Countersuit Claims State’s Attempt to Enforce Mask Directive Was Politically Motivated

Five businesses sued by health department won a victory in court last week; countersuit alleges action was brought in part to boost Gov. Steve Bullock’s campaign for U.S. Senate

By Andy Viano
Montana Gov. Steve Bullock. Beacon File Photo

The five Flathead County businesses taken to court by the Montana Department of Public Health and Human Services (DPHHS) claim they were sued in part because Gov. Steve Bullock wanted to create headlines during the final weeks of his failed campaign for U.S. Senate, according to five counterclaims filed in Flathead County District Court on Nov. 18.

The wide-ranging filings echo many of the arguments lawyers for the five businesses — Sykes Diner and Mercantile, Scotty’s Bar and Casino, Remington Bar and Casino, Ferndale Market and Your Lucky Turn Casino — made in court on Nov. 12, when Judge Dan Wilson delivered a stinging rebuke of the state’s attempt to force the five to comply with an order issued by Bullock on July 15 that required businesses to make a “reasonable effort” to ensure masks were being worn by employees and customers.

Near the end of the hearing, as it became evident which way Wilson was going to rule, lawyers Bruce Fredrickson and Connor Walker attacked the state’s motivation for bringing the suits and asked the judge to award financial compensation for legal fees and lost revenue to the defendants, in addition to ruling in their favor. Wilson declined to go that far, but the counterclaims take another crack at a similar request, using substantively similar arguments.

In the courtroom last week, Walker, who represents Remington Bar, said the state asked for the injunctions “for the purpose of getting headlines in an election year,” and Fredrickson, the lead counsel for the other four businesses, called the cases “frivolous” and said they were brought in late October for “ulterior reasons.” According to this week’s filings, the businesses’ attorneys claim those “ulterior reasons” included an effort by Bullock to draw attention to himself with the race for U.S. Senate winding down, and an effort to pressure other local businesses to act more forcefully to enforce the mask directive.

In their defense, the businesses argued that they had done as much as they could — asking employees to wear masks, posting signage encouraging patrons to do the same and, in some cases, supplying masks and sanitation supplies — and that addressing each person who was unmasked was unreasonable, unconstitutional and, at times, dangerous. The counterclaims allege the July 15 directive itself is unconstitutional, violating protections for individual dignity, freedom of assembly, freedom of speech and the right to privacy, and that DPHHS overstepped its authority by attempting to act against the businesses without warning.

As for the state’s alleged political motives, the filings harken back to an Oct. 7 press conference where Gov. Bullock singled out Flathead County as one of the state’s COVID-19 hotspots and urged local leaders to “stand up and do more.” The Flathead County Commission responded to that news by issuing its own statement, saying it would not take any action to mitigate the spread of COVID-19 and endorsing residents who chose to disobey the mask directive. When the Flathead City-County Board of Health met to consider additional restrictions proposed by the local health department on Oct. 15, Flathead County Attorney Travis Ahner cautioned against the move because he questioned its legality. The board declined to impose any new restrictions at that meeting and all subsequent meetings.

The five businesses assert in their counterclaims that DPHHS sought the injunctions to pressure the county commission and county attorney, and in retaliation for the non-enforcement stances they have taken. Furthermore, they claim DPHHS was intent on “garnering headlines” for Bullock and his administration, and accuse the governor and his staff of spreading news of the lawsuits before the businesses themselves had been notified.

Bullock held a press conference on Oct. 22, one day before lawsuits against four of the five businesses were filed, announcing the suits were coming and calling the offending businesses “egregious violators” of the mask directive. The cases were filed in Flathead County District Court early the following morning and the businesses were served notice later that day.

The state said the businesses were targeted because few, if any, employees and customers at each establishment were seen wearing masks when visited by state sanitarians during the week of Oct. 20. The governor’s mask directive, however, does not include any mechanism for enforcing the directive other than leaving it to local authorities, and does not define what “reasonable measures” businesses are expected to take. Bullock enhanced that directive earlier this week, expanding it to all Montana counties — not just those with at least four active cases, as it had been since July 15 — and imposed additional restrictions on businesses, limiting capacity to 50% and forcing establishments to close by 10 p.m.

The state had not responded to the counterclaims by the end of the day Nov. 20 but issued a statement to the Beacon on Saturday.

“While we are still reviewing these claims, it is our hope that the defendants are working in good faith to protect the health of their staff and customers,” they wrote. “As the defendants seek to expand the lawsuit, we are working to find additional healthcare workers to assist the local hospital in the Flathead because so much of its current workforce is in quarantine or isolation. Cases continue to skyrocket, hospital bed space is running low, and healthcare workers are exhausted. With rampant community spread, the situation needs to be taken seriously.”

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Update (Nov. 21, 2:07 p.m.): This story now includes comment from the Montana Department of Public Health and Human Services.

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