Montana Supreme Court
Credit: John S. Adams / MTFP

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

The bills mark some of this session’s first legislative attempts at changing judicial processes in the state. Last session, the GOP-led Legislature passed several bills that ultimately wound up in court, sparking still-present Republican frustration with the judiciary and with trial attorneys.

The sponsor, Sen. Steve Ftizpatrick, a Republican attorney from Great Falls, said the bills are about instilling fairness in the judicial system, not extensions of Republican anxiety about the courts. 

Still, components of the bills are thematically linked to litigation involving the state over the past two years. 

What Fitzpatrick has described as the “flagship” proposal, Senate Bill 191, was heard in the Senate Judiciary Committee Tuesday. It makes two main changes to law. The first is to replace the standard that petitioners must reach to receive an injunction in Montana law with the more stringent federal standard. An injunction is a court order that prevents a party from carrying out an action that is the subject of litigation.

“The standard we use in Montana law is very light, very easy to get an injunction from, whereas I think the standard we use in federal court is much more thorough,” Fitzpatrick told the committee Tuesday.

That argument mirrors one made by the office of Montana Attorney General Austin Knudsen in litigation over abortion restrictions passed last session, Planned Parenthood v. State. The state’s current standard, the attorney general argued in that case, had resulted in “on-demand preliminary injunctions.”

Current Montana statute says a court can issue an injunction order in one of three cases: “When it appears that the applicant is entitled to the relief demanded,” “when it appears that the commission … of some act during the litigation would produce a great or irreparable injury to the applicant” or “when it appears during the litigation that the adverse party is doing … some act in violation of the applicant’s rights.” 

Fitzpatrick’s bill would require that anyone seeking an injunction be able to prove they are likely to succeed on the merits of their case, that they will suffer irreparable harm in the absence of relief, that “the balance of equities tips” in their favor and that the order is in the public’s interest. 

An applicant under current Montana law, Fitzpatrick said, needs only to make a prima facie case, meaning their argument is considered correct upon initial examination.

Under the federal standard, “you can examine the case and say, ‘Is this guy likely to win or not,’ not ‘I made the basic elements’ and we won’t worry about what happens later with the evidence,” Fitzpatrick said in committee Tuesday. 

In the Planned Parenthood case, the Montana court defended its standard, writing that courts across the land generally agree that an injunction requires “a showing of entitlement to temporary relief but not ultimate success on final judgment.” And nevertheless, the court concluded, the state was overstating both the rigidity of the federal standard and the laxness of the state standard.

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

The new language, which Fitzpatrick said he introduced at the request of the attorney general’s office, pertains to temporary restraining orders, a more immediate version of an injunction that can be issued without notice to the adverse party. 

But SB 191 says state courts cannot grant a temporary restraining order without notice if that adverse party is “the state or the state’s departments, agencies, or officers being sued in their official capacities.” 

“[A TRO] 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 [restraining order],” deputy solicitor general Brent Mead told the Judiciary Committee Tuesday. “When we’re talking about government actors, we’re at 215 North Sanders Street. You know where we are; you can serve us with notice.” 

He said the reason for the new language was a case concerning a proposed ballot issue from 2022 that would cap property taxes in Montana, CI-121. In that litigation, the Montana Federation of Public Employees sought to stop signature gathering on the initiative, suing the attorney general’s office “because we were the ones who issued a legal sufficiency notice,” Mead said.

MFPE successfully sought — without notice — the restraining order against the initiative from a district court. 

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

“This basically creates a carveout that is not present in federal law and that is not applicable to local governments,” said Conley, noting that, on one hand, the bill looks to bring the state in alignment with federal injunction standards but, on the other, departs 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 seeking redress in parental rights cases, for example. Sen. Andrea Olsen, D-Missoula, also an attorney, said that statute already requires applicants seeking a noticeless restraining order to prove that they would suffer immediate and irreparable injury if the order isn’t issued before the adverse party or the party’s attorney could make arguments. 

“A TRO is something that we do to stop immediate harm — and I understand we say we can find all the state employees, state agencies and state offices — but we know that’s not always true that we can find all the parties to give them notice ahead of time,” she said. 

Olsen said it seems the AG’s office is seeking to put an additional burden on TROs “just because it’s the state that’s causing the harm.”

Senate Democrats told MTFP that ahead of the hearing they sought to have a legal note appended to the bill that explained the state Constitution’s requirement that “the state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.” Legislative attorneys evidently did not agree with that assessment, as no such legal note accompanies the bill. 

“This basically creates a carveout that is not present in federal law and that is not applicable to local governments.”

Anna Conley, University of Montana law professor

Olsen argued Tuesday that the new language was also made effectively moot by another of Fitzpatrick’s injunction bills, Senate Bill 134, which says temporary restraining orders issued without notice must expire after 10 days unless a party argues in a hearing within that timeframe to extend the order. That bill passed out of the Senate Judiciary Committee last week and cleared a preliminary floor vote Wednesday along party lines. 

“I understand that it makes sense to give notice to the state, but that’s often what a TRO does, is give notice that there’s harm being caused, and based upon the bill we just did in this chamber last week, within 10 days there’d have to be a hearing on that in which all parties would be invited to give their position on that … or it wouldn’t continue,” Olsen said. 

Fitzpatrick Tuesday seemed less married to the language for noticeless restraining orders than the attorney general’s office, and signaled an openness to amend that section out of the bill. 

“To be candid, with the other bill…I’m indifferent to whether this language is here or not,” he said.

Another of Fitzpatrick’s suite of legal bills, Senate Bill 135, stipulates that a court cannot grant an injunction preemptively blocking the Montana Secretary of State from issuing an administrative rule. 

Fitzpatrick said the 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.

“The court in Billings then decided they were going to enjoin this nonexistent law, this nonexistent administrative rule,” Fitzpatrick told the committee during a hearing on the bill earlier this month. “That candidly surprised me. I thought you had to have a law, on the books, on a piece of paper before you could have an injunction entered against it.”

That bill, with an amendment striking its retroactive applicability, passed on a unanimous vote in the committee Wednesday. 

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Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.