Netzer v. State

.

¶27    Second, we are mindful that “the [L]egislature is a co-ordinating [sic] branch of the

government, and that its action, if fair, should be sustained.” MEA-MFT, ¶ 8 (quoting

McKinney,

). Courts consequently give Article V, Section

11(3) a liberal construction, “so as not to interfere with or impede proper legislative

functions.” Harper,

234 Mont. 259 at 266

; MEA-MFT, ¶ 8 (quoting

McKinney,

); Parker v. Yellowstone Cnty.,

140 Mont. 538

374 P.2d 328, 334

 (1962); State ex rel. Boone v. Tullock,

72 Mont. 482, 488

234 P. 277, 279

 (1925).

¶28    Third, the Legislature is the best judge of a bill’s appropriate title, and a court should

not “hold a title void because, in its opinion, a better one might have been used.”

McKinney,

 (citation omitted). As such, we “gran[t]

deference to the Legislature to fix the title of its own act.” MEA-MFT, ¶ 8.

¶29    Fourth, a title will be held “generally sufficient if the body of the [a]ct treats only,

directly or indirectly, of the subjects mentioned in the title, and of other subjects germane

thereto, or of matters in furtherance of or necessary to accomplish the general objects of

the [b]ill, as mentioned in the title.” MEA-MFT, ¶ 8 (quoting McKinney,

29 Mont. at 381-82

).       Only if “it is apparent that two or more independent and

incongruous subjects are embraced in [an act’s] provisions, . . . will [it] be held to transgress

[Article V, Section 11(3)].” Forward Mont. v. State,

2024 MT 75, ¶ 26

416 Mont. 175

546 P.3d 778

 (quoting Evers v. Hudson,

36 Mont. 135, 146

92 P. 462, 465-66

 (1907)).

¶30    Fifth, if after applying these principles, a court still doubts whether the bill is

unconstitutional, the act should be sustained. McKinney,

29 Mont. at 382

.

That is, if two constructions are possible, in which one would vitiate and the other would

validate, the court must construe the statute in favor of its validity. Parker,

140 Mont. at 543

374 P.2d at 330

. A statute is “presumed constitutional . . . [and] will not be held

unconstitutional unless its violation of the fundamental law is clear and palpable.” Parker,

140 Mont. at 543

374 P.2d at 330-31

13
¶31 The title of HB 702 is “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.” As pertinent

here, the Bill provides in part:

Section 1. Discrimination based on vaccination status or possession of
immunity passport prohibited—definitions.
(1) Except as provided in subsection (2), it is an unlawful discriminatory
practice for:
(a) a person or a governmental entity to refuse, withhold from, or deny to a
person any local or state services, goods, facilities, advantages, privileges,
licensing, educational opportunities, health care access, or employment
opportunities based on the person’s vaccination status or whether the person
has an immunity passport;
(b) an employer to refuse employment to a person, to bar a person from
employment, or to discriminate against a person in compensation or in a
term, condition, or privilege of employment based on the person’s
vaccination status or whether the person has an immunity passport; or
(c) a public accommodation to exclude, limit, segregate, refuse to serve, or
otherwise discriminate against a person based on the person’s vaccination
status or whether the person has an immunity passport.

. . .

(4) An individual may not be required to receive any vaccine whose use is
allowed under an emergency use authorization or any vaccine undergoing
safety trials.

Section 49-2-312, MCA (2021 Mont. Laws ch. 418). On appeal, Netzer challenges the

District Court’s conclusion that Subsection (1) is constitutional under Article V, Section

11(3), of the Montana Constitution. The State cross-appeals, arguing that the District Court

erred when it concluded that Subsection (4) is unconstitutional under the same

constitutional provision.

14
Subsection (1)

¶32 Netzer argues that the subtext or “hidden” meaning of Subsection (1) prohibits

employers from mandating that employees provide proof of vaccination or immunity.

