Darrell Ehrlick

(Daily Montanan) The district court judge presiding during a two-year court battle over how the state allowed residents to change a birth certificate didn’t just strike down a 2021 law as unconstitutional. He held the state in contempt, ordered it to pay the plaintiffs’ attorneys’ fees for the entirety of the months-long litigation, and issued a scathing rebuke to the Montana Attorney General’s Office for how it handled the case.

Yellowstone County District Court Judge Michael G. Moses issued the order on Monday and struck down a 2021 law that had technically been enjoined for two years and would have required a surgical procedure in order to change a birth certificate.

Moses had issued a temporary injunction against the law shortly after it was enacted, which meant a previous 2017 law would be in effect. However, on seven different instances (a point Moses highlighted in bolded ALL CAPS), lawyers for the American Civil Liberties Union of Montana went to court trying to enforce compliance with the injunction, as well as a reinstatement of the previous birth certificate procedures.

Neither the Montana Attorney General’s Office nor staff for Gov. Greg Gianforte could be immediately reached for comment on Tuesday morning.

Each time, the state responded with a litany of legal and technical excuses, including an appeal to the Montana Supreme Court to argue that Moses’ orders had been vague, an argument the high court rejected.

On June 1, the ACLU attorneys argued for a second time for contempt charges to be brought against the state for refusing to re-institute the 2017 process for changing birth certificates. Though a new assistant attorney general had recently taken over the legal case, he told the court that he “had his hat in his hand,” and could find no defense for why the attorney general or the Gianforte administration had not complied with the court order.

“The court respects the candor of the new defense counsel to finally come before this court with ‘hat in hand.’ However, defense counsel could not provide a legitimate explanation of any kind for the continued noncompliance of his clients,” Moses wrote. “There is no legal justification for defendants’ continued refusal to follow court orders after numerous clarifications by this court and the Supreme Court of Montana.

“Plaintiffs requested that defendants be held in contempt of court. While this court refrained from such a decision in September 2022 after defendants’ initial refusal to follow the temporary injunction, such restraint is no longer valid.”

Moses found the state in contempt, struck down the law as violating both the state and federal constitutions, and invoked a legal doctrine meant to reimburse a private organization for having to enforce constitutional laws that rightly should have been the state of Montana’s to enforce. Because of that, the judge ordered the state to pay for all legal costs associated with the trial because it refused to follow the court’s decisions.

“(The State) repeatedly disobeyed a lawful order from this court, showing their contempt for this judicial body and the judicial system as a whole,” Moses said. “In the hearing held June 1, plaintiffs stated that defendants had ‘managed to completely frustrate the entire process of the preliminary injunction.’ This court agrees.”

Alex Rate, legal director for ACLU-Montana, said that beyond striking down the law as unconstitutional, the ruling sent a powerful message about what happens when court orders are disobeyed.

“There are consequences,” Rate said.

On the matter of law, Moses said Senate Bill 280 was impermissibly vague – a side which both the state and ACLU eventually agreed upon. Both sides, for different reasons, said the law was too vague.

“Here, the court confronts a statute that both sides have agreed cannot be enforced because it is premised on a factual impossibility,” the court said. “Because the law cannot be complied with in any application, it is void on its face.”

Rate said that eventually, even attorneys had to admit the law was impossible to defend.

“The unfortunate reality is that we rely on courts as the last bastion and protection of our democratic rights and values,” Rate said.

Rate said costs for the ACLU and the attorneys working on the case, as well as expert witnesses called on to provide testimony, will be totaled soon, but he was not able to hazard a guess at the total bill. Moses held out a possibility of a hearing if there was a dispute over the legal fees in the ruling, but remained hopeful the lawyers could negotiate a settlement.

Because the issues surrounding SB 280 were directly related to due process in both the federal and state constitutions, Moses spent considerable time in the 20-page ruling building a step-by-step basis for why he was awarding the attorney’s fees. In his ruling, he zeroed in not on the lawmakers who passed the “vague” law, but how the state Attorney General’s Office, as well as Gianforte administration, refused to comply with the law, and failed to protect citizens’ rights:

“In this case, the government fought to enforce a law that they later conceded was unconstitutional. It was necessary for plaintiffs, as a private party, to bring this case in order to vindicate a critical constitutional right.  Further, plaintiffs exerted considerable effort over nearly two years in order to enforce the Due Process Clauses of the Montana State Constitution and the United States Constitution. Not only did they have to enforce constitutional rights, plaintiffs also had to exert additional effort to enforce this court’s preliminary injunction and order from the Supreme Court. Defendants were in contempt of court for large portions of this litigation.”