Yesterday (January 7), the Big Sky Policy Institue issued a memorandum on Gianforte’s misguided abdication of his executive power to the legislature, which currently seems to be under the power of the Democrat Crossover Caucus led by Llew Jones (“R”- Conrad). As we explained, instead of repealing Governor Bullock’s unconstitutional mask mandate and other Martial Law provisions (this is the term for when the executive branch suspends laws in an emergency), Gianforte announced he would repeal them only when the legislature passed a bill protecting businesses from lawsuits in the event someone contracts COVID-19 on their property.
But by punting his responsibility to the legislature, the governor might have ensured that Bullock’s order last long after his tenure. And as Big Sky Policy Institute (BSPI) explained, there have been zero lawsuits against businesses in Montana over COVID-19 exposure, and of the mere 270 such lawsuits filed across the nation, none have been lucratively successful.
Yesterday evening, we got a first glance at the bill Gianforte wants Republicans to sign in exchange for his promise to eventually lift the mask mandate. And, as you might expect, the bill will hurt small businesses and make them more liable than they currently are. Additionally, the bill will enshrine Governor Bullock’s mandate into actual law, giving the government teeth to go after businesses who respect their customer’s medical privacy.
Senator Steve Fitzpatrick (SD20 – Helena) is F-rated in party loyalty on Legistats and is the 8th most liberal Republican in the Montana Senate. It is a concern that the bill would be introduced by a Solutions Caucus member at all, least alone Fitzpatrick, who has repeatedly shown a commitment to increasing the size of state government at nearly every turn.
SB65, authored by Fitzpatrick, appears at first glance to protect businesses. But while the bill “sets limits on civil actions” against businesses, it actually requires businesses to obey mandates demanded originally by Governor Bullock (D) and the army of unelected local health boards who have carried out his orders. For businesses to receive immunity from lawsuits, they have to obey the very mandates that Gianforte says he wants to repeal.
More importantly, should the bill become law and Gianforte does not repeal the mandates, businesses will be forced to comply with the masking orders whereas previously they were free to ignore them previously.
The bill itself points this out in the heading (see below).
Notice that the bill says that there is ‘safe harbor’ for those “who comply with certain types of regulations.” And what are those regulations businesses must comply with in order to receive the benefits of the law?
According to the bill, the “certain types of regulations” include orders decreed outside the state legislature (see below).
The bill reads that a person shall not be held liable for civil damages for…exposure to covid-19 “if the act or omission alleged to violate a duty or care was in substantial compliance or was consistent with a federal or state statute, regulation, order, or public health guidance…”
SD65 HURTS BUSINESSES AND FORCES THEM TO TREAT MANDATES LIKE LAWS
If Governor Gianforte or GOP leadership gets behind this bill, it will accomplish precisely the opposite of what the governor states he wants to do, which is to repeal the mask mandate and protect businesses. If the bill passes, businesses will be forced to follow the decisions of local and unelected health boards or risk being sued, making the target smaller and easier to hit by opportunistic activists and attorneys.
Furthermore, even if Gianforte does lift the mask mandate after this bill is passed (he is not obligated to), it could in theory be imposed again at any time, leaving businesses vulnerable to the tyranny of emergency orders. And, as stated above, the language in the bill would require residents in more liberal cities like Whitefish, Bozeman, and Missoula to obey local health declarations (which will exceed the governor’s orders) as though the orders were law.