HIGH SCHOOL MOCK TRIAL - BAR HOSTS INAUGURAL STATE COMPETITION ALSO INSIDE: COVID-19 COVERAGE
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JUNE 2020 HIGH SCHOOL MOCK TRIAL BAR HOSTS INAUGURAL STATE COMPETITION ALSO INSIDE: COVID-19 COVERAGE QUARANTINE LAW IN MONTANA | CARES ACT & SBRA
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JUNE
2020
VOL. 45 ISS. 3
IN THIS ISSUE FEATURE ARTICLES
4 PRESIDENT’S MESSAGE
6 MEMBER NEWS
9 FASTCASE BYTES
11 YOU SHOULD KNOW
28 EQUAL JUSTICE
29 IN MEMORIAM
30 JOBS/CLASSIFIEDS
20
ON THE COVER HIGH SCHOOL MOCK TRIAL HAS DAY IN COURT
Twelve teams from all corners of the state — and dozens of
volunteer lawyers — in the inaugural event.
SPECIAL COVID-19 COVERAGE
Lars Phillips looks at quarantine law in Montana — PAGE 12
How did Congress’ pandemic response affect bankruptcy,
COURTROOM ART. The State provide consumer relief? — PAGE 16
Bar of Montana hosted the in- BETTR Section chair Justin Bryan offers tips on remote
augural Montana High School notarizations, safely executing documents — PAGE 25
Mock Trial Competition this
year, which included a court
artist contest, won by Sydney
NEW PROJECT ENCOURAGES EMERITUS STATUS
Loudermilk of Flathead High,
shown on the cover along Second Act Justice Project allows retired attorneys to provde
with the two runners-up. civil legal aid to — PAGE 28
WWW.MONTANABAR.ORG JUNE2020 3
PRESIDENT & EXECUTIVE DIRECTOR’S MESSAGE
State Bar pledges to continue to lead our
profession during these uncertain times
We are writing to you with a joint this may change the landscape of how
message for this edition of the Montana we deliver CLE credits in the future.
Lawyer during this unique time in There are many resources avail-
our lives, our country, and our great able to you online through the State
state. As you read this message, many Bar website and the American Bar
of you probably just finished one of Association to guide you through these
many Zoom meetings you will have difficult times and to provide you as
this week, attended court by Poly Com much information as possible. These
app, or met with a client in person resources range from articles regarding
while wearing a mask. How times have the economy, online CLE credits, job
changed since you received your last opportunities, COVID-19 resources,
Montana Lawyer. Given the current JULI PIERCE JOHN MUDD and the results of the most recent State
state of affairs in our country, we are Bar election.
also keenly aware of the need to con- Finally, the bar exam will proceed
tinue to be leaders who speak the trust, well and we hope it will go even more as planned in July with appropriate
stand strong, and hold up the rule of smoothly in the years to come. safety measures and social distancing
law in our communities. As attorneys Fiscally, the State Bar is strong and in place. The Board of Trustees have
we need to lead against injustice and continues to function very well dur- petitioned the Supreme Court to ex-
seek to continue to establish and up- ing these difficult times. All employees tend the student practice rule for those
hold justice in our communities. have been working remotely and there who are physically unable or do not feel
We write to bring you as many posi- have been no layoffs or temporary comfortable taking the July bar exam.
tive things as possible with this issue of furloughs. We welcome your comments on this
the Montana Lawyer. This issue brings Over the last several weeks, the petition.
you updates and photos from the first State Bar has offered many online CLE We wish you all nothing but contin-
annual Mock Trial competition that opportunities, most of them free of ued safety, health, and wellness. Please
took place in Helena in March. We had charge, and hundreds of you have taken take care of yourselves and each other
a great turnout and the high school advantage of the classes that we have and reach out to us at any time.
students did a fantastic job. Thank you offered. These are unique opportunities
again to all of you who gave your time because in a big state like ours where
Juli Pierce and John Mudd
on the weekend to judge and assist. We travel time often dissuades us from
look forward to many more years and attending out-of-town CLE meetings. President and Executive Director,
making this program even bigger in The pandemic has forced us to reassess State Bar of Montana
the future. The event turned out very how we offer CLE opportunities, and
Montana Lawyer Subscriptions are STATE BAR OFFICERS Elizabeth Brennan, Bozeman
a benefit of State Bar membership. Missoula
President Alanah Griffith,
Subscriptions for nonmembers are
Juli Pierce, Billings Erica Grinde, Missoula Big Sky
available for $50 per year.
President-Elect Brian C. Smith, Missoula Shane P. Coleman,
Advertising rates and subscrip-
Kate McGrath Ellis, Kaylan Minor, Dillon Billings
tion information are available upon
The official magazine of the State Bar Helena Channing Hartelius, Ben T. Sather, Billings
request or at www.montanabar.org/
of Montana is published 10 times a Great Falls Eli Patten, Billings
page/MTLawyer. Secretary-Treasurer
year. State Bar of Montana, 33 S. Last
Statements and expressions of David Steele, Missoula Paul Haffeman, ABA DELEGATES
Chance Gulch, Suite 1B, P.O. Box 577,
opinion appearing in the Montana Immediate Great Falls Tucker Gannett, Billings
Helena MT 59624. 406-442-7660; Fax
Lawyer are those of the advertisers or Past President Kent Sipe, Roundup (State Bar Delegate)
406-442-7763.
authors and do not necessarily reflect Eric Nord, Billings Danna Jackson, Helena Eli Patten, Billings
Montana Lawyer Staff the views of the State Bar of Montana. Chair of the Board (Delegate at Large)
J. Stuart Segrest,
Publisher | John Mudd Postmaster: Send address changes Brian C. Smith, Missoula Shane Vannatta,
Helena
Editor | Joe Menden to Montana Lawyer, P.O. Box 577, Missoula (Statewide
BOARD OF TRUSTEES Aislinn Brown, Helena
406-447-2200; fax: 442-7763 Helena MT 59624. Delegate )
Ryan Hennen, Kalispell Christopher Gray,
email: editor@montanabar.org
4 MONTANALAWYER WWW.MONTANABAR.ORG
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WWW.MONTANABAR.ORG NOVEMBER2018 25
WWW.MONTANABAR.ORG JUNE2020 5
MEMBER NEWS
CAREER MOVES Lyndes joins Jackson, she gets to be closer to her family.
