Hunting season has come and gone, and many Montanans have found themselves purchasing ammunition, firearms, and other tools of the trade over the past several months. If you are looking to add a silencer to your tool belt, now is the time to start planning. Many know that it takes months, if not close to a year, to obtain the silencer. 

A firearm trust can be used under the National Firearms Act of 1934 (NFA) and 1968 revision of the Gun Control Act to include silencers/suppressors, large caliber weapons, and other specialized firearms. NFA weapons have to be registered with the Bureau of ATF and may only be possessed by the registered owner, unless the weapon is in a trust.

Why Do I Need a Firearm Trust? Firearm trusts have several benefits, one of which includes the ability to have more than one person able to possess the weapon. This is important so that family members and close friends aren't committing an accidental crime when they allow their family member to borrow their rifle with a silencer during a hunt. Firearm trusts also allow the owner to have a gun or silencer held in trust, enabling the owner to pass the firearm or silencer on to beneficiaries as the owner desires. Other firearms can be placed in a firearm trust as well if one desires. Firearm trusts can also be helpful at the end of life, when it comes to distributing the firearms of the owner in an effort to ensure they are distributed the way the owner wishes, privately and legally, and outside of probate.

How Do I Use the Firearm Trust? Once the firearm trust is established, the Trustmaker or "responsible person" is able to purchase a firearm or silencer in the name of the trust. The document is provided as part of the application process, and the silencer or firearm is purchased in the name of the trust. It is a common misconception that a background check is not required for a firearm trust purchase. In 2016, the law changed to require background checks, even with a firearm trust, and the background check must be done by a "responsible person", generally the trustmaker. 

Many Montanans are interested in owning a silencer for their hunting rifles and other firearms. A firearm trust is a great way to ensure that silencers are able to be used by the owner's family without legal complications. Contact a trusted attorney to help you set up your firearm trust and start the process of setting up your firearm trust and obtaining a silencer. 

- Jill 

No matter where you fall on the spectrum of political viewpoints, recent news will no doubt leave you wondering what authority the government does or does not have. And if you aren't wondering, you should be. At the end of the day, no matter your beliefs, government mandates will impact you. So, let's talk about what a mandate is, and whether the government has the authority to mandate vaccines.

1. What is a Mandate? The first step is to figure out what a mandate actually is. It is a loosely used term that has been thrown around more in the last 18 months than in the last 18 years. A mandate is defined as "an official order to do something." In other words, it's an order. Generally, the mandates being ordered are done through the Executive Order powers of the government. So where does the government get the power to issue Executive Orders? Article II of The United States Constitution gives the President broad executive power. Executive orders can be called mandates and can have sunset clauses, taken off the books at a later date or be found unconstitutional by the courts and struck down. If you are interested in reading the text of the President's most recent executive order requiring vaccinations, see here. 
2. Can the Government Force a Vaccine? We saw this coming. If you recall my blog several months ago regarding mask mandates, I wrote about the Jacobsen v. Massachusetts, 197 U.S. 11, case from 1905. In Jacobsen, Mr. Jacobson challenged a State mandate mandating the smallpox vaccine, based on an unreasonable invasion of his liberties. The Supreme Court of the United States held that it was not unconstitutional for the State to order a smallpox vaccine due to the State's "police power" which allows the State to protect the health and welfare of its people." To sum this up, the United States Supreme Court ruled 115 years ago that it was ok for a State to inject people with a vaccine in a time of public crisis. Some have wondered if that same ruling of the Supreme Court applies in the case of the Federal Government (President) issuing a mandate. You can bet there will be more Court rulings in the future on this questions.
3. What about an opt-out? Many are familiar with the opt-outs provided for those who have a religious or medical exemption for vaccine mandates. Importantly, the executive order mandating vaccination does have a clause allowing for an opt-out in the case of a religious or medical exemption. This should not come as a surprise to us, as vaccine mandates have had opt-outs for religious and medical reasons since 1898, when the British Vaccination Act of 1898 provided a clause to allow exemptions to the smallpox vaccination. All 50 states have allowed children to be exempted from vaccination requirements for medical reasons, and 47 states allow exemptions to vaccination based on religious reasons. Some states require more stringent proof of sincere religious belief, but the idea of an exemption is not new to us. 

