Broad Titles, Liberal Construction: “Vaccination Status” Encompasses EUA/Trial‑Vaccine Mandate Bans Under Montana’s Article V, § 11(3)

Introduction

In Netzer, Krautter & Brown, P.C. and Donald L. Netzer v. State of Montana, the Montana Supreme Court addressed two pivotal issues: (1) the effect of an earlier preliminary injunction appeal on the litigation of constitutional claims on remand, and (2) the scope of the Legislature’s single‑subject and clear‑title obligation under Article V, § 11(3) of the Montana Constitution. The case arises from House Bill (HB) 702 (codified at § 49‑2‑312, MCA), a 2021 enactment that prohibits discrimination based on vaccination status or the possession of an “immunity passport,” with defined exceptions and a healthcare facility carve‑out. Although prompted by the COVID‑19 era, the statute is vaccine‑agnostic and applies beyond COVID‑19.

The district court rejected most of the plaintiffs’ constitutional challenges and upheld HB 702’s core anti‑discrimination provision (§ 49‑2‑312(1)), but struck the subsection that bars requiring vaccines authorized only under Emergency Use Authorization (EUA) or still undergoing safety trials (§ 49‑2‑312(4)) as outside the bill’s title. On appeal, the Supreme Court affirmed the district court’s ultimate disposition of the dismissed constitutional claims (after the district court cured a procedural error), affirmed the constitutionality of § 49‑2‑312(1), and reversed the invalidation of § 49‑2‑312(4)—holding that the bill’s title lawfully encompasses that subsection as germane to the stated subject.

Summary of the Opinion

Preliminary injunction determinations do not decide the merits and cannot be used to preclude litigation of claims on remand. The district court initially erred by treating the Supreme Court’s earlier preliminary‑injunction decision (Netzer I) as preclusive, but it cured the error by issuing a supplemental order addressing the merits; thus, no abuse of discretion in the final disposition.
Article V, § 11(3) (single‑subject/clear‑title): The Court reiterates liberal construction and an objective “reasonable notice” standard. Actual deception is not required. Strict construction is triggered primarily when a title is restrictive and descends to particulars.
Section 49‑2‑312(1), MCA (anti‑discrimination based on vaccination status or immunity passport) is within HB 702’s title. The title sufficiently apprises the public and lawmakers of the bill’s general object.
Section 49‑2‑312(4), MCA (prohibiting mandates for vaccines under EUA or still in safety trials) is germane to “vaccination status” and is not an independent or incongruous subject. The district court erred in striking it; Subsection (4) is constitutional under Article V, § 11(3).
The Court expresses no view on constitutional claims that were not properly presented or developed on appeal.

Factual and Procedural Background

HB 702’s title reads: “An Act Prohibiting Discrimination Based on a Person’s Vaccination Status or Possession of an Immunity Passport; Providing an Exception and an Exemption; Providing an Appropriation; and Providing Effective Dates.” The statute:

Prohibits governmental entities, employers, and places of public accommodation from adverse treatment based on vaccination status or possession of an immunity passport (§ 49‑2‑312(1)).
Allows recommendations (but not requirements) that an employee receive a vaccine (§ 49‑2‑312(3)(a)).
Defines “vaccination status” and “immunity passport” (§ 49‑2‑312(5)).
Prohibits requiring vaccines authorized under EUA or undergoing safety trials (§ 49‑2‑312(4)).
Provides exemptions (e.g., schools/daycares and conditions for healthcare facilities) (§ 49‑2‑312(2), (3)(b)).

Plaintiffs challenged HB 702 on multiple state constitutional grounds. After the district court denied preliminary injunctive relief, the Supreme Court affirmed that denial in Netzer Law Office, P.C. v. State, 2022 MT 234 (Netzer I) and remanded for merits determinations, specifically directing review under Article V, § 11(3). On remand, the district court dismissed most claims; after a Rule 59(e) motion, it issued a supplemental order addressing the dismissed claims on their merits. It then upheld § 49‑2‑312(1) under Article V, § 11(3) but invalidated § 49‑2‑312(4). Both sides appealed.

Detailed Analysis

1) Precedents Cited and Their Influence

Preliminary injunctions and preclusion

Netzer I (2022 MT 234): Reinforced that preliminary injunction rulings are limited to likelihood‑of‑success and do not resolve the merits. On remand, the district court had to adjudicate the merits, including the Article V, § 11(3) claim.
Benefis Healthcare v. Great Falls Clinic, 2006 MT 254, ¶ 19: Preliminary injunction decisions express no opinion on ultimate merits, highlighting their limited procedural nature.
Brilz v. Metropolitan Gen. Ins. Co., 2012 MT 184, ¶ 27: Claim preclusion requires a judgment “on the merits,” which a preliminary injunction is not.
Rule 59(e) authorities: The Court relied on Montana law (e.g., Nelson v. Driscoll, 285 Mont. 355 (1997); In re D.C.S., 2025 MT 179) and persuasive federal cases (Luig v. North Bay, Simmons v. Reliance Standard, Barney v. IRS) for the proposition that a district court can cure procedural error through a post‑judgment corrective order, rendering earlier deficiencies moot.

