No. 95-323
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
COMMON CAUSE OF MONTANA, a state
organization of COMMON CAUSE,
a Washington, D.C., non-profit
corporation,
Plaintiff and Appellant,
v.
ED ARGENBRIGHT, in his capacity
as COMMISSIONER OF POLITICAL
PRACTICES of the State of Montana,
and the OFFICE OF THE COMMISSIONER
OF POLITICAL PRACTICES of the
State of Montana,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. Reynolds (argued) and Deborah S. Smith;
Reynolds, Mot1 & Sherwood, Helena, Montana
F@r Respondents:
Hon. Joseph P. Mazurek, Attorney General,
James M. Scheier, Ass't Attorney General (argued)
Helena, Montana
Submitted: February 21, 1996
Decided: April 23, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Pursuant to 5 2-4-315, MCA, Common Cause filed a petition for
rulemaking with the Commissioner of Political Practices
(Commissioner) requesting the Commissioner to institute a
rulemaking proceeding to clarify the definition of lobbying set
forth in the Montana Lobbying Act, § 5-7-102(6), MCA. The
Commissioner denied the petition. Common Cause then filed a
complaint in District Court seeking declaratory relief and a
peremptory writ of mandamus. The District Court granted the
Commissioner's motion to dismiss pursuant to Rule 12(b) (6),
M.R.Civ.P. The court subsequently denied Common Cause's motion to
alter or amend the judgment. Common Cause appeals from the order
dismissing its complaint and the order denying its motion to alter
or amend the judgment. We reverse and remand.
Common Cause presents the following issues on appeal:
1. Does § 2-4-315, MCA, grant the Commissioner discretion to
deny a petition for mandatory rulemaking under § 5-7-111,
MCA, without first initiating rulemaking proceedings?
2. Is Mandamus an appropriate remedy?
BACKGROUND
Since this matter was dismissed under Rule 12 (b) (6),
M.R.Civ.P., prior to the filing of a responsive pleading or the
completion of any discovery, the only facts before the District
Court were those alleged in Common Cause's complaint. As alleged
in the complaint, the background leading up to this litigation is
as follows: For many years Common Cause has worked to assure full
public disclosure of the amounts of money that persons spend to
2
lobby Montana legislators and public officials. As part of this
effort, Common Cause wrote and then worked to pass Initiative 85
revising Montana's Lobbying Act and requiring that lobbying
expenditures be reported to the Commissioner.
The Lobbying Act states that one of its purposes is "to
require disclosure of the amounts of money spent for lobbying."
Section 5-7-101(l), MCA. In 1981, this Court recognized that the
purpose of Initiative 85 was "to provide for the disclosure of
money spent to influence action of public officials and to require
elected officials to disclose their business interests." Montana
Automobile Ass'n v. Greely (1981), 193 Mont. 378, 399, 632 P.2d
300, 311. In order to gauge how effectively the Lobbying Act was
accomplishing this purpose, Common Cause conducted two surveys, one
in 1984 and one in 1994. These surveys sought responses from
principals as to their understanding of what activities constituted
"lobbyingl' under the Lobbying Act and, thus, which expenditures
concerning those activities were required, by law, to be reported.
The survey results, which were appended to the complaint, indicate
that there is substantial disagreement among the principals as to
which activities are included within the definition of "lobbying."
Common Cause alleged that this disagreement as to what are and are
not reportable lobbying expenditures, results in inconsistent
reporting of lobbying expenditures. According to Common Cause,
this inconsistency, in turn, thwarts the Lobbying Act's
statutorily-stated purpose of making public the amounts of money
spent for lobbying. See 5 5-7-101(l), MCA. In other words, it is
3
Common Cause's contention that unless there is consistency in the
understanding of what must be reported, in the final analysis, the
reports have no meaning.
