10—Petitioners’ Prehearing

Brief

improperly promulgated a zoning regulation that directly conflicted with a

statute. See State ex rel. Leach v. Visser, 234 Mont. 438, 443, 767 P.2d

858, 861. There, the Court stated that:

there was a clear legal duty the defendants were required to
perform . . . . A declaratory judgment action would not
necessarily get the certificate of survey filed in light of the
previous difficulties between petition[er] and the clerk and
recorder . . . . A declaratory judgment action would not make
petitioner whole as attorneys fees are not allowable in such an
action. A writ of mandate is the only remedy available to
secure the ultimate relied sought by the petitioner—compel the
lifting of sanitary restrictions, the filing of a certificate ofSee State ex rel. Leach v. Visser, 234 Mont. at 443, 767 P.2d at 861.

survey, and an award of relator’s attorney fees.
In the case now before the Court, the circumstances are quite

similar to those in State ex rel. Leach v. Visser. Here, a

governmental entity, the MDOL, has a clear legal duty to allow

Petitioners to inspect and copy public records, and to provide copies

of public records where requested. While MDOL did not promulgate a

regulation, their actions in effect operate as such by denying

Petitioners’ requests. Additionally, like the parties in State ex rel.

Leach v. Visser, there is an unpleasant history

between the MDOL and

Petitioners in this case. In view of this history, and the MDOL’s
Further, the MDOL apparently claims that it has the discretion

repeated refusal to comply with Petitioners’ requests, a declaratory
to “modify” Petitioners’ fundamental right to know by virtue of

judgment would not get the Petitioners’ the results they seek.being involved in litigation with Petitioners in federal court. See

Exhibit 4.The MDOL has also argued that it has the discretion to