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Last Friday, just before 5 p.m., a federal judge handed down his ruling in a high-profile case closely watched by — to name just a few interested parties — Montana’s health care workers, opponents of vaccine mandates, and health care workers who are also opponents of vaccine mandates.
The root of the case was House Bill 702, a Republican-backed bill passed during the heart of the COVID-19 pandemic that made it illegal for most employers and public accommodations to treat unvaccinated people any differently than vaccinated people. In a particularly sweeping piece of pandemic-era legislation, Montana’s law made vaccines optional in almost every setting other than K-12 schools and childcare facilities.
There are two specific elements of the law worth spelling out here. First, when HB 702 references “vaccines,” it means vaccines generally — not just those designed to protect against severe illness and death caused by the coronavirus. Second, the law also prohibits employers from mandating record-keeping about their employees’ vaccination status. While your boss can ask if you’re up to date on your shots, you don’t have to tell.
Those elements were at the core of the lawsuit filed last year by hospitals, private physician offices, immunocompromised patients, the Montana Nurses Association and the Montana Medical Association. In a nutshell, plaintiffs implored the court — for the sake of protecting staff and patients and controlling the spread of infectious diseases — to let employers require vaccination of health care workers (for measles, mumps, rubella, hepatitis-B, varicella, tuberculosis, diphtheria, pertussis and COVID-19), collect up-to-date employee vaccination records, and treat employees differently based on those records. The argument claimed that a nurse working on a neonatal intensive care unit, for example, should be vaccinated against pertussis (aka whooping cough), which can be fatal for newborns, as a condition of employment in that position.
Attorneys representing the state at large and the Montana Department of Labor, which is responsible for enforcing HB 702, asked the judge see the law another way: as an anti-discrimination measure that protects individual autonomy and privacy. Litigating HB 702 as a public health law, state attorneys argued, was missing the point — its function was to even the playing field between individuals while protecting medical choice.
After about a month of anticipation, Judge Donald W. Molloy issued his conclusion. As applied to health care settings, he said, the law is unenforceable — it’s unconstitutional on the grounds of equal protection and superseded by federal laws, he wrote, including the Americans with Disabilities Act and the Occupational Safety and Health Act. Near the very end of his 41-page analysis, Molloy stated his decision more plainly.
“The public interest in protecting the general populace against vaccine-preventable diseases in health care settings using safe, effective vaccines is not outweighed by the hardships experienced to accomplish that interest,” the judge wrote. When all is said and done, the public good trumps individual objection.
In an America characterized by a steady drumbeat of vaccine opposition and resistance to perceived government overreach, Molloy’s finding is certainly not going to be the last word. It’s not clear how the political faction that supported HB 702 will respond in the coming weeks and months — a spokesperson from the office of Attorney General Austin Knudsen said their attorneys are considering next steps, an indication they’re mulling whether to appeal the case to the federal 9th Circuit Court of Appeals.
And if not that, there’s always the Legislature. And if not a rehashing of vaccine mandates in health care settings, there is likely fuel for other adjacent reforms — expanding religious exemptions from vaccines in childcare settings, for example, as Gov. Greg Gianforte has already proposed.
Either way, our newsroom knows that a court order is rarely the end of the story. We’ll be keeping track of future twists and turns, and keep you informed accordingly.
—Mara Silvers, Reporter
Verbatim 💬
“Parents are the first teacher. This discussion of sexual education and sexualizing our children needs to be a discussion at home. Our public school system is about educating our children in math, in reading, in science, in arts, in languages.”
—State Superintendent Elsie Arntzen, responding to a tense moment of public comment Tuesday night about sex education in Montana schools. Arntzen was visiting Stevensville Elementary School for the second of four community forums around the state to gather feedback from educators, parents and state lawmakers regarding challenges in K-12 education. The bulk of the evening’s discussion focused on school policy and funding, but several comments criticizing educators for discussing sexual orientation and gender identity with elementary school children prompted one teacher to state that he’s heard “absolutely zero” conversations of that sort.
—Alex Sakariassen, Reporter
The Viz 📈
Rhetoric from Gianforte administration officials about Montana’s federal-stimulus-funded $300-million-plus broadband grant program has been heavily focused on how investment in rural connectivity projects could bridge Montana’s notable digital divide. So as the governor signed a list of grant awards this week, I thought it was worth taking a close look at where, specifically, that historic sum of public money is headed.
The answer is a case study in debating how precisely to define “rural.” A few scattered frontier communities in rural north-central and eastern Montana are getting funding, but most of the state’s money is headed to projects around the peripheries of Montana’s major urban areas. By my count, two-thirds of the grant dollars are going to projects inside the boundaries of the state’s eight most-populous counties. Nearly a quarter of the program funding, $70 million, is headed to one western Montana county, Ravalli.
(Asked about that two-thirds statistic at a press event this week, Gianforte said the state is awarding grants to areas it considers currently unserved by high-speed broadband. “The vast majority of this money is going to unserved communities across the state,” he said. The state’s broadband map, which attempts to chart existing connectivity, is available here.)