In light of these two surveys, Common Cause filed a petition
for rulemaking pursuant to § 2-4-315, MCA, on April 29, 1994,
requesting the Commissioner to institute a rulemaking proceeding
for the purpose of clarifying the definition of lobbying set forth
in the Lobbying Act at § 5-7-102(6), MCA. Common Cause's petition
also invokes the Commissioner's specific duty under 5 5-7-111, MCA,
to promulgate rules necessary to carry out the purposes of the
Lobbying Act. In its petition for rulemaking, Common Cause set
forth a proposed rule defining lobbying. On June 24, 1994, the
Commissioner denied the petition on the basis that the rule
proposed by Common Cause would alter, amend and enlarge the
Lobbying Act in a way not envisioned by the Legislature and that
the rule proposed by Common Cause was not reasonably necessary to
effectuate the purpose of the Lobbying Act.
Thereafter, Common Cause filed an application for peremptory
writ of mandamus and complaint for declaratory relief in the
District Court. Common Cause requested a writ of mandamus
requiring the Commissioner to institute a rulemaking procedure to
promulgate rules specifying which activities are included in the
Lobbying Act's definition of lobbying. Additionally, Common Cause
sought a declaration that the Commissioner had violated the
mandatory duty imposed on him by 5 5-7-111, MCA, to "promulgate and
publish rules necessary to carry out the provisions of [the
4
Lobbying Act] . . .'I The Commissioner moved to dismiss pursuant
to Rule 12(b) (61, M.R.Civ.P., and the District Court granted his
motion. Common Cause appeals.
DISCUSSION
A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207,
900 P.2d 314, 317.
A motion to dismiss under Rule 12(b) (6), M.R.Civ.P., has
the effect of admitting all well-pleaded allegations in
the complaint. In considering the motion, the complaint
construed in the light most favorable to the
$aintiff, and all allegations of fact contained therein
are taken as true.
Lockwood, 900 P.2d at 317 (quoting Boreen v. Christensen (1994),
267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a
complaint fails to state a claim upon which relief can be granted
is a conclusion of law. We review a district court's conclusions
of law to determine whether the court's interpretation of the law
is correct. Lockwood, 900 P.2d at 317.
We have stated that we do not favor the short circuiting of
litigation at the initial pleading stage unless a complaint does
not state a cause of action under any set of facts. Tobacco River
Lumber Co. v. Yoppe (1978), 176 Mont. 267, 271, 577 P.2d 855, 857.
"This is especially true when the cause of action is based upon a
statute that has not been previously interpreted and where no
underlying factual record has been developed." Smith v. Video
Lottery Consultants, Inc. (1993), 260 Mont. 54, 57-58, 858 P.2d 11,
5
13. In the present case, the section of the Lobbying Act in
question, § 5-7-111, MCA, has not previously been interpreted by
this Court.
Resolution of this appeal hinges upon the interpretation of
two statutory provisions: Section 5-7-111, MCA, and § 2-4-315, MCA.
Section 5-7-111, MCA, provides as follows:
Commissioner to make rules. (1) The commissioner shall
promulgate and publish rules necessary to carry out the
provisions of this chapter in conformance with the
Montana Administrative Procedure Act and, in particular,
shall provide rules necessary to allocate salary,
expenses, and any other payments between lobbying
activities and other activities not connected with
lobbying for any person whose activities are not solely
limited to lobbying.
(2) Such rules shall be designed to effect and
promote the purposes of this chapter, express or implied.
Such rules shall be as simple and easily complied with as
possible.
Common Cause argues that this statute mandates that the
Commissioner "shall" publish rules necessary to carry out the
provisions of the Lobbying Act and that the "necessity" is
established by the well-pleaded, undisputed allegations of its
complaint. Common Cause argues that § 5-7-111, MCA, creates a
clear legal duty, the violation of which warrants the issuance of
a writ of mandamus. The Commissioner focuses on the fact that he
only has a duty to promulgate rules necessary to carry out the
provisions of the chapter "in conformance with the Montana
Administrative Procedure Act" (MAPA). He argues that MAPA, § 2-4-
315, MCA, gives him discretion to determine whether the rule
propounded by Common Cause is "necessary" or whether any rules are
necessary. Section 2-4-315, MCA, provides as follows:
6
Petition for adoption, amendment, or repeal of rules. An
interested person or, when the legislature is not in
session, a member of the legislature on behalf of an
interested person may petition an agency requesting the
promulgation, amendment, or repeal of a rule. . . .
