NO. 81-35
I N THE SUPREBE COURT O THE STATE OF M N A A
F OTN
1981
STATE BAR OF MONTANA, a n
unincorporated associated,
Petitioner,
HON. PEG KRIVEC, Commissioner o f
P o l i t i c a l P r a c t i c e s of t h e S t a t e of
Montana, e t a l . ,
Respondents.
ORIGINAL PROCEEDING:
C o u n s e l o f Record:
For P e t i t i o n e r :
W. W i l l i a m L e a p h a r t , H e l e n a , Montana
W. W i l l i a m L e a p h a r t a r g u e d , H e l e n a , Montana
Hughes, B e n n e t t , K e l l n e r a n d S u l l i v a n , H e l e n a , Montana
J o h n A l k e a r g u e d , H e l e n a , Montana
For Respondents:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J a c k Lowe a r g u e d , H e l e n a , Montana
I
/
/ &A .
Submitted: March 2 7 , 1 9 8 1
Decided: A u g u s t 20, 1 9 8 1
Filed:
A_UG 2 0 1981
'
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
State Bar of Montana, an unincorporated association
instituted by this Court, [(1975), 165 Mont. 1, 530 P.2d
7651 filed its petition in an original proceeding in this
Court, seeking a declaratory judgment that Initiative 85
(Title 5, Ch. 7, MCA) violates the state constitution with
regard to the supervision and licensing of attorneys and
further that it is unconstitutionally vague so as to deny
members of the State Bar of Montana due process of law.
The respondents are the Hon. Peg Krivec, commissioner of
political practices of the State of Montana, designated in
the Initiative as its administrative officer, and Mike
Greely as the attorney general of the State of Montana, who
is charged with enforcing the provisions of the Initiative.
James H. Goetz, a Bozeman attorney, appeared as an
intervenor. All parties agree that this Court has original
jurisdiction of this cause under the 1972 Mont. Const., Art.
7, § 2, and under Title 27, Ch. 8, MCA, the Uniform Declaratory
Judgments Act, and Title 27, Ch. 19, MCA, relating to injunctions.
We find that the petition of the State Bar of Montana
raises a justiciable controversy and we assume jurisdiction
for the purpose of a declaratory judgment in accordance with
this opinion.
This is the second occasion on which we have issued an
opinion relating to Initiative 85. In Montana Automobile
Association v Mike Greely, Attorney General, et al., Cause
.
No. 81-45, Decided July 30, 1981, we upheld the validity of
the Initiative after emending it. It is the context of the
emended act that we consider here.
On its face, Initiative 85 applies to lawyers plying
their trade by appearing before state and local governmental
-2-
entities on behalf of clients. The principal issues raised
by the petition of State Bar of Montana are: (1) that
Initiative 85 violates the doctrine of separation of powers
between the judicial and executive functions, and (2) that
section 2(4)(b) of the Initiative is unconstitutionally
vague.
We hold that Initiative 85, when considered as emended
in Montana Automobile Association, supra, and given the
interpretations which apply to the Initiative as hereinafter
set forth, is not an unlawful intrusion into the power of
this Court regarding attorneys, and further is not unconstitutionally
vague as claimed.
The issues of unconstitutional invasion of the judicial
power and unconstitutional vagueness are interlaced because
they relate to two subsections of the Initiative which we
will consider and discuss together.
We begin by pointing out that the State Bar of Montana
raises no objection to the application of the Initiative to
the practice of lobbying by attorneys before the legislature.
The opposition of the State Bar is directed toward "non-
legislative lobbying", as that activity is defined in section
2 (4)(b), (also designated as section 5-7-102 (4)(b), MCA) .
That subsection states:
" (4) 'Lobbying' includes:
"(b) the practice of promoting or opposing
official action by any public official in the
event the person engaged in such practice expends
$1,000 per calendar year or more exclusive of
personal travel and living expenses."
The subsection obviously points at official action by
"any public official" and as such hinges on the definition
contained in the Initiative of a "public official." That
definition is found in section 2(3) of the Initiative (also
designated as section 5-7-102 (3), MCA) :
"(3) 'Public official' means any individual,
elected or appointed, acting in his official
capacity for the state or local government or
any political subdivision thereof, ---
but does not
include those acting - - a judicial or -
in - - quasi-
judicial capacity."
The rules applicable to judicial interpretation of
initiatives are the same as those applying to legislation
enacted by the legislature. State v. Dixon (1921), 59
Mont. 58, 76, 195 P. 841. Laws can be expressed only in
words and such words must be reasonably and logically
interpreted according to grammatical and statutory rules.
