IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, et al., 

Petitioners, 

v. 

OP 22-0552 

MONTANA THIRTEENTH JUDICIAL 

DISTRICT COURT, YELLOWSTONE 

COUNTY, HON. MICHAEL G. MOSES, 

Presiding, 

Respondent. 

FILED 

JAN 10 2023 

Bowen Greenwood 

Clark of Supreme Court 

State of Montana 

ORDER 

Petitioner State of Montana seeks a writ of supervisory control directing the 

Thirteenth Judicial District Court, Yellowstone County, to vacate its September 19, 2022 

Findings of Fact, Conclusions of Law, and Order Granting in Part and Denying in Part 

Plaintiffs' Motion Seeking Clarification of the Preliminary Injunction (Clarification Order) 

in that court's Cause No. DV-21-873. The State alleges the District Court erred when it 

ruled that the Montana Department of Health and Human Services (DPHHS) must reinstate 

the administrative rules that were in effect prior to the passage of SB 280, the enactment 

of which the District Court enjoined in a prior ruling that granted a preliminary injunction 

in this matter. Amelia Marquez and John Doe, Plaintiffs in the underlying matter, have 

responded in opposition to the State's petition. 

Supervisory control is an extraordinary remedy that may be invoked when the case 

involves purely legal questions and urgent or emergency factors make the normal appeal 

process inadequate. M. R. App. P. 14(3). The case must meet one of three additional 

criteria: (a) the other court is proceeding under a mistake of law and is causing a gross 

injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other 

court has granted or denied a motion for substitution of a judge in a criminal case. 

01/10/2023

Case Number: OP 22-0552
M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case 

decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 

279, 259 P.3d 754 (citations omitted). 

SB 280 had an imrnediate effective date and was signed into law by Governor Greg 

Gianforte on April 30, 2021. The preamble to SB 280 explains that the purpose of the bill 

is to repeal the December 2017 amendments to Admin. R. M. 37.8.102 and 37.8.311, 

adopted in MAR Notice No. 37-807, and enact into law the substance of the administrative 

rule that existed prior to the adoption of MAR Notice No. 37-807. The substance of these 

administrative rules provided the process by which Montanans might change the sex 

designation on their birth certificate. SB 280 created § 50-15-224, MCA, which provides, 

in relevant part, that "[t]he sex of a person designated on a birth certificate may be amended 

only if [DPHHS] receives a certified copy of an order from a court with appropriate 

jurisdiction indicating that the sex of the person born in Montana has been changed by 

surgical procedure." 

On July 16, 2021, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief 

in the District Court, followed, by a motion for preliminary injunction on July 19, 2021. 

On April 21, 2022, the District .Court issued Findings of Fact, Conclusions of Law, and 

Order Granting in Part and Denying in Part Defendants' Motion to Dismiss and Granting 

Plaintiffs' Motion for a Preliminary Injunction (Preliminary Injunction Order) that 

enjoined the State from enforcing any aspect of SB 280 during the pendency of Plaintiffs' 

action. The court ruled that the preliminary injunction would maintain the status quo—

"Mlle last, peaceable, noncontested condition preceding the controversy in this matter was 

that which existed prior to the enactment of SB 280." 

Although preliminary injunctions are immediately appealable under M. R. App. P. 

6(3)(e), DPHHS did not appeal the Preliminary Injunction Order. However, DPHHS also 

did not subsequently follow the administrative rules adopted by DPHHS in MAR Notice 

No. 37-807 (hereinafter referred to as the "2017 Rule"). Instead, on May 23, 2022, the State 

published a Notice of Adoption of Temporary Emergency Rule in which it intended to 

supersede the 2017 Rule with an "emergency rule" that provided for the change of the sex 

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designation on a Montana birth certificate only in two specific circumstances. In the 

Notice, DPHHS alleged that the Preliminary Injunction left DPHHS "in an ambiguous and 

uncertain situation" because the effect of the administrative rule that was issued in 2021, 

implementing SB 280, "was to eliminate the 2017 [R]ule." The Notice further asserted, 

"The [District Court] did not issue a mandatory injunction directing [DPHHS] to reimplement the 2017 [R]ule. Accordingly, there is currently no non-enjoined regulatory 

mechanism by which [DPHHS] can accept and process birth certificate sex identification 

amendment applications." On that basis, DPHHS justified its implementation of a 

Temporary Emergency Rule, further asserting that it intended to engage in standard 

rulemaking to adopt a sirnilar permanent rule to go into effect upon the expiration of the 

Temporary Emergency Rule. 

