Stand Up Montana v. Msla Co. Schools

                                                                                              12/12/2023
                                            DA 23-0046

              IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: DA 23-0046


                                            

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.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-21-1031
                       Honorable Jason Marks, Presiding Judge


COUNSEL OF RECORD:

                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,


                                                    Submitted on Briefs: September 27, 2023

                                                              Decided: December 12, 2023


Filed:

                                     ir,-6t-•--if
                       __________________________________________
                                         Clerk
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., 

, ¶ 11, 

,

 (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


1
 Specifically, the claims were: Count I—substantive due process; Count II—equal protection;
Count III—privacy; Count IV—Senate Bill 400 (now codified as 

);
Count V—human dignity; and Count VI—freedom of expression.

                                             3
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, 

, 

, 

 or Gryczan v. State,

, 

 (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, 

, 

, 

. 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


2
 The inconvenience associated with wearing a mask, is on the other end of the spectrum from the
deprivation of basic human needs experienced by Walker.
                                              4
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, 

, 

, 

 (MCIA II). As we noted in Stand Up I, given the U.S.

Supreme Court’s determination in Roman Catholic Diocese v. Cuomo, 

,

 (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
                                             5
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




3
  The District Court reviewed the legislative history of § 40-6-701, MCA, and concluded the
purpose of enacting the legislation was to create an action for parents involved in a child welfare
proceeding involving the termination of parental rights and thus not applicable under the
circumstances here. We determined the District Court erred by considering legislative history to
guide its interpretation as the statute, from a plain reading, contained no language limiting a cause
of action for parents involved in a child welfare proceeding.

                                                 6
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 determined the mask

policies were related to a legitimate government interest, it could not, on the pleadings

alone, conclude Appellants could prove no set of facts which would entitle them to relief.

The narrow issue that remained for trial was whether the mask mandates were unreasonable

or arbitrary when balanced against the purpose of slowing the spread of COVID-19.

¶11       The District Court also granted the School Districts’ motion in limine on

November 1, 2022. The court held the testimony of the challenged witnesses proffered by

Appellants was irrelevant to the central issue of the case. The court stated “testimony

concerning whether masking causes the maladies outlined by [Appellants’] proffered

testimony (e.g., tooth decay, halitosis, speech impediments) will not assist the Court in


4
    In this context, a hybrid witness is one identified both as a lay witness and an expert witness.

                                                    7
resolving the factual dispute, which is centered around the reasonableness of the mandates

as related to the goal of stopping COVID-19.”

¶12    With only the substantive due process claim remaining, following discovery, the

School Districts filed a motion for summary judgment. The School Districts argued that

despite Appellants’ assertion that mask mandates did not prevent the spread of COVID-19

and had negative effects on student wellbeing and education, evidence as to mask efficacy

did not create a material issue of fact as such evidence did not have any bearing on whether

the mask policies were rationally related to the government’s legitimate interest of slowing

the spread of COVID-19. The District Court granted the School Districts’ motion for

summary judgment on Appellants’ substantive due process claim on December 20, 2022.

In this order, the District Court noted it had already determined the mask mandates were

related to a legitimate government interest—slowing the spread of COVID-19. The court

then noted, citing Jacobsen v. Massachusetts, 

, 

 (1905), a

deferential standard of review in assessing whether the mandate was rationally related to

slowing the spread of COVID-19 was appropriate. In Jacobson, the U.S. Supreme Court

applied a deferential standard of review rejecting a substantive due process challenge to

mandatory smallpox vaccination, concluding mandatory vaccination was constitutional as

it had a real and substantial relation to protection of public health and safety.

¶13    The District Court noted the mask mandate required any person, not just students,

who entered a school building to wear a mask. Further, Appellants did not dispute the

School Districts enacted the mask policies after considering recommendations from the

CDC, the American Academy of Pediatrics, the Montana Medical Association, the
                                              8
Missoula City/County Health Departments, and other state and local health care providers

and agencies all of which recommended universal masking of all individuals who entered

a school building. The District Court noted the agencies and providers consulted by the

School Districts were reputable and specifically that the CDC is recognized as “the nation’s

leading science-based, data-driven, service organization that protects the public’s health.”