They posit that courts must evaluate the significant effects of a bill when determining its

constitutionality under Article V, § 11(3), of the Montana Constitution. The State contends

that a court’s review is more formulaic and that a court must constrain its review to the

plain language of a bill’s text and body and whether it meets the single-subject or clear title

requirements. The State further argues that legislators or the public actually must be misled

by the bill’s title.

¶33 When the body’s subjects are not mentioned directly or indirectly in the title, the

next question is whether the subjects are germane to its title or “in furtherance of or

necessary to accomplish the general objects of a [b]ill, as mentioned in the title.”

MEA-MFT, ¶ 8. From here, a court’s determination is “more a question of fact than one of

law; there is, and can be, no clear line of demarcation between those matters which fall

within and those which fall without the inhibition of the constitutional provision.” Hale v.

Belgrade Co.,

74 Mont. 308, 315

240 P. 371, 373

 (1925).

¶34     Although we have not articulated a “significant effects” standard in our assessment

of a statute’s constitutionality under Article V, Section 11(3), of the Montana Constitution,

we do require that a title not mislead but fairly apprise the public and legislators of its most

pertinent subjects. Forward Mont., ¶ 26 (“The purposes of this section . . . are to restrict

the [L]egislature . . . [to] subjects . . . made known to the lawmakers and to the public, to


                                              15
the end that anyone interested may follow intelligently the course of pending bills; to

prevent the legislators and the people generally being misled by false or deceptive

titles . . . . ” (quoting Burr,

73 Mont. at 588

238 P. at 585

); Helena v. Omholt,

155 Mont. 212, 220-21

468 P.2d 764, 768

 (1970) (“The test under this provision of the Montana

Constitution is simply this—Is the title of legislation in question of such character as to

mislead the public or members of the [L]egislature as to the subjects embraced?” (citing

Driscoll,

54 P.2d at 573-74

; Arps v. State Hwy. Comm’n,

90 Mont. 152, 171

300 P. 549, 557

 (1931)); see also Mont. Const. art. V, § 23 (1889).3 Even when the

plain language of an act’s body may be germane or in furtherance of the general object

expressed in its title, the law nonetheless may fail if it is somehow still misleading. Cf.

Hale,

74 Mont. at 311-17

240 P. at 371-73

; Burr,

73 Mont. at 589-90

238 P. at 585-86

;

State ex rel. Holliday v. O’Leary,

43 Mont. 157, 167

115 P. 204, 207

 (1911).

¶35    When questioning whether an act’s title is misleading, actual deception is not a part

of our test. We instead apply an objective standard and assess whether the title is

“reasonably calculated to give notice of the contents of the bill” to interested individuals

so that they may follow “intelligently.” State v. Duncan,

74 Mont. 428, 436

240 P. 978, 980

 (1925); Forward Mont., ¶ 26; see also 1A Shambie Singer, Sutherland Statutory

Construction, § 17:2 (8th ed.) (“The general test is whether a title is uncertain, misleading,



3
  Article V, Section 23, of the 1889 Montana Constitution commentary clarifies that “[a] subject
not expressed in the title is one which is so foreign to the matter expressed in the title that one
reading the act with the title in his mind would be surprised to find it in the body of the act, and
could not reasonably have expected to find it in the act . . . . [T]he title must fairly suggest or
furnish a clue to the subject dealt with in the act.” (citations omitted).
                                                  16
or deceptive to the average reader. A title is constitutional where it is sufficient to direct a

person with an ordinary, reasonably inquiring mind to an act’s body.”).

¶36    For example, in State ex rel. Foot v. Burr, the title of the act was “an act to amend

sections 4318 and 4327 of the Revised Code of the State of Montana, 1921, relating to

changing the boundaries of Fergus and Judith Basin Counties.”

. The act changed the boundaries of Fergus and Judith Basin Counties; as a result,

Petroleum County was effectively erased. Burr,

.