On June 7, 2022, Plaintiffs filed a motion in the District Court captioned "Plaintiffs' 

Motion Seeking Clarification of the Preliminary Injunction and to Declare Invalid the 

Temporary Emergency Rule Published by Defendant the Montana Department of Public 

Health and Human Services in Response to this Court's April 21, 2022 Order." Plaintiffs 

asked the District Court in part to clarify that the Preliminary Injunction Order requires 

DPHHS to revert to the 2017 Rule and "[o]rder that the Temporary Rule is unlawful and 

void because it violates § 2-4-303, MCA[.]" 

On September 10, 2022, DPHHS amended Admin. R. M. 37.8.311(5) to be 

consistent with its Temporary Emergency Rule. (Hereinafter referred to as the "2022 

Rule.") 

On September 19, 2022, after further briefing and oral argument, the District Court 

; 

issued the Clarification Order that is the subject of the present petition. In the Clarification 

Order, the District Court pointed out that the Preliminary Injunction ordered a return to the 

status quo, or "the last, actual peaceable, noncontested condition which preceded the 

pending controversy." The Preliminary Injunction Order explicitly stated, "The last actual, 

peaceable, noncontested condition preceding the controversy in this matter was that which 

existed prior to the enactment of SB 280." The court further noted that during the hearing 

on Plaintiffs'. motion for clarification, counsel for DPHHS acknowledged that the 2017 

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Rule was in place prior to the enactment of SB 280. The court thus found that DPHHS 

"had knowledge of what constituted 'that which existed prior to the enactment of SB 280" 

when the court issued the Preliminary Injunction Order. The court further found that 

although DPHHS alleged that it promulgated new administrative rules because "there was 

no rule in place" once the court issued the Preliminary Injunction Order, its counsel was 

"entirely aware" that the 2017 Rule was in place prior to the enactment of SB 280. The 

court found that DPHHS violated the court's Preliminary Injunction Order by issuing a 

temporary rule instead of reverting to the status quo. 

Noting that SB 280 explicitly stated that its purpose was to repeal the 2017 Rule, 

the court concluded that maintaining the status quo rneant reinstating the 2017 Rule. The 

court characterized DPHHS's position that the Preliminary Injunction Order "left no 

regulatory process for changing one's sex on a birth certificate" as "demonstrably 

ridiculous" and that "no serious argument" could be rnade that the Temporary Emergency 

Rule and the 2022 Rule constitute a return to the status quo. The court determined that it 

did not have jurisdiction over the Temporary Emergency Rule or the 2022 Rule, but it 

further concluded that DPHHS issued those rules in violation of the Preliminary Injunction, 

which directed DPHHS to reinstate the 2017 Rule. 

The court further ruled, "To the extent necessary due to Defendants['] 'confusion,' 

the Court clarifies that with the Order issued on April 21, 2022, it required that Defendants 

return to the status quo—which as evidenced by SB 280 itself—is a return to the 2017 

DPHHS regulations that were in effect until the enactment of SB 280." (Emphasis in 

original.) 

This petition for writ of supervisory control followed, in which the State asserts that 

DPHHS need not follow the District Court's order that it reinstate the 2017 Rule. 

We agree that the State's petition presents a purely legal question: Whether the 

District Court, which determined that it did not have jurisdiction over the 2022 Rule, 

nonetheless exceeded its authority in the Clarification Order by directing DPHHS to 

reinstate the 2017 Rule. In alleging that this matter is properly susceptible to a writ of 

supervisory control, the State further alleges that urgent factors make the normal appeal 

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process inadequate as the Clarification Order puts DPHHS into an untenable situation. The 

State clainis that DPHHS must either implement the 2017 Rule, thereby violating its own 

administrative rules and exposing itself to potential liability under IVIAPA, or it must 

implement the 2022 Rule, thereby risking contempt of court. The State argues that the 

normal appeal process is inadequate because DPHHS will otherwise remain in this position 

until the District Court issues its final ruling on Plaintiffs' request for injunctive relief at 

some point in the future. 

Plaintiffs oppose this Court's consideration of the writ, arguing that the Preliminary 

Injunction Order was immediately appealable under M. R. App. P. 6(3)(e), and that the 

State's failure to appeal should not now allow it to seek review via extraordinary writ by 

claiming that the rulings the District Court made in the Preliminary Injunction Order were 

not made until the Clarification Order. Plaintiffs argue that DPHHS cannot manufacture 

an ernergency when the opportunity to appeal the substance of the rulings it wishes to 

challenge was readily available to it. Plaintiffs maintain that DPHHS has failed to 

demonstrate that an emergency exists and thus this matter is not susceptible to review on 

petitionfor writ. 