Megan Moore Law, PLLC, will
Turner joins Ries Law Murdo & Grant focus on family law, criminal defense,
Group as attorney, Jackson, Murdo & Grant, P.C is and general civil litigation. Moore is a
project manager proud to welcome Erin M. Lyndes. proud member of the CJA panel for the
Lyndes joins the firm as an associate Billings district and serves as conflict
Ries Law Group, P.C., welcomes attorney focused on general civil litiga- counsel for the Montana Office of the
Robin Turner to the team as attorney tion and business and criminal law. She Public Defender. She is excited to get to
and project manager. graduated from know her new community and put her
Turner brings over 10 years of client the University of experience to work serving clients on a
representation, policy advocacy, and Montana in May personal level. For more information,
training experience to Ries Law Group. of 2019. During please visit meganmoorelawpllc.com.
She was the Public Policy and Legal law school, she
Director at the Montana Coalition was a member Missoula’s Cotner Law
Against Domestic and Sexual Violence
for the last five years, where she led a
of the National welcomes Geist to firm
Moot Court
statewide legal Team, interned Thorin Geist has joined Cotner Law,
services project at the Missoula- PLLC, law office in Missoula.
focused on serv- Lyndes
based firm Boone Geist graduated from the University
ing survivors of Karlberg, P.C., and of Alaska, Fairbanks, with dual degrees
sexual violence in completed a year-long clinic with the in psychology and criminal justice in
civil legal cases. Missoula County Attorney’s Office. 2005. In 2007 he earned his law de-
She also provided Lyndes was born and raised in gree from the University of Montana
policy strategic Helena and looks forward to working in School of Law, where he received the
leadership for the her hometown community. Carol Mitchell Award for excellence in
Turner organization and Alternate Dispute Resolution.
directed statewide
trainings on expert witness testimony,
Moore opens family law, Geist’s practice is focused on civil
and tort litigation, where he represents
mandatory reporting of child abuse, criminal defense, clients in a wide range of matters. He
survivor privacy and advocate confiden- civil litigation firm is also an experienced mediator and is
tiality, ethical obligations of attorneys routinely called on to serve as a special
serving survivors. Megan M. Moore (formerly Melvin) prosecutor for counties in Western
Turner currently serves on the is pleased to announce the opening of Montana.
Montana Attorney General Sexual her new solo practice, Megan Moore He previously was a deputy county
Assault Forensic Exam Task Force Law, PLLC, in Bozeman. attorney in Ravalli County.
and is a past co-chair of the Justice Moore graduated from the University
Initiatives Committee of the State Bar of Montana School Haynes becomes partner
of Montana. She is a current member of Law in 2017.
of the American Bar Association’s During law school at Joyce & MacDonald
Steering Committee on Supervision she interned at
Joyce & MacDonald, PLLP, is pleased
Best Practices for Domestic & Sexual Datsopoulos,
to announce that Michael W. Haynes
Violence Attorneys. MacDonald & Lind
has been named a partner of the per-
Formed in 2016, Ries Law Group and upon gradu-
sonal injury law firm
provides civil legal assistance to survi- ation, practiced
as of Jan. 1, 2020.
vors of domestic and sexual violence at Schulte Law
Haynes, a
in Western Montana, with a special Moore Firm and Cotner
Butte High School
focus on trauma-informed family law. Law in Missoula.
graduate, contin-
Attorneys Brandi Ries and Emily Lucas During law school, she was a member
ued his education
have a combined 18 years of legal of the National Moot Court team and
at Montana Tech
experience in family law, mediation, completed her clinical internship at
of the University of
and other holistic civil legal services for the Federal Defenders of Montana. She
Montana, graduat-
survivors of violence. The firm helped received the Montana Trial Lawyers
Haynes ing in 2009 with
to originate and currently supervises Association scholarship for her excel-
a bachelor’s degree
the Domestic Violence legal clinic at the lence in trial advocacy. She recently
in business and information technol-
Alexander Blewett III School of Law at made the move to Bozeman, where her
ogy. In 2013, he graduated from the
the University of Montana. husband owns an engineering firm and
6 MONTANALAWYER WWW.MONTANABAR.ORG
University of Montana School of Law of Montana School of Law in 2013. He
with a Juris Doctor degree. After pass- then clerked at the state court level in
ing the Montana bar exam, he began Yellowstone County for Judge Gregory
practicing law at Joyce, Johnston & Todd. After that, he prosecuted misde-
MacDonald, PLLP, now known as Joyce meanor and felony crimes as a deputy
& MacDonald, PLLP. county attorney with the Yellowstone
Haynes and his wife, Jessi, are excit- County Attorney’s Office. He then came
ed to be in Butte raising their 3-year-old to the civil side and represented injured
daughter, Isla and their 6-month-old workers in Montana at both Russ Plath
son, Enys. Gerstner Adam Law and Odegaard Miller.
Haynes and the legal team at Joyce Odegaard Miller Law, announce that
& MacDonald represent those who have they have joined to open Gerstner Silverman Law Office
been injured, abused, or hurt in any way
due to the fault of someone else. They
Adam Law in Billings. The firm will welcomes Paul to its
focus on representing plaintiffs in per-
take pride in getting fair treatment and sonal injury and workers’ compensation Bozeman office
compensation for their clients. claims.
Silverman Law Office has announced
Haynes can be reached at 406-723- Gerstner graduated from the
that Valerie Wyman Paul has joined
8700 or by appointment at his office University of Montana School of Law
the firm as an associate at its Bozeman
located on the main floor of the historic with honors in 2012. After graduation,
office.
Finlen Hotel at 100 E. Broadway in he served as a law clerk to Judge Susan
Paul will be offering services to
Butte. Watters in both state and federal courts.
Montana’s business sector as part of the
When his term as a law clerk expired,
firm’s virtual in-house counsel program,
Gerstner Adam Law Colin worked with some of the best
advising on com-
opens in Billings attorneys in the state at Bishop, Heenan
mon legal issues
& Davies. In August 2017, he formed
affecting business:
Colin Gerstner, formerly of Gerstner Gerstner Law.
commercial trans-
Law, and Paul Adam, formerly of Adam graduated from the University
actions, contracts,
real estate transac-
tions, labor and
Do you have clients who have been employment mat-
ters, intellectual
injured as a result of receiving Paul property issues,
and legal opera-
medical care in Washington? tions. Paul believes legal services should
be predictable, reliable, and available
“on demand” to help businesses with all
the challenges they regularly confront,.