Although the boundaries of Judith and Fergus Basin Counties were in a close relationship

with Petroleum County, without technical skills or intimate knowledge of the area, a

legislator or the public could not discern from the act’s title or text its effects on Petroleum

County. Burr,

. The title thus was insufficient because

it was misleading as to the pertinent subject of “completely swallow[ing] up” Petroleum

County. Burr,

; see also Hale,

74 Mont. at 311-17

240 P. at 371-73

 (holding that an act’s title announcing its plan to amend a statute relative

to “the authentication of copies of appeals to the supreme court and concerning abbreviated

records on appeal” was insufficient to place legislators and the public on notice that its

body contained a time limitation for filing transcripts on appeal); O’Leary,

43 Mont. at 167

115 P. at 207

 (concluding that the title, “An act to provide for nonpartisan nominations

for judicial offices” was insufficient and misleading as to the provision prohibiting partisan

judicial nominations).




                                              17
¶37    In contrast, a law titled, “An Act to Limit, Regulate and License the Manufacture

and Sale of Any and All Liquors or Beverages That May Hereafter be Manufactured, Sold

or Dispensed in the State of Montana,” was sufficiently clear to uphold a criminal

conviction of “unlawfully exposing and keeping for sale intoxicating liquor.” Driscoll,

101 Mont. at 350, 352

54 P.2d at 572

. The defendant in Driscoll contended that the law

was unconstitutional because the title was silent on a number of particulars, including its

lack of reference to a new liquor control board, the state hiring persons to buy and sell

liquor in the name of the state at state liquor stores, the control of individual purchase or

consumption of liquors, or the accrual of profits from liquor sales. Driscoll,

101 Mont. at 353

54 P.2d at 573

. After discussing this Court’s already robust precedent on the

constitutional limitation and its liberal construction of the same, the Court held that “all of

these so-called hidden subjects were germane, relative and pertinent, to limiting and

regulating the manufacture and sale of intoxicating liquor.” Driscoll,

101 Mont. at 357

54 P.2d at 575

. See also Lewis & Clark Cnty. v. Indus. Accident Bd.,

52 Mont. 6, 8-12

155 P. 268, 269-71

(1916) (holding that, despite then-prevailing law that “general legislation is

intended primarily for the subjects and not for the sovereign” and that a county was not

liable for damages to its injured employee, counties and county employees were lawfully

within the provisions of a new Workmen’s Compensation Act—though not mentioned in

the Act’s title—because the title “fairly indicates the general subject of the Act”).

¶38 Netzer asks this Court to invalidate HB 702 because it “completely fail[ed] to

apprise a legislator or the public of the nature, scope, or consequences of its operation.”

18
1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 18:6

(7th ed. 2009). The operative language in the title reads, “An Act Prohibiting

Discrimination based on a Person’s Vaccination Status or Possession of an Immunity

Passport.” From this, an ordinary, reasonable inquiring mind would not be surprised to

find subjects on discrimination regarding a person’s having obtained or not obtained a

vaccine, immunity passport, or a combination of any of these. HB 702 does not

“completely fail” because the plain language of its title gave interested members of the

public and Legislature notice and the opportunity to intelligently follow HB 702.

¶39 The State concedes that an employer is free to request proof of vaccination or

immunity and even adopt a policy that, without proof of vaccination, an individual is

presumptively unvaccinated. Section 49-2-312(1), (3)(a), MCA. An employer may

incentivize employees to vaccinate so long as it is “not so substantial to be coercive,” may

require all employees on the premises to wear masks, and may suggest that an employee

who has not shown proof of vaccination wear a mask. House Bill 702: Frequently Asked

Questions, Mont. Dep’t of Lab. & Indus., https://perma.cc/GMM9-5NXM (last visited

October 1, 2025). But HB 702 establishes that individuals and entities may not subject a

person to adverse conditions or treatment based on the person’s vaccination status or

possession of an immunity passport. The result of HB 702 is that individuals and entities

may not require someone to provide proof of vaccination or to obtain a vaccine as a

condition of employment, access to facilities, goods, or services. Section 49-2-312(1),

MCA. According to HB 702’s title, this is not a surprise or a “hidden” effect.

