its employees.” On the other hand, MHN avers that compliance with the IFR would naturally result in the loss of goodwill for facilities in Montana because it will effectively shutter rural facilities and “because of this, many will forego care because of the inconvenience or impossibility of travel and added costs associated with it.”

Defendants’ suggested affirmative defense argument likewise fails. First, Whole Woman’s Health is inapposite to the argument that the IFR could defeat an action before the Montana Human Rights Commission. In noting that “applicable federal constitutional defenses always stand fully available when properly asserted,” the Supreme Court presumed that the body reviewing the claim would have the power to adjudicate constitutional questions. Montana Constitution Art. II §1 states that constitutional questions must only be decided by a judicial body and so the federal preemption defense would fail if raised before the HRC. Additionally, while Defendants are correct that the mere cost of litigation is not an irreparable harm, Standard Oil (US 1980), the irreparable harm stretches beyond the “mere cost of litigation.” Unlike the plaintiffs in Standard Oil, Plaintiffs will be penalized for complying with either the IFR or §49-2-312. They cannot be forced to choose between “two roads diverging in a wood” when they face dire consequences that could make “all the difference.”

The record shows that “a very real penalty attaches to the [healthcare facilities] regardless of how they proceed. That is an imminent harm.” American Trucking. The imminence of this harm is further demonstrated by the fact that CMS compliance surveys are occurring and noncompliance is being documented. “We cannot defy the mandate by continuing to employ unvaccinated workers without punitive action being taken by the CMS.” The harm of non-compliance is also likely to be irreparable. If facilities comply with §49-2-312 they risk termination from the CMS program. And given that Plaintiffs have shown they are likely to succeed on the merits of their preemption claim, ignoring the IFR means complying with a statute that is “likely unconstitutional because it is preempted.” Id. This kind of constitutional injury shows a likelihood of irreparable harm. Plaintiffs have therefore shown that irreparable harm will result absent injunctive relief.

Where the government is the opposing party, the 3rd & 4th factors of the preliminary injunction inquiry merge, so the balance of the equities and the public interest are considered together. Nken (US 2009). Considerations for balancing the equities include whether “the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences.” Boardman (9th Cir. 2016). While “the public interest may be declared in the form of a statute,” Golden Gate Rest. Ass’n (9th Cir. 2008), “it would not be equitable or in the public’s interest to allow the state to violate the requirements of federal law, especially when there are no adequate remedies available.” Arizona Dream Coalition (9th Cir. 2014). In addition, Montana has an interest in administering its police power to “protect the public health and the public safety.” Jacobson (US 1905). But its police power is circumscribed by principles of federalism and “the mode or manner in which those results are to be accomplished is within the discretion of the state, subject to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States.” Id. There is also a public interest in a functioning society. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Id.

As Defendants argue, codification of HB 702 in §§ 49-2-312 & 313 in some way expresses the public’s interest because the Legislature passed it. Golden Gate. But as Plaintiffs point out, it is inherently against the public interest to allow a state statute to violate federal law, Arizona Dream Coalition, and Plaintiffs have shown that §49-2-312 is likely a violation of federal law based on the preemption question.

Each party also emphasizes the purported consequences to public health should the adverse party’s requested relief be granted. According to Plaintiffs, the public is best served by enjoining the law because healthcare facilities would then be able to ensure that all staff are vaccinated against COVID-19 or have approved accommodation requests. According to Defendants, the public would be best served by allowing the statute to actively remain on the books, to protect Montanans from fear of losing their jobs, and protect individual choice, even in a pandemic. Given that the State’s police power should operate to “protect the public health and the public safety” and also submit to federal law in the event of conflict, the scales tip in favor of Plaintiffs’ argument concerning public health. As Jacobson recognized, certain restraints on an individual are occasionally reasonable to promote the common good and actualize the public interest in a civil society. Therefore, while there is undeniably tension between the IFR and §49-2-312, principles of federalism, including the Supremacy Clause, elevate the interests expressed in the IFR to favor Plaintiffs.

“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Int’l Refugee Assistance Project (US 2017). A preliminary injunction should be crafted to “meet the exigencies of the particular case.” Id. The preliminary injunction here is limited to the law set forth in §49-2-312 and will only be in place so long as the IFR remains in effect. Because all Montana facilities receiving CMS funds must comply with the IFR, enforcement of §49-2-312 is enjoined against all such facilities. The parties shall notify the Court within 10 days of any changes to or expiration of the IFR.

Montana Medical Association et al v. AG Knudsen et al, 44 MFR 275, 3/18/22.