State v. Fox-Great Falls Theatre Corporation (1942), 114
Mont. 52, 66, 132 P.2d 689. In construing definitions,
courts will determine the meaning of the definitions as
found in the legislative act. State v. Jacobson (1938),
107 Mont. 461, 464, 86 P.2d 9. The function of the court in
construing the legislation is simply to ascertain and state
what terms or matters are contained in the legislation.
Dunphy v. Anaconda Company (1968), 151 Mont. 76, 80, 438
P.2d 660. The fundamental rule of all statutory construction
is that the intention of the legislative body (or the people)
controls. Matter of Senate Bill No. 23, Ch. 491, Laws of
1973, 168 Mont. 102, 104, 540 P.2d 975 (1975). It is not
the function of the courtSto second-guess and substitute
their judgment at every turn of the road for the judgment of
the legislature in matters of legislation, and the same is
true in the case of direct legislation by the people via the
initiative process. Fritz v. Gorton (Wash. 1974), 517 P.2d
911, 917, appeal dismissed 417 U.S. 902, 94 S.Ct. 2596, 41
Clearly, the appearance by attorneys before any judicial
tribunal at any level of state or local government is not to
be considered lobbying under the definitions in the Act. It
is in the sector of "quasi-judicial" functions that the
State Bar sees vagueness and uncertainty, and in consequence,
unlawful intrusion into the powers of this Court respecting
attorneys.
The State Bar contends that Art. VII, § 2(3), authorizes
the Montana Supreme Court to govern the "admission to the
bar and the conduct of its members"; that Art. 111, Section
1, establishes three distinct branches of the government-
legislative, executive and judicial; that section 3 (section
5-7-103, MCA) of the Initiative provides far licensing of
lobbyists by the commissioner of political practices; that
section 2(6) (section 5-7-102(6), MCA) includes attorneys in
the "lobbying for hire" definitions; and that the definition
of nonlegislative lobbying, which we have quoted above, on
its face includes the appearance by attorneys before administrative
bodies in behalf of their clients. Accordingly, the State
Bar contends that the Initiative, with its licensing, supervision
and other provisions intrudes upon the power of this Court
to regulate the conduct of attorneys in this state.
Respondents reply that the application of the non-
legislative lobbying provisions to attorneys as well as
other members of the public does not conflict with any rule
or standard announced by the Supreme Court; that it does
not impermissibly regulate the practice of law; that the
power of this Court over the conduct of attorneys is not
necessarily exclusive as to crimes committed by lawyers or
other activities against the public interest and that in any
event, the provisions of the Initiative are mutually reconcilable
with the powers of this Court over attorneys.
Since lobbying under the Initiative does not include
using influence in opposing official action by public
officials engaged in a quasi-judicial capacity, section
2(4)(b), supra, the marked delimiting effect of that exception
should be noted. Nowhere in the Initiative is the term
"quasi-judicial" defined. Elsewhere in our statutes, for
the purposes of the Executive Reorganization Act, a quasi-
judicial function is defined in section 2-15-102(9), MCA,
as follows:
"'Quasi-judicial function' means an adjudicatory
function exercised by an agency, involving the
exercise of judgment and discretion in making
determinations in controversies. The term includes
but is not limited to the functions of interpreting,
applying, and enforcing existing rules and laws;
granting or denying privileges, rights, or benefits;
issuing, suspending, or revoking licenses, permits,
and certificates; determining rights and interests
of adverse parties; evaluating and passing on facts;
awarding compensation; fixing prices; ordering action
or abatement of action; adopting procedural rules;
holding hearings; and any other act necessary to the
performance of a quasi-judicial function."
That definition of a quasi-judicial function is very
broad. Its use in the Executive Reorganization Act appears
to be primarily for section 2-15-121, MCA. In substance for
that purpose, the section provides that an agency which is
allocated to a department for administrative purposes shall
exercise its quasi-judicial functions, among other functions,
independently of the department to which it is assigned and
without the approval or control of that department.
While the definition of quasi-judicial function contained
in the Executive Reorganization Act may be used as a reference
point to determine the nature of such a function, we believe
the better definition to be used in determining such action
by "quasi-judicial" officials appears in statements from
this Court. Since 1903, this Court has applied the same
definition of "quasi-judicial" as is contained in Bair v.
