KGVO published an online story on Friday with comments from Missoula County Attorney Kirsten Pabst in which she provided the state statutes used by the Health Board to institute the new mandatory masking policy.

Local attorney Quentin Rhoades sent KGVO what he termed ‘a constitutional analysis' of the Missoula City-County Health Department’s mask order.

His analysis is below:

‘The recent Missoula City-County Health Department (City-County) rule and order provide: “A business . . . shall: a. Require employees, contractors, volunteers, customers and visitors to wear a face covering within the building, and when entering and exiting, and within a shared vehicle; [and]  b. Require employees who perform work in private homes to wear a face covering when other people are present. . . . .”

 

In response to questions about the constitutionality of the question, Missoula County Attorney Kirsten Pabst told local media: “If you look closely at the Montana Constitution, it talks about rights and specifically talks about corresponding responsibilities, and that’s the part that people aren’t talking about is the responsibility aspect and that part is there for the benefit and the lives of everybody else.”  Media reported that Pabst discussed statutes giving unelected health department officials sweeping powers, including § 50-2-116 and 118. 

 

No mention was made of any constitutional provisions that might apply or the responsibility of local officials to comply with the constitution regardless of whether their own policy preferences.  This is a major omission in that the constitution is “supreme.”  In other words, if a statute and the constitutional rule conflict, the constitutional rule governs, and local officials are constrained from violating them. 

 

Human Dignity.  One provision of the Montana constitution appears clearly to apply and must be accounted for in any discussion of the City-County cloth face covering rule and order: Article II, Section 10, of the Montana Constitution.  Ensconced in Article II, our “Declaration of Rights”, § 10 reads: “The dignity of the human being is inviolable.”

 

In 1993, former Montana Supreme Court Justice Terry Trieweiler wrote about the clause in his dissent in Stratemeyer v. MACO Workers' Comp: “The language in Article II, Section 4 of Montana's Constitution is simple plain, and clear. It provides that ‘the dignity of the human being is inviolable. No person shall be denied equal protection of the laws.’ Yet, the purpose served by that language in any society based on equality is absolutely vital. It recognizes that majoritarian rule can at times be harsh, intolerant, and unfair. It recognizes that at times a basic framework of principle is necessary to prevent those with political influence from oppressing those without political influence.”

In 1998, Justice James C. Nelson, in a special concurrence in Girard v. Williams,  wrote more specifically:  “Under our Montana Constitution, Article II, Section 15, children enjoy the same fundamental rights as adults.  At a bare minimum these include inalienable rights to . . . to basic human dignity (Article II, Section 4).”  This is in harmony with other Montana Supreme Court rulings which make clear that the rights in Article II of the Montana constitution are “fundamental” in nature. 

Later, in Snetsinger v. Montana University System, a challenge to a state university policy providing benefits to opposite-sex but not same-sex couples who sign an affidavit of common law marriage, raised claims previously suggested by Nelson. These included a privacy-based extension of Gryczan and a hybrid dignity claim first developed in Walker v. State. According to Justice Nelson the human dignity clause of Article II, Section 4 (the Dignity Clause) is a “stand-alone, fundamental constitutional  right.”  Baxter v. State, 2009 MT 449, ¶ 74, 354 Mont. 234, 259, 224 P.3d 1211, 1227.  See Walker v. State, 2003 MT 134, PP 74, 82, 316 Mont. 103, 68 P.3d 872 (explaining that the rights found in Article II are "fundamental" and that the plain meaning of the Dignity Clause "commands that the intrinsic worth and the basic humanity of persons may not be violated").  As Justice Nelson explained in the Baxter case:

Given its intrinsic nature, it is entirely proper, in my view, that the right of dignity under Article II, Section 4 is absolute. Indeed, human dignity transcends the Constitution and the law. Dignity is a fundamental component of humanness. It is inherent in human self-consciousness. Dignity belongs, intrinsically, to our species--to each of us--as a natural right from birth to death. It permeates each person regardless of who that person is or what he does. It cannot be abrogated because of one’s status or condition. While the government may impinge  on privacy rights, liberty interests, and other Article II rights in proper circumstances (e.g., when one becomes a prisoner), the individual always retains his right of human dignity. So too with persons suffering from mental illness or disability and involuntary commitment: Each retains the right to demand of the State that his dignity as a human being be respected despite the government's sometimes necessary interference in his life.

Baxter, ¶ 86. 

Although now retired, Justice Nelson’s views on this subject are especially interesting in that the City of Missoula has retained him in a private capacity to assist it in resisting an effort by local news media to review the City’s millions of dollars in legal bills incurred in the Mountain Water case.  In short, they have hired and rely upon him as their “expert witness” on the Montana Constitution.

Strict Scrutiny.  The implication of Justice Nelson’s opinion on human dignity is this:  if human dignity is a fundamental constitutional right, then City-County officials can infringe on individual dignity only if the government can satisfy the constitutional “strict-scrutiny” test.  Under this tests, the government infringe on a fundament right only if it can prove that doing so serves a compelling state interest and the means of serving that interest is narrowly tailored to achieve the goal that is the least restrictive on human dignity. 

The first question is this:  is one’s right to make personal health choices or to make personal choices with respect to facial attire an aspect of one’s human dignity?  According to Justice Nelson, health choices clearly are: “the personal autonomy component of [the right of privacy] broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from the interference  of the government . . .”  Baxter, ¶ 65.  See, Armstrong v. State, 1999 MT 261, ¶ 39, 296 Mont. 361, 989 P.2d 364. 

If so, forcing people to choose between using public accommodations and their own human dignity must satisfy the test of strict scrutiny.

Compelling state interest.  Does the Missoula City-County Health Department’s rule and order serve a compelling government interest?  A compelling state interest is, “’at a minimum, some interest ‘of the highest order and . . . not otherwise served’ or ‘the gravest abuse[], endangering a paramount [government] interest[]’.”  Cape-France Enters. v. In re Estate of Peed, 2001 MT 139, ¶ 31, 305 Mont. 513, 29 P.3d 1011.  Does forcing people to wear a cloth face covering a matter of life or death?  Perhaps.  But the burden of proving that a rule that is so lax that a dirty handkerchief tied over one’s face is sufficient has anything whatsoever to do with the control of the corona virus pandemic in Missoula County falls on the government, not the individual. 

Narrowly tailored. The City-County must also show that its rule and order are narrowly tailored to avoid infringing on fundamental rights as much as possible.  Requiring the use of a face covering to enter a public space regardless of circumstance or relative risk is very broad.  The government must show that no alternatives exist to serve its interest in requiring cloth face coverings.  But social distancing and good hygiene have been shown to work better than cloth face coverings.  So, it is difficult to see how the requiring face masks is narrowly tailored. 

Least restrictive means.  Finally, the City-County must show that there are no means less restrictive on personal dignity to achieve their ends.  With the viable alternatives of social distancing, good hygiene, curbside service for vulnerable people and the like, there are means of achieving the end of mitigating the spread of COVID-19 available that do not infringe upon the right of human dignity.  It is therefore unlikely that the City-County can satisfy this requirement.’

Rhoades has often provided commentary to Newstalk KGVO on various issues of the day.