Within 60 days after submission of a petition, the agency
either shall deny the petition in writing (stating its
reasons for the denial) or shall initiate rulemaking
proceedings in accordance with 2-4-302 through 2-4-305.
The Commissioner contends that he was within his discretion under
the above statute when, within 60 days after receiving Common
Cause's petition for rulemaking, he concluded that the rule
proposed by Common Cause would impermissibly alter the statutory
definition of the term "lobbying" enacted by the Montana
legislature, and thus he denied the petition. He then contends
that a writ of mandamus is not available to compel the exercise of
a discretionary act.
The District Court concluded that under 5 2-4-315, MCA, the
Commissioner had discretion to determine which rules are
"necessary" and appropriate; that the Commissioner was within his
discretion in denying Common Cause's petition; and that the court
could not issue a writ of mandate to compel the Commissioner to
promulgate any specific rule.
The Commissioner held, and the District Court agreed, that the
Commissioner had discretion to either deny the petition or initiate
rulemaking proceedings. This conclusion was based upon the court's
interpretation of § 2-4-315, MCA. We review that conclusion of law
to determine whether or not it is correct. Carbon County v. Union
Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680,
686.
7
1. Does § 2-4-315, MCA, grant the Commissioner discretion to
deny a petition for mandatory rulemaking under § 5-7-111,
MCA, without first initiating rulemaking proceedings?
Section 2-4-315, MCA, provides that an interested person "may
petition an agency requesting the promulgation, amendment, or
repeal of a rule. . . " It further provides that, "[wlithin 60
days after submission of a petition, the agency either shall deny
the petition in writing (stating its reasons for the denial) or
shall initiate rulemaking proceedings in accordance with 2-4-302
through 2-4-305." Implicit in the District Court's ruling is the
reasoning that § 2-4-315, MCA, addresses petitions for the
promulgation of "a rule," and since Common Cause's Petition
proposed a specific rule, the statutory discretion to deny the
petition was triggered without any need for a rulemaking
proceeding. We determine that, although § 2-4-315, MCA, does grant
the Commissioner discretion to deny a petition in so far as it
relates to a proposed rule, it does not grant the Commissioner that
same discretion with regard to a broader request that the
Commissioner engage in mandatory rulemaking to determine whether
any rules, whether proposed by a petitioner or not, are necessary.
Although Common Cause's petition does set forth a specific
rule for consideration, that rule is nothing more than a proposal.
We do not read Common Cause's petition as solely requesting the
adoption of a specific rule -- rather, the petition merely proposes
a rule in the context of its request that the Commissioner initiate
rulemaking to determine the necessity of rules in general. Under
the Administrative Rules of Montana, a petition for rulemaking must
8
include "the rule the petitioner requests the agency to promulgate,
amend or repeal." Mont. Admin. R. 1-3-205(a) (iii). In order to
comply with the prerequisites of MAPA, Common Cause had to submit
a proposed rule. However, that did not mean that the scope of
rules the Commissioner could consider was thereby limited to the
proposed rule. The proposed rule was nothing more than a model or
point of departure. N.A.A.C.P. v. Federal Power Comm'n (D.C.Cir.
1975), 520 F.2d 432, 434, -I
aff'd 425 U.S. 662, 96 S.Ct. 1806, 48
L.Ed.2d 284 (1976).