If so, we can help. With 15 years in the practice of law,
Paul has developed a passion for work-
Our five-attorney firm limits its ing closely with business clients and
practice to medical malpractice individuals to achieve their objectives.
She worked for a Bozeman law firm
cases. We have represented before transitioning to in-house counsel
Montana residents in work at Montana owned and operated
such cases and would Town Pump, Inc., where she was able
to provide tailored advice to one of the
welcome your referrals.
state’s largest corporations.
While earning her bachelor’s degree
at the University of Nevada, Reno, Paul
Medical Malpractice. worked with lawmakers at the state
It’s All We Do. and federal level, triggering a lifelong
interest in the rule of law. She went
on to earn her Juris Doctorate at the
206.443.8600 University of Montana School of Law,
cmglaw.com graduating in 2005.
When she’s not working, she enjoys
WWW.MONTANABAR.ORG JUNE2020 7
exploring the wilds of Montana by foot, Spooner, CEO of Gravis Law. “As Jeff’s knowledge, and his advice to assist
ski, and boat. practice is national in scope, bringing lawyers in providing the best possible
his Business and Transactional law prac- representation of their clients.”
Heutmaker joins Gravis tice into the Gravis Law fold will help us James also noted that Drummond
to better serve our business and startup publishes the Montana Bankruptcy
Law’s Montana office clients both in the Flathead Valley and Reporter, a website that keeps track of
Jeffrey M. Heutmaker of Whitefish throughout the rest of the country.” and publishes Montana bankruptcy
announced that he has joined Gravis court decisions., and that he has taken
HONORS on an additional role as a Chapter 12
Law.
Heutmaker, who founded Trustee for a significant portion of
Heutmaker Law in 2004, has 31 years Drummond Receives Montana.
of experience practicing in corporate Professionalism Award In addition to publishing the
finance, mergers and acquisitions, Montana Bankruptcy Reporter,
intellectual property licensing and
from The Academy Drummond is the editor of the NACTT
general business law. He works with Robert G. Drummond of Great Falls Quarterly. He has been a member of
entrepreneurs and early- and later- was awarded the 2019 Don Torgenrud NACTT since 1992 and served as its
stage businesses in a variety of indus- Professionalism Award by The Academy president from 2012 – 2013. He has
tries, including software development, of the National Association of Chapter twice chaired the Montana Bankruptcy
biotechnology, 13 Trustees. Section. He has published numer-
medical and dental This award is made in memory of ous articles dealing with Chapter 13
devices, manu- Don Torgenrud to a member of the bankruptcy in several national publica-
facturing, power Bankruptcy Section of the State Bar of tions. (See page 16 for his article on the
sports, agriculture, Montana recognizing an individual who federal CARES Act and Small Business
internet commerce exemplifies the Reorganization Act.)
and infrastruc- highest standards
ture, retail services of professional Tanner appointed as
and energy. He conduct in their Appellate Lawyer Rep
will continue his everyday practice.
Heutmaker work in corporate He was nomi-
for 9th Circuit
finance and transac- nated by Doug Randy J. Tanner of Boone Karlberg
tional law with Gravis, and add ser- James of Moulton P.C. in Missoula has been ap-
vices in litigation, family law and estate Bellingham in pointed as an
planning. Drummond Billings. Appellate Lawyer
Gravis Law has grown from one “Bob plays a Representative for
location in Richland, Washington, at its unique role in Montana as the sole the Ninth Circuit.
founding in 2013 to 15 locations nation- Chapter 13 Trustee in our state,” James There are 22 rep-
wide. It was recently recognized in the said. “By focusing his practice on resentatives across
Inc. magazine’s “Inc. 5000” as the fastest Chapter 13, Bob has become an expert; the Ninth Circuit,
growing law firm in the nation. on Chapter 13 and on bankruptcy gen- and Tanner is the
“We believe having attorneys with erally. Bob has not used his expertise to sole representative
Jeff’s experience and expertise in fast- disadvantage others. To the contrary, he Tanner from Montana. In
growing and dynamic areas such as has used his expertise to elevate bank- this role, appellate
Whitefish will allow us to grow with ruptcy practice throughout the state. lawyers work closely with the Ninth
the entrepreneurial infrastructures that Bob has become a critical resource for Circuit judges to liaison various initia-
are being established outside of the all bankruptcy practitioners in Montana. tives, etc., with attorneys that regularly
traditional coastal regions,” said Brett He has given freely of his time, his practice in the Ninth.
Do you have news to share?
The Montana Lawyer welcomes news about Montana legal professionals including new jobs, honors, publications,
and other accomplishments. Please send member news and photo submissions to editor@montanabar.org. Email or
call 406-447-2200 with questions.
8 MONTANALAWYER WWW.MONTANABAR.ORG
FASTCASE BYTES
The State Bar of Montana offers free access to Fastcase legal research to all Active Attorney, Emeritus and
Paralegal Section members. Sign in at www.montanabar.org to access Fastcase.
Fastcase offers free
legal research CLEs
throughout the year
Every month, Fastcase offers free
webinars on how to conduct legal re-
search on its service. These webinars are
approved for live CLE credit in Montana
and many other jurisdictions. Visit
www.fastcase.com/webinars to see the
full schedule and register.
Law Street Media expands Intro to Legal Research on Fastcase 7
Dates presented: First Thursday of
coverage to food and agriculture every month
Webinar Time: 11 a.m. to noon
Did you know Fastcase offers free legal news? Mountain Time
Law Street Media is revolutionizing legal news by pro-
Data Analytics: Fastcase and Docket
viding smart, accessible, and practical content in a mod-
ern way. Using the latest in research and analytics tools, Alarm
content offered in the service is ahead of the curve and Dates presented: Second Thursday
enriched with the latest insights – and they’re just getting of every month
started. Webinar Time: 11 a.m. to noon
Law Street readers can find stories covering the tech Mountain
and agriculture industries. Links to complaints and other
Intro to Boolean on Fastcase 7
relevant documents are provided.
