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January 10, 2023

I don’t really think I have anything to add, I’m just carrying the bill.”

—Sen. Tom McGillvray, R-Billings, the sponsor of Senate Bill 87, a “red tape relief” proposal requested by the Department of Public Health and Human Services to eliminate the Board of Public Assistance, during a committee meeting Monday, Jan. 10. 

The board, which hears appeals from people who feel their applications for public assistance were wrongly denied, has heard fewer than 20 cases a year since 2016. DPHHS says the bill would also make it easier for appellees to take their cases directly to district court. 

Arguably the defining issue of the 2021 legislative session was the inter-branch conflict between the Republican-dominated Legislature and the Montana judiciary system. Unsurprisingly, Republicans this time around have signaled an eagerness to continue passing legislation that reshapes the procedures of Montana courts and judges to make it easier for them to enact their conservative policy agenda.

Now, the first such package of those bills is taking shape. 

In a press call Monday, Sen. Steve Fitzpatrick, R-Great Falls, discussed a suite of proposals he’s working on concerning the ability of state courts to issue preliminary injunctions and temporary restraining orders. 

The “flagship” legislation, as he referred to it, is still in the edit stages and has yet to get a bill number, so keep that in mind when reading this analysis. LC0831, which Fitzpatrick said will likely be sponsored by Senate Judiciary Chair Keith Regier, R-Kalispell, would make two main changes. 

The first would require that state court standards for granting preliminary injunctions or temporary restraining orders — orders plaintiffs can request from judges to preserve the status quo while litigation is underway — must match the standards of federal courts. In other words, Fitzpatrick said, plaintiffs seeking such orders would have to demonstrate a likelihood of success in the case on the merits, among other prongs, not just make a prima facie case. 

Fitzpatrick, an attorney, said Monday the legislation has “nothing to do with any particular result” and that “it’s just about installing more fairness in the judicial system.” 

But it’s worth noting that attorneys under Montana Attorney General Austin Knudsen contended last year in litigation over abortion restriction laws in Planned Parenthood v. State that state courts should adopt the federal standard. Attorneys for the state government wrote in a filing that the Montana courts’ standard had resulted in “on-demand preliminary injunctions.”

The court ultimately determined that the state was overstating both the rigidity of the federal standard and the laxness of the state standard.

“What the state argued in Planned Parenthood was that the standard in state law was lower than the federal standard and the federal standard should apply,” said Anna Conley, a law professor and civil litigation expert at the University of Montana. “What the court says is, ‘No, it’s really pretty much the same standard.’”

Making a prima facie case, she said, means demonstrating that it appears the requesting party is entitled to relief based on the merits. And that, she said, is essentially the same standard as demonstrating a likelihood of success on the merits, one of the elements of the federal standard. In other words, she said, the court has generally followed the standard prescribed in the bill without it being codified in statute. 

For that reason, she said, the more significant change in the bill is language that says state courts cannot grant a temporary restraining order without notice to the adverse party — something that generally occurs only when imminent harm is likely — if that adverse party is “the state or the state’s departments, agencies, or officers being sued in their official capacities.” 

That language, Conley said, would actually depart from the federal standard.

“This basically creates a carveout that is not present in federal law and that is not applicable to local governments,” she said, describing it as a “sweeping change.” 

The change in Fitzpatrick’s bill draft, she said, could implicate the state constitutional provisions related to equitable access to the courts.

She said Fitzpatrick’s proposal would “change the power dynamics between the citizens and the state by giving the state much greater power to potentially create irreparable injury to someone and not be subject to redress,” something that could run into the Constitution’s guarantee of equity. 

Conley said that lawmakers may have the ability to legislate situations like these, but that “they are moving into a gray area when they legislate with regard to equity.”

Fitzpatrick said the idea of the provision is that a party requesting a temporary restraining order should always be able to find the state to provide notice.

“What that is, is you’re walking in, and you’re getting a [temporary restraining order] TRO before they’ve even been served. I think the idea is, the state’s here, you can find them, it’s not like you’re trying to find some guy who’s missing out in the country and you need to slap him with a restraining order,” he said. “You should always be able to get the state notice in advance.”

There are other areas where the law applies specific provisions to state governments in court proceedings, he said. For example, the state gets more time than other parties to answer a complaint.

Related Fitzpatrick bills include Senate Bill 134, which concerns the amount of time a temporary restraining order can be enforced, and Senate Bill 135, which stipulates that a court cannot grant an injunction “to prevent the secretary of state from issuing a temporary or final administrative rule before the administrative rule is issued.” 

Fitzpatrick said the latter proposal references litigation over a series of election bills Republicans passed in the 2021 session including House Bill 530, which set out to block paid ballot collection. The bill directed the secretary of state to adopt a rule to that effect, but litigation halted that process before the office of Secretary of State Christi Jacobsen had put rules to paper.

“You go and sue the state of Montana, and there’s not even a law on the books to even enjoin,” Fitzpatrick said. 

Arren Kimbel-Sannit, Reporter

Eye in (and out of) the capitol

Rep. Paul Green, R-Colstrip, and Rep. Zooey Zephyr, D-Missoula, chat Saturday, Jan. 7 at a sausage-making social hosted by Helena attorney Jon Bennion in an effort to encourage civil discourse between lawmakers. 

Eric Dietrich, Reporter

Corrections Desk

Last Friday’s edition of Capitolized incorrectly referred to Sen. Mary Ann Dunwell, D-Helena, as a state representative. Capitolized regrets adding insult to Dunwell’s ankle injury.

—Arren Kimbel-Sannit, reporter

On Background

Montana Supreme Court’s opinion in Planned Parenthood et al v. Montana: Read the state Supreme Court’s discussion of the federal and state injunction standards in paragraph 36.

Sen. McGillvray’s bill to eliminate the board of public assistance

Lawmakers link over bipartisan sausage: Read MTFP reporter Eric Dietrich’s account of Jon Bennion’s sausage-making civility party.

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