Both the Commissioner and District Court erred in assuming
that the only matter presented by the petition was the proposed
rule. In addition to setting forth a proposed rule, the
administrative petition clearly asks the Commissioner to initiate
a rulemaking proceeding, pursuant to 5 5-7-111, MCA. Likewise, in
its application for preliminary writ of mandamus and complaint for
declaratory relief in District Court, Common Cause seeks to compel
the Commissioner to initiate rulemaking proceedings. It does not
seek to compel the adoption of any specific rule proposed by Common
Cause. We hold that although § 2-4-315, MCA, grants the
Commissioner the discretion to deny the petition in so far as it
pertains to a proposed rule, there is no such discretion to
summarily deny a petition which seeks to invoke the Commissioner's
legal obligation to engage in mandatory rulemaking under § 5-7-111,
MCA.
In Common Cause v. Federal Election Comm. (D.D.C. 1987), 692
F. Supp. 1391, Common Cause challenged the Federal Election
9
Committee's (the Commission) decision to deny a petition for
rulemaking associated with the use of "soft money" in connection
with federal elections. The court held that any improper
allocation of non-federal funds by a state committee would be a
violation of the Federal Elections Campaigns Act (FECA), 2 U.S.C.
§ 431, et seq. "Yet, the Commission provides no guidance
whatsoever on what allocation methods a state or local committee
may use; the potential for abuse, intended or no, is obvious."
Common Cause, 692 F. Supp. at 1396. The court determined that when
the agency denies rulemaking in a way that "flatly contradicts
Congressts express purpose, the court may -- indeed must --
intervene and correct the agency." Common Cause, 692 F. Supp. at
1396 (citations omitted). Although recognizing that a revision of
the Commission's regulations was warranted, the court noted that
Common Cause's proposals did not limit or define the scope of the
Commission's consideration. The court stated:
However, the court need not go so far as to order the
Commission to adopt the proposals of Common Cause, which
appear to go beyond what the FECA requires in this area.
Instead, the court need only require the Commission to
review Common Cause's Petition for Rulemaking in light of
this opinion, with an eye to revising 11 C.F.R. §§ 102.5
and 106.1, as they relate to the portions of the 1979
FECA amendments discussed above.
Common Cause, 692 F. Supp. at 1396.
Similarly, although the Commissioner of Political Practices is
under no compulsion to adopt the rules proposed by Common Cause, he
cannot refuse to adopt any rules without first having engaged in a
rulemaking procedure to determine whether any rules are
"necessary."
10
2. Is Mandamus an appropriate remedy?
The issuance or denial or a writ of mandate calls for a
conclusion of law which we review to determine if it is correct.
Franchi v. County of Jefferson (Mont. 1995), 908 P.Zd 210, 212, 52
St.Rep. 1229, 1230; Becky v. Butte-Silver Bow Sch. Dist. 1 (Mont.
1995), 906 P.2d 193, 195, 52 St.Rep. 1154, 1155. Pursuant to § 21-
26-102, MCA, a two-part standard applies to the issuance of a writ
of mandate. Franchi, 908 P.2d at 212; State ex rel. Chisholm v.
District Court (1986), 224 Mont. 441, 443, 731 P.2d 324, 325.
First, the writ is available when the party requesting it is
entitled to the performance of a clear legal duty by the party
against whom the writ is sought. Beckv, 906 P.2d at 195. Second,
if there is a clear legal duty, the district court must grant the
writ if there is no plain, speedy, and adequate remedy available in
the ordinary course of law. Franchi, 908 P.2d at 212; State ex
rel. Cobbs v. Montana Dep't of Social and Rehabilitative Servs.
(Mont. 19951, 906 P.2d 204, 206, 52 St.Rep. 1166, 1167; §
27-26-102(2), MCA. In Chisholm, we clarified the inquiry: "A
negative answer to the first question bars the issuance of the
writ, and, irrespective of the answer to that question, an
affirmative answer to the second, divests the court of authority to
issue it." Chisholm, 731 P.2d at 325.
Regarding the first standard for mandamus, does the
Commissioner have a clear legal duty to initiate rulemaking, the
Commissioner contends that it is within his discretion to determine
what rules are "necessary" as that term is used in § 5-7-111, MCA.
11
We do not interpret the Commissioner's discretion that broadly.
