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Montana lawmakers consider changes to how judges use injunctions

Senate Judiciary Committee Injunction Bills
Posted at 6:26 PM, Jan 12, 2023
and last updated 2023-01-12 20:26:07-05

HELENA — Republican leaders in the Montana Senate are preparing a series of bills that would change the way state judges can issue injunctions and temporary restraining orders.

“I think the concern is that injunctions are being entered a little too easily, and that you’re not getting a real thorough review of the case because the standards for entering injunctions are very low,” said Sen. Steve Fitzpatrick, R-Great Falls, the Senate majority leader.

On Thursday, the Senate Judiciary Committee held initial hearings on three bills Fitzpatrick is sponsoring – each relatively small, but part of a broader effort to change the process by which judges block actions while legal cases move forward.

Fitzpatrick, an attorney, says he’s worked with clients who’ve had projects held up for months because of temporary restraining orders and injunctions.

The first bill, Senate Bill 134, would add deadlines for temporary restraining orders and injunctions. Currently, state law calls for those orders to expire after 10 days unless they’re extended, but Fitzpatrick said some judges are failing to take timely action on them.

“I think most judges are good judges and they try and do a good job,” he said. “I think what happens is, I find it frustrating when we have laws clearly on the books and they're not being enforced.”

SB 134 would say that TROs last 10 days and can be extended 10 more, but they can’t be enforced after that unless a hearing on an injunction has been held. It would give another 21 days for the judge to rule on a preliminary injunction, after which it would be automatically denied.

Senate Bill 136 would say that, when a construction project is blocked by a TRO or injunction, the builder can do some work to protect the property from damage and ensure safety.

The third bill, Senate Bill 135, is in response to a specific current case. It would prevent a judge from enjoining a rule from the Montana Secretary of State’s Office until that rule is issued. In 2021, the Legislature passed a bill directing the Secretary to draft a rule banning paid ballot collection, but a judge issued an order stopping the rulemaking process.

“I don't understand why a judge can say, ‘I'm going to ban you from writing a rule,’ when the rule hasn't been even written,” Fitzpatrick said. “You don't even know what the exceptions are. You don't know the definitions. You don't know anything. So what this bill simply says is that you've got to see the rule before you get to sue on it.”

No one testified in support of or opposition to any of the three bills Thursday.

However, Fitzpatrick said GOP leaders are also working on a larger bill, which would tighten the requirements for a judge to put in an injunction. He said state law currently requires someone seeking an injunction to simply make a case, based on first impression, that their rights have been violated. He wants to adopt the federal standard, which says an injunction can be granted only if the applicant is “likely to succeed on the merits.”

“I think it just makes sense to match what the feds do,” said Fitzpatrick. “I think bringing consistency between the state law and federal law would certainly benefit our court system because you'd be able to look at decisions from the 9th Circuit and other federal courts, which have more published decisions on the issue.”

Since 2021, state judges have placed injunctions on a number of bills passed by the Republican majority in the Legislature, after they were challenged as unconstitutional. Fitzpatrick said he doesn’t see these bills as a specific response to those decisions.

“I think to a certain degree, yeah – I mean, people get frustrated when they see immediate litigation, but I think it's just more of an overall fairness standard going forward on all types of cases,” he said.

But Sen. Susan Webber, D-Browning, a Senate minority whip, said Democrats are concerned the proposals are part of a bigger pattern of efforts to weaken the judicial branch.

“These two bills, they might look on the surface as innocuous, but they really aren't,” she said. “They seem to be the first steps, the first salvos across the bow to the judiciary.”

Webber said she supports the injunction process, because it provides a way to quickly delay an action that would adversely affect a person or group of people.

“It ties the hands of the judiciary, and we can't have that,” she said. “It's our right to speak our voice, especially when there's adverse circumstances that happen.

Fitzpatrick argued the proposed changes wouldn’t significantly affect challenges to state laws.

“If you've got a law that's obviously unconstitutional, then then you're still going to be able to get injunctions,” he said.

The larger bill on injunctions is still being drafted. Fitzpatrick expects it to be heard in the coming weeks.