Missoula lawyer opposed to COVID health mandates questions city’s legal opinion

Quentin Rhoades
Posted at 11:36 AM, Sep 23, 2021
and last updated 2021-09-23 14:51:42-04

MISSOULA — Suggesting an individual has no right to spread a communicable disease, the Missoula city attorney on Tuesday issued a legal opinion saying the city’s Parks Department “may prohibit” individuals who are COVID positive, or have had a close contact with a positive patient, from participating in park-related programs.

But shortly after the legal opinion was issued, one Missoula attorney who has fought local mask mandates and county rules regarding COVID on behalf of several businesses, questioned the opinion in a flurry of emails to city officials.

City Attorney Jim Nugent on Tuesday said Parks and Recreation staff have been working on a policy relating to COVID and had concerns about how to address participation in their programs by individuals who are in a COVID-positive status, or have had close contact with someone who is.

In his legal opinion, Nugent cited House Bill 702, passed this year by the Legislature, which made it unlawful for a person or government to refuse service or privileges to someone based on that person’s vaccination status.

However, Nugent determined that HB-702 “does not specifically regulate” how a person or government may deal with the presence of a person who is COVID positive or has recently had a close contact with someone who is.

“City parks and recreation staff do not have to allow an individual currently in a Covid-positive status, or a COVID close contact status, to participate in Parks and Recreation programs,” Nugent wrote.

His opinion hinged in part on other aspects of state law that guarantee an individual a right to a clean and healthful environment. As a result, not allowing COVID-positive individuals or close contacts to participate in city Parks and Recreation programs provides a “lawful opportunity for individuals to have a healthful environment.”

Shortly after the opinion was issued, attorney Quentin Rhoades questioned the opinion, suggesting that Nugent was advising city officials to impose quarantine restrictions on citizens whom they believe are infected or could be infected with COVID.

Rhoades suggested Nugent’s opinion violated due process.

“Unfortunately, your advice fails to take into account the legal requirement of ‘due process.’ ” Rhoades wrote. “If city officials or employees suspect someone of ‘current COVID positive status or a current COVID close contact status,’ there is a set of written procedures that must be invoked before quarantines can be legally enforced.”

Nugent later said his legal opinion was not referring to speculation around the health of an individual. Rather, he said, it was intended to offer guidance to staff in instances where staff already know the COVID status of an individual.

Nugent added that city staff have a responsibility to secure and promote public health and safety, and the general welfare of its citizens. In addition, he said “many individuals voluntarily disclose their Covid status” to others.

Again, Nugent wrote, “there is no right for an individual to spread or potentially spread a communicable disease.”

“When you and your clients, through your actions, oppose city Parks and Recreation staff from taking responsible action … you and your clients are, through your actions, basically facilitating the spread of a communicable disease,” Nugent told Rhoades. “Covid is now the most fatal communicable disease that has occurred in over 100 years.”

In January, Rhoades filed a lawsuit on behalf of six Missoula businesses and one individual against the Missoula City-County Board of Health, claiming their Covid rules violated their unalienable rights by requiring people to wear masks in public and by restricting business hours and gathering sizes.

In March, he followed by seeking a preliminary injunction to halt all Missoula County rules intended to prevent the spread of Covid. In August, he then sued Missoula school districts for mandating the use of face coverings.

“Whatever the intent of your memo, you must admit it reads like a license for city Parks and Recreation staff to assume the role of informal deputy health officers,” Rhoades wrote to Nugent. “You should expressly warn them against such overreach, as it lies clearly beyond their authority.

“Finally, it is odd that you would insist, “THERE IS NO RIGHT FOR AN INDIVIDUAL TO SPREAD OR POTENTIALLY SPREAD A COMMUNICABLE DISEASE” when no one, at least to my knowledge, has suggested otherwise.”