The "as necessary" language of § 5-7-111, MCA, does not give the
Commissioner discretion to ignore the initial mandate that he
"shall" adopt rules. He cannot choose to take no action without
first holding a hearing to determine whether rules are necessary.
In Commonwealth of Pennsylvania v. National Ass'n of Flood Insurers
(3d Cir. 1975), 520 F.2d 11, the Third Circuit Court addressed a
similar issue. The State of Pennsylvania, on behalf of its
citizens, sued the flood insurers and the Secretary of Housing and
Urban Development for mandamus and injunctive relief for their
failure to publicize the availability of flood insurance prior to
the floods in question. As in the case sub judice, the district
court dismissed the complaint and the plaintiff appealed. The
federal law required that:
The Secretary shall from time to time take such action as
may be necessary in order to make information and data
available to the public and to any state or local agency
or official, with regard to (1) the flood insurance
program, its coverage and objectives. . .
Commonwealth, 520 F.2d at 26 (citing 42 U.S.C. 5 4020)
This statute, like the Montana statute presently at issue, contains
the mandatory "shall" followed by the "as necessary" language. In
interpreting the federal law, the Third Circuit held:
These paragraphs [42 U.S.C. § 40201, when read
together, set forth a sufficient allegation which, if
proved, warrants mandamus relief. . . . Although Ii 4020
does contain language of discretion normally not subject
to review under a petition for mandamus, the discretion
authorized pertains onlv to the time and manner of
actins. Soecificallv. the urovision mandates that "the
Secretarv shall . . . take such action as mav be
necessarv . . . . 1'
12
Commonwealth, 520 F.2d at 26 (emphasis added, citation omitted).
As to the significance of the phrase "as may be necessary,"
the court stated:
The inclusion of the phrase "as may be necessary" does
not permit disobedience to the initial directive,
implicit in the statutory framework, requiring the
Secretary to first consider whether or not action should
be taken.
Commonwealth, 520 F.2d at 26 (citations omitted).
In holding that mandamus was appropriate, the Third Circuit
concluded that, although the Secretary had the final decision as to
whether action was required, he could not make that decision
without first weighing the considerations.
It is sufficient if the Secretary, having considered
whether action should be taken, then determines that no
action is necessary. But the Secretary cannot avoid
taking the first step of evaluating the necessity of
disseminating information. It is that step to which the
Commonwealth has, in part, addressed its complaint. It
is only at a hearing that the facts bearing upon this
allegation may be developed. Accordingly, mandamus may
issue to require the exercise of permissible discretion,
. . although the manner in which the discretionary act
is to be performed is not to be directed by the Court.
Commonwealth, 520 F.2d at 26-27 (citation omitted).
We adopt a similar analysis in the context of the Lobbying
Act. Although 5 5-7-111, MCA, requires the Commissioner to adopt
rules "as necessary," that discretionary phrase does not permit the
Commissioner to circumvent the initial directive that he llshallt'
adopt rules. The Commissioner has the ultimate discretion to
determine what, if any, rules are necessary. He cannot, however,
in the face of a petition alleging the necessity for rules, deny
the petition without first conducting a hearing as to the question
13
of necessity, this is his clear legal duty.
Assuming the truth of the allegations in Common Cause's
complaint, it has established that the Commissioner has a clear
legal duty to engage in rulemaking. The question then becomes,
does Common Cause have a plain, speedy, and adequate remedy in the
ordinary course of law? Chisholm, 731 P.2d at 325. A review of
MAPA reveals that there is no provision for appeal from, or
judicial review of, the Commissioner's decision to not initiate
rulemaking under 5 5-7-111, MCA. Thus Common Cause has no plain,
speedy and adequate remedy in the ordinary course of law.
