Stand Up Mont. v. Missoula Cnty. Pub. Sch.

414 Mont. 229

539 P.3d 1117

STAND UP MONTANA, a Montana non-profit Corporation; Clinton Decker; Morgen Hunt; Gabriel Earle; Erick Prather; Bradford Campbell ; Meagan Campbell; Amy Orr and Jared Orr, Plaintiffs and Appellants,

v.MISSOULA COUNTY PUBLIC SCHOOLS, Elementary District No. 1, High School District No. 1, Missoula County, State of Montana; Target Range School District No. 23; and Hellgate Elementary School District No. 4, Defendants and Appellees.

DA 23-0046

Supreme Court of Montana.

Submitted on Briefs: September 27, 2023

Decided: December 12, 2023

For Appellants: Quentin M. Rhoades, Rhoades & Erickson PLLC, Missoula, Montana

For Appellees: Elizabeth A. Kaleva, Kevin A. Twidwell, Elizabeth O'Halloran, Kaleva Law Offices, Missoula,

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Stand Up Montana (Stand Up) and parents of multiple school children attending public schools in Missoula County (Parents) appeal the Order entered by the Fourth Judicial District Court granting summary judgment in favor of school districts in Missoula County (School Districts), and finding the mask mandates implemented by the School Districts did not violate Appellants’ substantive due process rights.

¶2 We restate the issues on appeal as follows:

1. Did the District Court properly grant summary judgment in favor of the School Districts on Stand Up's Substantive Due Process Claim?

2. Did the District Court properly grant the School Districts’ motion in limine to exclude proffered testimony from Appellants’ hybrid witnesses?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 During the Summer of 2021, and amid the COVID-19 pandemic, the School Districts considered polices to ensure a safe return to full-time, in-class learning for the 2021-2022 school year. The School Districts chose to implement a mask mandate that required everyone who entered the schools—students, staff, teachers, visitors, and volunteers—to wear a mask at all times. There were exceptions to the mask mandate that allowed masks to be removed during physical exercise or recess, giving presentations, and eating or drinking. In adopting the mandate, the School Districts considered recommendations from several sources including the Centers for Disease Control (CDC), the American Academy of Pediatrics, the Montana Medical Association, the State and Missoula City and County health agencies, and various other health care entities and practitioners. The School Districts also considered national and local health data and received extensive public comment both by email and from in-person presentations.

¶5 Stand Up and Parents (collectively Appellants) challenged the mask mandates in August 2021. Appellants filed a six-count lawsuit against the School Districts claiming the mask mandates violated their constitutional rights.¹ Appellants also filed a motion for a preliminary injunction to enjoin enforcement of the mask mandates. The District Court denied the motion for preliminary injunction. Appellants appealed to this Court asserting they made a prima facie showing their privacy and dignity rights were violated by the School Districts’ masking policies and, as a result, they suffered irreparable harm. As we noted, the Montana Constitution contains an explicit right to privacy in Art. II, Section 10 "and because it is found in the Constitution's Declaration of Rights, it is a fundamental right." Stand Up Mont. v. Missoula Cnty. Pub. Schs ., 2022 MT 153, ¶ 11, 409 Mont. 330, 514 P.3d 1062 ( Stand Up I) . We also noted the Montana Constitution contains an individual dignity provision—Art. II, Section 4—which "works in tandem with Article II, Section 22 to provide individuals greater protection from cruel and unusual punishment than does the federal constitution." Stand Up I , ¶ 11.

¶6 In considering Appellants’ privacy claim, we noted that central to their argument was their characterization of face masks as medical treatment which Appellants described as "treatment by alleged prevention." We determined this to be an attempt to apply principles governing private medical decisions to public prevention practices and that even if masks could be considered "medical devices," no evidence had been presented that masks constituted treatment for COVID-19, "rather than merely a protective measure to reduce the chance an individual becomes infected with or spreads the virus in a public place." Stand Up I , ¶ 15. Appellants did not demonstrate that schools requiring face masks to ensure the safety and health of students, visitors, and staff voluntarily on public property during a recognized pandemic implicated the same private decisions addressed in Armstrong v. State , 1999 MT 261, 296 Mont. 361, 989 P.2d 364 or Gryczan v. State , 283 Mont. 433, 942 P.2d 112 (1997). Stand Up I , ¶ 16. As such, we concluded Appellants’ arguments were insufficient to conclude the District Court manifestly abused its discretion by denying Appellant's request to enjoin the School Districts’ masking policies on the grounds that the privacy right under Article II, Section 10 of the Montana Constitution was likely to have been violated. Stand Up I , ¶ 16.