—Eric Dietrich, Deputy Editor
Following the Law ⚖️
Open-government advocates who’ve been keeping tabs on one of two big records request lawsuits found something to celebrate in a Helena judge’s Wednesday order directing the state to turn over agency bill monitoring forms, which Gov. Greg Gianforte used to keep tabs on 2021 Legislature bills that were expected to impact government operations or trigger litigation.
In addition to arguing that the forms sought by Democratic political consultant Jayson O’Neill were subject to attorney-client privilege — which has long been recognized by courts — attorneys for Gianforte went a step further to claim the governor is entitled to “deliberative process” and “executive communication” privileges. The governor’s office had issued blanket denials of the requests for the forms, which open-government advocates described as a flagrant obstruction of the right to know enshrined in the state Constitution.
Lewis and Clark County District Court Judge Kathy Seeley told Gianforte to turn the forms over to the court so it could weigh in on which of them might be properly protected by attorney-client privilege. She wasn’t inclined, however, to recognize the executive privileges cited by Gianforte’s attorneys, saying that assertion relied too heavily on case law from other jurisdictions, and that the forms O’Neill has been trying to obtain for a year and a half are “precisely the type of government document” to which the Constitution’s framers sought to protect public access.
Helena attorney Mike Meloy, who’s long served as counsel for the Montana Freedom of Information Hotline, described Gianforte’s attorneys’ arguments as “fanciful hogwash” and told MTFP that Seeley’s order is “a big one, but not surprising.”
Next month, Judge Christopher Abbott, Seeley’s District Court colleague, will hear arguments on a similar records request lawsuit regarding Idaho mining company Hecla and a “bad actor” designation the previous administration pursued to prevent Hecla from opening new mines in Montana.
In the 1990s, Hecla’s CEO held executive-level positions with Pegasus Gold Corp., which declared bankruptcy and left a Superfund site in its wake that has contaminated drinking water and racked up a remediation bill of more than $80 million to date. The Department of Environmental Quality dropped the bad actor claim shortly after Gianforte took office, and the Montana Environmental Information Center is seeking documents related to that decision.
—Amanda Eggert, Reporter
Hot Potato 🥔
The debate at the center of the Montana Districting and Apportionment Commission’s work to draw new House and Senate districts for the next decade has over the past year been argued every which way from a number of different perspectives.
In brief, the question is how to balance the competitiveness of individual districts and overall fairness of the map with mandatory criteria like compactness and contiguity.
In a perfect world, a legislative map might have perfectly compact districts in which all voters could elect a candidate of their choice and that yield a perfect legislative proportion of Republicans and Democrats in accordance with the parties’ share of votes across the state. But redistricting — and the representative democracy of which it is both a function and a foundation — is a messy, contradictory, attritious process.
Ignoring the political performance of districts and following only base criteria like compactness — an approach initially advocated by Republican commissioners — yields a map that, due to the concentration of Montana Democrats in urban areas, heavily favors Republicans. Creating competitive districts might come at the expense of safe districts that would otherwise bring the overall map closer to proportional representation. And creating any district can result in divisions of cities or counties that provoke outcry. Single changes to a district ripple across the map, requiring wholesale adjustments in order to keep populations in balance. No matter what, all districts will end up containing voters who feel unheard. Such is the nature of a winner-take-all system.
These philosophical questions about the nature of political representation continued late into the commission’s process this year. On Thursday, the body debated a series of amendments to the House map it approved on a 3-2 vote in favor of Democrats at the beginning of the month.
The two most significant of those amendments, both from Republican commissioners Jeff Essmann and Dan Stusek, would revise districts in Belgrade and Whitefish. Under the proposal adopted earlier in December, the Whitefish district was a Republican-leaning swing seat that includes part of Columbia Falls, and Belgrade was divided into one safe Democratic seat and one Republican-leaning swing seat.
The new Republican amendments would divide Columbia Falls and Whitefish into separate seats, as they exist under the House map that’s been in use over the last decade, and turn the Belgrade swing seat into a safe seat for Republicans. The amendment proposals followed a raft of public comment last weekend from residents and Republican activists contending that conservative Columbia Falls and Belgrade should be kept separate from liberal Whitefish and Bozeman.
“As a commission, one of your goals was to minimize dividing cities, towns, counties and federal reservations when possible, but unfortunately for political reasons Democrats on the commission have split Whitefish and Columbia Falls to achieve their own political goals,” Montana GOP chair Don Kaltschmidt argued last Saturday.
“We as citizens of Montana are divided along the great chasm of the urban-rural divide. This ill-conceived map will only exacerbate those tensions,” added Meagher County’s Randon Gregg.
But there’s a counterargument. For one, the Whitefish-Columbia Falls and Belgrade district lines in the map adopted earlier this month yield competitive seats, a goal of the commission. On a deeper level, supporters of the map passed earlier this month said, the Montana of the past — divided along that “great chasm” — is not the fast-growing, increasingly urban and suburban Montana of the future.