So, where does this leave us? Americans have found themselves in great disagreement with the appropriate handling of government mandates, specifically in the last 18 months. It is important for all Americans to educate themselves and stay informed in order to make the best decisions for yourselves. We hope this blog can provide unbiased, factual information about the current happenings and how the laws play into the decisions being made. 

- Jill 

Let's talk about sex. School is starting again, which means that - whether we like it or not - young people are bound to start mingling. Having had many conversations over the last several years with parents, friends, and community members, it has become apparent that most people don't know the laws surrounding sex between young adults. So, let's talk about it. 

1. Age Limits: An age old phrase "Stat Rape", short for "statutory rape" is commonly used when talking about the laws surrounding sex between a younger person and an older person. Montana Law requires that a person be 16 years old to consent to sex. To put it bluntly, if someone is having sex with another person under age 16, that person is committing a serious crime. Let that sink in as you think about the young people you know having sex, and their ages. So, when your 15 year-old daughter comes home giddy about her 17 year-old boyfriend, it might be time to talk.
2. Consent: Consent related to sex is defined in Montana under M.C.A. 45-5-501. Consent "means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further described but not limited to the following: an expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn; a current or previous dating or social or sexual relationship by itself or the. manner of dress of the person involved with the accused in the conduct at issue does not constitute consent; and lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent." So, what does that actually mean? ​It varies, unfortunately, but it should be obvious. A solid YES. Or body language that tells you it is a solid YES. 
3. Alcohol and Consent: Ok, here is where things get tricky. Montana Law states that a victim is incapable of consent if the victim is incapacitated, which is further defined as being impaired to the extent the person lacks sufficient understanding or capacity to communicate responsible decisions concerning the person. See M.C.A. 72-5-101. In other words, if the lady or guy you are having sex with is drunk, they can't consent. Think for a second about the experiences you have had or the stores you have heard with young people having drunk sex. 

Why is this important? Mainly, because people don't even know these are laws. Young people are out having a great time, and the next thing you know they are facing a felony charge entitled Sexual Intercourse without Consent for having sex with their girlfriend/boyfriend who is under 16, or having sex after leaving the bar on a Saturday night. If the charge sounds scary, I assure you, the penalties are worse. See M.C.A. 45-5-503. Let's all take the time to talk to our kids, other people's kids, and the young people that we care about to educate them and let them know what the rules are. Let's not wait until we are sitting in a courtroom watching the life of a young person crumble in front of our eyes. Feel free to reach out with any questions about this issue.
​- Jill 

What better time to write about Freedom of Speech, than the week of Independence Day. The Supreme Court recently addressed freedom of speech in Mahonoy Area School District v. B.L., in a case discussing a high school student's expressed frustration with the school on Snapchat. The high school cheerleader had tried out for the cheerleading team, and did not make it. So she posted a couple of photos on her Snapchat with middle fingers raised, stating "Fuck school fuck softball fuck cheer fuck everything." The school suspended the student from the team, and so ensued this case. 

I'll remind parents now, this might be a good time to read the other blog post on protecting your kids from social media trouble, found here. 

So, was the student's off campus speech, on her smartphone, via Snapchat, protected under the First Amendment? The Court said YES. The Court, in its holding, reminded that students do not "shed their constitutional rights to freedom of speech or expression" even "at the school house gate." See ​Tinker, 393 U.S. at 506.  The Court went on to say that Minors are entitled to significant measures of First Amendment protection. There are some instances in which the student speech may be regulated in the school: lewd, vulgar speech uttered on school grounds or during school assembly; speech uttered during class that promotes "illegal drug use"; and speech that others may reasonably perceive as bearing the imprimatur of the school (such as statements in school newspapers). And finally, the Court has held that schools do have a special interest in regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of rights of others." See Tinker, at 513. 

So, even though the school may have the right to limit speech of a student in certain circumstances, the Court has held that generally, there are a few circumstances where student speech cannot be regulated. First, off-campus speech should normally fall within the zone of parental responsibility, rather than school responsibility. Second, courts are more skeptical of a school's effort to regulate off campus speech, because doing so may result in the student not having any right to free speech, at all. And third, schools should work to ensure that future generations understand the workings in the well-known statement: "I disapprove of what you say, but I will defend to the death your right to say it." In other words, schools should encourage students to express the unpopular opinion and engage in meaningful conversation. 

