                                                                                            04/14/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                                Case Number: OP 20-0189


                                        OP 20-0189


DISABILITY RIGHTS MONTANA,
                                                                        FILED
                                                                        APR 1 4 2020
              Petitioner,
                                                                     Bowen Greenwood
                                                                   Clerk of Supreme Court
                                                                      State of Montana
       v.

MONTANA JUDICIAL DISTRICTS 1-22,                                     ORDER
MONTANA COURTS OF LIMITED
JURISDICTION, MONTANA DEPARTMENT
OF CORRECTIONS,and THE MONTANA
BOARD OF PARDONS AND PAROLE,

              Respondents.


      Petitioner Disability Rights Montana(DRM)has.petitioned this Court to exercise
its powers of original jurisdiction and supervisory control under Article vg, Section 2, of
th6 Montana Constitution and pursuant to M.R.App.P. 14, and the Court's power to issue
writs ofmandamus under Title 27, chapter 26,MCA. DRM asks this Court to invoke these
powers to immediately reduce the population of Montana jails, prisons, and houses of
correction because Montana is under a state ofemergency due to the COVID-19 pandemic.
      The Petition is denied. DRM has failed to establish that corrections and jail officials
have violated a clear legal duty to reduce prisoner populations as requested. DRM also
fails to establish that the courts of Montana are proceeding under a mistake of law or
causing a gross injustice. Further, DRM has either completely ignored or misrepresented
the facts that clearly dernonstrate the Executive and Judicial Branches have implemented
appropriate and detailed measures for correctional facilities and jails to address the current
state of emergency surrounding the critical health and safety issues that must be addressed
in light ofthe emergence ofthe COVID-19 virus in this State.
       DRM alleges it has associational standing to bring this petition on behalf of all
disabled prisoners because it is authorized by law to pursue legal remedies to ensure that
disabled individuals in state institutions are protected from abuse and neglect. It argues
that subjecting non-dangerous, disabled prisoners to a potential outbreak of COVID-19
violates their right to be free from cruel and unusual punishment under the Eighth
Amendment to the U.S. Constitution and Article II, Section 22, of the Montana
Constitution, and their right to due process under the Fourteenth Amendment to the U.S.
Constitution and Article II, Section 17, of the Montana Constitution. DRM sets forth a
request for relief that includes specific actions it wants Respondents to take to limit the
number of individuals currently in custody—both pretrial detainees and sentenced
prisoners—and the number of individuals being taken into custody. It suggests this Court
appoint a special master to achieve these actions.
       We gave the named Respondents the opportunity to respond to DRM's petition. We
received responses from several.1 We also granted leave to file an amicus curiae brief to
Public Health and Human Rights Experts.2 Upon DRM's motion, we granted it leave to
file a reply brief. The Court has considered all filings it received in this matter.
       As a threshold issue, we must first determine if this Court may take original
jurisdiction. Article VII, Section 2, ofthe Montana Constitution grants this Court original
jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as


1 Montana Department of Corrections and Montana Board of Pardons and Parole(DOC); District
Court Judge Hon. Elizabeth A. Best, Eighth Judicial District; Hon. Kelly E. Mantooth, Fergus
County Justice of the Peace and Lewistown City Court Judge; District Court Judges Hon. Amy
Eddy,Hon. Robert Allison, Hon. Heidi Ulbricht, Hon. Dan Wilson,and Justices ofthe Peace Hon.
Eric Hummel and Hon.Paul Sullivan, Eleventh Judicial District; District Court Judges Hon.Leslie
Halligan, Hon. Robert L. Deschamps, III, Hon. John W. Larson, Hon. Jason Marks, and Hon.
Shane A. Vannatta, Fourth Judicial District; District Court Judges Hon. Howard F. Recht and Hon.
Jennifer B. Lint, Twenty-First Judicial District; Bridger City Court Judge Hon. Bert Kraft,
Twenty-Second Judicial District; District Court Judges Hon. Jessica Fehr, Hon. Donald L. Harris,
Hon. Michael Moses, Hon. Gregory R. Todd, Hon. Rod Souza, Hon. Mary Jane Knisely, Hon.
Colette B. Davies, Hon. Ashley Harada, Standing Masters Molly Rose Fehringer and Laurie
Grygiel, and Justices of the Peace Hon. David Carter and Hon. Jeanne Walker, and Billings
Municipal Court Judge Hon. Sheila Kolar, Thirteenth Judicial District; District Court Judge Hon.
Matthew J. Wald, Twenty-Second Judicial District; District Court Judge Hon. David Cybulski,
Fifteenth Judicial District; and Hon. Jessie Connolly,President, Montana Magistrates Association.