19
¶40 This case is distinguishable from Burr, Hale, and O’Leary because Netzer does not

posit additional, determinative facts that might overcome the presumption of HB 702’s

constitutionality and render its title misleading. Unlike Burr, Netzer does not show how

either the title or the body of HB 702 would require technical expertise for a reasonable

mind to be able to understand. See Burr,

. And unlike

in Hale and O’Leary, Netzer does not flag any established law regarding vaccination or

discrimination that would render HB 702 redundant or contrary and thus deceptive or

misleading. See Hale,

74 Mont. at 310-11

240 P. at 371

 (noting that the act addressed

already established appellate court rules, which until then the Legislature had not attempted

to govern); see also O’Leary,

43 Mont. at 165

115 P. at 206

 (finding it unreasonable that

a person would suspect that the “Legislature would solemnly enact a statute upon [a]

subject which was already covered by another statute in precisely the same [manner]”).

¶41    “[T]he title is generally sufficient if the body of the act treats only, directly or

indirectly, of the subjects mentioned in the title, and of other subjects germane thereto, or

of matters in furtherance of or necessary to accomplish the general objects of the [b]ill, as

mentioned in the title.” MEA v. MFT, ¶ 8. Netzer fails to substantiate their argument that

the general rule should not apply. They point to HB 702’s title and Subsection (1), claiming

that in some way both are latently misleading and in violation of Article V, Section 11(3),

of the Montana Constitution. Netzer, however, elaborates no further than to argue that the

Bill is improper because it was enacted during the COVID-19 pandemic. This is not




                                             20
enough to overcome the manifest accord between the plain language of the Bill’s title and

the subjects in Subsection (1).

¶42    An act’s invalidity because its provisions were not sufficiently expressed by the title

must be “clear and palpable,” and the “objections should be grave.” Driscoll,

101 Mont. at 355

, 54 P. at 574. Netzer has not shown that the title, “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[,]” was gravely misleading or palpably deceptive as to Subsection (1).

¶43 Like the District Court, we see no “hidden” meaning in Subsection (1). The District

Court concluded that this subsection set out to accomplish what HB 702’s title purported

to do: to prohibit discrimination against a person because of their vaccination status or

possession of an immunity passport. The District Court correctly determined that

Subsection (1) did not violate Article V, Section 11(3), of the Montana Constitution. We

affirm the District Court’s ruling that § 49-2-312(1), MCA complies with the clear-title

requirement of Article V, § 11(3).

Subsection (4)

¶44 The State argues that vaccine requirements disparately impact individuals who do

not wish to receive those vaccines; HB 702 eliminates such requirements for certain

vaccines. The State maintains that Montana courts do not strictly construe titles under

Article V, Section 11(3), of the Montana Constitution; rather, a court must “gran[t]

deference to the Legislature to fix the title of its own acts,” and Subsection (4)’s subject is

21
in “furtherance of . . . the general object of” HB 702, as mentioned in its title. MEA-MFT,

¶ 8. Netzer counters that Subsection (4)’s universal prohibition against requiring an

individual to get a vaccine under emergency use authorization or undergoing safety trials

is unrelated to HB 702’s antidiscrimination title. They claim that the bill’s title is

“restrictive,” and the court therefore should construe its meaning narrowly or strictly.

¶45 The presumption of constitutionality guides the construction of an act’s title and

body. Harper,

234 Mont. at 267

 (quoting McKinney,

29 Mont. at 382

); Driscoll,

101 Mont. at 355

, 54 P. at 574; Tullock,

72 Mont. at 489

234 P. at 279

. For this reason, we generally construe titles liberally in favor of a statute’s

constitutionality. McKinney,

29 Mont. at 386

74 P. at 1098

. It is not essential that the

Legislature choose the best, most accurate title; the title instead need only reasonably

suggest its legislative purpose. McKinney,

29 Mont. at 386

74 P. at 1098

.

