PLANNED PARENTHOOD OF MONTANA and PAUL FREDRICK HENKE, M.D., on behalf of themselves and their patients, Plaintiffs and Appellees,
STATE OF MONTANA and TIM FOX, ATTORNEY GENERAL OF MONTANA, in his official capacity, and his agents and successors, Defendants and Appellants.
Submitted on Briefs: November 19, 2014
District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV-2013-407 Honorable Jeffrey M. Sherlock, Presiding Judge
For Appellants: Timothy C. Fox, Montana Attorney General, Mark Mattioli, Chief Deputy Attorney General, Jon Bennion, Deputy Attorney General; Helena, Montana
For Appellees: Tanis M. Holm, Crist, Krogh, Butler & Nord, LLC; Billings, Montana
Meg Holzer, Planned Parenthood Federation of America; New York, New York
James Jeremiah Shea, Justice
¶1 The State of Montana appeals from an order of the First Judicial District Court, Lewis and Clark County, granting summary judgment to the plaintiffs on the grounds that the rule of collateral estoppel (issue preclusion) prevents the State from defending the constitutionality of two laws that require the involvement of a minor's parents before the minor may obtain an abortion. We reverse and remand to the District Court for further proceedings.
¶2 The plaintiffs in this case filed suit in the District Court, challenging the constitutionality of two laws: (1) a 2011 law requiring parental notification before a minor may obtain an abortion, and (2) a 2013 law requiring parental consent before a minor may obtain an abortion. The plaintiffs argue that a 1999 district court ruling which held unconstitutional a similar, 1995 law requiring parental notification before a minor may obtain an abortion now prevents litigation of the issues raised in the present case.
¶3 This appeal involves only the narrow procedural question of whether the 1999 District Court order prevents the State from defending the constitutionality of the current parental notification and parental consent laws on grounds of issue preclusion. The rule of issue preclusion prevents the same parties from relitigating an issue already decided in another case. For the rule to apply in this case, the issues in the current case must be identical to the issues in the 1999 case.
¶4 The issues decided in the 1999 case were constitutional questions specific to the 1995 parental notification law that was challenged in that case. Specifically, the constitutional questions decided were: whether the 1995 law infringed upon the fundamental rights of minors; whether the State could assert a sufficiently compelling interest to justify the 1995 law's infringement on the fundamental rights of minors; and whether the 1995 law complied with the Montana Constitution's restriction against infringement upon minors' rights unless doing so enhances the protection of minors.
¶5 Although the laws that are the subject of the current challenge are similar to the 1995 law, they differ in substantive respects. Therefore, the issues to be decided in this case, while similar, are not identical to the previous case. Thus, as discussed below, issue preclusion does not apply.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 In 1995, the Montana Legislature enacted a law prohibiting physicians from providing an abortion to a minor under the age of 18 without first giving notice to the minor's parents or legal guardian. See Parental Notice of Abortion Act, §§ 50-20-201 to 50-20-215, MCA (1995) (repealed 2011) ("1995 Parental Notification Act"). Planned Parenthood filed suit in the First Judicial District Court, challenging the 1995 Parental Notification Act's constitutionality. The District Court ruled the law was unconstitutional. Wicklund v. State, 1999 Mont. Dist. LEXIS 1116 (1st Jud. Dist. Feb. 11, 1999) (ADV 97-671). The State did not appeal that ruling.
¶7 In 2011, the Legislature drafted legislative referendum LR-120, the Parental Notice of Abortion Act of 2011, to be placed on the 2012 ballot ("2011 Parental Notification Act"). See 2011 Mont. Laws 307. The referendum was passed by voters. LR-120 prohibited physicians from performing an abortion on a minor under 16 years of age without first giving notice to the minor's parents.
¶8 In 2013, the Legislature enacted the Parental Consent for Abortion Act of 2013 ("2013 Parental Consent Act"). See §§ 50-20-501 to 50-20-511, MCA. The 2013 Parental Consent Act requires a physician to obtain a signed consent form from a parent or guardian before performing an abortion on a minor under 18 years of age.
¶9 On May 30, 2013, the plaintiffs, Planned Parenthood and Dr. Henke, filed suit challenging the constitutionality of the 2011 Parental Notification Act and the 2013 Parental Consent Act. The plaintiffs argued that the parties and issues in the current case were the same parties litigating the same issues in the Wicklund case; therefore, the plaintiffs contended that the doctrine of issue preclusion bars the State from defending the constitutionality of the 2011 Parental Notification Act and the 2013 Parental Consent Act. On June 17, 2013, the State filed a motion for partial summary judgment, arguing that issue preclusion did not apply because the issue in the immediate case was different from the issue in Wicklund.
¶10 On January 31, 2014, the District Court issued an opinion and order granting summary judgment in the plaintiffs' favor on the grounds that issue preclusion barred the State from defending the constitutionality of the 2011 Parental Notification Act and the 2013 Parental Consent Act. The District Court concluded that the parties in the two cases were the same, the issues in the cases were ...