Single‑subject and clear‑title doctrine

MEA‑MFT v. State, 2014 MT 33, and Harper v. Greely, 234 Mont. 259 (1988): Synthesize Montana’s liberal, deferential approach to Article V, § 11(3). Provide the core five guiding principles derived from State v. McKinney, 29 Mont. 375 (1904).
State ex rel. Foot v. Burr, 73 Mont. 586 (1925); Hale v. Belgrade Co., 74 Mont. 308 (1925); State ex rel. Holliday v. O’Leary, 43 Mont. 157 (1911): Illustrate when a title can be misleading—e.g., where an act’s true effect (erasing a county; imposing new appellate deadlines; prohibiting partisan judicial nominations) is not fairly disclosed by a restrictive title.
State v. Driscoll, 101 Mont. 348 (1936): Upholds a broad, general title regulating liquor even though the body includes many unlisted specifics; shows that “hidden” details germane to the general purpose remain valid.
Forward Montana v. State, 2024 MT 75: Restates the “independent and incongruous subject” limit—only when a bill embraces two or more independent, incongruous subjects does it transgress Article V, § 11(3).
Parker v. Yellowstone County, 140 Mont. 538 (1962); Lewis & Clark Cnty. v. Indus. Accident Bd., 52 Mont. 6 (1916): Emphasize presumptions of constitutionality and validate broadly titled acts covering germane matters even if not named explicitly.
State v. Duncan, 74 Mont. 428 (1925): Clarifies that the test is objective: whether the title is reasonably calculated to give notice to a person of ordinary, reasonably inquiring mind; actual deception is not required.
Mont. Auto. Ass’n v. Greely, 193 Mont. 378 (1981); Sigety v. State Bd. of Health, 157 Mont. 48 (1971); Coolidge v. Meagher, 100 Mont. 172 (1935): Demonstrate strict construction where the title is restrictive and the body strays into a separate subject not reflected in the title.

2) The Court’s Legal Reasoning

Issue 1: Preliminary injunction ruling is not preclusive; error cured by supplemental order

The Court reaffirmed that a preliminary injunction decision is not a merits adjudication. The district court initially misread Netzer I as affirming its merits conclusions and used it to bar “relitigation” of constitutional claims, which was a manifest legal error. However, the district court corrected course by issuing a supplemental order addressing the dismissed claims on their merits—thereby curing the procedural defect under Rule 59(e) principles. Because the plaintiffs did not substantively develop argument on most dismissed claims on appeal, the Supreme Court affirmed their dismissal without reaching the underlying merits.

Issue 2: Article V, § 11(3) — liberal, objective notice standard; broad title sustains both subsections

The Court restated the five guiding principles under Article V, § 11(3), with emphasis on these points:

Purpose: Ensure the public and lawmakers can intelligently follow a bill; guard against fraud by burying foreign subjects.
Liberal construction and deference: Courts defer to legislative judgment on titles and uphold acts unless violation is clear and palpable.
Objective notice standard: The question is whether the title is reasonably calculated to apprise an ordinary, reasonably inquiring person of the bill’s contents; actual deception is not required.
Germane test: The body may include matters in furtherance of, or necessary to accomplish, the general object stated in the title. Only independent and incongruous subjects transgress the clause.
Strict construction only when title is restrictive: If a title descends to particulars, the body may not range beyond those particulars.

Applying those principles:

Subsection (1) — anti‑discrimination based on vaccination status or immunity passport: The title’s operative language is broad. It fairly signals that the bill will address adverse treatment based on whether a person has obtained a vaccine or possesses proof of immunity. The plaintiffs’ attempt to inject a “significant effects” test was rejected; Montana’s standard focuses on reasonable notice, not on cataloging every consequence. The Court held Subsection (1) squarely within the title’s scope.
Subsection (4) — no requirement of EUA/trial vaccines: The district court treated this as a separate subject (bodily autonomy) beyond an anti‑discrimination bill. The Supreme Court disagreed, characterizing “vaccination status” as a general subject that, during the 2021 context, naturally encompassed issues about EUA or trial‑stage vaccines. Choosing not to receive such vaccines is an aspect of “vaccination status.” A ban on mandating EUA/trial vaccines is germane to, and in furtherance of, the bill’s object of preventing adverse treatment based on vaccination status. Thus, Subsection (4) is not an independent or incongruous subject and is valid within the bill’s broad title.

3) Impact of the Decision

For legislative drafting

Broad, general titles are safer: When a title states a general subject (e.g., “discrimination based on vaccination status”), courts will liberally construe it to include provisions germane to that subject—even if the title does not enumerate each means or subset (e.g., EUA/trial‑vaccine mandate bans).
Restrictive titles invite strict scrutiny: If a bill title descends to particulars, a court may strictly construe the title and invalidate body text that ventures beyond those particulars (e.g., adding an unrelated disclosure regime to a lobbying act).
Objective notice is the touchstone: The Legislature need not choose the “best” title; it must choose a fair one reasonably calculated to inform. Courts will not invalidate a statute merely because a more precise title could have been used.