Some recent stories include: Dates presented: Third Thursday of
■ Efforts to include cannabis-related businesses in every month
COVID-19 relief packages Webinar Time: 11 a.m. to noon
■ A suit attempting to resolve whether a food com- Mountain
pany or a supplier should be liable for food poisoning Ethics and Legal Research Featuring
■ An appealed false advertising suit against Fitbit
Sign up for a free subscription to Law Street Media at
Fastcase
lawstreetmedia.com/ls-subscribe-basic-1. Dates presented: Fourth Thursday of
every month
Webinar Time: 11 a.m. to noon
Mountain
Fastcase launches 2 new webinar series during pandemic
Don’t miss out on Fastcase’s webinars weekly webinars. Catch research instruction webinars, these
new webinars, designed to keep the Work from Home Wednesdays noon series are not CLE accredited.
legal community engaged during Mountain Time and the COVID-19 Register or view recorded episodes at
the pandemic running weekly on Litigation Weekly on Fridays at 10 www.fastcase.com/blog/covid-19-
Wednesdays and Fridays. a.m. Mountain. webinars-and-more-from-fastcase/.
Fastcase has been running free Unlike Fastcase’s series of legal
WWW.MONTANABAR.ORG JUNE2020 9
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Fastcase is one of the planet’s most
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LEARN MORE AT
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10 MONTANALAWYER WWW.MONTANABAR.ORGYOU SHOULD KNOW
Smith elected State Bar of Montana President-Elect
Brian C. Smith of Missoula was elect- Area B (Lake, Mineral Missoula Stonecipher, Weamer & Kelly,
ed State Bar of Montana President-Elect Ravalli and Sanders Counties): Beth Bozeman.
in the recently conducted bar elections. Brennan, Brennan Law and Mediation,
Smith, the current Chair of the Board Missoula ; Erica Grinde, Missoula Gallinger appointed to
of Trustees, will be President-Elect start- County Risk Management and Benefits;
ing in September 2020 and will serve as Beth Hayes, Montana Legal Services
Commission on Practice
president beginning in September 2021. Association, Missoula. from Area H
Current President-Elect Kate Area C (Beaverhead, Deer Lodge,
Kelly Gallinger, of Brown Law
McGrath Ellis of Christensen & Prezeau Granite, Jefferson, Madison, Powell and
Firm in Billings, was appointed to
in Helena will take over as president in Silver Bow Counties): Kaylan A. Minor,
the Supreme Court’s Commission on
September. solo practitioner, Dillon, and city judge
Practice.
In other bar election races, Tucker for Dillon and Lima.
Gallinger was one of the top three
Gannett was chosen as State Bar of Area D (Cascade, Glacier, Pondera,
vote getters in a May election voted on
Montana delegate to the American Bar Teton and Toole Counties): Samir
by lawyers in Area H. The names of the
Association, and trustees were elected in Aarab, Boland Aarab PLLP, Great Falls;
three were forwarded to the Supreme
Areas A, B, C, D and G. and Gregory Smith, Smith Oberlander
Court, which appointed Gallinger.
P.C., Great Falls.
Trustee Election Winners Area G (Gallatin, Park and Sweet
Area H consists of Big Horn,
Area A (Flathead and Lincoln Carbon, Stillwater and Yellowsone
Grass Counties): Alanah Griffith,
Counties): Randy Snyder, Snyder Law Counties.
Griffith, Griffith and Cummings,
Firm in Bigfork. Big Sky; Matthew Haus, Tarlow,
Applicants sought for 18th Judicial District judge
Appliciations are now being ac- applications from any lawyer in good After reviewing the applications, re-
cepted for an 18th Judicial District judge standing who has the qualifications for ceiving public comment, and interview-
position that will be opening this fall. district court judge. The application ing the applicants if necessary, the com-
The Montana Supreme Court’s form is available electronically at the mission will forward the names of three
Judicial Nomination Commission made commission’s web page (courts.mt.gov/ to five nominees to Gov. Steve Bullock
the announcement on Friday, June 5. courts/supreme/boards/jud_nom). for appointment. The person appointed
The deadline for submitting applications Applications must be submitted elec- by the governor is subject to Senate
is 5 p.m., Monday, July 6. The position tronically as well as in hard copy. The confirmation during the 2021 legisla-
opening comes following the announce- commission will announce the names tive session. The position is subject to
ment that the Hon. Holly Brown of of the applicants after the application election in 2022, and the successful
the 18th Judicial District, which covers deadline. candidate will serve for the remainder
Gallatin County, has announced she is Public comment will be accepted on of Judge Brown’s term, which expires in
retiring effective Oct. 2. the applicants from July 7 through Aug. January 2025. The annual salary for the
The commission is now accepting 6. position is $136,896.
WWW.MONTANABAR.ORG JUNE2020 11CORONAVIRUS IN MONTANA
T
he history of quarantine
authority in the United
Quarantine
States is contentious; fears
of threatening diseases our
collective consciousness barely re-
members (e.g. cholera and typhus),
led to acts that, even in today’s cli-
authority
mate, seem incomprehensible (e.g.
groups of armed men preventing
train passengers from disembarking
due to fear of infection).1
Inevitably, quarantine restric-
in Montana
tions limit fundamental freedoms
and individual autonomy, like the
freedom of movement.2 To quar-
antine, government must stretch to
the limits of its emergency powers
to impose restrictions that are, at
best, loosely moored in statutes and
Historical precedent provides guidance regulations. Those statutes and reg-
ulations are at once relatively brief
on the basis, scope and limits and exceptionally broad.3 Under
the circumstances, it would be
of government’s ability to isolate reasonable to question whether any
quarantine measures could survive
state’s citizens in keeping them safe the strict scrutiny standard courts
typically apply to governmental
restrictions on fundamental rights.
By E. Lars Phillips and Lucas Hamilton But despite their seemingly tenuous
legal foundations, history suggests
courts are reluctant to interfere
with quarantine measures.
12 MONTANALAWYER WWW.MONTANABAR.ORGBackground are critical decision makers with rela- infrequent need for quarantine measures
In December 2019, a new coronavi- tively unlimited authority.10 Whether since the development of strict scrutiny
rus, now named severe acute respiratory the seemingly limitless nature of their jurisprudence. Or, it could be due to the
syndrome coronavirus 2 (SARS-CoV-2), authority is appropriate or a function of courts’ unwillingness to interfere with
emerged in Wuhan, China.4 The disease a community’s response to an existen- a fundamental power of the state: the
caused by this virus is referred to as tial threat is an open question. Local police power.