“I will live in a wagon-wheel district,” said Julia Shaida of Bozeman, adopting the shorthand Republicans have used to criticize districts rooted in city centers and stretching outward into rural areas. “It will connect downtown Bozeman, the foothills north of town, and stretch out to Belgrade and areas that surround the airport. I look forward to this. I believe it will make my House representative more responsive to diverse needs.”
Ultimately, DAC chair Maylinn Smith split her votes on the amendments. She voted with Essmann and Stusek on their redraw of the Belgrade district, but voted with Democrats to maintain the Whitefish-Columbia Falls combination. That leaves the future balance of the House at 35 safe seats for Democrats, five Democratic-leaning competitive districts, four Republican-leaning competitive districts, and 56 safe Republican districts.
—Arren Kimbel-Sannit, Reporter
3 Questions For 
Earlier this month, the U.S. Supreme Court heard oral arguments in a major case about legislative power and elections law. It’s known as Moore v. Harper, and while there’s a complicated backstory, here’s the general overview: The state legislature and supreme court in North Carolina got into a legal tussle this year over new congressional districts, and the legislature is now arguing that the U.S. Constitution’s Election Clause grants it exclusive authority to draw those lines — and that state courts can’t challenge those decisions. That argument is called the “independent state legislature theory,” and it actually came up in Montana’s own recent election laws case.
To better understand what the U.S. Supreme Court is now deliberating, MTFP spoke with University of Montana law professor Craig Cowie. Here’s a sampling of our conversation.
MTFP: This case started as a redistricting dispute in North Carolina, but just how far do the potential impacts of Moore v. Harper extend?
Cowie: To be clear, the principle is going to apply to everything about elections. Where can you early vote? What about COVID, what do we do? Do we allow people to turn in ballots on behalf of other people? When can we vote? Like, is it 8 a.m. to 5 p.m.? Is it 8 a.m. to 8 p.m.? The Legislature makes all sorts of decisions about how people vote. Here in Montana, I got my ballot in the mail, and I got it because I vote and so I’m on the rolls. Other people don’t vote, maybe they fall off the rolls so they don’t get the ballot, but they can register, but they can only register up to a certain point. Some of the changes the [Montana] Legislature made are on hold due to ongoing litigation. But all of that is going to be affected by this rule. All of those [legal] challenges are out the window with the maximalist position.
MTFP: At what point is Moore v. Harper a conversation about the basic checks and balances in our government?
Cowie: Your question about checks and balances is really important because there’s a reason we have them, and the reason is to keep everyone in their lane with this fundamental idea that we have taken what was a unified, all-encompassing power in a monarchy and we’ve separated it out precisely so that no single branch has all the powers. … The state court’s role in this model — to the extent the state has a similar model to the federal system — is to say, “Hey, legislature, you did something, but you’ve done something that’s unconstitutional, and because it’s unconstitutional you don’t have the power to do it. So we’ll strike down that law.” That’s the way the system is supposed to work. If we’re saying you can’t exercise that check anymore because you can’t even hear the case, then the legislature can act in a way that is, in effect, completely unbounded from its [state] constitutional limits. That seems to strike at the very core of the founders’ argument about the way in which we should organize.
MTFP: So at the end of the day, how important a case is Moore v. Harper?
Cowie: I think it is an existential question to the way we structure our society. This case could go a way that has a dramatic effect on that, or it could go a way that, in effect, changes very little from the way in which we think things act currently. …So it is a really important case. Even if the justices decide to come down closer to where we are currently, it is a focal moment.
—Alex Sakariassen, Reporter
By the Numbers 🔢
The length, including a number of recesses to allow for private, one-on-one discussions, of the Montana Districting and Apportionment Commission’s Thursday work session, during which the five commissioners adopted amendments to the 2024-2032 House district map and created 50 state Senate districts.
—Arren Kimbel-Sannit, Reporter
On Our Radar 
Amanda — I still find myself thinking about this piece on celebrated mountaineer Hilaree Nelson (formerly O’Neill) that Outside published in 2015, seven years before Nelson died on the Himalayan peak Manaslu. The story by Missoula-based journalist Jacob Baynham doesn’t shy from the messiness that comes with mixing parenthood with risky, months-long mountaineering objectives.
Alex — When it comes to the nuances of job markets and the U.S. economy, I’ll admit I start to feel overwhelmed pretty quickly. That’s why I appreciate it when journalists who live and breathe a particular world explain the news in an approachable, lighthearted way — which is exactly what the New York Times’ Federal Reserve correspondent Jeanna Smialek did this week.
Arren — People who know me know that I love the NBC sitcom “30 Rock,” and know my theory that it predicted our present moment. As it turns out, as expressed in this piece by Gawker, I’m not the only one who’s aware of the show’s prescience.
Mara — I’m looking for all the feel-good news I can find this month. What fits that category better than free bikes for kids? That kernel of joy is courtesy of the Bozeman Daily Chronicle.
Eric — If you’re not in the holiday spirit yet and this doesn’t get you there — well, bah humbug.
*Some articles may be behind a paywall.