The District Court reasoned that continued emphasis on alleged negative impacts of

masking on students is unpersuasive and irrelevant in a substantive due process analysis as

the School Districts’ reliance on the recommendations of reputable health providers and

agencies, including the CDC, was not unreasonable or arbitrary even if Appellants

presented existence of studies offering alternate views on the efficacy of masking or

negative effects on student wellbeing. As such, the District Court found the mask mandates

were reasonably related to the legitimate government interest of slowing the spread of

COVID-19 based on uncontested facts as to which agencies and health providers were

consulted and their uncontroverted recommendation for universal masking of all

individuals entering school buildings. Thus, the District Court granted summary judgment

to the School Districts on the remaining substantive due process claim.

¶14    Stand Up and Parents now appeal the District Court’s award of summary judgment

and, likewise, challenge the District Court’s granting of the School Districts’ motion in

limine that precluded the testimony of hybrid witnesses proffered by Appellants as

irrelevant.




                                             9
                               STANDARD OF REVIEW
¶15     This Court reviews a district court’s award of summary judgment de novo for

conformance with the standards of M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe

Prop. Co., 

, 

, 

. Summary judgment is proper

only when there is no genuine issue of material fact, and the moving party is entitled to

judgment as a matter of law. M. R. Civ. P. 56(c)(3). A genuine issue of fact is a fact

materially inconsistent with proof of an essential element of a claim or defense. Mt. W.

Bank, N.A. v. Mine & Mill Hydraulics, Inc., 

, 

, 

.

¶16     A district court’s decision on a motion in limine is an evidentiary ruling that this

Court reviews for an abuse of discretion. State v. Edwards, 

, 

, 

. An abuse of discretion occurs when a district court acts arbitrarily,

without conscientious judgment, or exceeds the bounds of reason. State v. Hudon, 

, 

, 

.

                                      DISCUSSION

¶17     1. Did the District Court properly grant summary judgment to the School Districts
        on Stand Up’s Substantive Due Process Claim?

Applicable Level of Scrutiny

¶18     Appellants argue the District Court should have used a strict scrutiny standard

instead of a rational basis standard in analyzing the viability of their constitutional

substantive due process claim. Appellants assert the mask mandates infringe on students’

and Parents’ fundamental rights—students’ rights of privacy and individual dignity and


                                             10
Parents’ rights to control the care and custody of their children. Accordingly, Appellants

advocate for the Court to use strict scrutiny.

¶19    When a fundamental right is not implicated, substantive due process analysis

requires rational basis review. MCIA II, ¶ 21. We examine substantive due process claims

by looking at whether (1) the policy in question is related to a legitimate government

concern, and (2) the means chosen by the governmental entity to accomplish its objective

are reasonably related to the result to be obtained. MCIA II, ¶ 21.

¶20    As we noted in Stand Up I, Appellants have not demonstrated the masking mandates

implicate a fundamental right found in Article II of the Montana Constitution. Stand Up I,

¶ 19. We elaborated at length that Appellants cannot apply principles governing private

medical decisions to public prevention practices. Stand Up I, ¶ 15. We explained there

was no evidence that facial coverings constitute a medical treatment for COVID-19, rather

they are a protective measure to reduce the chance of spreading the virus in a public place.

Stand Up I, ¶ 15. Accordingly, we declined to recognize that mask mandates implicate the

right to privacy as recognized in Gryczan v. State, 

, 

 (1997),

the right to make personal medical judgments affecting bodily integrity as recognized in

Armstrong v. State, 

, 

, 

, or the right to reject

treatment as recognized in Mont. Cannabis Indus. Ass’n v. State, 

, 

, 

 (MCIA I). Stand Up I, ¶¶ 13, 19.

