ORDER

Representing herself Britney Bieroth has filed a “Verified Petition for Writ of Mandamus" against Governor Greg Gianforte, alleging that the State of Montana's COVID-19 Executive Orders No. 2-2020 and 3-2020 violated several constitutional rights of Montanans, including rights to due process, equal protection, and a clean and healthful environment, as well as statutory schemes for health care systems. Citing several statutes for a writ of mandate, Bieroth contends that these violations are clear and should cease immediately. She requests "that proper process be issued and served upon the Respondent" and that Governor Gianforte "be compelled to stop any/all invasions of privacy, such as asking and/or documenting whether Montanans wear alleged medical devices (face masks), provide DNA samples, [have] their temperature [taken], [be vaccinated], perform[] contact tracing and any and all other activities that invade the privacy of Montanans.”

The Montana Rules of Appellate Procedure are clear concerning original proceedings like a writ of mandate. To obtain a writ of mandate, the proceedings "shall be commenced in the manner prescribed by the applicable sections of the Montana Code Annotated for the conduct of such or analogous proceedings and by these rules." M. R. App. P. 14(2). Section 27-26-205, MCA, provides that "[t]he writ must be served in the same manner as a civil action[.]" To state a claim for mandamus, a party must show entitlement to the performance of a clear legal duty by the party against whom the writ is directed and the absence of a plain, speedy, and adequate remedy at law. Section 27-26-102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834. "For a court to grant a writ of mandate, the clear legal duty must involve a ministerial act, not a discretionary act." Smith, ¶ 28.

Bieroth cites to the mandamus statutes, but she has not met the statutory requirements to secure a writ of mandate. First, Bieroth has not perfected service upon the Respondent Governor Gianforte. The attached certificate of service shows that she mailed a copy to the Attorney General with a complete mailing address and sent a copy to Governor Greg Gianforte with an address, "Capital [sic] Building," and nothing else. Section 27-26-205, MCA; M. R. App. P. 10(2). Second, Executive Orders are discretionary in nature. Bieroth challenges Executive Orders entered in 2020. We point out that Governor Gianforte has issued his own Orders. See Executive Order 2-2021, declaring a state of emergency. On January 14, 2021, Governor Gianforte directed that "[A]ll directives issued pursuant to EO 2-2020 and EO 3-2020 continue to remain in force insofar as they do not conflict with the January 13, 2021[] Directive ....'" His February 12, 2021 directive encouraged Montanans to wear masks and recommended flexibility for businesses to serve their customers in a healthful environment. Bieroth has not demonstrated that she has "a specific right and [that] the public officer is acting ministerially and has no discretion in the matter." Smith, ¶ 28.

IT IS THEREFORE ORDERED that Bieroth's Petition for Writ of Mandamus is DENIED and DISMISSED.

The Clerk of the Supreme Court is directed to provide a copy of this Order to the Office of the Governor, to the Attorney General, and to Britney Bieroth personally.