COVID-19 (CO for corona, VI for health boards, in particular, are on the
front lines. Such boards are required to
Quarantine and the police power
virus, D for disease, 19 for the year of
adopt regulations that protect the public In construing the source and scope of
discovery).5 While current research
health, provided that those rules do not the police power, the Montana Supreme
suggests most cases of COVID-19 do
conflict with statewide rules. Moreover, Court has invoked the maxim salus
not require medical intervention, severe
the statutory authority of local health populi est supma lex—the welfare of the
cases can lead to high fever, pneumonia,
boards does not require an emergency people is the supreme law.14 Put another
and organ failure.6
declaration — meaning these boards way, police power is the foundational
SARS-CoV-2 shares similarities with
may be the first governmental agency to principle upon which all civil govern-
two other well-known viruses — severe
respond to a health crisis.11 ment is built.15 To that end, “police
acute respiratory syndrome (SARS-
In the context of an infectious virus power extends to the protection of the
CoV) and Middle Eastern respiratory
such as SARS-CoV-2, a local health life, limbs, health, comfort and quiet
syndrome (MERS-CoV), and is easily
board must prevent and improve “con- of all persons, and the protection of all
transmitted between humans.7 Based on
ditions of public health importance” property within the state.”16 Although
early estimates, every individual infected
through epidemiological tracking and the spread of COVID-19 might lack
with SARS-CoV-2 is likely to infect ap-
investigation (contact tracing), screen- any modern precedent, history provides
proximately two individuals — resulting
ing and testing, isolation and quarantine some guidance.
in exponential growth of infections.
measures, collecting and maintaining In the late winter and spring of 1951,
Importantly, studies have document-
health information, and adopting any Yellowstone County confronted “sev-
ed that the spread of SARS-CoV-2 can
other public health measures allowed by eral” cases of canine rabies.17 State and
be slowed through the implementation
law.12 Additionally, a local health board local health officials enacted an emer-
of mitigation measures.8 Specifically,
must “bring and pursue actions and is- gency quarantine of all cats and dogs
studies have found that implementa-
sue orders necessary to abate, restrain, or in Yellowstone County to contain the
tion of quarantine, isolation, and social
prosecute the violation of public health outbreak. The quarantine required that
distancing may contain the spread of the
laws, rules, and local regulations.”13 all cats and dogs be vaccinated and kept
virus.9 These tactics became apparent
The statutes governing a local restrained and authorized law enforce-
in recent weeks, as government officials
government’s quarantine authority are ment to exterminate any cats or dogs
have ordered the closure of schools, res-
a clear indication that the Montana caught roaming at large. 18
taurants, bars, and other places where
Legislature has delegated significant Unfortunately, law enforcement had
people typically gather.
authority to local health boards. Due to to exterminate at least one dog during
In other words, mitigation measures
practical necessity, these statutes provide the quarantine. When the dog’s owner
are focused on creating circumstances
wide latitude for health officials to take sued for damages, asserting the govern-
where each infected person transmits
whatever actions the circumstances may ment had taken her property without
the virus to one individual (or less),
require. These statutes offer few explicit due process, the Montana Supreme
instead of two (or more) individuals,
limits on health officials’ authority, and Court held the quarantine order was
thereby stopping exponential growth of
as such, Courts are left to apply consti- squarely within the police power. The
infections. The virus will still spread, but
tutional tests to the quarantine measures Court discussed the circumstances that
it will not overwhelm the healthcare sys-
themselves—which are often adopted led to the quarantine order, but only
tem with the consequence of otherwise-
with little to no public process. in terms of the negligence claims law
preventable deaths.
For better or worse, there is relatively enforcement could have faced if it had
Basis of quarantine authority little caselaw directly considering the le- not shot the untethered dog. The Court
When dealing with infectious gal soundness of quarantine restrictions. held that the government action was an
diseases, state and local health officials This could be due to the fortunately appropriate exercise of the police power
WWW.MONTANABAR.ORG JUNE2020 13“regardless of any statutory or constitu- a practical precedent for the state’s broad circumstances required.26 In 1922, the
tional provisions whatever.”19 police powers to address COVID-19. Court recognized the authority of a lo-
Read broadly, Ruona stands for the Historically, this should be unsurpris- cal health board to require the sheriff to
proposition that “[a]ny rule made by ing. Consider the example provided by a quarantine and hold an individual with a
the board of health which has a reason- local health board’s action in Cambridge, contagious, communicable disease.27
able and direct relation to” a threat to Massachusetts.23 If necessary for public In 1960, the Court considered a prior
health or safety, Massachusetts law allowed version of a similar statute granting lo-
the public health is a proper exercise of
a local health board to require, and force, cal health boards the authority to enact
the police power, and further, that “the
vaccination of all inhabitants over twenty- rules and regulations “pertaining to the
determination as to the means of meeting one years of age. In 1902, in the midst of a prevention of disease and the promotion
a threatening situation [is] vested in the smallpox epidemic, the Cambridge health of public health.”28 The vagueness of this
board of health, and not in the courts.”20 board determined that vaccination against grant of authority prompted the Court to
There are many differences between smallpox was necessary and ordered the wonder whether a local health board could
“several” cases of rabies in Yellowstone same. A resident refused vaccination was “prescribe a series of physical exercises for
County in 1951 and the hundreds of criminally prosecuted and convicted.24 the populations within their areas for the
confirmed cases of COVID-19 across Subsequently, the question concern- promotion of public health.”29 Further,
Montana. These differences, however, ing the scope and effect of the statute at the Court implied that statutes that do not
are more a matter of degree than of issue arrived at the United States Supreme provide for review of actions taken in the
kind. COVID-19 has a far lower mortal- Court. The Court noted state constitu- furtherance of public health may run afoul
ity rate than cases of rabies in humans, tions are fundamentally social compacts of due process requirements.
among all citizens to promote the com- Ultimately, the Court invalidated the
but SARS-CoV-2 is highly infectious
mon good.25 The consequence and benefit statute as an unconstitutional delegation
and capable of rapid spread. Given the
of this bargain is the occasional exchange of power because it provided the lo-
experiences of China and Italy, and the of freedom for security. In the context of a cal health board “unascertainable limits
current lack of a vaccine for COVID-19, pandemic, the pendulum may swing fur- within which to act,”30 raising the question
emergency circumstances certainly exist ther towards security than most thought of whether today’s statutes would survive
requiring decisive and dramatic action. possible, at the clear expense of civil liber- similar review. In other words, do the
A century ago, the state faced a pan- ties and human rights. current statutes contain appropriate due
demic that forced state and local officials process safeguards and provide, with “rea-
to implement many of the same quaran- Boundaries of quarantine authority sonable clarity,” the limits to a local health
tine measures being considered today. Because the authority of state and board’s authority?
