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State seeks new judge in Flathead business lawsuits

by CHAD SOKOL
Daily Inter Lake | November 23, 2020 2:30 PM

The Montana Department of Public Health and Human Services has requested a new judge in its lawsuits against five Flathead County businesses, which call into question the state's ability to enforce masking and social-distancing requirements aimed at curbing the spread of COVID-19.

The department entered its request in Flathead County District Court on Friday; state law says each party is entitled to one substitution of a district judge. Attorneys for all five businesses are opposing the motion on procedural grounds.

DPHHS sued the businesses – Sykes Diner and Scotty's Bar in Kalispell, the Ferndale Market and Your Turn Mercantile near Bigfork, and the Remington Bar in Whitefish – in late October for allegedly flouting a July 15 public health order from Gov. Steve Bullock. The state had sent inspectors to the businesses who photographed maskless employees and patrons.

The businesses' attorneys have argued, in part, that the state failed to define what "reasonable efforts" to comply with Bullock's directive look like. District Judge Dan Wilson declined to grant preliminary injunctions against the businesses after a day of testimony on Nov. 12. He also warned DPHHS attorneys he would be "highly inclined" to award the businesses legal fees if the state continues pushing for restraining orders and does not present a stronger case.

Even if DPHHS were inclined to drop the litigation, it no longer can; the businesses filed counterclaims against the department last week, alleging it selectively targeted them for enforcement and hurt them financially. The businesses are seeking damages, attorney fees and a judgment saying DPHHS has "no authority" to enforce Bullock's directive.

"As the defendants seek to expand the lawsuit, we are working to find additional health-care workers to assist the local hospital in the Flathead because so much of its current workforce is in quarantine or isolation," DPHHS said in a statement last week. "Cases continue to skyrocket, hospital bed space is running low and health-care workers are exhausted. With rampant community spread, the situation needs to be taken seriously."

A new directive from Bullock that took effect Friday expanded a statewide mask requirement, tightened restrictions on businesses and directed $100 million in federal aid toward business grants and unemployment benefits.

The trajectory of the Flathead County lawsuits also might change when Bullock, a Democrat, is succeeded in the governor's office by Republican U.S. Rep. Greg Gianforte, who has said he prefers "personal responsibility" over "government mandates."

Reporter Chad Sokol can be reached at 758-4434 or csokol@dailyinterlake.com