Justin Cole & Kathryn Mahe (Garlington Lohn & Robinson), Missoula, for Plaintiffs; Raphael Graybill (Graybill Law Firm), Great Falls, for MNA; Alwyn Lansing, Brent Mead, David Dewhirst, and Christian Corrigan (AG’s Office), and Emily Jones (Jones Law Firm), Billings, for Defendants.

MALICIOUS PROSECUTION and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters.

On 3/9/18 at 9:27 p.m. Livingston Officers O’Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for 2 hours. The residence belonged to attorney Jami Rebsom. O’Neill could hear her dogs barking from her backyard but the officers left because no one was home.

At 10:32 another resident called to report barking dogs at Rebsom’s residence. O’Neill called her. She said she was home but hung up before he could discuss the complaints.

At 10:45 O’Neill and Hildebrand returned to Rebsom’s residence. They could hear her yelling, “Get out here you fucking bitch” and “fuck you.” They heard a neighbor’s screen door open and a man ask, “What is going on?”

When O’Neill and Hildebrand went to Rebsom’s front door she refused to open it or speak with them and displayed both middle fingers through the glass door and told them to “fuck off” and “get a warrant mother fuckers.” Sgt. LaBaty arrived and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. Because she refused to speak with them and was possibly intoxicated they decided to issue the citations the next day. As they were preparing to leave she placed a 911 call that was transferred to LaBaty. He advised her that they were leaving. She hung up, called 911, and left a message for the Police Chief. All officers left her residence by 10:55.

When Officer Kunnath arrived for his shift the next morning O’Neill briefed him on the events at Rebsom’s residence and asked him to serve her with the citations for keeping barking dogs and disorderly conduct.

Kunnath spoke to Rebsom’s neighbor Emily Greenwald who wished to report an incident from the previous night. She and her husband Jason provided oral and written statements. He reported that around 10:30 he was in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” (Rebsom believed that Emily was the one who called police about the barking dogs but it was other neighbors who had called.) Jason stated that he opened his back door and said, “Excuse me,” but Rebsom did not respond. He reported that he was fearful that she may be approaching their home so he picked up his phone in case he needed to call police and went to his front window where he saw the police at her residence. He stated that this was not the first time she had yelled obscenities late at night.

Emily reported that she was in a back bedroom when Rebsom was screaming and could hear shouting and barking dogs but could not make out what was said. At 6:30 the next morning Jason told her what Rebsom had screamed. Both reported fearing for their safety and wished that assault charges be filed.

Kunnath delivered the citations for disorderly conduct and keeping barking dogs and also cited Rebsom for assault in violation of MCA 45-5-201(1)(d) based on Greenwalds’ complaint. Rebsom contacted Livingston Prosecutor Jay Porteen and asked that he dismiss the assault charge. He declined to do so. All charges were later dismissed because Greenwalds moved from Livingston and were unavailable to testify.

On 3/10/20 Rebsom sued asserting §1983 claims against Kunnath, O’Neill, and LaBaty and state law claims for respondeat superior against Livingston, malicious prosecution against Kunnath, Porteen, and Livingston, actual/malice punitives against Kunnath and Porteen, negligence against Porteen, defamation/libel against Kunnath, defamation/slander against Kunnath, defamation/libel against O’Neill, and defamation/slander against O’Neill. O’Neill and LaBaty previously moved for summary judgment which was granted. Kunnath, Livingston, and Porteen now move for summary judgment.

Count I — §1983 claim against Kunnath.

In her Complaint Rebsom alleges that Kunnath “made an unreasonable search and seizure of Rebsom’s person and home, assaulted, battered and falsely imprisoned her.” However, in responding to Kunnath’s motion for summary judgment she does not address any of these allegations. But lest there is any question as to the merits of these allegations or whether there is any factual basis to support them, it is undisputed that Kunnath was not one of the officers who responded to Rebsom’s home 3/9/18, he did not search her home, he did not attempt to enter her home, he did not search her, and he did not assault, batter, or falsely imprison her. (Rebsom did not know which officers were at her home and only assumed that Kunnath was one of them.) Further, contrary to suggestions in her brief, it is undisputed that she was not arrested. She was not handcuffed or taken into custody. She was not deprived of her liberty or restrained in any manner. She was only issued a citation. Hence her 4th Amendment claim is reduced to the argument that issuance of the citation without probable cause constituted an unreasonable seizure. But the mere issuance of a misdemeanor citation is not a seizure under the 4th Amendment. Karam (9th Cir. 2003); Britton (1st Cir. 1999); Martinez (10th Cir. 2007); Bielanski (7th Cir. 2008); White (CD Cal. 2010); Raiser (CD Cal. 2020) (“numerous courts have held that the mere issuance of a citation does not constitute a seizure”). Rebsom was issued a citation for a misdemeanor which required that she appear in court. She has raised no other facts to suggest that her liberty was otherwise retrained in any manner. No 4th Amendment violation occurred.