In summary, the Court found that the student's speech about the school was essentially criticism of the team, the coaches, and the school. It did not involve any statement that would place it outside the normal First Amendment protections. While crude, the statement did not amount to fighting words and did not pose a threat. In fact, had the student been an adult, the speech would have been provided strong protection under the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 461 (2011), a case which held that the First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate." 

So, what does this mean for your kids? Can they say what they want, when they want? Not really. The Court relied heavily on the fact that this student's statements were made outside the school grounds and outside of school hours. The Court also relied on the fact that these statements were not shown to disrupt the school in any way, other than a few small conversations by students who had seen the post. Finally, the Court considers whether the parents should be acting, or if it is speech that the school should be regulating. 

In the words of George Orwell, "If liberty means anything at all, it means the right to tell people what they do not want to hear." Happy Independence Day, Friends. 

​- Jill 

Divorce is a topic that many hope they never find themselves researching, but there has been an increase in divorce over the last year, and if you find yourself in that position, you should be prepared. Below are some tips for navigating the divorce process from start to finish. Hope you find these tips helpful.

1. Is There An Agreement? The first question you should ask yourself is whether you and your spouse are in agreement. Are you in agreement that a divorce needs to happen, and are you in agreement with how things should be settled? If so, you may be able to proceed with a divorce action without an attorney. While it is always a great idea to consult with an attorney, Montana has done an excellent job of providing resources to those who may not be able to afford that option, and find that they can get things done themselves. See this link for forms on filing a divorce and parenting petition in Montana, and some very helpful information to guide you through that process. 

2. Do you have minor children? If you have minor children, the most commonly discussed area will certainly be the parenting plan. Most parents find themselves wanting the most amount of time they can get with their children, and this piece of the divorce puzzle can be very difficult emotionally. If you have minor children, and you and your spouse are not on the same page with regard to the parenting of those children, it would be a good idea to find an attorney. An attorney can be a great resource to provide you with reasonable expectations, the law regarding parenting time, and what to expect in a parenting plan. One of the biggest issues with parents doing a parenting plan without an attorney tends to be the lack of information contemplated in that plan. Unfortunately those parents often end up needing to remedy those issues at high-stress times. When children are involved, it is a great idea to have an attorney as a counselor to guide you through that process. 

3. What is the First Step? Whether or not you have an attorney or represent yourself, the first step in getting a divorce moving will be for one party to file a Petition for Dissolution action. This person filing the petition will serve their spouse, and their spouse will then have 21 days to respond to the petition. This starts the process for divorce, but know that the process is still a long ways from being complete. There are many steps between filing and finality, and patience is a virtue. 

4. What Can I Expect? Divorce is an emotional process, and you should expect that the process will probably not go perfectly. The settlement of property and the parenting of children requires big decisions to be made, and taking your time is a good idea. You can expect in Montana that the Judge may order mediation to be done prior to seeing the Judge. Many Judge's in Montana require mediation prior to trial, in an effort to allow the parties to settle without going to court and having a full trial. 

5. ​What is Mediation? Mediation is a private, confidential, informal dispute resolution process where an impartial third party (the mediator) assists parties in resolving their differences. See M.C.A. 26-1-813. In other words, mediation is a meeting with a third party mediator where the mediator tries to help the parties work out a resolution with regard to the divorce: property settlement and parenting if necessary. Your settlement offers and statements you say in mediation cannot be used against you in trial. The goal of mediation is to provide parties with an opportunity to speak freely and openly about what they may be willing to settle for, without feeling like that could be used against them if they don't settle and have to go to court. Mediation can be a fruitful process, saving the parties many long hours of stress, anxiety, and legal fees in preparation for trial. To be successful in mediation, be prepared and ready to talk about all of the issues that need to be settled. 

6. ​What if We Have to go to Court? If you have to go to court, that means you have likely exhausted all the discussions about settlement and have a trial date set by the Court. You will need to make sure you have all of your witnesses (people who can testify about the issues you need to bring up) and exhibits (documents you need the Judge to see to make a decision) ready to go and given to your attorney if you are represented. Preparation and organization will serve you well if you end up in Trial. 

