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By Blair Miller, Daily Montanan

The Montana state Capitol in Helena on the opening day of the 2023 legislative session on Jan. 2, 2023.

Democratic senators wondered Tuesday if a bill would give the state government “immunity” from a district court judge’s restraining order if the state was not immediately notified it had been sued.

A portion of Senate Bill 191 contains language saying such an order may be granted without notice if “the state or state’s departments, agencies, or officers being sued in their official capacities are not the adverse party.”

The bill, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, led to questions from Democrats on the Senate Judiciary Committee and the lone person who testified in opposition.

“This is coming from the Attorney General’s Office. First of all, doesn’t it seem a little bit awkward that we would be saying that we cannot bring suits against the government?” asked Sen. Jen Gross, D-Billings.

Generally, Fitzpatrick said he feels temporary restraining orders are too easy to obtain in Montana.

While the state notice drew scrutiny from Democrats because several Republican-passed laws from 2021 were challenged in court – some successfully – Fitzpatrick said the main focus of the bill was putting Montana’s standards in line with federal standards for such orders.

Fitzpatrick said the bill was requested by the Attorney General’s Office, but Brent Mead, deputy solicitor general, testified only as an informational witness. He responded to the queries from Olsen and Gross by saying they were misinterpreting the bill’s intentions.

A judge can grant a temporary restraining order against the state under statute, but the measure as introduced would mean the state first needs notification, he said.

“In order to get a TRO, you simply have to serve notice with the application for a restraining order. That’s the very small change,” he replied.

But the two Democrats, as well as Derf Johnson, who testified in opposition on behalf of the Montana Environmental Information Center, said they had questions about why the state government should be exempt when private businesses and local governments were not also exempted.

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