Rebsom contends in her response brief that Kunnath violated her 1st Amendment rights by issuing the assault citation, but she did not plead any 1st Amendment claim or even mention the 1st Amendment in her Complaint and her argument will be disregarded.

Count V — malicious prosecution.

Count V is captioned as a malicious prosecution claim against Porteen and Livingston but the allegations also reference Kunnath so it is assumed that the claim is also asserted against him.

Considering the totality of circumstances known to Kunnath, he had probable cause to believe that Rebsom committed misdemeanor assault. By threatening to kill Emily it was certainly reasonable to conclude that it was her conscious object to cause her apprehension of bodily injury and that there was a high probability that the threat would result in such apprehension. MCA 45-2-101(65), 45-2-101(35). Additionally, she was successful in doing so. Both Emily and Jason reported that they were fearful for their safety and the safety of their family. Rebsom argues that Kunnath lacked probable cause because she did not have contact with Emily and Emily could not have reasonably apprehended injury at the time the threats were made because Jason’s report to police indicates that Emily was asleep when she was shouting. However, Emily’s statement establishes that she was awake and heard shouting although she could not hear what was said. Regardless, it is undisputed that Rebsom’s specific threats were subsequently communicated to Emily.

The Montana Supreme Court has determined that a threat need not be communicated directly to the victim to cause reasonable apprehension of injury; it can be communicated to the victim by a 3rd party. This has been made clear in several cases considering an analogous statute involving apprehension of injury with a weapon. Swann (Mont. 2007); Smith (Mont. 2004); Misner (Mont. 1988). Although the interval between the threat and the communication to Emily is greater than in those cases, all that is necessary is that Rebsom’s threat to kill Emily created circumstances which led Emily to reasonably apprehend injury.

Rebsom nevertheless asserts without citation to authority that it must be shown that “Emily Greenwald, either had: (1) contact with Rebsom; or (2) was concerned that at the moment of the act, the alleged victim suffered reasonable apprehension of bodily injury.” But that is not what the statute says. It does not have a temporal condition that requires concurrence of the defendant’s act and the victim’s apprehension of injury.

In addition, while Rebsom argues that there was no cause for assault as to Emily, she does not address an assault as to Jason. A threat need not be directed at the victim to create a reasonable apprehension of injury. In Walsh (Mont. 1997), Chellsi, 10, witnessed her mother’s fiancé be beaten by 2 men while she and her mother were in a car. She testified that she was fearful they were going to attack her and her mother. The Montana Supreme Court affirmed an assault conviction as to Chellsi, finding that a jury could have found that she reasonably apprehended injury to herself and noting that an assault victim need not be “the direct recipient of the defendant’s actions.” While Jason was not the direct target of Rebsom’s threats, he heard her screaming late at night that she was going to kill his wife. He was “shaken” enough to get his phone ready to call police and to check if Rebsom was approaching their home and “I was concerned for my safety since it seemed to me that Ms. Rebsom was out of control and filled with rage however misguided.” Thus Kunnath reasonably concluded that Rebsom also caused reasonable apprehension of injury in Jason. Since probable cause was present as to both Emily and Jason, Rebsom’s claims for malicious prosecution necessarily fail.

Count VI – malice.

Count VI is captioned as a claim for “Actual Malice against Defendant Porteen,” but Kunnath is again mentioned in the allegations. The claim for actual malice appears not to be an independent claim but a claim for punitives based on the alleged prosecution of Rebsom without probable cause. Since Kunnath had probable cause to issue the assault citation, this claim necessarily fails.

Counts VIII-IX — defamation/libel/slander against Kunnath.

The basis of Rebsom’s defamation claims against Kunnath are the statements in the assault citation. She has presented no facts to show that they are false. It states: “Jason Greenwald heard neighbor Jami Rebsom scream “Emily Greenwald you fucking bitch get your ass out here. I’m going to fucking kill you.” It is undisputed that she said this and thus the allegedly defamatory statement cannot be false.