2 Joseph Bick, M.D., Robert L. Cohen, M.D., Kathryn Hampton, MSt, Ranit Mishori, M.D., and
Brie Williams, M.D.
                                               2
may be provided by law, and it grants this Court general supervisory control over all other
courts. The procedure for applying for such writs is governed by M.R. App.P. 14.
      DRM first argues this Court should exercise supervisory control over the State's
Judicial Districts to require a uniform response to the COVID-19 pandemic in all detention
and correctional facilities. Under M. R. App. P. 14(3)(a), we will exercise supervisory
control over another court in limited circumstances: when urgency or emergency factors
exist, making the normal appeal process inadequate; when the case involves purely legal
questions; and when "the other court is proceeding under a mistake of law and is causing
a gross injustice[J" As we recently stated,"Our procedure for writ of supervisory control
is unique to Montana, and we are loathe to suspend or refashion its criteria." Barrus v.
Mont. First Judicial Dist. Court, 2020 MT 14, ¶ 20, 398 Mont. 353, 456 P.3d 577. In
Barrus, we refused to expand the writ to situations in which facts are in dispute. Barrus,
IN 17-20. Judge Wald, among other Respondents, argues DRM's petition for writ of
supervisory control must fail because there are numerous disputed facts and DRM has not
developed a factual record to support its allegations of inaction. We agree this matter is
not appropriate for supervisory control because it does not involve purely legal questions.
       DRM further argues the Court should accept jurisdiction and issue a writ of
mandamus to effectuate the remedies DRM seeks. A writ of mandamus is available if the
party who applies for it is entitled to the performance of a clear legal duty by the party
against whom the writ is sought. If a clear legal duty exists, a court must grant the writ if
there is no speedy and adequate remedy available in the ordinary course oflaw. The clear
legal duty must involve a ministerial, not a discretionary, act. Smith v. fly. ofMissoula,
1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834 (citing § 27-26-102, MCA). A clear
legal duty exists only when the law defines the duty with such precision and certainty as to
leave nothing to the exercise of discretion and judgment. City ofDeer Lodge v. Chilcott,
2012 MT 165, ¶ 16, 365 Mont. 497,285 P.3d 418 (citation and quotation omitted). DRM
alleges that Respondents have a clear legal duty to reduce the population of incarcerated
individuals to protect disabled prisoners. However, this is not a specific duty contained in
statute and it clearly requires the exercise of discretion and judgment. While DRM may

