The Montana state Capitol in Helena on the opening day of the 2023 legislative session on Jan. 2, 2023. (Photo by Blair Miller, Daily Montanan)
Democratic senators wondered Tuesday if a bill would give the state government “immunity” from a district court judge’s restraining order if the state was not immediately notified it had been sued.
A portion of Senate Bill 191 contains language saying such an order may be granted without notice if “the state or state’s departments, agencies, or officers being sued in their official capacities are not the adverse party.”
The bill, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, led to questions from Democrats on the Senate Judiciary Committee and the lone person who testified in opposition.
“This is coming from the Attorney General’s Office. First of all, doesn’t it seem a little bit awkward that we would be saying that we cannot bring suits against the government?” asked Sen. Jen Gross, D-Billings.
Generally, Fitzpatrick said he feels temporary restraining orders are too easy to obtain in Montana.
While the state notice drew scrutiny from Democrats because several Republican-passed laws from 2021 were challenged in court – some successfully – Fitzpatrick said the main focus of the bill was putting Montana’s standards in line with federal standards for such orders.
Fitzpatrick said the bill was requested by the Attorney General’s Office, but Brent Mead, deputy solicitor general, testified only as an informational witness. He responded to the queries from Olsen and Gross by saying they were misinterpreting the bill’s intentions.
A judge can grant a temporary restraining order against the state under statute, but the measure as introduced would mean the state first needs notification, he said.
“In order to get a TRO, you simply have to serve notice with the application for a restraining order. That’s the very small change,” he replied.
But the two Democrats, as well as Derf Johnson, who testified in opposition on behalf of the Montana Environmental Information Center, said they had questions about why the state government should be exempt when private businesses and local governments were not also exempted.
“It seems to me that you’re putting a burden in there when the TRO requires an affidavit, proven facts of immediate harm, that you’re asking us to take away that tool just because it’s the state that’s causing the harm, and that’s what my concern is,” Olsen said.
Mead said the impetus behind the request to change the law came from an incident last year, when plaintiffs sued the Department of Justice, among others, to stop signature gathering on a proposed property tax ballot measure.
Mead said the group had sought an ex parte temporary restraining order that was granted before the state and signature gatherers were served with the order.
The bill heard Monday is seeking to undo the law that led to the challenge.
“That’s the kind of problem this is seeking to address,” Mead said. “‘Without notice’ is there when you can’t find the defendant or there is some critical need that you can’t contact them to get that opposing viewpoint before the issuance of a TRO.”
Mead and Charles Robison, who testified in favor of the bill on behalf of the Montana Chamber of Commerce and Montana Manufacturers Association, argued the state government should be exempted because their office addresses are publicly listed and they should be easy to find and notified of the lawsuit against them.
“There’s no need for a preliminary injunction without notice to the state because it’s just nearly impossible not to find an officer of the state in order to give that notice,” Robison said.
Gross argued corporations also had fixed addresses and could be found and served notice after Mead said it was difficult at times to serve notice to private-sector parties.
Fitzpatrick said at the hearing he was open to amending the bill to remove the language, something he told the Daily Montanan was not a key part of the measure.
“So, if you want to pull that out, that’s fine with me,” he told the committee.
Fitzpatrick said he felt another bill he is running, Senate Bill 134, addressed most of what he was concerned about with temporary restraining orders. That bill would change the amount of time a temporary restraining order without notice could be in effect to 10 days.
The measure passed the Senate Judiciary Committee last week. Fitzpatrick said it could see further action this week.
The more important part of the bill heard Tuesday, Fitzpatrick said, is aimed at putting federal court standards for preliminary injunctions in place of Montana’s current standards, which he said were less stringent.
The bill, as introduced, would change the threshold that needs to be met in order for a judge to grant a preliminary injunction.
Under current statute, when someone files a motion for an injunction, a court must first give “reasonable notice” of where and when the motion was filed to the party it was filed against. That party will have to show cause at a hearing as to why it should not be granted.
Before or after that show-cause hearing takes place, a court or judge can block the party from taking further action on what the motion is seeking to stop by issuing a temporary restraining order.
Currently, an order can be granted “when it appears that the applicant is entitled to the relief demanded;” if it appears a person or entity is violating the rights of the person who applied for an injunction; or if performing or continuing an act would “produce a great or irreparable injury to the applicant,” according to statute.
Fitzpatrick wants to make the requirements more strict. The bill would change law so a preliminary injunction or temporary restraining order can be granted when the person applying for it is likely to succeed in their case on the merits, is likely to suffer irreparable harm if relief is not granted, if the balance of equities tips in their favor, and if the order is in the public interest.
All of those thresholds would need to be met in order for an order or injunction to be granted. The burden would be on the applicant to prove the need for an injunction.
Fitzpatrick said he thinks his bill would make the process “a more fair version” of court procedure.
“You’re gonna examine the case and say, ’Is this guy likely to win or not?’” Fitzpatrick said. “Not, ‘I meet the basic elements and then we’ll worry about what happens later with the evidence.’”
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