In summary, do your research and do some self reflection when deciding how you want to proceed with divorce. If you feel like you and your spouse may be able to resolve things on your own, feel free to utilize the resources above. If you feel like you and your spouse could use some assistance or will have difficulty communicating throughout the process, it would be a good idea to get an attorney involved and have their assistance. Hope these tips are helpful in navigating this difficult process.

-Jill 

Well, we are on Day 45 of the Montana Legislative Session and the people of Helena are busy. If you are interested in what's happening in Helena, and what may or may not affect you, I would suggest going here for an overview.
Here are some new laws that I thought might interest my readers: 
​

1. HB 102: This one is a big one for Montana Gun Owners. The purpose of the bill is : " to enhance the safety of people by expanding their legal ability to provide for their own defense by reducing or eliminating government-mandated places where only criminals are armed and where citizens are prevented from exercising their fundamental right to defend themselves and others."  In summary, this one changes were concealed carry permit holders are allowed to carry, changes the game with Universities prohibiting possession of firearms on campus, the carrying of a concealed weapon without a permit, and drawing a weapon when a person feels threatened. If you own a gun and live in Montana, you're going to want to read this one. It can be found here.
2. HB 108: Montana Hunters will want to review this one, and some of the other hunting laws that are in the works. This one relates to trespassing on private land for hunting purposes. Gone are the days of trespassers carrying around wads of cash to pay their trespass fine and keep on causing problems. This new law allows for repeat trespassers (second offense or more) to face a suspension of hunting/fishing privileges. And remember, losing your hunting/fishing privileges in one state means you lose them in 48 states. This one can be found here. 
3. SB 61: This is a fun one. Montana now offers FREE FISHING on Mother's Day! Father's Day has been a Free Fishing Day for a while, but this one lets the Moms have fun too. 

There are many other laws in the works that might interest you. I would suggest doing a search for topics of interest so you can see what's happening. If you have questions about what is coming, please feel free to send a message or comment and I will provide updates as they are available. 

Stay informed, educate yourself, and keep up to date. These things matter to all of us in one way or another. 

- Jill 

So your kid is in trouble. I know, you all think it won't happen to you. You are a good parent. You set rules and boundaries, and you teach your kids respect. Your kid has good grades. The teachers love her. He would never do anything to disappoint you. It's all well and good, except for one thing: kids are kids, and sometimes they do things we wish they wouldn't. 

Let's start with the why. Kids can get in trouble for a variety of reasons, and with varying degrees. But one thing is certain: kids make poor decisions. Recent research has shown that juvenile brains do not fully develop until the age of 25. Twenty-five. Think about what you were doing at 25, and then consider that your brain wasn't even fully developed. Because this information is still relatively new, many children have been treated as adults in the criminal justice system. We are now faced with undoing some of those mistakes. 

Now that we know why even the best of the best kids might make a really poor decision, let's talk about what to do if it happens in your family. 

First, make sure you understand the seriousness of what is going on. Is your kid facing a misdemeanor? A curfew violation? A felony? The varying degrees of seriousness are really important in how you move forward. If your kid broke curfew, you can probably work that out without hiring an attorney. But if your kid is facing a felony, take it seriously. 

Next, find out if a juvenile probation officer is involved, assuming your kid is under 18. If so, this person can be an extremely valuable resource for you to assist with navigating the seriousness of what has happened and making a decision as to how to move forward.  

Once you have assessed the seriousness, your next step is likely to make contact with an attorney. This can be a valuable meeting and you will likely learn from that person how to handle moving forward. Your attorney can also assist with meetings with investigators, if necessary. Make sure your attorney has experience dealing with juvenile offenses if your child is under 18. There are different laws regarding juveniles and your attorney needs to be well-versed in that area. 

Often times parents call my office when it's too late. Their kid has already seen the Judge and pled guilty. Or their child went to the police and confessed to everything, or worse, lied about everything. Don't wait until it's too late. Be proactive. This is not a time to let your kid "learn lessons the hard way" as the charges will follow them around for a very long time, depending on their age and the seriousness of the offense. 