                                             3
have a "policy disagreement" with Respondents, as DOC describes it, DRM has not proven
the existence of a clear legal duty to reduce the prison population. Without the existence
of a clear legal duty, no writ of mandamus may issue.
      DRM further offers that this Court has broad authority to take jurisdiction oforiginal
proceedings seeking extraordinary writs. DRM offers nothing fiirther than this general
statement. However, even if this Court were to assume original jurisdiction under Article
VII, Section 2, of the Montana Constitution and pursuant to M. R. App. P. 14, DRM's
substantive arguments would not persuade the Court to insert itselffurther into this matter.
       DRM argues that the constitutional rights of non-dangerous, disabled prisoners are
being violated by subjecting them to an "inevitable outbreak of COVID-19 while
incarcerated. Several Respondents, including the Fourth Judicial District, contend DRM
has not established that an outbreak is "inevitable." However, it is undisputed that an
outbreak is at least as likely, if not more likely, to occur within the confines of a detention
center or correctional facility. Prison officials may not "ignore a condition of confinement
that is sure or very likely to cause serious illness and needless suffering the next week or
month or year." Helling v. McKinney,509 U.S. 25, 33, 113 S. Ct. 2475,2480(1993).
       The government custodian responsible for the custody and care of incarcerated
persons has a constitutional duty to provide for the "general well beine and "basic human
needs" of incarcerated persons, including but not necessarily limited to food, clothing,
shelter, medical care, mental health care, and reasonable safety. See Wilson v. State, 2010
MT 278, ¶ 28, 358 Mont. 438, 249 P.3d 28. In order to show an alleged violation of the
Eighth Amendment based on an alleged deprivation of adequate health care, an inmate
must make an evidentiary showing (1) that the level of health care at issue is
constitutionally inadequate from an objective standpoint based either on a pattern of
negligent conduct or systematic deficiencies or a serious deprivation resulting in the denial
of even a minimal civilized measure of a necessity of life and (2) that the correctional
institution acted with deliberate indifference to the inmate's health and safety through a
conscious disregard of a substantial risk of serious harm to the inmate's health or safety.
 Wilson,   in 27-30; Walker v. State, 2003 MT 134, ¶ 56, 316 Mont. 103, 68 P.3d 872;
                                               4
Farmer v. Brennan, 511 U.S. 825, 840-41, 114 S. Ct. 1970, 1980-81 (1994). "Deliberate
indifference requires that prison officials consciously disregarded a substantial risk of
serious harm to an inmate's health or safety. Walker,¶ 55.
       Article II, Section 4, of Montana Constitution further guarantees Montanans a
fundamental right to human dignity. When the allegations at issue implicate both the
Eighth Amendment protection against cruel and unusual punishment and the Montana right
to human dignity, we read both together to provide Montanans "greater protection[] from
cruel and unusual punishmenr than the Eighth Amendment. Wilson, ¶ 31 (citing Walker,
¶¶ 73, 75). Accordingly, in order to show an alleged violation of the Montana right to
human dignity based on an alleged deprivation of adequate health care to inmates in a
correctional institutional or detention center, an inmate must make an evidentiary showing
(1)that prison officials or conditions subjected the inmate to a substantial risk of serious
harm to the inmate's health or safety and (2) that prison officials "acted with deliberate
indifference to the inmate's health and safety" through a conscious disregard ofthat risk.
Wilson,IN 30-32; Walker,¶ 73-76.
       Both of these tests require the satisfaction of both prongs. Regardless of whether
DRIVI could meet the first prong of either test, we conclude it has not met the second as it
has failed to demonstrate that prison officials have acted with deliberate indifference to the
health and safety of disabled inmates. DRM contends that "Manure to take action is
`conscious' disregard," but it has not demonstrated that Respondents have failed to take
action.
       Judge Wald points out in his response that DRM has the burden of persuasion.
See Miller v. 11th Judicial Dist. Court, 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186
(burden is upon petitioner to convince court to issue writ). He argues that DRM has
improperly attempted to shift this burden to Respondents, requiring them "to present facts
justifying our actions in response to the crisis, in order to prove Petitioner's relief need not
be granted." However, Respondents have provided this Court with ample evidence that
they have not failed to take action. For example, the Fourth Judicial District informs us
that, among other measures taken to reduce the inmate population, the Missoula County
                                               5
Detention Facility is not accepting individuals who have been charged, but not convicted,
ofnon-violent misdemeanor offenses under state law or city ordinances,or individuals who
have been arrested based on a warrant for failure to appear for court dates related to the
same. The Twenty-First Judicial District notes that Judge Recht, the Managing Attorney
for the local Office of the Public Defender, the Ravalli County Attorney, and the Ravalli
County Sheriff met to formulate a plan to review the status of inmates and assess which
could potentially be released without bond under appropriate terms of supervision. As a
result, 12 inmates held in felony cases were released on supervision, and five inmates with
misdemeanor matters were also released. The Thirteenth Judicial District advises us that
the population at the Yellowstone County Detention Facility has been reduced by 25% in
three weeks, from 503 inmates on March 16, 2020, to 374 inrnates on April 6, 2020, and
the Justice Court has released all imnates under its jurisdiction except for three who were
identified as violent or posed a danger ofharm to an identified victim.
       Moreover,this Court has Provided the Judicial Branch with guidance on an ongoing
basis. On March 17, 2020,the Chief Justice "strongly suggest[ed]" that all District Courts
and the Courts ofLimited Jurisdiction work with local authorities to evaluate every pretrial
defendant and every youth in detention. Montana Supreme Court (Mar. 17, 2020),
https://perma.cc/P9J3-T758. On March 20, 2020, the Chief Justice asked the Courts of
Limited Jurisdiction to "review your jail rosters and release, without bond, as many
prisoners as you are able, especially those being held for non-violent offenses." Letter
from Chief Justice Mike McGrath to Montana Courts of Limited Jurisdiction Judges
(Mar. 20, 2020), https://perma.cc/H4NN-Q6YJ. On March 27, 2020, the Chief Justice
issued an Order for this Court that ordered,in part, that courts shall hear rnotions for pretrial
release on an expedited basis, and:
       The Court finds that for those identified as part of a vulnerable or at-risk
       population by the Centers for Disease Control, COVID-19 is presumed to be
       a material change in circumstances, and the parties do not need to supply
       additional briefing on COVID-19 to the court. For all other cases, the
       COVID-19 crisis may constitute a material change in circumstances and new
       information allowing amendment of a previous bail order or providing
       different conditions ofrelease, but a finding ofchanged circumstances in any

                                               6
       given case is left to the sound discretion of the trial court. Under such
       circumstances in juvenile matters, the court may make revisions to detention
       provisions without a new detention hearing.