In 1918, the Spanish flu forced officials local health officials—granted by statute For actions pursuant to the state’s
to close schools, churches, theaters, and and grounded in the police power—has police power, based in the uniformly broad
dance halls.21 Sporting events and other been relatively unchallenged and uncon- interpretation of the same, it can be argued
public gatherings were cancelled, and even strained, the outer limits of their authority that the only ‘ascertainable limit’ with which
large funerals were no longer allowed.22 in the face of a pandemic remains largely a local health board must comply is the ob-
Despite the scope and severity of these undefined. ligation to ensure its actions are not clearly
quarantine measures, it appears the Court In 1906, the Montana Supreme Court oppressive and arbitrary.31 From a more lo-
was never asked to review the reasonable- implied that a local health board has calized perspective, administrative guidance
ness or constitutionality of the govern- the authority to construct, at its citizens from the Montana Department of Public
mental response to the Spanish flu. In the expense, a quarantine hospital, includ- Health and Human Services does place
absence of caselaw, the measures stand as ing purchasing the requisite land, if some limitations on a local health board’s
exercise of its authority. For example, the
Department has set out specific notice
requirements that must be adhered to in the
event a patient is isolated or when individu-
als who have come into contact with an
infectious disease are quarantined.32
Looking forward, examples of action in
the global effort against the spread of SARS-
CoV-2 can provide interesting thought
experiments into the scope of measures local
health boards can enact. For example, Israel
is currently using citizen’s mobile phone
data to identify and track, and enforce quar-
antines on, infected individuals. In order to
do so, Israel passed an emergency law. Based
on the discussion above, could a local health
board pass such a measure in Montana?
On March 13, California Gov. Gavin
Newsom issued an emergency order
14 MONTANALAWYER WWW.MONTANABAR.ORGannouncing, in part, the ability of the state some level, that the risks posed to these indi- (COVID-19) outbreak – an update on the sta-
to commandeer property, including hotels viduals by SARS-CoV-2 may outweigh the tus, Military Med Res 7:11, at 2 (2020) (available at:
https://doi.org/10.1186/s40779-020-00240-0).
and medical facilities, as necessary for value of continued incarceration in certain 8 Zhang, Sheng, et al, Estimation of the re-
quarantining, isolating, or treating individu- circumstances. productive number of Novel Coronavirus (COVID-19)
als infected with COVID-19. Though it has It is incumbent upon state and local and the probable outbreak size on the Diamond
not proven necessary during this pandemic, governments to act to protect the public Princess cruise ship: A data-driven analysis, Int. J.
the Montana Supreme Court has implied health—Ruona v. Billings tells us that to do Infect. Dis. 2020 (February 22, 2020) (available at:
https://doi.org/10.1016/j.ijid.2020.02.033).
that local health boards have the authority otherwise may be negligent. These actions 9 Roy M. Anderson, et al, How will
to build quarantine hospitals. Is it unreason- impact all aspects of our daily life. They are country-based mitigation measures influence the
able to think they do not have the power to as necessary as they are extreme. On March course of the COVID-19 epidemic? 395 The Lancet
commandeer hotels to create them? 13, the day the first in-state cases were 10228, at 931–934 (March 9, 2020) (available at:
announced, the idea of closing bars and res- https://doi.org/10.1016/S0140-6736(20)30567-5).
The Importance of Advocacy taurants — let alone stay-at-home directives 10 Mont. Code Ann. § 50–2–116.
11 Compare id. (general authority of
Consider the story related by Professor — may have seemed preposterous, and yet health board to adopt regulations for the control
Felice Batlan in her article Law in the it was not the first time in Montana’s history of communicable diseases) with Mont. Code Ann. §
Time of Cholera: Disease, State Power, and such economically painful measures had to 10–3–104 (general authority of governor following
Quarantines Past and Future: In September be taken. declaration of emergency or disaster).
12 See Mont. Code Ann. § 50–2–116(f).
1892, the ship Normannia arrived in New Though stay-at-home directives in 13 Id. at § 50–2–116(i).
York, with two passengers infected with Montana have been replaced by a phased re- 14 Ruona v. Billings, 136 Mont. 554,
cholera. The passengers on the Normannia opening, COVID-19 is still here and further 557–558, 323 P.2d 29, 31 (Mont. 1958).
were ‘cabin-class.’ Tickets for cabin-class action by state and local officials could still 15 Id., 323 P.2d at 31; accord Crandall, 73
were far more expensive than tickets for be on the horizon. With each act to combat U.S. at 39 (police power “is indispensable to the
existence of a State government”).
‘steerage-class.’33 New York officials pro- the pandemic, compromises will be made, 16 In re Mont. Pac. Oil & Gas Co., 189
ceeded to quarantine all passengers. Cabin- and unintended consequences will follow. If Mont. 11, 14, 614 P.2d 1045, 1047 (Mont. 1980)
class passengers were allowed to remain on it is incumbent upon the state to protect the (quoting Ruona, 136 Mont. at 558, 323 P.2d at 31).
board, while steerage-class passengers were public health, it is likewise incumbent upon 17 Ruona, 136 Mont. at 556, 323 P.2d at
delivered to hastily constructed holding it to provide an opportunity for aggrieved 30.
facilities.34 18 Id., 323 P.2d at 30.
parties to be heard and a remedy for the
19 Id. at 560, 323 P.2d at 32.
While cabin-class passengers publicly unintended consequences those protections 20 Id. at 559, 323 P.2d at 31 (citations
excoriated officials for preventing their cause. omitted).
