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.

Do I really need a lawyer? Couldn't I just do this myself? I mean, I watch a lot of Law and Order. It can't be that hard, with the assistance of a google search-bar. These are all thoughts that cross the minds of many people when considering whether or not they need a lawyer. Many times the question of whether or not a person really needs a lawyer is crossing their mind due to finances. Sometimes, people might truly assume they'll be fine without one. And sometimes you may not actually need a lawyer. This post will provide some guidance on things to consider when making this very important decision, resources for legal help if you can't afford an attorney, and resources for times when you might be going at it alone.
 
Deciding if you need a lawyer:

1. Consider calling around or doing a quick google search and finding lawyers who offer free consultations. It never hurts to set up a free consult, meet with the attorney, and decide if you need assistance or if you can go at it alone. Many lawyers offer free consults, and will provide 30+ minutes of time to make this important decision. 
2. If you are facing criminal charges, the general rule is yes, you need a lawyer. Criminal charges are important, and come with serious collateral consequences that are often overlooked. If you find yourself looking at a criminal charge, it is important to know what you are facing, including the consequences that may not be so obvious. 
3. If you are dealing with other legal issues, think about how much time you have to commit to the issue. Legal work is time-consuming, and can be confusing. If you simply don't have the time or energy, it may be worthwhile to find a lawyer for some help.

Deciding which lawyer to hire:

1. When you meet with a lawyer, you should feel comfortable talking about personal matters, and feel comfortable with your lawyer's communication. Communication is one of the most important pieces of a lawyer-client relationship, and if you don't communicate well at the first meeting, you probably shouldn't work with each other. This is when the "free consultations" become important. 
2. Feel free to ask about the lawyer's experiences with your particular issue, inside and outside of the courtroom, and even personal case experience. Most lawyers are happy to share their expertise with you, and let you know whether or not they are comfortable taking on your case. 
3. Ask around, if possible. If you know others who have used the lawyer, ask about their experience. If you know people who work in the justice system or with the Courts, ask about their experience. 
4. Consider that lawyers are a personal fit. You should feel comfortable with your lawyer, and confident in the representation, but most importantly, you should trust your lawyer. 

I decided I don't need a lawyer - now what?

1. If you are going to court, dress like you are going to church. Show the Judge you are taking it seriously, wear your nice clothes, and talk respectfully. Judges want to know that you take all matters in the legal system seriously, and dressing the part is the first step in showing you are serious.
2. If you are going to file something with the Court, write with professionalism and be courteous to everyone involved. Most people in the Courts and other parts of the legal system are more than willing to help, with a little kindness. 
3. If you are talking to a Judge, show respect. "Your Honor" is the way to address the Judge, at all times. This shows the Judge that you know the roles of the parties, you have done your homework, and you came to court ready to handle your matter with professionalism. 

Resources:

1. Check in with lawyers in your community about pro bono work. This means the lawyer would represent you for free. Many lawyers do a certain amount of pro bono cases or hours per year, and yours could be considered. Many lawyers will also consider reduced rates, payment plans, or other affordable options. 
2. If you have been charged with a crime, and you can't afford an attorney, contact the Office of Public Defense for the State of Montana. Their contact information can be found here: http://publicdefender.mt.gov. 
3. If you need legal assistance that does not involve being charged with a crime, contact the Montana Legal Services Association. Their contact information can be found here: https://www.mtlsa.org.
4. If you are looking to represent yourself, but just need some guidance on getting started, the Montana Supreme Court website provides forms for many areas of the law here: https://courts.mt.gov/Forms.

If you have any further questions about legal representation, or representing yourself, please feel free to reach out to our office for additional guidance or a Free Consultation. 

-Jill

We've all found ourselves driving that bumpy dirt road in the mountains of Montana when we come across a sign that reads: "We don't call 911. Trespassers will be shot. Survivors will be shot again." Many Montanans have flippantly joked about this for decades. These days, as we watch the media scroll across our TV's and the Facebook posts fill our minds, these jokes don't seem too far off. Many people are wondering when they can legally protect themselves in the event of a threat of harm. Montana has several laws regarding "self-defense" or "justifiable use of force" and hopefully this post will provide you with some guidance on what the law allows.