¶46    The Legislature may either fix a title describing its purpose in “extensive or

minut[e]” detail or offer a title that is more comprehensive. State v. Ross,

38 Mont. 319, 322-23

99 P. 1056, 1057

 (1909). So long as the act “looks to but a single purpose or

object, . . . the [a]ct may include every matter germane to and in furtherance of [the title’s

stated] purpose or object.” State v. Ross,

38 Mont. at 322-23

99 P. at 1057

. The title and

subject “must correspond, not literally, but substantially, and such correspondence is to be

determined in view of the subject matter to which the legislation relates.” Evers,

36 Mont. at 144-45

92 P. at 465

 (citation omitted).       Germane means “in close relationship;

appropriate; relevant; pertinent.” Driscoll,

54 P.2d at 573

; Hale, 74


                                             22
Mont. at 315, 240 P. at 373. “It is not necessary . . . that a title shall embody the exact

limitations or qualifications contained in the bill,” and our construction will not employ

“technical interpretations upon mere . . . phraseology.” Evers,

36 Mont. at 143

92 P. at 465

. The single-subject requirement “relates to matters of substance . . . and not merely

matters of form.” Evers,

36 Mont. at 142

92 P. at 464

.

¶47    We have applied strict statutory construction under Article V, Section 11(3), of the

Montana Constitution when a bill contains an additional separate subject not reflected in

the title. See Mont. Auto. Ass’n v. Greely,

193 Mont. 378, 398

632 P.2d 300, 311

 (1981)

(striking from ballot measure that amended and expanded the Lobbying Act a section

requiring disclosure of political contributions to candidates or political action committees);

Sigety v. State Bd. of Health,

157 Mont. 48

482 P.2d 574

 (1971) (holding act

unconstitutional because the bill’s title expressed that it legislated only dredge mining but

also included sluice mining in its body); Coolidge v. Meagher,

100 Mont. 172

46 P. 684


(1935) (invalidating act because title included only officers but the act’s body discussed

witnesses).

       The purpose of requiring singleness of subject is to prevent the practice of
       embracing in the same bill incongruous matters which have no relation to
       each other or to the subject specified in the title, so that measures may not be
       adopted without attracting attention to them . . . . The test under this provision
       of the Montana Constitution is simply whether the title is of such character
       as to mislead the public as to the subjects embraced.

Mont. Auto. Ass’n,

193 Mont. at 398

632 P.2d at 311

(quotations and citations omitted).

When a law is challenged because the title does not clearly express what the law does, a

court will construe the title strictly only if the “legislative act contains a particular

23
limitation or restriction.” 82 C.J.S. Statutes § 239 (2025). Such titles “descen[d] to

particulars and details” and may be affirmatively misleading when the act treats subjects

outside of the title’s narrow scope. 82 C.J.S. Statutes § 239. As courts may not constrict

a title’s meaning to exclude subjects naturally connected to an act’s general purpose, we

also may not broaden a title’s meaning to include subjects not logically connected to an

act’s narrow, stated purpose. 82 C.J.S. Statutes § 239; Singer & Singer, supra, § 18:6.

¶48 The District Court reasoned that Subsection (4)’s prohibition against requiring

vaccines at certain regulatory stages was unrelated to the title’s antidiscrimination purpose.

The District Court strictly construed HB 702’s title and stated that the title “d[id] not

reference nor provide for bodily autonomy; the title is based off another’s response to an

individual’s vaccination status, not the individual’s choice whether to receive a vaccine

undergoing safety trials or approved for emergency use.” It concluded that there was no

correlation between prohibiting vaccination mandates for a certain vaccines and

antidiscrimination based on vaccination status.

¶49 HB 702’s title, “Prohibiting Discrimination based on a Person’s Vaccination Status

or Possession of an Immunity Passport,” does not identify a particular subset of vaccines

but indicates a broad prohibition against adverse treatment of a person arising from the

person’s receipt of a vaccine, or lack thereof. In other words, it is not “particular” in its

limitations. “Generality or comprehensiveness in [a] title is no objection, provided the title

is not misleading or deceptive and fairly directs the mind to the subject of the law in a way

calculated to attract the attention truly to the matter which is proposed to be legislated on.”