departure from the ships, it soon became 21 Tracy Tornton, 100 years ago: ‘Spanish
apparent that the steerage-class quarantine Lars Phillips is an attorney practic- flu is epidemic in Butte and drastic measures must
ing in Bozeman. Lucas Hamilton is an be taken . . .’, Montana Standard, Nov. 4, 2018
experience was even more horrific. Reports
attorney practicing in Helena. (available at https://mtstandard.com/lifestyles/
found that the quarantine camps contained years-ago-spanish-flu-is-epidemic-in-butte-and-
conditions “so deplorable and unsanitary drastic/article_725d50c7-974d-56d5-b0de-
that it is difficult . . . to describe it in temper- 2585e8d0edc7.html); Lorna Thackeray, A century
ate language.” The lack of toilet facilities,
for example, relegated individuals to use Endnotes ago, Spanish flu ravaged Billings in community’s
deadliest epidemic, Billings Gazette, Dec. 3, 2018
(available at https://billingsgazette.com/news/
sections of a rocky beach both to relieve 1 Felice Batlan, Law in the Time of local/a-century-ago-spanish-flu-ravaged-billings-
themselves as well as bathe, with attendant Cholera: Disease, State Power, and Quarantines in-communitys/article_2a899a1e-ac0f-5210-9461-
consequences—including the needless in- Past and Future, 80 Temple Law Review 53 (2007) c2300dbbb776.html).
fection of otherwise healthy individuals.35 (providing an excellent summary of the evolution 22 Tornton, supra, note 22; Thackeray,
of quarantine law and contest between federal and supra, note 22.
While lawyers and the judicial system state authority). 23 See Jacobson v. Commonwealth of
were involved in the dispute over whether 2 Shapiro v. Thompson, 394 U.S. 618, Massachusetts, 197 U.S. 11, 12 (1905).
cabin-class passengers could disembark, 630 (1969); United States v. Guest, 383 U.S. 745, 24 Id. at 12–14.
the tribulations of steerage-class passengers 757–758 (1966); Crandall v. Nevada, 73 U.S. 35, 44 25 Id. at 26–28.
went unremedied for some time. (1868). 26 Yegen v. Bd. of Comm’rs of Yellowstone
3 See e.g., Mont. Code Ann. §§ 10–3–104, Cty., 34 Mont. 79, 85 P. 740, 743 (Mont. 1906).
What role should lawyers play in 50–2–116. 27 Ex parte Caselli, 62 Mont. 201, 204 P.
the current pandemic? The Montana 4 Wei-jei Guan, Ph.D., et al, Clinical 364, 364–365 (Mont. 1922)
Constitution, and its emphasis on individual Characteristics of Coronavirus Disease 2019 in 28 Bacus v. Lake Cty., 138 Mont. 69, 79,
rights, places the state in a unique position. China (February 28, 2020) (available at: https:// 354 P.2d 1056, 1061 (Mont. 1960).
Bacus v. Lake County and Caselli inform www.nejm.org/doi/full/10.1056/NEJMoa2002032) 29 Id., 354 P.2d at 1061.
5 CDC, Coronavirus Disease 2019 30 Id. at 81, 354 P.2d at 1062.
that due process still matters, even in the (COVID-19) Frequently Asked Questions (available 31 See e.g. Jew Ho v. Williamson, 103 F. 10
face of an infectious disease. Marginalized at: https://www.cdc.gov/coronavirus/2019-ncov/ (C.C.N.D. Cal. 1900); Wong Wai v. Williamson, 103
populations need advocates—and no faq.html). F. 1 (C.C.N.D. Cal. 1900).
population more so than those made 6 Tianbing Wang, et al, Comorbidities and 32 See e.g. A.R.M. 37.114.308 (providing
vulnerable by operation of law. Concerns multi-organ injuries in the treatment of COVID-19, notice requirements for isolated patients); A.R.M.
The Lancet (March 21, 2020) (available at: https:// 37.114.307 (providing requirements when quaran-
related to incarcerated individuals provide www.thelancet.com/journals/lancet/article/ tine of individuals is warranted).
an example. To that end, our Chief Justice PIIS0140-6736(20)30558-4/fulltext)/ 33 Batlan, supra, note 2, at 81.
has taken extraordinary steps to indicate, on 7 Guo, Y., et al, The origin, transmission 34 Id., at 81–85.
and clinical therapies on coronavirus disease 2019 35 Id.
WWW.MONTANABAR.ORG JUNE2020 15SBRA & CARES ACT
Relief in federal COVID-19 response includes
Chapter 11, Chapter 13 bankruptcy changes
By Robert Drummond Bankruptcy Code for businesses and ■ A debtor proceeding under the
consumers facing COVID-19 related SBRA does not have to file a disclo-
The Small Business Reorganization financial stress. This article examines ap- sure statement, unlike traditional
Act1 (SBRA) was signed by President plication of these two Acts and the relief Chapter 11 debtors.
Donald Trump on Aug. 26, 2019, and they offer to Montana businesses and ■ A court can confirm a plan
took effect in February 2020. The Act consumers.
under the SBRA even if all impaired
made changes to the Bankruptcy Code to
assist small businesses and some individ- CONSUMER AND BUSINESS classes vote to reject the plan.
uals in a streamlined financial reorganiza- BANKRUPTCY CHANGES ■ The SBRA eliminates the tra-
tion process. ditional Chapter 11 absolute priority
The SBRA was enacted to make
Six weeks after the effective date of the rule, which precludes lower classes of
bankruptcies a faster and less expensive
SBRA, the Coronavirus Aid, Relief and process for small businesses and certain creditors from receiving distributions
Economic Security (CARES) Act2 was individuals under the new subchapter unless the claims of creditors in each
signed into law on March 27, 2020.3 The V of Chapter 11. Debtors with total above class are paid in full. Thus, the
Act includes suspensions of foreclosures noncontingent, liquidated debts (both debtor’s equity holders may retain
and evictions, payment relief, financial secured and unsecured) of no more than their interests without contributing
assistance, and numerous other consum- $2,725,625 are now allowed to seek relief new value.
er protections. under subchapter V under the SBRA. ■ It allows individual debtors
These two Acts offer protection and This limitation was temporarily raised in to modify certain residential mort-
relief to small businesses and individu- the CARES Act. The new subchapter of- gages where the underlying loan was
als in Montana. The SBRA supplements fers many advantages over reorganization made primarily in connection with
Chapter 11 of the Bankruptcy Code under Chapter 11 of the Code: the debtor’s commercial or business
simplifying the reorganization process ■ There are no creditors’ commit-
for small businesses and individuals. activities as opposed to being used to
tees unless court ordered. purchase the residence.