A privileged publication is “one made (1) in the proper discharge of an official duty; (2) in any judicial proceeding or in any other official proceeding authorized by law.” Sacco (Mont. 1995) adopted the Restatement of Torts’ approach and determined that “an arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege.” Therefore the act of issuing a citation is a privileged publication made in the proper discharge of an official duty. It is undisputed that Kunnath is a police officer authorized to respond to complaints, write reports, and issue citations, he issued the assault citation to Rebsom in the discharge of his duties, and the citation was in a judicial proceeding or other proceeding authorized by law. Because the citation does not contain any false statements and is a privileged publication, Rebsom’s defamation claims necessarily fail.

Count II — §1983 claim against Livingston.

Rebsom asserted a Monell (US 1978) claim against Livingston based on Kunnath’s implementation of a city policy or custom and/or due to its inadequate hiring & supervision of him. The Court has determined that his conduct did not deprive her of a constitutional right and thus her §1983 claim against Livingston necessarily fails.

Count III – respondeat superior claim against Livingston.

Rebsom seeks to hold Livingston vicariously liable for trespass and violation of privacy and malicious prosecution by Kunnath and malicious prosecution based on Porteen’s continued prosecution.

It is unclear when and how Kunnath trespassed or violated her privacy. He was not present that night. To the extent that these allegations related to his issuance of the assault citation, Rebsom’s complaint does not set forth any allegation that he committed a trespass or violated her privacy in issuing the citation, nor does she raise any factual support or other argument in her summary judgment response that he committed a trespass or violated her privacy. In addition, the Court has found that probable cause existed for Rebsom’s citation and that her claim for malicious prosecution is subject to summary judgment. Therefore, Kunnath did not engage in any wrongful conduct that can be imputed to Livingston. Moreover, to the extent that her “respondeat superior” claim is based on Porteen’s action, prosecutorial immunity bars her claim against him. A state prosecutor is entitled to absolute immunity from liability under §1983 when he engages in activities “intimately associated with the judicial phase of the criminal process” such as initiating a prosecution. Imbler (US 1976). Rebsom’s allegations against Porteen stem from his initial refusal to dismiss the assault, an activity intimately associated with the judicial phase of the criminal process. The citation was also supported by probable cause and thus a malicious prosecution claim against Porteen fails.

Count IV — §1983 claim against Porteen.

Porteen argues that the appropriate remedy for this claim is a state law malicious prosecution claim. Rebsom agrees that the “Civil rights against Porteen found in Count IV of the Amended Complaint (excluding the negligence claims and the malicious prosecution claims) and the City related to Porteen’s actions should be dismissed.”

Count V — malicious prosecution claim against Porteen and Livingston.

The Court has found probable cause for the assault charge against Rebsom and her malicious prosecution claim is subject to summary judgment on that basis alone. In addition, Porteen’s actions in initiating and maintaining the prosecution of the assault charge are protected by prosecutorial immunity. Therefore he has no liability under Rebsom’s malicious prosecution claim and there is no liability to impute to Livingston.

Counts VI and VII — actual malice and negligence claims against Porteen.

Both of these claims are based on alleged lack of probable cause to initiate and maintain the charge against Rebsom. Probable cause existed and Porteen’s decision to prosecute her is protected by prosecutorial immunity.

Recommended: Summary judgment be granted for Kunnath, Livingston, and Porteen.

 

– – – 

Judge Watters’s order adopting Cavan’s findings & recommendations.

Magistrate Cavan filed findings & recommendations on Steve Kunnath’s motion for summary judgment and Livingston’s and Jay Porteen’s motion for summary judgment, recommending that each motion be granted. No objections were filed within 14 days as required by 28 USC 636(b)(1) and thus this Court reviews the findings & recommendations for clear error which exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” Syrax (9th Cir. 2000). After reviewing the findings & recommendations, this Court does not find that Cavan committed clear error. His proposed findings & recommendations are adopted in full.

Rebsom v. Kunnath, Livingston, and Porteen, 44 MFR 274, Cavan’s F&R 2/25/22, Watters’s adoption 3/16/22.

Suzanne Marshall (Marshall Law), Bozeman, for Rebsom; Harlan Krogh & Haley Ford (Crist, Krogh, Alke & Nord), Billings, for Kunnath, O’Neill, and LaBaty; Randall Nelson & Thomas Bancroft (Nelson Law Firm), Billings, for Livingston.

MALICIOUS PROSECUTION and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters.

On 3/9/18 at 9:27 p.m. Livingston Officers O’Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for 2 hours. The residence belonged to attorney Jami Rebsom. O’Neill could hear her dogs barking from her backyard but the officers left because no one was home.