24
Evers,

36 Mont. at 143

92 P. at 464

. Emergency use authorization vaccines and vaccines

undergoing safety trials are subsets of vaccines generally and thus are inherently connected

to an individual’s “vaccination status.” At the time HB 702 was introduced to the

Legislature and the public, vaccination and immunity passports were strongly associated

with vaccines still undergoing clinical trials or under emergency use authorization.4

Provisions related to these topics would not be unreasonable or surprising in a bill dealing

generally with “vaccination status.” The title does not “descen[d] to particulars and

details.” 82 C.J.S. Statutes § 239.

¶50    “A title need not disclose the means and instrumentalities provided in the body of

the [a]ct for accomplishing its purpose, where all the provisions are reasonably necessary

as means for attaining the object indicated by the subject which is expressed in the

title . . . .” Tullock,

72 Mont. at 491

234 P. at 280

 (quotation omitted); see also McKinney,

29 Mont. at 384-85

74 P. at 1097

 (“The title of the [a]ct is general. Its body may contain

any provisions necessary to carry the purpose of the [a]ct into effect.”); Driscoll,

, 54 P. at 573 (“It is not necessary that the title shall embody the exact method of

application or procedure where the general object is plainly expressed.”) (citation omitted);

Ross,

38 Mont. at 323

99 P. at 1057

 (“The title of an [a]ct may be as comprehensive as the

legislative judgment dictates, provided only that it looks to but a single purpose or object,




4
  See generally Authorization of Emergency Use of Two Biological Products During the
COVID-19 Pandemic; Availability,

86 Fed. Reg. 5,200

, 5,200-10 (Jan. 19, 2021); Interim position
paper: consideration regarding proof of COVID-19 vaccination for international travelers, World
Health Organization (Feb. 5, 2021), https://perma.cc/WC5Y-V7AE.
                                                25
and the Act may include every matter germane to, and in furtherance of, that purpose or

object.”).

¶51    Here, given its broad reference to “vaccination status,” we conclude that the title of

HB 702 is entitled to liberal construction in favor of its constitutionality. MEA-MFT, ¶ 8.

The title indicates a law that broadly prohibits unfavorable treatment of any person based

on whether the person has been vaccinated against a disease. Choosing not to obtain a

certain vaccine is a “vaccination status.” Prohibiting a mandate for vaccines that have not

completed safety trials reasonably relates to the purpose that those who abstain from such

vaccines not suffer adverse consequences solely by that choice. The District Court’s strict

construction and narrowing focus was improper in light of the title’s broad scope of

discrimination.

¶52    Subsection (4) is not an “independent [or] incongruous subject” or “foreign to its

general purpose” as set forth in HB 702’s title. Forward Mont., ¶ 26; Burr,

73 Mont. at 588

238 P. at 585

; it is instead a provision pertinent to protecting a person against

discrimination for not receiving a limited subset of vaccines.         HB 702’s title was

“reasonably calculated to give notice of the contents of the bill” to interested individuals

so that they may follow “intelligently.” State v. Duncan,

74 Mont. at 436

240 P. at 980

;

Forward Mont., ¶ 26. We defer to the “Legislature to fix the title of its own acts” and will

not hold an act invalid because “a better [title] might have been used.” MEA-MFT, ¶ 8

(quoting Harper,

234 Mont. at 266

); Driscoll,

, 54 P. at

574. Liberally construing Article V, Section 11(3) “so as not to interfere with or impede


                                             26
proper legislative functions,” we conclude that the Legislature fixed a fair, if imperfect,

title to HB 702. Harper,

234 Mont. at 266

; Parker,

140 Mont. at 548

374 P. 2d at 334

; MEA-MFT, ¶ 8 (quoting McKinney,