I'm Being Attacked in Public: A person is justified in using force against another person when the person reasonably believes that the conduct is necessary for self-defense against an imminent use of unlawful force. In other words, if you believe you are going to be assaulted or hurt, you have a right to defend yourself using reasonable force. A person can only use force likely to cause death or serious bodily harm if the person believes that force is necessary to prevent imminent death or serious bodily harm. In other words, don't bring a gun to a fist fight. But if you believe your life is in danger or you are at risk of serious bodily harm, you have the right to protect yourself using the same force.
(Montana Code Annotated 45-3-102)

​I'm Being Attacked at Home: A person can use force against someone else when the person reasonably believes that the use of force is necessary to prevent another person's unlawful entry into an occupied structure. A person can only use force likely to cause death or serious bodily harm if the other person enters the structure and the force is necessary to prevent assault OR if force is necessary to prevent the commission of a forcible felony. In other words, if someone is going to break into your home while you are there, and threatens to harm you or your family, you have the right to protect yourself using reasonable force. 
(Montana Code Annotated 45-3-103)

Do I Have to Flee?: Montana law does NOT require a person being threatened to retreat, flee, or call the cops prior to using force. This is sometimes known as the "stand your ground" law. In other words, if someone is threatening your safety or your life, you have a right to defend yourself without first calling the police or running away.
(Montana Code Annotated 45-3-110)

So, what can you do to protect yourself from legal troubles in the event you have to use self-defense?

1. Be sure your danger of harm is present. In other words, you can only defend yourself from imminent threat of harm. If someone threatens future harm - you don't have a right to self-defense. 
2. Make sure you actually believe the threat is going to occur. Self-Defense cases are very fact-specific, and sometimes mistakes can happen. That is why the law requires "reasonable" belief the threat will occur. 
3. Don't use more force than necessary. The old saying "don't bring a knife to a gun fight" cuts both ways. While the law doesn't require you to utilize the same weapon as the person threatening you or your home, the law does rely heavily on "reasonableness", so make sure you are being reasonable. 
4. Don't try to hide your actions. If you find yourself in a situation where you have used force in self-defense, make sure someone has called law enforcement if necessary. Then, make sure you have an attorney guide you through the investigation.
5. Keep in Mind that you will likely have to defend yourself. Once self-defense is used, depending on the circumstances, a full investigation often ensues. You may find yourself being accused of a crime, and left with defending yourself using Montana's justifiable use of force laws. Once a person charged with using force makes a claim of self-defense, the burden shifts to the State to prove beyond a reasonable doubt that the use of force was not justified. A jury will look at every little fact and detail of the event and decide whether or not your force was justified. 
6. Don't be Unreasonable. As you can see, the law relies heavily on "reasonableness" when it comes to justified use of force. Don't do something that is blatantly unreasonable. 

- Jill 

I recently read an article that said kids (ages 8-18) spend an average of more than 7 hours a day looking at screens. Although the statistics aren't out yet, I would guess that amount has increased significantly with COVID-19 lockdowns. One of the things that comes to mind when I think of kids on a screen is the use of social media.

Sure, as parents we all know there are "risks" to using social media. We've seen the news articles where the young girl was contacted by the old man. We've heard stories about the "creepy" things that can happen with kids on social media.

But something that maybe only lawyer-Moms think about are the legal problems for our kids that can come from social media use.

First, let me just get something out of the way. Snapchat: it doesn't disappear. That is a ginormous lie that we have all been led to believe. Just like anything else on the internet, it's forever. Just because you aren't able to see the snap anymore, doesn't mean it hasn't stored somewhere for others to access (ie. law enforcement). If you're going to let your kid use Snapchat, have this conversation with them. If you know me personally, I'll prove it to them if they don't believe you. Snapchat is forever.

Second, let's talk about online bullying. Sure, we hear about bullying a lot these days. We've all been to the orientation where the school basically tells you that if your kid is bullying, they will be ousted. But something that is rarely discussed is online bullying, also known as cyber bullying. Cyber bullying could get your kid in some major trouble legally. Montana Code Annotated 45-5-221 covers Harassment, and Montana Code Annotated 45-8-213 covers Privacy in Communications. These laws could be used to charge your kid criminally if their bullying fits into the law. If you’re worried about what the school will do with bullies, imagine your kid getting charged criminally for their online talk. Also important to note, there have been cases where kids are criminally charged for encouragement of suicide via text or social media. The consequences are real, and parents should be aware.

Third, let's talk about sex. Remember the days when a boy might ask a girl at a high school bonfire to "flash" him? Yeah...those days are long gone. If that's all your kid is exposed to, you're doing great. You may already know all about the sexting that goes on with kids. If you don't think it's happening in your kid's school, think again. And sure, maybe some of it is harmless. But understand: asking for, sending, or receiving nude pictures of kids can get your kid in real trouble. Montana Code Annotated 45-5-625 covers this issue, and most of the time, kids (and parents) have no idea this is a crime. Not only does this expose your kid to a serious criminal charge, the charge is generally considered a "sex offense."