At 10:32 another resident called to report barking dogs at Rebsom’s residence. O’Neill called her. She said she was home but hung up before he could discuss the complaints.

At 10:45 O’Neill and Hildebrand returned to Rebsom’s residence. They could hear her yelling, “Get out here you fucking bitch” and “fuck you.” They heard a neighbor’s screen door open and a man ask, “What is going on?”

When O’Neill and Hildebrand went to Rebsom’s front door she refused to open it or speak with them and displayed both middle fingers through the glass door and told them to “fuck off” and “get a warrant mother fuckers.” Sgt. LaBaty arrived and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. Because she refused to speak with them and was possibly intoxicated they decided to issue the citations the next day. As they were preparing to leave she placed a 911 call that was transferred to LaBaty. He advised her that they were leaving. She hung up, called 911, and left a message for the Police Chief. All officers left her residence by 10:55.

When Officer Kunnath arrived for his shift the next morning O’Neill briefed him on the events at Rebsom’s residence and asked him to serve her with the citations for keeping barking dogs and disorderly conduct.

Kunnath spoke to Rebsom’s neighbor Emily Greenwald who wished to report an incident from the previous night. She and her husband Jason provided oral and written statements. He reported that around 10:30 he was in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” (Rebsom believed that Emily was the one who called police about the barking dogs but it was other neighbors who had called.) Jason stated that he opened his back door and said, “Excuse me,” but Rebsom did not respond. He reported that he was fearful that she may be approaching their home so he picked up his phone in case he needed to call police and went to his front window where he saw the police at her residence. He stated that this was not the first time she had yelled obscenities late at night.

Emily reported that she was in a back bedroom when Rebsom was screaming and could hear shouting and barking dogs but could not make out what was said. At 6:30 the next morning Jason told her what Rebsom had screamed. Both reported fearing for their safety and wished that assault charges be filed.

Kunnath delivered the citations for disorderly conduct and keeping barking dogs and also cited Rebsom for assault in violation of MCA 45-5-201(1)(d) based on Greenwalds’ complaint. Rebsom contacted Livingston Prosecutor Jay Porteen and asked that he dismiss the assault charge. He declined to do so. All charges were later dismissed because Greenwalds moved from Livingston and were unavailable to testify.

On 3/10/20 Rebsom sued asserting §1983 claims against Kunnath, O’Neill, and LaBaty and state law claims for respondeat superior against Livingston, malicious prosecution against Kunnath, Porteen, and Livingston, actual/malice punitives against Kunnath and Porteen, negligence against Porteen, defamation/libel against Kunnath, defamation/slander against Kunnath, defamation/libel against O’Neill, and defamation/slander against O’Neill. O’Neill and LaBaty previously moved for summary judgment which was granted. Kunnath, Livingston, and Porteen now move for summary judgment.

Count I — §1983 claim against Kunnath.

In her Complaint Rebsom alleges that Kunnath “made an unreasonable search and seizure of Rebsom’s person and home, assaulted, battered and falsely imprisoned her.” However, in responding to Kunnath’s motion for summary judgment she does not address any of these allegations. But lest there is any question as to the merits of these allegations or whether there is any factual basis to support them, it is undisputed that Kunnath was not one of the officers who responded to Rebsom’s home 3/9/18, he did not search her home, he did not attempt to enter her home, he did not search her, and he did not assault, batter, or falsely imprison her. (Rebsom did not know which officers were at her home and only assumed that Kunnath was one of them.) Further, contrary to suggestions in her brief, it is undisputed that she was not arrested. She was not handcuffed or taken into custody. She was not deprived of her liberty or restrained in any manner. She was only issued a citation. Hence her 4th Amendment claim is reduced to the argument that issuance of the citation without probable cause constituted an unreasonable seizure. But the mere issuance of a misdemeanor citation is not a seizure under the 4th Amendment. Karam (9th Cir. 2003); Britton (1st Cir. 1999); Martinez (10th Cir. 2007); Bielanski (7th Cir. 2008); White (CD Cal. 2010); Raiser (CD Cal. 2020) (“numerous courts have held that the mere issuance of a citation does not constitute a seizure”). Rebsom was issued a citation for a misdemeanor which required that she appear in court. She has raised no other facts to suggest that her liberty was otherwise retrained in any manner. No 4th Amendment violation occurred.

Rebsom contends in her response brief that Kunnath violated her 1st Amendment rights by issuing the assault citation, but she did not plead any 1st Amendment claim or even mention the 1st Amendment in her Complaint and her argument will be disregarded.

