The Republican bill would change the way Montana courts issue restraining orders

A series of GOP-backed bills making their way through the Senate would change when and how Montana courts can issue restraining orders and restraining orders.

The bills mark some of the first legislative attempts at this session to change the state’s judicial processes. In the past session, the GOP-led Legislature passed several bills that ended up in court, still fueling Republican frustration with the judiciary and trial attorneys.

The sponsor, Senator Steve Ftizpatrick, a Republican attorney from Great Falls, said the bills are about creating fairness in the judicial system, not about expanding Republican concerns about the courts.

Still, portions of the bills are thematically linked to litigation the state has been involved in over the past two years.

What Fitzpatrick has called a “flagship” proposal, Senate Bill 191, was heard Tuesday in the Senate Judiciary Committee. It makes two major changes to the law. The first is to replace the standard that petitioners must meet to obtain a restraining order in Montana law with the more stringent federal standard. An injunction is a court order preventing a party from doing an act that is the subject of a dispute.

“The standard that we use in Montana law is very easy, it’s very easy to get a restraining order, while I think the standard that we use in federal courts is much more thorough,” Fitzpatrick told the committee on Tuesday.

This argument echoes one made by Montana Attorney General Austin Knudsen’s office in an abortion-restriction lawsuit passed in the most recent session, Planned Parenthood v. State. The current state standard, the attorney general argued at the time, had resulted in “request injunctions.”

Current Montana law states that a court may grant an injunction in one of three cases: “when it appears that the claimant is entitled to the relief sought,” “when it appears that the inspection… an act during the litigation would result in a big deal or irreparable damage to the applicant” or “if it turns out during the litigation that the other party … takes an act in violation of the rights of the applicant.”

Fitzpatrick’s bill would require anyone seeking an injunction to show that they are likely to succeed, that without remedy they will suffer irreparable harm, that “the stock balance” is tipped in their favor, and so on order is in the public interest.

An applicant under current Montana law, Fitzpatrick said, only has to do a prima facie case, meaning that their reasoning is considered correct on first examination.

Under the federal standard, “you can examine the case and say, ‘This guy probably wins or doesn’t,’ not ‘I did the basic elements,’ and we don’t worry about what happens to the evidence later,” Fitzpatrick told im Committee Tuesday.

In the Planned Parenthood case, the Montana court defended its standard, writing that courts across the country generally agree that an injunction requires “evidence of entitlement to temporary relief but not ultimate success in a final judgment.” And yet, the court ruled, the state overestimated both the rigidity of the federal standard and the laxity of the state standard.

The second component of SB 191 raised several questions from the Judiciary Committee on Tuesday. Conley noted that this appears to be the more significant change in the bill.

The new language, introduced by Fitzpatrick at the request of the attorney general’s office, refers to injunctions, a more immediate version of an injunction that can be issued without notice to the opposing party.

But SB 191 says state courts cannot issue an injunction without notice if that opposing party is “the state or the departments, agencies, or officials of the state who are being sued in their official capacity.”

“[A TRO] without notice is there if you cannot locate the defendant or there is a critical need that you cannot contact them to get that opposing viewpoint prior to issuing an a [restraining order]Assistant Attorney General Brent Mead told the Judiciary Committee on Tuesday. “When we talk about government actors, we are at 215 North Sanders Street. You know where we are; You can serve us with advance notice.”

He said the reason for the new language was a case regarding a proposed ballot issuance beginning in 2022 that would limit property taxes in Montana, CI-121. In that lawsuit, the Montana Federation of Public Employees tried to stop the collection of signatures on the initiative and sued the attorney general’s office “because we were the ones who issued a legal adequacy notice,” Mead said.

MFPE successfully applied, without notice, to a district court for an injunction against the initiative.

Conley, the law professor, described the proposal as a “broad change.”

“This essentially creates an exception that doesn’t exist in federal law and that doesn’t apply to local governments,” Conley said, noting that the bill seeks to bring the state into line with federal injunction standards on the one hand, but others on the other , deviates from federal standards on restraining orders.

Democratic members of the Judiciary Committee were skeptical of the change and expressed concern that it could prevent citizens from appealing, for example, parental rights cases. Sen. Andrea Olsen, D-Missoula, also an attorney, said the law already requires that applicants seeking a permanent restraining order must show they would suffer immediate and irreparable harm if the order was not filed before the opposing party Party or the party’s attorney could make arguments.

“A TRO is something we do to stop immediate harm – and I understand we say we can find all government employees, government agencies and government agencies – but we know that’s not always true, that we find all parties can to notify them in advance,” she said.

Olsen said it appears the AG’s office is trying to put an extra burden on TROs “just because it’s the state that’s causing the damage.”

Senate Democrats told MTFP that prior to the hearing, they attempted to include a legal notice with the bill explaining the state constitution’s requirement that “the state, counties, cities, townships and all other local government entities have no immunity from lawsuits.” shall injure any person or property, except as expressly provided by statute by a 2/3 vote of each House of the Legislature. Lawyers apparently disagreed with this assessment, as no such legal notice accompanies the bill.

“This basically creates an exemption that doesn’t exist in federal law and that doesn’t apply to local governments.”

Anna Conley, law professor at the University of Montana

Olsen argued Tuesday that the new language was also effectively challenged by another of Fitzpatrick’s restraining orders, Senate Bill 134, which says restraining orders issued without notice must expire after 10 days unless one party argues at a hearing within that time frame to extend the order. That bill passed the Senate Judiciary Committee last week and was released for a preliminary vote Wednesday along party lines.

“I understand that it makes sense to notify the state, but that is often what a TRO does, which is to notify that harm is being done and based on the bill we made in this chamber just last week have there within 10 days. There would have to be a hearing where all parties would be asked to comment on it…or it wouldn’t go ahead,” Olsen said.

Fitzpatrick Tuesday seemed less wedded to clueless restraining order language than the attorney general’s office and signaled openness to changing that section of the bill.

“To be honest on the other bill… I don’t care if that language is here or not,” he said.

Another Fitzpatrick bill, Senate Bill 135, states that a court cannot issue an injunction preemptively preventing the Montana Secretary of State from issuing an administrative order.

Fitzpatrick said the proposal relates to litigation over a series of election laws Republicans passed in the 2021 session, including House Bill 530, which aims to block paid ballot collection. The bill directed the Secretary of State to enact a rule, but a lawsuit halted that process before Secretary of State Christi Jacobsen’s office had drafted the rules.

“The Billings court then ruled that they would bar this non-existent statute, this non-existent statute,” Fitzpatrick told the committee during a hearing on the bill earlier this month. “That honestly surprised me. I thought you had to have a law on the books, on a piece of paper, before you could issue an injunction against it.”

This bill, with an amendment affecting its retrospective applicability, was unanimously approved in committee on Wednesday.

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