12—Petitioners’ Prehearing

Brief

The MDOL simply has no discretion to modify or otherwise

refuse to comply with a constitutional imperative. However, even if

the MDOL did have the discretion to withhold public information,

mandamus in this case would still be proper, because the MDOL has

not exercised discretion, but rather has simply, and for no valid

reason, refused to comply with Petitioners’ requests for public

information. As the Montana Supreme Court has held, “if there has

been an abuse of discretion

as to amount to no discretion at all,

mandamus will lie to compel the proper exercise of powers granted.”
CONCLUSION

See Cain v. Department of Health and Env. Sciences, 177 Mont. 448,

451, 582 P.2d 332, 334 (citations omitted).from depriving Petitioners of their fundamental right to know. The

The Montana Constitutionunambiguously prohibits the MDOL

duty is clear and cannot be abrogated, despite MDOL’s assertions to

the contrary. Given the MDOL’s history of withholding public

information from Petitioners

and the clouded history between the

two, a writ of mandamus is the only means of providing Petitioners

with a speedy and adequate remedy.awarded their attorney’s fees

Finally, Petitioners should be

and costs in accordance with § 2-3-221, MCA. Petitioners

have been

forced to hire an attorney to enforce their fundamental rights

provided by Article II, Section 9. Had the MDOL simply complied with

Petitioners’ requests from the start, Petitioners would not now be
Wherefore, Petitioners respectfully request that the Court

before the Court.issue a writ of mandamus ordering the MDOL to allow inspection of