For administrative agencies, employers, and public accommodations

HB 702 remains robustly intact: The core anti‑discrimination regime in § 49‑2‑312(1) stands, and the prohibition on requiring EUA or trial‑stage vaccines in § 49‑2‑312(4) is reinstated.
What the law allows and forbids: The opinion notes the State’s position that employers may recommend vaccines, request proof, and adopt neutral policies (e.g., masking), but may not impose adverse treatment based solely on vaccination status or possession of an immunity passport. Subsection (4) adds that no one can be required to receive an EUA or trial‑stage vaccine as a condition of access or employment.

For litigation strategy

Preliminary injunction ≠ merits: Trial courts should not treat appellate rulings on preliminary injunctions as preclusive. If a court errs procedurally, it can and should cure the error promptly—Rule 59(e) is an appropriate tool.
Heavy burden on challengers: Statutes are presumed constitutional, and challengers must prove unconstitutionality beyond a reasonable doubt. Vague “significant effects” critiques are insufficient; the touchstone is whether the title reasonably apprises the public and lawmakers.
Develop the record and briefing: The Court declined to reach several constitutional claims due to inadequate development. Appellants must provide focused legal analysis and supporting authority.

Complex Concepts Simplified

Preliminary injunction vs. merits adjudication

Preliminary injunction: Temporary relief to preserve the status quo based on a likelihood‑of‑success assessment; it does not decide the case.
Merits adjudication: Final decision on whether the law violates the constitution or other rights after full development of the record and arguments.

Rule 59(e) “alter or amend” motions

Used to correct manifest errors of law or fact, or to rectify procedural missteps in an order or judgment. If the trial court cures a procedural defect (e.g., by issuing a supplemental order addressing the merits), the earlier error becomes moot.

Article V, § 11(3) single‑subject/clear‑title

Single subject: A bill must have one general subject; it may include provisions germane to and in furtherance of that subject.
Clear title: The title must reasonably inform lawmakers and the public of the bill’s subject so they can follow it intelligently; it need not list every detail.
Germane: In close relation—appropriate, relevant, and pertinent to the title’s general subject.
Liberal vs. strict construction: Courts generally construe titles liberally in favor of validity. Strict construction is used when a title is restrictive and descends to particulars, thereby narrowing the permissible scope of the body.

EUA and trial‑stage vaccines

EUA (Emergency Use Authorization): A federal regulatory mechanism permitting the use of medical products during public health emergencies based on the totality of evidence, prior to full licensure.
Vaccines undergoing safety trials: Vaccines still in clinical trial phases; not fully approved. HB 702 § 49‑2‑312(4) prohibits mandating such vaccines.

Key Takeaways

Preliminary injunction decisions do not preclude merits litigation. Trial courts must adjudicate the merits independently; they may correct procedural missteps via Rule 59(e).
Montana’s clear‑title clause is liberally construed. The objective test is whether the title reasonably notifies the public and lawmakers. Actual deception is unnecessary.
Broad titles carry broad content. A title centered on “discrimination based on vaccination status” validly encompasses a ban on mandating EUA/trial‑stage vaccines because such provisions are germane to vaccination status and the prevention of adverse treatment based on that status.
Restrictive titles invite stricter limits. Where a title descends to particulars, courts will not expand it to cover additional subjects not fairly disclosed.
HB 702 remains largely intact. Both § 49‑2‑312(1) and § 49‑2‑312(4) are constitutional under Article V, § 11(3). Other constitutional claims were affirmed dismissed due to inadequate development on appeal.

What the Court Did Not Decide

The Court expressly left unresolved any other constitutional arguments not properly presented on appeal (e.g., broader inalienable rights, equal protection, clean and healthful environment, and unenumerated rights theories), affirming their dismissal without substantive analysis due to briefing deficiencies.
The decision does not address preemption or conflicts with federal mandates; it confines itself to the state constitutional clear‑title challenge and the procedural handling of the case on remand.

Conclusion

Netzer v. State solidifies a liberal, objective‑notice framework for Montana’s single‑subject and clear‑title clause: general titles are construed generously, and provisions germane to the title’s subject are sustained even if unlisted. The Court rejects a “significant effects” standard in favor of whether the title reasonably apprises the public and lawmakers. Applying that doctrine, the Court holds that HB 702’s anti‑discrimination title encompasses both the ban on adverse treatment based on vaccination status (§ 49‑2‑312(1)) and the prohibition on mandating EUA or trial‑stage vaccines (§ 49‑2‑312(4)). Procedurally, the opinion cautions trial courts against treating preliminary injunction rulings as merits determinations but recognizes their ability to cure such errors through supplemental orders. The decision provides practical guidance to drafters—favor comprehensive titles when legislating comprehensively—and signals to litigants the heavy burden necessary to invalidate statutes under Article V, § 11(3).