In the Matter ofthe Statewide Response by Montana State Courts to the COVID-19 Public
Health Emergency, Order(Mar. 27, 2020), https://penna.cc/BK24-4869.
       As to DOC's role, on April 1, 2020, the Governor issued a Directive related to the
implementation of Montana's current State of Emergency due to the COVID-19
pandemic.3 In that Directive, Governor Bullock set forth protocols to protect the state
inmate population and facilities staff, which included screening all persons arriving at a
correctional facility,restricting in-person visitations and off-site appointments and, directly
on point with the relief DRM seeks here:
       Providing support to the Board of Pardons and Parole to consider early
       release for all ofthe following, but only so long as they do not pose a public
       safety risk and can have their medical and supervision needs adequately met
       in the community:
          • Imnates aged 65 or older;
          • Imnates with medical conditions that place them at high risk
               during this pandemic or who are otherwise medically frail;
          • Pregnant inmates; or
          • Inmates nearing their release date.

In the Directive, Govemor Bullock referred to interim guidance for correctional facilities
from the Centers for Disease Control and Prevention(CDC).4 He listed some ofthe CDC
recommendations,such as modifying programming to accommodate social distancing and
limit crowding, while further noting that the CDC recognized that its guidance "may need
to be adapted based on individual facilities' physical space, staffing, population,
operations, and other resources and conditions."



3 Directive implementing Executive Orders 2-2020 and 3-2020 related to state correctional and
state-contracted correctionalfacilities(Apr. 1, 2020), https://perma.cc/R5SV-T8YZ.

4 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19) in Correctional and Detention Facilities (Mar. 27, 2020),
https://perma.cc/XJP8-ZJ62.
                                              7
       In its petition, DRM provides nothing more than speculation that some judicial
districts might not be taking action and a false assertion that Cascade County "has refused
to release any individuals because of the COVID-19 pandemic." DRM relies on a news
report with a superficially misleading headline in making this assertion. In an article
entitled,"Sheriff: no release ofinmates from Cascade County jail due to COVID-19," Matt
Holzapfel, a reporter/anchor for KRTV, reported on the March 20, 2020 letter from the
Chief Justice to the Montana Courts of Limited Jurisdiction Judges.5             Holzapfel
interviewed Cascade County Sheriff Jesse Slaughter, who expressed concern about
releasing inmates that were •already risk-assessed and determined not to be safe in the
community. Sheriff Slaughter informed Holzapfel that as County Sheriff he was one, but
not the only, official who could request the release of an inmate. Holzapfel acknowledged
in his report that other officials, such as judges, could request the release of inmates.
Misleading headline aside, the substance ofthe news account makes it clear that while the
Cascade County Sheriff had chosen not to request that any inmates be released, this Court
had directed Cascade County's judges to "release, without bond, as many prisoners as you
are able ... ."
       Judge Best's response to DRM's petition also asserts that judges, not sheriffs, bear
the responsibility ofreleasing inmates. She advises that she has been proactively releasing
inmates at the time of initial appearance, reducing bail as much as possible for inmates
being held, and attempting to find creative pretrial supervision solutions to alleviate the
problem. She notes that while Cascade County Detention Center remains overcrowded,
"the jail population is at its lowest in years." In reply, DRM comments that Judge Best is
but one Judge in the Eighth Judicial District and makes no attempt to correct the false
assertion in its petition concerning the release of Cascade County inmates.
       DRM fitrther argues that Respondents'failure to act under the current circumstances
would violate the due process clauses of the Fourteenth Amendment of the U.S.
Constitution and Article II, Section 17, of the Montana Constitution. While DRM

5Matt Holzapfel, Sheriff no release of inmates from Cascade County jail due to COVID-19
(KRTV Mar. 24,2020), https://perma.cc/P9KL-GCHG.
                                             8
complains that the responses taken to the danger of a COVID-19 outbreak have not been
"uniform" and alleges that some responses have not been adequate, it provides no evidence
of deliberate indifference and no specific evidence of failure to act. Therefore, its
substantive arguments also must fail.
       Finally, we note that individuals who are detained or incarcerated have other
remedies available to them, such as a motion for bond reduction under § 46-9-311, MCA.
This Court has already ordered the lower courts to hear such motions on an expedited basis.
As to the remedies sought by DRM,we believe the Governor's Directive, and its reliance
on the CDC interim guidance, best addresses the current crisis. In particular, the CDC's
guidance sets forth best practices while recognizing the need for flexibility to accomrnodate
variability in detention centers and correctional facilities.
       IT IS THEREFORE ORDERED that DRM's Emergency Petition for Extraordinary
Writ, Mandamus Relief, and Writ of Supervisory Control is DENIED.
       The Clerk is directed to provide a copy of this Order to counsel for Petitioner
Disability Rights Montana, the Attorney General, counsel for the Department of
Corrections, the Montana Board of Pardons and Parole, and to the Office of Court
Administrator for electronic service on the judges and justices ofthe Respondent courts.
       DATED this /ro day of April, 2020.




                                                                Chief Justice




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