However, the issue presented by the State's petition is narrower than Plaintiffs 

suggest: the State does not challenge the Preliminary Injunction Order, nor could it do so 

as M. R. App. P. 6(3)(e) explicitly provides the remedy of appeal for "an order granting or 

resolving, or refusing to grant or dissolve, an injunction or an attachment." It questions 

only whether the District Court exceeded its authority in the Clarification Order. We find 

it appropriate to consider this question via this petition for writ. 

In its petition, the State presents two issues: First, whether the District Court ordered 

DPHHS to reinstate the 2017 Rule in the Preliminary Injunction Order. Although the State 

asserts that the District Court did not do so, the State is incorrect. The Preliminary 

Injunction Order was clear and required no "clarification." Given that Plaintiffs have 

likewise asserted that the Preliminary Injunction was not "ambiguous" or "uncertain," we 

question why they requested "clarification" instead of enforcement from the District Court. 

SB 280 explicitly stated that its purpose was "to repeal the rulemaking adopted in MAR 

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Notice No. 37-807 and enact into law the substance of the administrative rule existing prior 

to the adoption of MAR Notice No. 37-807." In enjoining SB 280, and thereby maintaining 

the status quo or "last, actual peaceable, noncontested condition which preceded the 

pending controversy," the District Court unquestionably reinstated the 2017 Rule for so 

long as its preliminary injunction remains in effect. 

Next, the State argues that if the District Court either ordered DPHHS to revert to 

the 2017 Rules, or if the 2017 Rules automatically went into effect when SB 280 was 

enjoined, then the issue we must address is whether DPHHS could undertake new 

rulemaking. The State argues that if DPHHS was free to undertake new rulemaking, then 

the District Court erred in the Clarification Order when it directly or indirectly enjoined 

DPHHS from doing so as that matter exceeded the scope of the present litigation because.

Plaintiffs only challenged SB 280 and not any administrative rules. DPHHS maintains that 

its rulemaking authority exists irrespective of the current litigation. 

The District Court found that it had no jurisdiction over the 2022 Rule. However, 

it further concluded that the 2022 Rule was issued in violation of the Preliminary Injunction 

Order, which required DPHHS "to return to the status quo and therefore . . . to the 2017 

DPHHS regulations." Nonetheless, the court did not hold DPHHS in contempt. 

Plaintiffs did not directly challenge the 2022 Rule, either by amending their 

complaint to include a request for declaratory judgment pursuant to § 2-4-506, MCA, or 

by petitioning DPHHS for repeal pursuant to § 2-4-315, MCA. Furthetmore, Plaintiffs did 

not challenge the sufficiency of DPHHS's reasons for a finding of imminent peril to the 

public health, safety, or welfare via a petition for judicial review as provided in § 2-4-303, 

MCA. Although their motion for clarification asserts that the District Court had "the power 

to review" the sufficiency of the underlying irnminent peril under § 2-4-303, MCA, they 

did not file a petition for judicial review as required by statute, and thus the authority to 

conduct this review was never given to the District Court. 

In the present petition before this Court, as a remedy, the State asks us to stay the 

Clarification Order and "enforce the original preliminary injunction order that did not 

require DPHHS to enforce the 2017 Rule." As we explained above, the Preliminary 

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Injunction Order requires DPHHS to maintain the status quo, which reinstates the 2017 

Rule for as long as the Preliminary Injunction Order—which DPHHS did not appeal—

remains in effect. However, DPHHS is entitled to relief insofar as the Clarification Order 

purports to enjoin DPHHS from engaging in rulemaking, as Plaintiffs have not properly 

challenged the 2022 Rule under MAPA and its implementation therefore has not been 

brought before the District Court. 

IT IS THEREFORE ORDERED that the State's Petition for a Writ of Supervisory 

Control is GRANTED IN PART to the extent that the District Court's September 19, 2022 

Findings of Fact, Conclusions of Law, and Order Granting in Part and Denying in Part 

Plaintiffs' Motion Seeking Clarification of the Preliminary Injunction enjoins the 2022 

Rule. 

The Clerk is directed to provide immediate notice of this Order to counsel for 

Petitioner, all counsel of record in the Thirteenth Judicial District Court, Yellowstone 

County, Cause No. DV-21-873, and the Honorable Michael G. Moses, presiding. 

DATED this ) p day of January, 2023. 

Chief Justice 

Justices 

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