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Attorney asks Montana Supreme Court again to stop gag-order issued to Glasgow couple

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Attorney asks Montana Supreme Court again to stop gag-order issued to Glasgow couple

Feb 12, 2024 | 6:49 pm ET
By Darrell Ehrlick
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Attorney asks Montana Supreme Court again to stop gag-order issued to Glasgow couple
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The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

An attorney for a Glasgow couple said that a state court judge has illegally gagged them in a disputed custody case in which a 14-year-old was removed from their home because of being suicidal, and they want the state’s highest court to dissolve the order so they aren’t jailed for speaking out against the state.

This is the second time the Montana Supreme Court has received a motion from Bozeman attorney Matthew Monforton asking for the state’s highest court to stop a gag-order and prevent possible sanctions against Todd Kolstad and his wife, Krista.

The case stems from a child-custody dispute with the Montana Child Protective Services, a division of the Montana Department of Public Health and Human Services. In August 2023, the Kolstad’s child was removed because both the parents and department agreed the child was suicidal, according to court records. An in-patient psychiatric bed was open in Wyoming, but the parents objected, stating they wanted the child to remain in Montana, where they believed the child would be barred from undergoing any process in transitioning from a female to a male. The child said they identified as a male, even though they were born as biologically female.

The parents have been publicly criticizing the state health department. However, the Montana Supreme Court earlier found the Kolstads didn’t provide evidence the district court had erred in issuing the gag order, and they still had a chance to use all of their legal defenses when going before a judge at a “show-cause” hearing for contempt of court.

The parents, through court documents and online, have identified themselves as conservative Christians who believe that transitioning from one gender to another is a sin.

The Kolstads had originally taken to Facebook to post a video about the situation, which was picked up by the online Canadian news site Reduxx. After posting the video, the Kolstads reported nearly immediately receiving a gag-order from Valley County District Court Judge Yvonne Laird, who told the them to remove any video and barred them from conducting interviews or speaking publicly about the case, according to court documents. The gag-order also said they could receive jail time if they didn’t comply.

Monforton filed an emergency appeal last week with the Montana Supreme Court, including a petition for writ of supervisory control, which would have placed the case under the high court’s jurisdiction. However, less than 48 hours after the petition was filed, a five-judge panel unanimously ruled that Monforton had not included enough information, and that the defenses the couple planned to use, including invoking their First Amendment rights, would be available to them at a Feb. 21 hearing in front of Laird.

But in the latest filing, Monforton said that more evidence has been supplied to the court, and he points to a case in which a similar gag order was overturned after a similar story went public in the Wall Street Journal. Monforton argues that the cases are very similar, and the Kolstads have a right to defend themselves, especially since Gov. Greg Gianforte and other members of his staff have commented on the case on social media.

“Although the district court has not yet jailed (the Kolstads), it has expressly threatened to do so,” Monforton wrote in his latest appeal.

Monforton cited a now-famous 1977 court case in which Nazis wanted to march through Skokie, Illinois, which was then home to many Jewish families, including those that had survived the Holocaust. The court had to weigh the right to free speech with the potential harm of the residents there.

In that ruling in favor of allowing the march, the Supreme Court said, “If a state seeks to impose a restraint of this kind (for example, a prior restraint against speech), it must provide strict procedural safeguards, including immediate appellate review. Absent such review, the state must instead allow a stay.”

Monforton argues that the Kolstads should be free to speak publicly about the case, and claimed that they’ve never put their child’s name out or other details that would identify them.

The Kolstads have refused to take down the Facebook post, contravening an order issued by Laird. They have also continued to speak with state and national media outlets, including the Daily Montanan.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the court document said. “The district court’s gag order is not appealable. Nor can the Parent appeal any contempt order filed.”

According to court documents, the child is no longer in residential treatment and is now living temporarily with their mother in Canada. The parents have objected to using male pronouns with their daughter, as well as refused letting her use typically male clothes.

The Kolstads claim that the Gianforte administration, through the DPHHS, have tried to force them into marriage counseling they don’t need, and said the state is trying to get them to recognize their child’s chosen gender.

They also claim that Gianforte and his chief of staff, Travis Hall, have engaged in an online and social media campaign to smear them.

“What makes the gag order against the parents particularly odious is the Gianforte Administration’s smear campaign against them, “ the court documents said. “Gov. Gianforte and his staff are publicly insinuating that the (child’s) seizure was necessitated by some horrifying fact.”

OP 24-0078 Writ - Supervisory Control -- Petition