Here's hoping that your children are never faced with a legal battle. But if you do find yourself in that position, contact a lawyer and be proactive. You will get through it, and your kid still has a future. 

​- Jill 

​Ok, friends, Hunting season is upon us here in Montana. With archery season in full-swing and rifle season coming up next, I thought this would be a good time to remind everyone of the laws surrounding hunting in Montana.

Many hunters - both seasoned and rookie - get themselves into predicaments without even intending to do so. The FWP regulations can be confusing and even those who have spent significant time reading the regulations may have a hard time fully understanding the nuances of the FWP laws.

Top Mistakes Made In The Field:

1. Trespassing: Likely the most common hunting and fishing violation in Montana is trespassing. The easiest way to be sure you aren’t breaking this law is to get yourself a GPS or Smartphone software to know where you are. Montana Code Annotated 87-6-415 governs trespass in the FWP laws. It is the hunter’s responsibility to know where they are hunting, and if there is any question, the hunter should ask permission. Many landowners in Montana allow hunters to access their land with permission or through government agreements. Don’t be the guy who ruins it for the other hunters by trespassing on land that doesn’t belong to you. An interesting note: some people think that if you pay the minimal trespass fee, that will be the end of it. However, if you shoot an animal while trespassing, you could be on the hook for Unlawful Possession of a Game Animal and be facing stiffer penalties, such as losing your animal and/or hunting privileges.
2. Shooting Over or Across a Road: Ok, this one may seem obvious: don’t shoot from the road. But it’s not that simple. Montana Code Annotated 87-6-403 says that it is unlawful for a person to hunt or attempt to hunt any game animal on, from, or across any public highway or the shoulder, berm, or barrow pit right-of-way of any public highway.. So what is a highway? When I think of a highway, I think of paved roads and highly traveled roadways. But “highway” is defined as “the entire width between the boundary lines of every publicly maintained way when any part of the publicly maintained way is open to the use of the public for purposes of vehicle travel.” In short - “highway” includes your favorite gravel road to road-hunt from. Make sure that if you do spot a big buck while driving down that old dirt road, you get yourself out of the vehicle and far enough off the road to protect yourself. Note: if you get caught violating this law - you lose your hunting and fishing privileges for 24 months.
3. Failure to Keep Evidence of Gender: Montana Code Annotated 87-6-406 requires that any hunter who kills a game animal shall retain evidence of sex of the animal with the carcass until it is processed. This one can be easily forgotten when you’re in the field with your harvested animal and don’t feel like packing out the evidence of sex from 4 miles in that deep canyon. While a violation of this law won’t get you a mandatory hunting/fishing license suspension, the law does allow for the Judge to suspend your hunting/fishing privileges if they see fit.
4. Hunting from a Vehicle: Ok road hunters, this one is for you. Montana Code Annotated 87-6-405 makes it unlawful to hunt or attempt to hunt any game animal from a motor vehicle. This includes chasing antelope in a stubble field at 60 mph (not that anyone reading this would ever do that). This also includes driving a vehicle on roads that are closed to motorized vehicles. Remember, we don’t want to ruin our access to private and public land by driving all over the places we aren’t supposed to be driving. Importantly, this one also comes with a mandatory 24 month suspension of hunting/fishing privileges, so make sure you aren't breaking the rules on this one.
5. Shooting before/after Shooting Hours: Remember, don’t shoot outside shooting hours. The FWP provides a table specific to these hours so you can be sure you aren’t making a mistake. The table can be found here: http://fwp.mt.gov/fwpDoc.html?id=8989. No, you can't use your smartphone weather app to tell you when sunrise/sunset is. The FWP table is the only time you are supposed to be relying on when hunting. 

As mentioned, some FWP violations can result in you losing your hunting/fishing privileges. The loss of privileges can be compounded for each violation you make, and you could end up with no meat in the freezer for a decade before you know it. Not only that, the fines for each of the charges are huge. Even worse, you could lose Grandpa’s rifle that you cherish when the FWP takes the rifle you used as evidence. Don’t take these laws for granted, they are important and come with stiff penalties.

These are just the most common mistakes made in the field. Make sure you understand all the regulations and the changes that are made yearly. The most recent FWP regulations can be found here: http://fwp.mt.gov/hunting/regulations/. If you aren’t sure if you are breaking a rule or have broken a rule, do your research or call someone for help. Better to be safe than sorry - especially when it comes to losing your hunting/fishing privileges for years moving forward.