Common Cause's complaint sets forth sufficient allegations
which, if proven, warrant mandamus relief. See Carpet, Linoleum &
Resilient Tile, Etc. v. Brown (10th Cir. 1981), 656 F.2d 564, 568,
(citing Commonwealth, 520 F.2d at 26-27). We hold that mandamus
can lie to compel the Commissioner to conduct rulemaking procedures
before he makes his decision as to whether new or additional rules
are necessary. The District Court erred in dismissing Common
Cause's complaint, thus, we reverse and remand the matter for
further proceedings consistent with this opinion.
We concur.
Chief Justice
14
Justices
15
Justice Charles E. Erdmann dissenting.
I respectfully dissent. The majority decision has effectively
removed the discretionary authority granted to the Commissioner
under § 2-4-315, MCA, and then determines that since no discretion
is involved, mandamus is an appropriate remedy.
As correctly noted by the majority, resolution of this appeal
involves the interpretation of §§ 5-7-111 and 2-4-315, MCA.
Section 5-7-111, MCA, is the legislative grant of rulemaking
authority to the Commissioner and provides:
(1) The commissioner shall promulgate and publish
rules necessary to carry out the provisions of this
chapter in conformance with the Montana Administrative
Procedure Act and, in particular, shall provide rules
necessary to allocate salary, expenses, and any other
payments between lobbying activities and other activities
not connected with lobbying for any person whose
activities are not solely limited to lobbying.
(2) Such rules shall be designed to effect and
promote the purposes of this chapter, express or implied.
Such rules shall be as simple and easily complied with as
possible.
This statute requires the Commissioner to promulgate rules
"necessary" to carry out the provisions of the Lobbying Act in
conformance with the provisions of the Administrative Procedure Act
(MAPA). This reference to MAPA leads us to 5 2-4-315, MCA, which
provides:
An interested person or, when the legislature is not in
session, a member of the legislature on behalf of an
interested person may petition an agency requesting the
promulgation, amendment, or repeal of a rule. . . .
Within 60 days after submission of a petition, the agency
either shall deny the petition in writing (stating its
reasons for the denial) or shall initiate rulemaking
proceedings in accordance with 2-4-302 through 2-4-305.
Common Cause recognized the interplay between these two
statutes when it specifically referenced and filed its "Petition
16
for Rulemaking" under 5 2-4-315, MCA. There can be no question
that § 5-7-511, MCA, requires that the Commissioner follow the
provisions of MAPA (§ 2-4-315, MCA) when considering and
promulgating rules
Although § 2-4-315, MCA, does not require an interested person
to file a proposed rule, 5 1.3.205(a) (iii), ARM, requires that a
petition for rulemaking include "the rule the petitioner requests
the agency to promulgate, amend or repeal." While the majority
recognizes that Common Cause submitted a proposed rule in their
petition, it found that both the Commissioner and the District
Court erred in assuming that the only matter presented by the
petition was the proposed rule. The majority then goes on to
interpret Common Cause's petition to be a general request for
rulemaking--to determine whether rules are necessary--and not
simply a request that the Commissioner adopt the rule submitted by
Common Cause. Having found that the petition was not a request for
adoption of a particular rule the majority holds:
We determine that, although 5 2-4-315, MCA, does grant
the Commissioner discretion to deny a petition in so far
as it relates to a proposed rule, it does not grant the
Commissioner that same discretion with regard to a
broader request that the Commissioner engage in mandatory
rulemaking to determine whether any rules, whether
proposed by a petitioner or not, are necessary.
A review of Common Cause's petition reveals that it was indeed
a request for the adoption of a specific rule. The petition
initially requested that the Commissioner adopt rules that define
and specify "lobbying" activities under the Montana Lobbying Act.
The petition goes on to state:
Montana Common Cause files this petition for
rulemaking to address a void in the existing Lobbying Act
17
rules: specifically, the failure of the rules to define
actions that constitute "lobbying" or "lobbying
activities." . . . Without rules that provide examples
clarifying the definition of "lobbying" set forth in the
Lobbying Act at § 5-7-102(6) MCA, it is certain that
these disagreements will remain unresolved, and will
continue to result in inconsistent and inaccurate
reporting of lobbying expenditures. Promulgation of the
rules requested below will help achieve the goal
envisioned by I-85 of full disclosure of lobbying
expenditures.
