The Montana State Capitol in Helena on opening day of the 2023 legislative session on January 2, 2023. (Photo by Blair Miller, Daily Montanan)
Democratic senators Tuesday wondered whether a bill would give the state government “immunity” from a district court judge’s injunction if the state was not immediately notified that it had been sued.
A portion of Senate Law 191 contains language stating that such an order may be issued without notice if “the state or the department, agency, or official of the state sued in their official capacity is not the opposing party.” .
The bill, sponsored by Senator Steve Fitzpatrick, R-Great Falls, drew questions from Democrats on the Senate Judiciary Committee and the only person to testify in opposition.
“It’s from the prosecutor’s office. First, doesn’t it seem a bit embarrassing that we would say we can’t sue the government?” asked Sen. Jen Gross, D-Billings.
In general, Fitzpatrick said he felt restraining orders in Montana were too easy to obtain.
While the state notice has come under scrutiny from Democrats because several 2021 legislation passed by Republicans have been challenged in court — some successfully — Fitzpatrick said the bill’s primary focus is to align Montana standards with federal standards for such arrangements to be reconciled.
Fitzpatrick said the bill was requested by prosecutors, but Brent Mead, assistant attorney general, testified only as an information witness. He responded to Olsen and Gross’ questions by saying that they misinterpreted the intentions of the bill.
While a judge can issue an injunction against the state, the measure instituted would need the state first notificationhe said.
“To get a TRO, all you have to do is quit by filing for an injunction. That’s the very small change,” he replied.
But the two Democrats, as well as Derf Johnson, who testified on behalf of the Montana Environmental Information Center in opposition, said they had questions about why the state government should be exempt when private companies and local governments aren’t also exempt.
“It seems to me that when the TRO requires an affidavit, established facts for direct harm, that you’re imposing a burden that you’re asking us to take this tool away just because it’s the state that’s causing the damage, and it is which is my concern,” said Olsen.
Mead said the impetus for the motion to change the law came from an incident last year when plaintiffs, among other things, sued the Justice Department to stop collecting signatures for a proposed property tax ballot measure.
Mead said the group was looking for one ex parte injunction issued before the order was served on the state and signature collectors.
The bill, debated on Monday, aims to reverse the law that led to the challenge.
“That’s the kind of problem we’re trying to address here,” Mead said. “‘Without Notice’ is there when you cannot locate the defendant or when there is a critical need that you cannot contact them to get that opposing viewpoint prior to issuing a TRO.”
Mead and Charles Robison, testifying for the bill on behalf of the Montana Chamber of Commerce and the Montana Manufacturers Association, argued that the state government should be exempt because their office addresses are publicly listed and they should be easy to find and notify of the lawsuit against them.
“There is no need for an injunction without notice from the state because it is almost impossible to find a state official to issue that notice,” Robison said.
Gross argued companies also had fixed addresses and could be found and notified, after Mead said it was sometimes difficult to notify private sector parties.
Fitzpatrick said at the hearing he was open to amending the bill to remove the language, which he told the Daily Montanan was not an integral part of the measure.
“So if you want to pull that out, that’s fine with me,” he told the committee.
Fitzpatrick said he feels another bill he is implementing, Senate Bill 134, will address most of what he is concerned about with restraining orders. This bill would change the length of time that an injunction could be in effect without notice to 10 days.
The measure was passed by the Senate Judiciary Committee last week. Fitzpatrick said there could be more action this week.
The more important part of the bill passed Tuesday, Fitzpatrick said, aims to set federal court standards for restraining orders in place of Montana’s current standards, which he says are less stringent and fairer.
The bill, as introduced, would change the threshold that must be met for a judge to issue an injunction.
Under current statute, when someone files an application for an injunction, a court must first give the party against whom the application is made “reasonable notice” of where and when the application was made. This party must explain in an oral hearing why it should not be granted.
Before or after this hearing, a court or judge may bar the party from taking any further action related to what the motion seeks to stop issuance of an injunction.
Currently, an order can be issued “if the applicant is found to be entitled to the relief requested”; if a natural or legal person is found to be violating the rights of the person who applied for an injunction; or if taking or continuing an act “would cause great or irreparable harm to the applicant”, according to the statute.
Fitzpatrick wants to tighten the requirements. The bill would change the law so that an injunction or restraining order may be issued when the person seeking it is likely to succeed in their case is likely to suffer irreparable harm if relief is not granted, when the balance of shares is in their favour, and the engagement is in the public interest.
All of these thresholds would need to be met for an order or injunction to be issued. The burden of proving the need for an injunction rests with the applicant.
Fitzpatrick said he believes his bill would make the trial a “fairer version” of the trial.
“They’re going to look into the case and say, ‘This guy is likely to win or not?'” Fitzpatrick said. “Not ‘I’ll meet the basic elements and then we’ll take care of what happens later with the evidence.'”
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