District Judge James Wheelis granted a temporary restraining order against Lincoln County Clerk and Recorder Tammy Lauer on Feb. 14 to temporarily stop the special election in Troy.
Banning filed an affidavit with Attorney James Reintsma on Feb. 13 after a recall petition was issued by Troy Councilwoman Fran McCully to recall him as mayor.
Reinstsma argued three points on behalf of Banning to support the petition for a temporary restraining order against Lauer:
• The matters stated in the affidavit filed by McCully are facially deficient;
• Specific instances of misconduct justifying a recall petition are untrue,
• Even if the assertions Banning disputes are true, they do not fit the single ground the affidavit draws upon from Montana Code Annotated § 2-16-603(3), violation of oath of office.
According to court documents, Wheelis may side with Banning for the first argument unless another intervening party provides documentation or testimony otherwise. However, the court will hear arguments and testimony for the two remaining grounds urged by Banning.
A court date of March 14 has been set and the hearing will begin at 1:30 p.m. The parties will be limited to equal time, and argument and testimony will conclude at 5 p.m.
The temporary restraining order has been granted by Wheelis against Lauer, her agents, employees, appointees and any and all persons acting by or through her office — preventing them from submitting the proposed recall of Banning to the electors of Troy by special election or otherwise.
Furthermore, the defendants are not permitted to count the results of any votes of the recall election and from canvassing or entering upon any county or state records any purported results of a recall election.
In a Troy City Council meeting held Jan. 18, the Council tabled an item on the agenda for the employment termination of City Attorney Charles Evans. Council Members requested more time to review the motion initiated by Banning to remove Evan as the City Attorney.
The motion to terminate Evans as the city attorney was initiated again by the mayor at the Council’s Feb. 15 meeting. However, Council members Joe Arts and Crystal Denton in favor of the motion and members Phil Fisher and McCully voted against the motion. Banning had the deciding vote to break the tie, Evan was terminated as the City’s Attorney.
Evans filed a Writ of Prohibition, Montana Code Annotated §27-27-101 on Feb. 17. The petition would prohibit the Council from removing him as the Troy City Attorney.