¶7 Appellants’ individual dignity claim was premised on Walker v. State , 2003 MT 134, 316 Mont. 103, 68 P.3d 872. Walker involved a severely mentally and physically ill inmate subjected to interventions at the prison that deprived him of basic necessities—isolating him and forcing him to sleep on a concrete slab in a cell containing human waste and blood. While Appellants faulted the District Court for focusing on the factual distinctions between Walker and this matter, we noted "the facts in Walker were critical to the holding there."² Stand Up I , ¶ 18. Given this precedent, we determined the District Courts did not "manifestly abuse their discretion by determining Appellants did not establish a likelihood the [School] Districts’ masking policies for public schools would violate the Appellants’ rights under Article II, Section 4, of the Montana Constitution." Stand Up I , ¶ 18.

¶8 As Appellants did not make a prima facie showing that the masking policies implicated a fundamental right under Article II of the Montana Constitution, we determined it appropriate to review the policies under the rational basis standard—considering whether the challenged policies bear a rational relationship to a legitimate government interest. Stand Up I , ¶ 19. Under rational basis review, the masking policies do not need to be logically consistent in every respect to be constitutional, and they will be upheld unless they are unreasonable or arbitrary.

Mont. Cannabis Indus. Ass'n v. State , 2016 MT 44, ¶ 26, 382 Mont. 256, 368 P.3d 1131 ( MCIA II ) . As we noted in Stand Up I , given the U.S. Supreme Court's determination in Roman Catholic Diocese v. Cuomo , 592 U.S. 14, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020), that "[s]temming the spread of COVID-19 is unquestionably a compelling [governmental] interest" there is little doubt the School Districts’ objectives of containing the spread of COVID-19 among students and adults within the school system would be found to be a legitimate governmental interest. Stand Up I , ¶ 20. While Appellants asserted masking to be ineffective and there was a relatively low death rate among minors from COVID-19, the "policies were adopted after consideration of a wide body of health information and recommendations from public and private sources that encouraged continuation of universal masking policies." Stand Up I , ¶ 22. Given the School Districts’ safety concerns beyond mortality risk—including reducing interruption to learning for students and teachers infected with COVID-19—we concluded "the policies would appear to bear a rational relationship to School Districts’ legitimate interest in preventing infections among teachers, staff, and volunteers to ensure sufficient staffing levels are available for the schools to function properly." Stand Up I , ¶ 22. As such, we concluded the District Courts did not manifestly abuse their discretion in concluding it was likely the mask policies were rationally related to legitimate government interests. Stand Up I , ¶ 23.

¶9 Lastly, Appellants asserted the Gallatin County District Court erred in its interpretation of § 40-6-701, MCA, and abused its discretion by denying Appellants’ motion for a preliminary injunction on the grounds the masking policies likely did not violate Parents’ rights. The District Court, despite an initially incorrect interpretation³ of § 40-6-701, MCA, in alternative to its statutory findings, applied a strict scrutiny framework to conclude the mask policy was justified by a compelling interest. Appellants did not challenge the District Court's application of strict scrutiny review but instead asserted the School Districts failed to offer a compelling governmental interest. We noted that Appellants acknowledged in their briefing that the only reason the mask policies were adopted was to address the spread of COVID-19, which the U.S. Supreme Court had already defined as a compelling interest. Thus, we found no error in the District Court's alternative constitutional strict scrutiny analysis.

¶10 On September 21, 2021, the School Districts filed a motion to dismiss all six of Appellants’ claims for failure to state a claim upon which relief can be granted. While that motion was before the court, the School Districts also filed a motion in limine to exclude Stand Up's hybrid⁴ witnesses from testifying at trial based on the fact that the individual plaintiffs had each testified in their depositions that their children had not been diagnosed with any of the harms Appellants’ experts asserted were caused by wearing face masks at school. On October 31, 2022, the District Court granted the School District's motion to dismiss for all but one of the six counts for failure to state a claim. Appellants’ substantive due process claim was left for trial—although the District Court...