So, what can we do as parents to protect our kids from legal trouble with their phones, iPads, or social media? While I would love to tell you to keep it simple and prohibit all access to anything with access to the internet, we all know that is next to impossible (especially if you are partaking in "distance-learning"). Here are some tips that I hope you will be able to use and share with your kids:

1. Don't post, text, snap, or share anything that you wouldn't show to your Grandmother. This can be a good visual way to remind your kids of how to protect themselves. You want to send a snotty comment to your friend? Run it by Granny. You want to send a picture of your underwear to your boyfriend? Send it to Nana first. I don't know about you, but I don't think I'd want to send it anymore after picturing Grandma's face.
2. Don't provide your personal information, and this includes your location. This might seem obvious, but parents this one's on you. Check out the phone, iPad, or computer and make sure your kid isn't sharing things they don't intend to. Remember, Snapchat is forever. This includes location settings, location of where you took that picture, where you snapped it, all of it.
3. If you don't want every other kid in the school to see it, don't send it. I know, your kid trusts their friend. It's fine, they won't show anyone...until they do. This is something most parents didn't have to worry about. Back in our days, what happened at that high-school kegger was only to be shared with memories. Now, those pictures and posts are forever online. Kids have a hard time grasping long-term consequences, so it's up to us as parents to constantly remind them and help them understand that if they send something in 7th grade, there is a good chance their boss will find it when google searching them as an applicant for that dream job.
4. It's ok to show your parent, or trusted adult. This is along the lines of telling our kids that they will be in less trouble for telling the truth (even if what they did is really bad) than if they lie about it. The same goes for online behavior. Encourage your kid to show you something if they think it's weird, or even if they did something they wish they wouldn't have done. You might not want to see it, and you probably hope they aren't doing it. But trust me when I say, it is much easier to stop dangerous behavior and shut down the possibility of legal troubles if you can deal with the issue immediately. Let your kids know they can trust you to talk with you about their online interactions.
5. Be Kind. The best advice we can give to kids: be kind. If the kids can follow that advice, we won't have to worry one bit about legal troubles.

I hope this is helpful to parents navigating the online world with kids, especially when they are faced with more screen time than ever. If you have any questions, please feel free to contact our office.

- Jill

The question thousands of Americans are asking themselves during this current pandemic: "Should I be considering creating a Will?" This is a question I have been asked more than a few times over the last several weeks. If there is one good thing that has come out of the coronavirus pandemic, perhaps it is that we are all thinking a little bit deeper about our priorities. 

The short answer is a resounding: YES, you should create your Will. But that answer has not changed because of COVID-19. Everyone should have a Will, pandemic or not. Here are some of the most common questions I receive regarding creating a Will, and my thoughts on those questions:
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SHOULD I USE AN ONLINE TEMPLATE? Unlike most lawyers, I generally encourage people to research on their own if possible and manage their own affairs when possible. Knowledge is power. However, when it comes to a Will, online templates may not be the answer. Every state has different requirements for a Will to be valid under the Law, and if the Will ends up not being valid, you may be better off without one. If you do decide to use an online template, I would encourage you to seek out an attorney's advice on the laws in your State and whether changes need to be made to ensure that the Will is valid. 

BUT AREN'T WILLS EXPENSIVE? A Will does not have to be a complex document requiring many hours of legal billing. The majority of the Wills that I assist with are simple, to the point, and complete. A simple Will is a document that is valid under the laws in your State, and simply states your wishes. Most of the Wills I help create are not nearly as expensive as you might think, and generally my clients are pleased with the total bill. I would encourage you to reach out to a couple attorneys to see if the price range is something that might fit your budget.

HOW WILL I EVEN GET A WILL DONE WITH BUSINESSES SHUT DOWN AND SOCIAL DISTANCING? My office has been working on Wills all throughout the pandemic, by utilizing the wonderful technologies we have. Most attorneys will do a video call or phone call during this time if you prefer to get started sooner rather than later. Upon finalizing the Will, some states now allow e-notary (Montana is one of these states) and that tool may be a great way to get the Will finalized. 

I DON'T HAVE ANYTHING WORTH VALUE, SO WHY DO I NEED A WILL? Many people have asked me why they would need a Will, when they don't feel they have anything. Distributing your assets is only one of the reasons you should have a Will. Another big reason you might need a Will is to express your wishes regarding the care of your minor children. Some people feel strongly about creating a Will so their wishes regarding a funeral or burial can be expressed. If you own a business, you may need a Will to express your wishes on the future of that business. These are all great reasons, but one of the most important reasons is to avoid your estate going through lengthy probate processes. Your loved ones will be much better off if you have left them with a legal Will, and it will be one less stress for your loved ones at the time of your death. 

I understand that writing a Will can be a daunting and scary task. I am an attorney, and yet I put off writing my Will for many years even after I had the ability to create the document myself. Now that I have practiced for 13+ years, I see how foolish that was. I have watched and read about many families and friends who have been through the ringer attempting to deal with the death of a loved one, only for it to be complicated by a probate process. While a pandemic is a great time to think about our future plans, anytime is a great time to create a Will. 

- Jill 

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