. . .
First, Montana Common Cause requests the
Commissioner to add a new § 101, and to renumber existing
§§ 101 throush 109 as new 55 102 through 110.
Common Cause then included a three page, single-spaced
proposed rule in their petition. The final sentence of the
petition states: "WHEREFORE, Montana Common Cause requests the
Commissioner of Political Practices to promulgate the rules
defining lobbying set forth in section 3 of this Petition." This
rule proposal clearly comes under the provisions of § 2-4-315, MCA,
and is not a broad request for the Commissioner to determine
whether general, unspecified rules were necessary.
The Commissioner is not required to initiate the formal rule
making process under § 2-4-315, MCA, in every instance. The
statute grants the Commissioner the discretion to either initiate
rulemaking proceedings or deny the petition. The effect of the
majority's opinion is to repeal the language in 5 2-4-315, MCA,
which grants the Commissioner the discretion to deny a petition.
In this case the Commissioner exercised his discretion under
§ 2-4-315, MCA, by denying the petition and stating his reasons for
the denial. While the substance of the Commissioner's actions are
18
not before us, there is no question that the Commissioner properly
followed the procedural requirements of § 2-4-315, MCA.
The majority opinion also creates a new category of rulemaking
request not envisioned nor authorized by the legislature. The
majority holds that a request can be made to an agency authorized
to promulgate rules to "engage in mandatory rulemaking to determine
whether any rules . are necessary." As noted, the
Commissioner's rule making authority is derived from § 5-7-111,
MCA, which requires the Commissioner to promulgate rules in
"conformance with the Montana Administrative Procedure Act." MAPA
does not envision that a vague general request can be made to an
agency to "determine whether rules are necessary," which request
would then mandate initiation of the formal rulemaking procedure.
The majority fails to cite any authority in MAPA or in the Lobbying
Act for this new procedure.
Finally, since I believe that this is a petition for
rulemaking under § 2-4-315, MCA, and since even the majority
concedes that the Commissioner has discretion under that statute,
I would find that a writ of mandate is not a proper remedy. This
Court has consistently held that mandamus is only available to
compel performance of a clear legal duty not involving discretion.
Jeppeson v. Dept. of State Lands (19831, 205 Mont, 282, 667 P.2d
428.
I would affirm the District Court.
a
Justice
Chief Justice J. A. Turnage:
I join in the dissent of Justice Erdmann.
A qz-. - -~-~
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion.
First, I cannot agree with the Court's implicit suggestion
that the petition Common Cause filed with the Commissioner was one
for a general rulemaking proceeding pursuant to § 5-7-111, MCA.
The petition was made pursuant to § 2-4-315, MCA, and specifically
requested promulgation of the proposed rules contained therein. As
the Court recognizes, § 2-4-315, MCA, authorized the Commissioner--
in his discretion--to either timely deny the petition in writing or
institute rulemaking proceedings thereon in accordance with §§ 2-4-
302 through 2-4-305, MCA. The Commissioner exercised his statutory
discretion and denied the petition, stating as reasons that the
proposed rules would impermissibly alter, amend and enlarge the
statutory provisions and that the rules were not reasonably
necessary to promote the purposes of the Lobbying Act. The Montana
Administrative Procedure Act (MAPA) does not provide for judicial
review of a decision by the Commissioner pursuant to § 2-4-315,
MCA.
Nor can I agree with the Court's several judicial revisions of
§ 2-4-315, MCA. The statute is clear, and rather limited, in
authorizing a petition by an interested person requesting the
promulgation of "a rule." Yet the Court at least implicitly
rewrites § 2-4-315, MCA, to authorize or encompass a petition
requesting the Commissioner to initiate generalized rulemaking
proceedings pursuant to 5 5-7-111, MCA, thereunder. Nothing in 5
2-4-315, MCA, authorizes such a petition.