Count V — malicious prosecution.

Count V is captioned as a malicious prosecution claim against Porteen and Livingston but the allegations also reference Kunnath so it is assumed that the claim is also asserted against him.

Considering the totality of circumstances known to Kunnath, he had probable cause to believe that Rebsom committed misdemeanor assault. By threatening to kill Emily it was certainly reasonable to conclude that it was her conscious object to cause her apprehension of bodily injury and that there was a high probability that the threat would result in such apprehension. MCA 45-2-101(65), 45-2-101(35). Additionally, she was successful in doing so. Both Emily and Jason reported that they were fearful for their safety and the safety of their family. Rebsom argues that Kunnath lacked probable cause because she did not have contact with Emily and Emily could not have reasonably apprehended injury at the time the threats were made because Jason’s report to police indicates that Emily was asleep when she was shouting. However, Emily’s statement establishes that she was awake and heard shouting although she could not hear what was said. Regardless, it is undisputed that Rebsom’s specific threats were subsequently communicated to Emily.

The Montana Supreme Court has determined that a threat need not be communicated directly to the victim to cause reasonable apprehension of injury; it can be communicated to the victim by a 3rd party. This has been made clear in several cases considering an analogous statute involving apprehension of injury with a weapon. Swann (Mont. 2007); Smith (Mont. 2004); Misner (Mont. 1988). Although the interval between the threat and the communication to Emily is greater than in those cases, all that is necessary is that Rebsom’s threat to kill Emily created circumstances which led Emily to reasonably apprehend injury.

Rebsom nevertheless asserts without citation to authority that it must be shown that “Emily Greenwald, either had: (1) contact with Rebsom; or (2) was concerned that at the moment of the act, the alleged victim suffered reasonable apprehension of bodily injury.” But that is not what the statute says. It does not have a temporal condition that requires concurrence of the defendant’s act and the victim’s apprehension of injury.

In addition, while Rebsom argues that there was no cause for assault as to Emily, she does not address an assault as to Jason. A threat need not be directed at the victim to create a reasonable apprehension of injury. In Walsh (Mont. 1997), Chellsi, 10, witnessed her mother’s fiancé be beaten by 2 men while she and her mother were in a car. She testified that she was fearful they were going to attack her and her mother. The Montana Supreme Court affirmed an assault conviction as to Chellsi, finding that a jury could have found that she reasonably apprehended injury to herself and noting that an assault victim need not be “the direct recipient of the defendant’s actions.” While Jason was not the direct target of Rebsom’s threats, he heard her screaming late at night that she was going to kill his wife. He was “shaken” enough to get his phone ready to call police and to check if Rebsom was approaching their home and “I was concerned for my safety since it seemed to me that Ms. Rebsom was out of control and filled with rage however misguided.” Thus Kunnath reasonably concluded that Rebsom also caused reasonable apprehension of injury in Jason. Since probable cause was present as to both Emily and Jason, Rebsom’s claims for malicious prosecution necessarily fail.

Count VI – malice.

Count VI is captioned as a claim for “Actual Malice against Defendant Porteen,” but Kunnath is again mentioned in the allegations. The claim for actual malice appears not to be an independent claim but a claim for punitives based on the alleged prosecution of Rebsom without probable cause. Since Kunnath had probable cause to issue the assault citation, this claim necessarily fails.

Counts VIII-IX — defamation/libel/slander against Kunnath.

The basis of Rebsom’s defamation claims against Kunnath are the statements in the assault citation. She has presented no facts to show that they are false. It states: “Jason Greenwald heard neighbor Jami Rebsom scream “Emily Greenwald you fucking bitch get your ass out here. I’m going to fucking kill you.” It is undisputed that she said this and thus the allegedly defamatory statement cannot be false.

A privileged publication is “one made (1) in the proper discharge of an official duty; (2) in any judicial proceeding or in any other official proceeding authorized by law.” Sacco (Mont. 1995) adopted the Restatement of Torts’ approach and determined that “an arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege.” Therefore the act of issuing a citation is a privileged publication made in the proper discharge of an official duty. It is undisputed that Kunnath is a police officer authorized to respond to complaints, write reports, and issue citations, he issued the assault citation to Rebsom in the discharge of his duties, and the citation was in a judicial proceeding or other proceeding authorized by law. Because the citation does not contain any false statements and is a privileged publication, Rebsom’s defamation claims necessarily fail.

Count II — §1983 claim against Livingston.

