Bill preventing restraining orders against government without notice headed to governor’s desk

Regier, carrying in Senate, cites order enjoining 2021 bill as example why bill is necessary

By: - April 5, 2023 5:36 pm

The Montana State Capitol building in subzero temperatures on Dec. 21, 2022 (Photo by Nicole Girten/Daily Montanan)

When a Lewis and Clark District Court judge granted a temporary restraining order against the implementation of House Bill 102, the permitless concealed carry measure, in 2021, he said the Board of Regents would suffer an immediate and irreparable injury before Attorney General Austin Knudsen had an opportunity to respond.

A bill now headed to the desk of Republican Gov. Greg Gianforte, if signed by the governor, would keep a judge from doing so before the state is given notice.

The Senate voted 34-16 on party lines to send House Bill 695, sponsored by Rep. Bill Mercer, R-Billings, to Gianforte’s desk on Wednesday – one of several bills this session making changes to preliminary injunctions and temporary restraining orders under Montana law. In the House, five Democrats joined Republicans to pass the bill 73-25 in early March.

The bill would create a carveout in the law for state departments, agencies, cities, counties, school districts and officers of the state so temporary restraining orders could not be granted against them without notice under most circumstances.

There are a couple instances in which a judge could grant a temporary restraining order against those parties; if the lawsuit involves family law under Title 40, like child custody cases, or if notice could not be provided to them “through no fault of the moving party.”

Current state law allows a judge to grant a temporary restraining order without notice to a party of their attorney if an affidavit or verified complaint shows that any delay “would cause immediate and irreparable injury to the applicant before the adverse party or the party’s attorney could be heard in opposition” and the person seeking the temporary restraining order certifies to the court why notice should not be required.

As the bill has made its way through the legislature, Mercer has said the reason to support it is because it is easy to serve notice to governments and their officials because their addresses are listed publicly and they should be easy to find.

“There is absolutely no reason why … the state should be restrained without giving the state notice,” Mercer told the Senate Judiciary Committee when it heard his bill March 24. “The state might want to run to the courthouse and say, “I’d like to be heard before you can say we can’t enforce the law.’”

He told the committee that while a party could still get a preliminary injunction in the case, the idea that the state would be subject to a temporary restraining order without having a chance to argue against it “is not appropriate.” No proponents or opponents testified at the hearing, and the committee asked no questions about the bill.

Sen. Keith Regier, R-Kalispell, who carried the bill in the Senate, made a similar argument Tuesday during the bill’s second reading in the Senate, and cited the HB102 restraining order from 2021 as an example.

“Plaintiffs know where to find the attorney general and the county attorney,” Regier said. “When government is trying to implement a statute, it is inappropriate if it is enjoined without the opportunity to explain to the court why a TRO should not be granted.”

Sen. Andrea Olsen, D-Missoula, said there were already mechanisms in place in state law as to the hurdles that need to be cleared before a plaintiff can ask a judge to issue a TRO without notice.

“(House Bill 695) just changes the procedure that’s supposed to protect people from irreparable harm – even from the government. That now is going to protect government from its people, even when government is harming them in a way that cannot be repaired afterward,” Olsen said. “… This process already provides plenty of due process to the government. What is lost is the due process needs of the people when they are going to have an injury that cannot be repaired.”

In the HB102 case in 2021, the Board of Regents had asked the court to “preserve the status quo” by issuing a TRO before a hearing could be held to determine whether an injunction should be granted.

The judge enjoined the bill from being enforced by the state in the May 28 order and set a June 7 hearing at which the state was ordered to show cause as to why the preliminary injunction should not be issued.

Judge Mike McMahon ruled at the end of November 2021 that the Board of Regents had constitutionally protected authority over the university system and the power to decide how to regulate firearms on its campuses. He issued a permanent injunction on the bill, and his decision was upheld by the Montana Supreme Court last June in a unanimous decision.

Another instance in which a temporary restraining order was issued without notice came last year when the Montana Federation of Public Employees sued to stop signature gathering on an initiative to cap property taxes and was granted a TRO, though the order was reversed less than two weeks later.

Mercer’s bill, now headed to the governor’s desk, contained very similar language to that which was amended out of Sen. Steve Fitzpatrick’s Senate Bill 191 changing injunction law, which has already been signed into law by the governor. The original language in Fitzpatrick’s bill only applied to the state and not local governments, however.

More than 20 of the 2021 legislature’s bills were challenged in court, and opponents of several bills this session who say the measures are unconstitutional have hinted they will be challenged as well.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.