Having recast both the request originally filed by Common
20
Cause and the statute under which it was submitted, the Court then
adds to § 2-4-315, MCA, a requirement that receipt of a request for
rulemaking thereunder mandates the Commissioner to initiate a
rulemaking procedure to determine whether rules are "necessary"
pursuant to 5 5-7-111, MCA. Such a requirement exists in neither
statute.
Moreover, the Court judicially revises § 2-4-315, MCA, to
provide Common Cause with a remedy it has not requested--namely, a
"rulemaking proceeding" to provide a record upon which the
Commissioner may again exercise his discretion regarding whether
rulemaking is necessary. Common Cause specifically sought mandamus
in the District Court to compel the Commissioner to institute a
rulemaking proceeding "for the purpose of promulgating and
publishing rules that specify activities encompassed within the
Act's definition of lobbying." The Court refuses to grant mandamus
in accord with Common Cause's request, determining that the
ultimate decision regarding what rules, if any, are "necessary"
under § 5-7-111, MCA, remains a matter within the Commissioner's
discretion. While I agree that the requested mandamus cannot issue
and that the "necessity" determination ultimately rests with the
Commissioner, I cannot agree to the creation of an unrequested
remedy not authorized by any statute. It is this Court's
obligation to either affirm the District Court's denial of the
requested writ of mandamus or reverse that denial. It is not our
job to rewrite the requested relief, create a remedy, and then rely
on those actions to reverse the District Court.
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Finally, I disagree with the Court's analysis of mandamus and
its applicability here. The Court apparently concedes that our
cases apply the "clear legal duty" aspect of mandamus narrowly, and
correctly notes that the statutory directive of § 5-7-111, MCA,
contains the discretionary "necessary" component. The Court then
relies primarily on Commonwealth, in which the Third Circuit Court
of Appeals determined that the phrase "as may be necessary" might
support mandamus. There, the allegation was that the Secretary of
Housing and Urban Development totally failed to perform certain
statutory duties. The Third Circuit determined that "as may be
necessary" required the Secretary to "first consider whether or not
action should be taken." Commonwealth, 520 F.2d at 26. The Third
Circuit then stated that "Lilt is sufficient if the Secretary,
having considered whether action should be taken, then determines
that no action is necessary." Commonwealth, 520 F.2d at 26.
Finally, the Third Circuit concluded that "mandamus may issue to
require the exercise of permissible discretion, although the manner
in which the discretionary act is to be performed is not to be
directed by the court." Commonwealth, 520 F.2d at 27 (citations
omitted).
In the case presently before us, the Commissioner already has
considered whether action should be taken and has exercised his
discretion to determine that it should not. Thus, this case is
factually distinguishable from Commonwealth. The lack of exercise
of "permissible discretion"--which was the basis of the Third
Circuit's determination in Commonwealth that mandamus might issue--
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does not exist in this case.
Finally, the Court's apparent reliance on the "hearing"
required in Commonwealth to support its creation of a required
"rulemaking proceeding" for the purpose of determining "necessity"
is misplaced. As I read that case, the hearing required by the
Third Circuit "at which the facts bearing upon this allegation may
be developed" is the hearing in the federal district court on
remand to determine the propriety of mandamus. See Commonwealth,
520 F.2d at 27. The hearing was required because of the allegation
that the Secretary had failed to perform the statutory duties,
including the total failure to exercise discretion. Thus, the
hearing on remand in Commonwealth was to determine whether the
Secretary had considered and evaluated the necessity of taking
action.
Here, the Commissioner has exercised his permissible
discretion. Nothing more can properly be accomplished by
improperly issuing mandamus to require a "rulemaking proceeding"
which is not authorized or contemplated by statute. If the Court's
intent is to judicially create a "contested case" proceeding under
MAPA where none has been provided by the legislature, in order to
provide for judicial review of the Commissioner's subsequent
exercise of discretion, it constitutes the kind of judicial
activism which squarely intrudes into the legislature's domain
I would affirm the District Court's denial of the application
for a writ of mandamus.