The CARES Act makes changes to the
16 MONTANALAWYER WWW.MONTANABAR.ORGWWW.MONTANABAR.ORG JUNE2020 17
Reference
NEW CASE
Card Number
Estimates based on recent Chapter 11 from making mortgage payments for up creditor shall report that account with the
statistics show that up to half of Chapter to 180 days and then request an addi-**** ****same**** 4242
status as prior to the accommoda-
tional forbearance for up to another 180
11 debtors will be eligible to file under the tion to a consumer reporting agency.
SBRA. days. The Act does not reference taxes or That is, if an account was current it shall
The debt limitation for subchapter insurance which may be collected and continue to be reported as current, while
V cases was raised to $7.5 million under escrowed by the lender. However, during a delinquent account shall continue to be
the CARES Act. Other eligibility require- the forbearance period, no fees, penal- reported as delinquent. The exceptions
ments are unchanged by the CARES Act. ties or interest may accrue on a debtor’s are (1) the provision does not apply to
After the March 27, 2021, sunset date for account beyond amounts scheduled or charged-off accounts and (2) if the ac-
calculated as if the borrower made all
eligibility, the debt limitation amount will count was delinquent and the consumer
return to $2.7 million. payments on time. manages to bring the account current
Chapter 13 Changes. The exist- During the 120-day period beginning during the period of accommodation, the
ing Bankruptcy Code offers debtors the on the Act’s enactment date, the lessor of account shall be reported as current.
chance to reorganize and restructure debt a “covered dwelling” may not file a court
repayment under a three- to five-year action for eviction or charge additional HEROES ACT
Plan. Debtors may repay home mortgage fees for nonpayment of rent. After that
5 The House of Representatives on
arrearages, priority tax and child support 120-day period, the lessor cannot require May 12 passed HR 6800, the Health and
claims and retain nonexempt property the tenant to vacate until it gives the Economic Recovery Omnibus Emergency
under Chapter 13. The CARES Act per- tenant a 30-day notice to quit. See § 4(c). Solutions (HEROES) Act. Although
mits individuals and families currently A covered dwelling is one where the likely not in its final form, the proposed
operating under Chapter 13 Plans to seek building is secured by a federally backed legislation extents and expands the evic-
revised payment Plan modifications due mortgage loan or participates in certain tion and foreclosure moratorium in the
to the COVID-19 pandemic. These debt- federal housing programs. CARES Act and extends forbearance pro-
ors may extend their payment Plans for Gov. Steve Bullock executed Executive visions for student loans. It also specifies
up to seven years after their initial Plan Orders 2-2020 and 3-2020 to declare a certain home loan modification and loss
payment was due. Thus, this circumvents state of emergency in Montana. His direc- mitigation programs that should be avail-
the five-year limitation for repayment tive implementing his Executive Order, able following a moratorium to prevent
Plans appearing under current Chapter dated March 30, 2020, limited residential any homeowner from facing foreclosure
13 law.4 Again, this provision has a one- foreclosures and evictions. This action if they cannot pay the skipped payments.
year sunset date. The Act also excludes specifically did not suspend payments The bill would also raise the debt limita-
COVID-19 related payments from the that were due during the duration of his tions in the bankruptcy code to make
disposable income calculations under directive. more individuals eligible for chapter 13.
Chapter 13. Student Loans. The CARES Act also What is clear is that the financial
offers relief for federal student loan bor- impact of COVID-19 on consumers and
CONSUMER RELIEF rowers. However, borrowers with Perkins businesses will be widespread. The SBRA
Federal foreclosure and eviction loans or Federal Family Education Loans and the CARES Acts offer some short-
suspensions. The CARES Act provides (FFEL) still held by banks or guarantee term relief for virus related financial
foreclosure relief for federally backed agencies are not protected. Direct loans hardships.
loans for residential properties pur- and qualified FFEL borrowers will have
chased, securitized, owned, insured, or Robert Drummond is a Chapter 13
their payments suspended through Sept.
Trustee from Great Falls.
guaranteed by Freddie Mac or Fanny 31, 2020. Borrowers with federally held
Mae or owned, insured, or guaranteed student loans will automatically have
by Federal Housing Administration their interest rate set to 0% for a period of Endnotes
(FHA), Veterans Administration (VA), at least 60 days and will have the option
and the U.S.Department of Agriculture to suspend their payments for at least 1 Pub. L. No. 116-54.
(USDA). In 2018, just under half of all two months to cope with the national
2 Pub. L. No. 116-136
loan applications in Montana were FHA, emergency.
VA, or USDA based applications. Under The Treasury Department 3 The CARES Act offers relief to businesses
the CARES Act, the servicer of a federally has exempted the Social Security and consumers facing financial stress as a
backed mortgage loan may not initiate Administration from offsetting benefit result of the COVID-19 epidemic.
any judicial or nonjudicial foreclosure payments against tax debts, student loans,
4 11 U.S.C. § 1325(b)(4)
process, move for a judgment to fore- or mortgage deficiency payments.6
close, order a sale, or execute a foreclo- Fair Credit Reporting. The CARES 5 CARES Act § 4024(b).
sure related eviction or foreclosure sale. Act7 provides minimal protections
The provision lasts for at least a 60-day regarding credit reporting. From Jan. 31, 6 Treasury Technical Bulletin No. 2020-7
period beginning March 18, 2020. This 2020, until 120 days after the end of the
provision is not limited to borrowers with national state of emergency, if a creditor 7 CARES Act § 4021
a COVID-19 hardship. has made an accommodation (such as a
Homeowners of federally backed forbearance or workout) for a consumer
mortgage loans may obtain forbearance pursuant to the state of emergency, the
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WWW.MONTANABAR.ORG JUNE2020 19MOCK
TRIAL HAS
DAY IN
COURT
12 teams compete in
first Montana high
school mock trial
competition
By Joe Menden
Organizers for the Montana High
School Mock Trial Competition
thought their goal the tournament’s
first year was an ambitious one – at-
tracting six teams. After all, previous at-
tempts to drum up support for a state-
wide competition were unsuccessful at
drawing the two schools with compet-
ing teams –the minimum required for
a National Mock Trial Championships
qualifying tournament.
So when 12 total teams from across
the state filled the Montana Capitol
for the March tournament – one that
featured intense competition and an
awards ceremony with cheers loud
enough to rival game day in some
college football stadiums – it was a suc-
cessful debut by any measure.
According to State Bar of Montana
20 MONTANALAWYER WWW.MONTANABAR.ORGYou can also read