Good luck, have fun, and be safe. And if you find yourself in a bind, call an attorney.
- Jill



​

A criminal record can be something that lurks around like a big dark cloud. But the good news is, that storm can pass with Montana’s Laws allowing for expungement of a criminal record. You know the story - you went to that party in college and it got busted. You were given an MIP ticket, paid your fine, and went about your life. Nothing to worry about right? But then, you grew up, got a real job, and they pulled your record. That MIP from when you were 18 years old suddenly becomes a big deal. Let’s think about this another way: You got in a bar fight that one time 15 years ago. You paid your fines, served your night in jail, and moved on. But then you applied for a Concealed Weapons Permit, and the application asked about your criminal history. Even the most minor criminal conviction can affect you for the rest of your life. 

So what do you need to do to protect your criminal record? In 2017, Montana created a route to get your criminal record expunged. Montana Code Annotated 46-18-11 outlines the procedure for expungement of a criminal record in Montana. The process is fairly straight forward, but you may find you need legal representation to assist you with the process. 

Depending on the type of crime you are attempting to expunge, the general process requires these steps:

1. File a petition with the district court where the conviction occurred. The petition will request the court to expunge the records of arrest, investigation and detention, and any court proceedings that may have been held. 
2. Depending on the crime, expungement could be presumed. If you have not been convicted of any offense for 5 years, have completed all you court requirements, and the prosecutor is in agreement, the expungement is likely presumed.
3. Some crimes will not be presumed, and the process requires a bit more procedure. If you have been convicted of Assault, Partner Family Member Assault, Stalking, Sexual Assault, or DUI (and potentially others), the court must consider certain factors before making a determination on expungement. 
4. No matter the situation, every petition must be served on the County Attorney’s office where the offense was committed. If there is a victim, the County Attorney has a duty to notify the victim. It’s always good to reach out to the County Attorney before filing the petition, so you know the position and can relay that information to the Court.
5. Finally, if the Judge grants your request, you must file a form with the Department of Justice to finalize the process of getting your record cleared. This form must be filed with a new fingerprint card. The form can be found here: https://media.dojmt.gov/wp-content/uploads/ExpungementRequestForm.pdf.

Your Criminal Record is important, and should be treated that way. If you find yourself with a black cloud lurking over your shoulder, and you’d like to get it taken care of, consider petitioning for expungement of your criminal record. This is one of the best investments you can make in your future. 

-Jill 

The Montana Governor announced a directive yesterday ordering mandatory face coverings in certain public settings in Montana.

In summary, the Governor's directive requires that all businesses, government offices, or other persons responsible for indoor spaces open to the public require and take reasonable measures to ensure that all employees, contractors, volunteers, customers, or other members of the public wear a face covering that covers their mouth and nose at all times while entering or remaining in any indoor spaces open to the public. Additionally, the directive requires businesses open to the public to post a sign at all points of entry indicating that a mask or face covering is required for ages 5 and older.

Additionally, the directive requires masks or face coverings to be worn at outdoor activities where social distancing is not possible or observed. 

Certainly there are exceptions to the mask requirement: children under the age of 5, people consuming food or drink in a public establishment, people doing strenuous exercise or swimming, people speaking to the hearing impaired, people performing in a theatrical setting when the audience is 6 feet away, people removing their mask for identification, people receiving medical treatment, and people with a medical condition precluding the safe wearing of a face covering. 

Within minutes, the strong personalities of Montana have expressed their opinions on what is "legal", "constitutional", "protected", etc.  Many are thrilled, many are angry, and many just want to know what their duties are. 

So, let's get to the issue: Is the Governor's Directive Unconstitutional? Can it be enforced? What happens if I don't wear one? What if I have a disability?