Rebsom asserted a Monell (US 1978) claim against Livingston based on Kunnath’s implementation of a city policy or custom and/or due to its inadequate hiring & supervision of him. The Court has determined that his conduct did not deprive her of a constitutional right and thus her §1983 claim against Livingston necessarily fails.

Count III – respondeat superior claim against Livingston.

Rebsom seeks to hold Livingston vicariously liable for trespass and violation of privacy and malicious prosecution by Kunnath and malicious prosecution based on Porteen’s continued prosecution.

It is unclear when and how Kunnath trespassed or violated her privacy. He was not present that night. To the extent that these allegations related to his issuance of the assault citation, Rebsom’s complaint does not set forth any allegation that he committed a trespass or violated her privacy in issuing the citation, nor does she raise any factual support or other argument in her summary judgment response that he committed a trespass or violated her privacy. In addition, the Court has found that probable cause existed for Rebsom’s citation and that her claim for malicious prosecution is subject to summary judgment. Therefore, Kunnath did not engage in any wrongful conduct that can be imputed to Livingston. Moreover, to the extent that her “respondeat superior” claim is based on Porteen’s action, prosecutorial immunity bars her claim against him. A state prosecutor is entitled to absolute immunity from liability under §1983 when he engages in activities “intimately associated with the judicial phase of the criminal process” such as initiating a prosecution. Imbler (US 1976). Rebsom’s allegations against Porteen stem from his initial refusal to dismiss the assault, an activity intimately associated with the judicial phase of the criminal process. The citation was also supported by probable cause and thus a malicious prosecution claim against Porteen fails.

Count IV — §1983 claim against Porteen.

Porteen argues that the appropriate remedy for this claim is a state law malicious prosecution claim. Rebsom agrees that the “Civil rights against Porteen found in Count IV of the Amended Complaint (excluding the negligence claims and the malicious prosecution claims) and the City related to Porteen’s actions should be dismissed.”

Count V — malicious prosecution claim against Porteen and Livingston.

The Court has found probable cause for the assault charge against Rebsom and her malicious prosecution claim is subject to summary judgment on that basis alone. In addition, Porteen’s actions in initiating and maintaining the prosecution of the assault charge are protected by prosecutorial immunity. Therefore he has no liability under Rebsom’s malicious prosecution claim and there is no liability to impute to Livingston.

Counts VI and VII — actual malice and negligence claims against Porteen.

Both of these claims are based on alleged lack of probable cause to initiate and maintain the charge against Rebsom. Probable cause existed and Porteen’s decision to prosecute her is protected by prosecutorial immunity.

Recommended: Summary judgment be granted for Kunnath, Livingston, and Porteen.

 

 

– – – 

 

Judge Watters’s order adopting Cavan’s findings & recommendations.

Magistrate Cavan filed findings & recommendations on Steve Kunnath’s motion for summary judgment and Livingston’s and Jay Porteen’s motion for summary judgment, recommending that each motion be granted. No objections were filed within 14 days as required by 28 USC 636(b)(1) and thus this Court reviews the findings & recommendations for clear error which exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” Syrax (9th Cir. 2000). After reviewing the findings & recommendations, this Court does not find that Cavan committed clear error. His proposed findings & recommendations are adopted in full.

Rebsom v. Kunnath, Livingston, and Porteen, 44 MFR 274, Cavan’s F&R 2/25/22, Watters’s adoption 3/16/22.

Suzanne Marshall (Marshall Law), Bozeman, for Rebsom; Harlan Krogh & Haley Ford (Crist, Krogh, Alke & Nord), Billings, for Kunnath, O’Neill, and LaBaty; Randall Nelson & Thomas Bancroft (Nelson Law Firm), Billings, for Livingston.

SSD: ALJ Marchioro failed to properly evaluate Clinical Social Worker’s medical opinions under new regulations, remanded to determine whether Claimant is disabled… Johnston.

Patricia Keele is 53. She earned a GED in 1990. She has experience as a ballistic tech, assistant to disabled individuals, cashier, and hotel front desk clerk. She alleges that she became disabled 11/1/17 due to COPD, PTSD, depression, and anxiety. ALJ Stephen Marchioro determined following a hearing 4/16/20 that she had the severe impairments of COPD, PTSD, depression and anxiety but that she was not disabled because she had the RFC to perform her past work as a hand packager with Remmington Arms as well as jobs that existed in significant numbers in the national economy such as dining room attendant, store laborer, sandwich maker, mail clerk, collator operator, and routing clerk. The Appeals Council denied her request for review. She appeals, arguing that Marchioro failed to properly evaluate and credit Clinical Social Worker Christine Nicklay’s opinions in accordance with SSA’s new regulations.