Struck (1903), 29 Mont. 45, 50, 74 P. 69, 71:
". .. As distinguishing between acts quasi-
judicial and acts ministerial in their character,
the following definitions we think correctly state
the law:
"'Quasi-judicial functions are those which lie
midway between the judicial and ministerial
ones. The line separating them from such as
are thus on their two sides are necessarily
indistinct; but, in general terms, when the law,
in words or by implication, commits to any
officer the duty of looking into facts, and
acting upon them, not in a way which it specifically
directs, but after a discretion in its nature
judicial, the function is termed quasi-judicial.'
. .. [Citation omitted.]
"'Where a power rests in judgment or discretion,
so that it is of a judicial nature or character,
but does not involve the exercise of the functions
of a judge, or is conferred upon an officer other
than a judicial officer, the expression used is
generally "quasi-judicial"'. ..The officer may
not in strictnessbe a judge; still, if his powers
are discretionary, to be exerted or withheld
according to his own view of what is necessary and
proper, they are in their nature judicial."
See also, State v. Montana Livestock Sanitary Board
(1959), 135 Mont. 202, 205, 339 P.2d 487, 489; State v.
State Livestock Sanitary Board (1960), 138 Mont. 536, 538,
357 P.2d 685, 687; City of Billings v. Smith (1971), 158
Mont. 197, 207, 490 P.2d 221, 227.
We hold therefore, that when an attorney seeks to influence
a public official exercising a quasi-judicial function who is
acting in a matter or field in which the public official has
discretion, such an attorney is not engaged in lobbying under
the terms of the Initiative. This holding would not apply if
the public official were a legislator covered under section
2 (4)(a) of the Initiative.
We make special note of proceedings before the Public
Service Commission. Ordinarily, the making of rules and
setting of rates in the regulation of utilities or public
carriers is considered a quasi-legislative function.
Section 2-15-102(10), MCA. Originally, the Public Service
Commission was considered to be an arm of the legislature in
the performance of its functions. However, it was included
as one of the departments of the executive branch in the
Executive Reorganization Act, sections 2-15-2601, -2602,
MCA. The Public Service Commission is an example of an
agency where quasi-legislative and quasi-judicial functions
may overlap. In any event, our above-quoted definition of
a quasi-judicia.1 function also applies to proceedings
before the Public Service Commission. When that Commission
is engaged in la quasi-judicial function as we have defined
it, attorneys acting on behalf of clients or for themselves
in such proceedings are not covered by the Initiative. The
discretion of setting rates is, in our opinion, the power to
exercise a quasi-judicial function.
The State Bar has expressed the fear that the Initiative
may also be construed to include official activities of a
purely ministerial nature, such as paying filing fees to
procure the recordation of deeds or other instruments.
We allay those fears by stating that the purpose of the
Initiative is directed toward legislative functions and not
ministerial acts. Any attorney procuring the performance of
a purely ministerial act by a public officia1,an act which
could otherwise be required by mandamus, is not procuring an
official to exercise a legislative function, and is not acting
within the intent and purpose of the Initiative.
So construed, we do not find the Initiative as emended
by this Court in Montana Automobile Association, supra, to
be so vague as to be unconstitutionally uncertain, nor does
it intrude on the powers of this Court to regulate the
conduct of attorneys. As so construed, the Act applies
equally to attorneys and nonattorneys acting in the field of
nonlegislative lobbying. No reason appears why attorneys
should enjoy especial dispensation from application of the
Initiative when they are acting in that field. There is an
obvious public interest in the regulation and disclosure of
lobbying activities. Section 17 of the Initiative places a
duty upon the commissioner of political practices to promulgate
rules necessary to carry out the purposes of the Initiative.
Using these two opinions as guidelines, we expect that the
commissioner will promulgate regulations properly applying
to lobbying activities covered by the Initiative. Those
regulations should apply equally to all lobbyists, including
attorneys who lobby. While the commissioner has the power
to suspend licenses of lobbyists, and the attorney general
has power to enforce the provisions of the Initiative, none
of those powers conflict with the right of this Court to
supervise the conduct of the members of the Bar engaged in
the practice of law. Irrespective of what may be said in
this opinion or contained in the Initiative, we assert and
maintain the right of this Court to supervise the conduct of
the members of the Bar and we find that right and power
undiminished by any provision of the Initiative.
The interpretation of the Initiative which we have set
forth here was in part suggested by the State Bar, and
consented to by the respondents. We find no reason at this
time to exercise any injunctive power directed to the
commissioner of political practices or any other official.
Such action is reserved for another time, if it is ever
necessary.
This opinion shall be and constitutes a declaratory
judgment of this Court to which the parties will well and
suitably conform themselves. No co2-t-s any party.
to
i/ Justice
W e concur:
Chief ~ u s t i c e