¶21    We further decline to recognize an impairment of the fundamental right of a parent

to make decisions regarding the care of their children, including the upbringing, education,

health care, and mental health of their children. Again, as we explained in Stand Up I,
                                             11
“Appellants do not . . . present an argument regarding how Parents’ rights to control their

children’s health and upbringing are violated in the context of Parents exercising that right

by enrolling their children in the public schools[.]”5 Because the masking policies do not

implicate a fundamental right, the District Court did not err in analyzing Appellants’

substantive due process claim under the rational basis test.

Summary Judgment

¶22    Appellants argue the District Court should not have given deference to the School

Districts because the competing evidence Appellants presented was sufficient to create a

genuine issue of material fact and preclude summary judgment. Appellants presented

studies offering alternate views on the efficacy of masking, including studies that

contradicted the CDC’s advice as well as a CDC study that indicated masks are ineffective

at protecting against wildfire smoke, which has larger particles than COVID-19.

¶23    The rational basis test requires that (1) there be a legitimate government interest and

(2) the mask policies bear a rational relationship to the legitimate government interest.


5
  “See generally Fortuna v. Town of Winslow, No. 1:21-cv-00248-JAW, 

, at 37-38 (D. Me. June 13, 2022) (“Once his child is in school, Mr. Fortuna’s parental
rights must be measured against the equal rights of other parents to control their children and the
duty of the school to provide a safe environment for all children, not just Mr. Fortuna’s child, and
for others who work or volunteer in the school.”) (citations omitted); Doe v. Dall. Indep. Sch. Dist.,

 (N.D. Tex. 2016) (“[T]he right to choose what sort of school a child will
attend and the right to have input on [discrete school policies] . . . are cut from different cloth. The
former is almost self-evidently a fundamental decision about the child’s education, while the latter
is, at best, a ‘component of the educational process’ that Doe is attempting to ‘mask . . . with the
trappings of a fundamental right and then elevate . . . to the status of a fundamental right.’”)
(citations omitted); Bentonville Sch. Dist. v. Sitton, 

, 

, 771 (Ark. 2022)
(“Parents do have a liberty interest in shaping their child’s education . . . . [But] the District’s
[masking] policy is not, ‘beyond all question, a plain, palpable’ violation of the parents’
constitutional rights to care for their children.” (internal citations omitted).” Stand Up I, ¶ 29.

                                                  12
Satterlee v. Lumberman’s Mut. Cas. Co., 

, ¶ 18, 

, 

. “In determining whether the [policy’s] objective is legitimate, we examine . . . [its]

purpose, whether expressly stated or otherwise.” MCIA II, ¶ 22 (citing Satterlee, ¶¶ 34,

37). Here, both parties concede there is a legitimate, and even compelling, interest in

slowing the spread of COVID-19. The U.S. Supreme Court has also held “[s]temming the

spread of COVID-19 is unquestionably a compelling [government] interest.” Roman

Catholic Diocese, at 67. Thus, there is no question that the mask policies are related to the

legitimate governmental interest of stemming the spread of COVID-19.

¶24    Next, we must determine whether the mask policies are rationally related to

stemming the spread of COVID-19. Satterlee, ¶ 18. As noted by the District Court, in

Jacobson, the U.S. Supreme Court applied a deferential standard of review rejecting a

substantive due process challenge to mandatory smallpox vaccination, concluding

mandatory vaccination was constitutional as it had a real and substantial relation to

protection of public health and safety. In Jacobsen, the U.S. Supreme Court gave deference

to a state legislature’s decision to enact a mandatory smallpox vaccination and rejected the

challenger’s offers of proof that vaccination had no value as a means of preventing the

spread of smallpox or caused other diseases of the body:

       It is no part of the function of a court or a jury to determine which one of two
       modes was likely to be the most effective for the protection of the public
       against disease. That was for the legislative department to determine in the
       light of all the information it had or could obtain. It could not properly
       abdicate its function to guard the public health and safety. The state
       legislature proceeded upon the theory which recognized vaccination as at
       least an effective if not the best known way in which to meet and suppress
       the evils of a smallpox epidemic that imperiled an entire population.