1. Is it Unconstitutional? Legal professionals from around the country have been wrestling with this question since the beginning of the COVID-19 issues, and the short answer is, likely the Courts would say it is a Constitutional directive. The United States Constitution's 10th Amendment and the United States Supreme Court Decisions over the last couple-hundred years show that the State government has the authority to control the spread of dangerous diseases within their jurisdiction. It is important to know the laws on government mandates to answer this question. While we have all heard that we are in "unprecedented" times, when it comes to government mandates, we are certainly not in an unprecedented time. In Jacobson v. Massachusetts, 197 U.S. 11, a Supreme Court case from 1905,  Mr. Jacobson challenged a mandatory smallpox vaccine, based on an unreasonable invasion of his liberties. The Supreme Court of the United States held that it was not unconstitutional for the State to order a smallpox vaccine due to the government's "police power" which allows the government to protect the health and welfare of its people." To sum this up, the United States Supreme Court ruled 115 years ago that it was ok for a government to inject people with a vaccine in a time of public crisis. Given that Supreme Court ruling, it seems as though a requirement for people to wear a mask in public places during a time of public health crisis would also be held constitutional. 
2. Enforcement: I have heard many concerns about how this directive can or will be enforced. The directive states that it can be enforced by the Attorney General, the County Attorney, DPHHS, or other local authorities under the direction of the County Attorney. The directive is enforceable only against businesses and other persons who are responsible for indoor spaces open to the public, or sponsors of organized outdoor activities as defined in the directive. Law enforcement and local public health agencies are directed to focus their enforcement of this Directive on education, providing warnings and education about the risk of transmission, while reserving the imposition of penalties and other formal enforcement for ​only the most egregious, repeated violations that put the public at risk. Remember, the Governor's directive is only Constitutional when it is used to protect the public. This directive does not allow for enforcement against individuals for not masking up or for not masking up their kids. 
3. What If I Have a Disability Preventing Me From Wearing a Mask?  Many have expressed a concern about wearing a mask or face covering due to having a disability. I have heard from many that they have a disability and they don't have to wear one, and the business can't ask them about their disability because of HIPAA. Let's all make sure we understand the laws. HIPAA (Health Insurance Portability and Accountability Act) applies to the privacy and security of certain health information and establishes national standards for the protection of health insurance information, specifically in the health care industry. This is not what is at play here. When it comes to a disability, and accommodations in a public business, the Americans with Disabilities Act (ADA) applies. Not surprisingly, the ADA and the Department of Justice have already addressed the claim that because someone has a disability, they are automatically exempt from this directive. There is no blanket exemption to people with disabilities, and the document/card floating around facebook claiming the exemption with the Deparment of Justice Seal is fraudulent (See https://www.justice.gov/opa/pr/department-justice-warns-inaccurate-flyers-and-postings-regarding-use-face-masks-and). The ADA is an anti-discrimination law, meaning that persons with disabilities should be given legal protections and accommodations. While there is no new ADA law on the issue of requiring face masks, the ADA has issued guidance to businesses to accommodate those with disabilities who are unable to wear a face covering.  There are many special provisions and policies that have been adopted under the ADA due to COVID-19. The bottom line is this: if you have a disability, the business is not required to allow you to do business as usual. Rather, the business is required to attempt a reasonable accusation for your disability. Maybe that means a less-invasive type of face covering. Maybe that means curbside pickup. But understand that the business does not have to offer a reasonable accommodation if the accommodation will be a fundamental alternation to the services offered, if it creates an undue burden to the business, or if it poses a direct threat to the health and safety of others. So, to answer the question that seems to be circulating heavily these days, "can the business ask what my disability is?" No. The Business should only ask: "Is not wearing a mask or face covering an accommodation to a disability?" And "What benefits do you receive from not wearing a mask?" The Business should then be prepared to accommodate the individual who is unable to wear a face covering. 

Here's the summary: The Governor's directive can be found here: 
https://dphhs.mt.gov/Portals/85/Documents/NewsLetters/MaskDirective.pdf.
Read it, ask yourself questions, and attempt to understand what it says. The directive may not even apply to you or your situation. If you have a question about whether or not it applies to something you are doing, ask questions. Understand the enforcement allowed under the directive is not first with policing, but rather, education. If someone in your community is providing false information, help educate them. 

I hope this information is helpful to those of you trying to sort out the new directive, as I found myself doing yesterday afternoon. If you have questions or concerns about the enforceability of this directive, feel free to ask. 

- Jill 

This blog post is for information purposes only, and does not constitute legal advice.