Nicklay works at Western Montana Mental Health Center. She provided mental treatment to Keele for 17 months through 1/26/20. She assessed Keele’s basic mental functioning 10/16/19, filing out a Medical Source Statement in which she checked boxes indicating that Keele had “marked” limitations in her ability to understand and remember, “marked to extreme” limitations in her ability to concentrate, “moderate to extreme” limitations in her ability to tolerate social interaction, and “extreme limitations” in her ability to tolerate stress and adapt to changes in the work setting. She also assessed Keele’s ability to complete an 8-hour work day and 40-hour work week. She checked boxes indicating that her mental impairments would cause her to be off-task 60% of the work day and be unable to complete a regular 40-hour work week on a regular basis without missing more than 2 days per month because “loud noises, specific smells, and unfamiliar people” cause her to “experience dissociative symptoms.” Marchioro discounted her opinions.

Keele applied for SS after 3/27/17 and Marchioro was therefore required to apply the new SS regulations when he evaluated Nicklay’s opinions. They require an ALJ to consider and evaluate the persuasiveness of all medical opinions based on some or all of these factors:

1. Supportability of the opinion.

2. Consistency of the opinion.

3. The medical source’s relationship with the claimant (including length of the treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and existence of examinations.

4. The medical source’s specialization.

5. The medical source’s familiarity with other evidence in the record.

6. The medical source’s familiarity with SSD requirements.

Supportability and consistency are the most important factors. 20 CFR 404.1520c(b)(2). An ALJ must consider & discuss the supportability and consistency factors in every case. Id. He is required to consider the other factors only if he is presented with contradictory but equally persuasive medical opinions on the same issue. Id.

The supportability factor looks inward at the medical evidence presented by the medical source in support of his or her opinions. A medical opinion that is supported by significant relevant medical evidence is more persuasive and a medical opinion that is not supported by relevant medical evidence. 404.1520c(c)(1).

The consistency factor looks outward. It compares the medical source’s opinion to other medical and non-medical evidence in the record. A medical opinion that is consistent with the other medical and non-medical evidence is more persuasive than a medical opinion that is not consistent with the other medical and non-medical evidence. 404.1520c(c)(2). The ALJ must explain how he considered the supportability and consistency factors and must support his analysis with substantial evidence. Machelle H. (D.Idaho 2021).

Marchioro failed to properly address the supportability factor. He concluded that Nicklay’s opinions were unsupported because they were “rendered on a pre-printed check box form.” Opinions by a health care provider on a pre-printed form may be entitled to substantial weight if they are supported by the provider’s treatment notes. Belinda K. (D.Mont. 2022); Talbott (D.Ariz. 2020) (citing Garrison (9th Cir. 2014). The record contains a significant number of treatment notes from Nicklay during that period 8/9/18 through 1/26/20. Marchioro failed to explain why her opinions were inconsistent with her own treatment notes. His failure to support his reasoning with substantial evidence was legal error. Belinda K. (citing Embrey (9th Cir. 1988).

Marchioro also failed to apply the consistency factor to all of Nicklay’s opinions. She opined that Keele’s impairments would cause her to be off-task 60% of an average work day and be absent from work more than 2 days per month. Marchioro made no attempt to explain why these opinions were inconsistent with the other medical and non-medical evidence and rejected them without citing any inconsistent evidence. His failure to support his reasoning with substantial evidence was legal error. Belinda K.

Marchioro’s error was not harmless. The vocational expert testified that Keele would be unable to sustain employment if she was “off-task more than about 10% of the work day in addition to normal work breaks” or absent from work more than “one to two days per month on a regular basis.”

“Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke (9th Cir. 2004). Remand for an award of benefits is appropriate only where there are no outstanding issues that must be resolved before a determination of disability can be made, and it is clear from the record that the ALJ would be required to find the claimant disabled if the ALJ had properly considered all of the evidence in the record. Dominguez (9th Cir. 2015).

There are outstanding issues to be resolved. It is not clear whether Keele is disabled. Remand for further proceedings is appropriate. On remand, the ALJ should consider and discuss whether Nicklay’s opinions are supported by her treatment notes and whether they are consistent with the other medical and non-medical evidence in the record.

Keele v. SSA, 44 MFR 273, 2/28/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, and Olinsky Law Group for Keele; Special AUSA Heidi Triesch.