                                             13
Jacobson, at 30.

¶25    The District Court found the mask mandates were rationally related to stemming the

spread of COVID-19 because they were generally applicable to any person who entered a

school building, and they were enacted only after consideration of recommendations from

the CDC, the American Academy of Pediatrics, the Montana Medical Association, the

Missoula City/County Health Departments, and other state and local health care providers

and agencies, all of which recommended universal masking.

¶26    Appellants presented studies offering alternate views on the efficacy of masking,

but they did not dispute that the School Districts had, prior to enactment of the mask

policies, considered information and recommendations of reputable public and private

health care providers and agencies, including the CDC, or that any of the reputable public

and private health care providers and agencies, including the CDC, had not recommended

universal masking. Consistent with Jacobson, the District Court gave deference to the

School Districts’ decision.   The court reasoned that the School Districts considered

reputable providers, including the CDC, which the court recognized as “the nation’s

leading science-based, data-driven, service organization that protects the public’s health.”

Thus, the School Districts’ decision to mandate masks was rationally related to stemming

the spread of COVID-19 considering the guidance by leading medical professionals. As

such, the District Court properly granted the School Districts’ summary judgment on

Appellants’ substantive due process claim.




                                             14
¶27    2. Did the District Court properly grant the School Districts’ motion in limine to
       exclude proffered testimony from Appellants’ hybrid witnesses?

¶28    A motion in limine is a pre-trial motion to prevent irrelevant, immaterial, or

prejudicial evidence from being introduced at trial. State v. Ankeny, 

,

, 

.

¶29    Here, the School Districts brought a motion in limine to exclude expert testimony

provided by Appellants’ hybrid witnesses. The proffered testimony related to specific

harmful effects masking can have on children, including oral health decline and speech,

communication, and swallowing deficits. Additionally, there was proffered testimony that

declared remote learning deficient compared to in-person learning and testimony that one

School District refused to provide any online education options at all. The District Court

granted the motion concluding that “testimony concerning whether masking causes the

maladies outlined by [Appellants’] proffered testimony (e.g., tooth decay, halitosis, speech

impediments) will not assist the Court in resolving the factual dispute, which is centered

around the reasonableness of the mandates as related to the goal of stopping COVID-19.”

¶30    To support its ruling, the District Court relied on precedent that stated “for expert

testimony to be relevant there must be a connection between the expert’s [testimony] and

fact testimony.”   State v. Jay, 

, 

, 

.

Additionally, the court considered whether expert testimony was sufficiently tied to the

facts of the case such that it would aid the jury in resolving a factual dispute. Jay, ¶ 29.

The District Court found the physical effects of masking, including oral health decline and

speech deficits, would not aid a jury in determining whether the mask policies were

                                            15
rationally related to stemming the spread of COVID-19. The court also pointed out, as

attested in the Parents’ depositions, none of their children experienced the physical

maladies described by Appellants’ experts. Based on the court’s reasoning, it is clear it did

not act arbitrarily, without conscientious judgment, or beyond the bounds of reason and did

not abuse its discretion. Accordingly, we find the District Court did not abuse its discretion

by granting the School Districts’ motion in limine.

                                      CONCLUSION

¶31    As the School Districts’ mask policies do not implicate fundamental rights under

Article II of the Montana Constitution, the District Court appropriately reviewed the

policies under the rational basis test. The District Court also appropriately granted the

School Districts’ summary judgment motion on Appellants’ substantive due process claim

based on the uncontroverted facts that the School Districts, prior to adoption of the policies,

considered information and recommendations of reputable public and private health care

providers and agencies, including the CDC, which all recommended universal masking.

Finally, the District Court properly granted the School Districts’ motion in limine to

exclude hybrid witness testimony because the proffered testimony was not relevant to

whether the mask policies were rationally related to stemming the spread of COVID-19.

¶32    Affirmed.

                                                   /S/ INGRID GUSTAFSON
We concur:

/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
                                              16