Montana Attorney General Opinions

The enactment of Mont. Code Ann. § 17-8-106 by the 1981 legislature placed no enforceable limits on the spending power of a subsequent legislature.

More than $2 million has been appropriated in a line item from state sources other than the water adjudication account provided in HB 22, § 7, for the purposes of funding Montana's water adjudication program. Accordingly, HB 22 is not void pursuant to its contingent voidness provision.

A judicial decision invalidating the county distribution requirements for signatures to qualify an initiative petition for the ballot, as approved in Constitutional Amendments 37 and 38 and enacted in their implementing legislation, restores the language of the constitution and statutes as they existed before the approval of the invalid amendments.

A public officer or public employee may engage in political speech so long as his or her speech does not involve the use of public time, facilities, equipment, supplies, personnel, or funds.

A local government with self-government powers may set rates for water and sewer service without regard to the requirements of Mont. Code Ann. § 7-13-4304. Protection against unlawful governmental discrimination is an area affirmatively subject to state control. Consequently, the provisions of Mont. Code Ann. § 49-2-308 of the Montana Human Rights Act apply to a self-governing municipality in the setting of water and sewer service rates.

A Conservation District has authority under Mont. Code Ann. § 76-15-706 (2003) to implement land use regulations, following a referendum by the voters, in order to implement reasonable measures to conserve the soils, protect the soil structure from coal bed methane water, and conserve the water resources of the district.

The closing of a county-owned incinerator by the Park County Commission is an administrative act not subject to initiative and referendum.

A fugitive prisoner, after waiver of extradition, is not entitled to bail under the Uniform Criminal Extradition Act as set forth in Mont. Code Ann. tit. 46, ch. 30. Upon waiver of extradition, our state district courts retain jurisdiction only to effect transport of the fugitive.

When a crime victim requests confidentiality, the public dissemination of certain information, including the address, telephone number, or place of employment of the victim or a member of the victim’s family is prohibited, unless an exception listed in Mont. Code Ann. § 44-5-311(1) applies. Information directly or indirectly disclosing the identity of victims of certain sex crimes may not be publicly disseminated unless an exception listed in Mont. Code Ann. § 44-5-311(1) applies. A law enforcement agency may disclose a crime scene location under Mont. Code Ann. § 44-5-311(1), (3), even if such disclosure may suggest the identity of the victim.

In an election on the question of establishing a local government study commission, a local government may not combine a mill levy question with the study commission question, because the combined questions do not "substantially" conform to the statutory form required by Mont. Code Ann. § 7-3-175.

The creation of the Central Intake system is well within the authority granted to the Department of Public Health and Human Services by the Legislature in Mont. Code Ann. § 41-3-202(1). The administrative decision by the Department of Public Health and Human Services to establish the Central Intake system implements, interprets or prescribes law or policy. It is a “rule” for the purposes of the Montana Administrative Procedures Act. Thus the notice and hearing requirements of MAPA should have been followed prior to its implementation. There are no “local affiliates” of the Department of Public Health and Human Services. As a result, Mont. Code Ann. § 41-3-201(1) should be read to require the reporting of child abuse or neglect to the Department, a requirement which is clearly satisfied by the reporting of child abuse or neglect to the Centralized Intake Bureau.

A county water district, as a defined local government entity, is subject to the requirements of the State of Montana Single Audit Act, whether or not it has accepted local, state or federal funds during the year.

When a police officer is injured in the line of duty, the employing city's obligation to supplement the officer's workers' compensation wage loss benefits by paying the difference between the benefits received and the officer's net salary pursuant to Mont. Code Ann. § 7-32-4132 ends after the city has paid benefits for a total of one year. That period may consist of aggregated periods of disability of less than one year resulting from the same injury and may extend beyond one calendar year from the date the disability begins.

A city-county planning board established under Montana Code Annotated Title 76, chapter 1, may enter into a contract with the city to provide the professional services of a planning director and staff that are subject to the supervision of the city manager rather than the planning board.

A comprehensive plan adopted prior to October 1, 1999, has no legal effect as the basis for new local zoning or subdivision regulations unless it meets the requirements of a growth policy pursuant to Mont. Code Ann. § 76-1-601. Zoning regulations lawfully adopted pursuant to master plans, comprehensive plans and comprehensive development plans prior to October 1, 2001, are valid and enforceable. However, after October 1, 2001, county and municipal zoning regulations authorized by Title 76, chapter 2, parts 2 and 3, may not be adopted or substantively revised unless a growth policy is adopted for the entire area of the planning board having jurisdiction. A municipal governing body may not extend municipal boundaries, pursuant to the Planned Community Development Act of 1973, without conforming to a growth policy. The expedited review provisions of the Subdivision and Platting Act may not be utilized without a compliant growth policy. If a city or county has not developed a growth policy, interim zoning regulations may be implemented only when: there is an exigent circumstance related to public health, safety and welfare; the zoning measure reasonably relates to the exigency; and more formal planning processes are underway as required by statute. Failure to adopt a growth policy is not, in and of itself, an exigency that permits adoption of emergency interim zoning. A growth policy must cover the entire planning board jurisdiction for zoning decisions to proceed.

General obligation bonds issued by a county water and sewer district are payable by levy on the taxable value of all real and personal property within the district.

Mont Code Ann. § 3-5-901(4) specifically limits state payment of costs for court-appointed counsel for indigent criminal defendants to district court criminal cases.

The loss of hunting, fishing, and trapping privileges that occurs upon a guilty plea, conviction, or forfeiture of bail of a fish and game violation is a direct consequence of that violation. A Judge must inform an individual accused of a fish and game violation of the potential forfeiture of fishing, hunting, and trapping privileges as a result of conviction, guilty plea, or forfeiture of bond in order to assure that a “knowing” plea is entered. Notification regarding loss of hunting, fishing, and trapping privileges is, by statute, to be done by the Department of Fish, Wildlife, and Parks.

Boards of County Commissioners have a duty to accept and pay claims for actual and necessary clerical expenses associated with the operation of justice court. The procedural rule adopted in State ex rel. Browman v. Wood, 168 Mont. 341, 543 P.2d 184 (1975) applies to disputes between Justices of the Peace and Boards of County Commissioners regarding payment of actual and necessary expenses.

The Montana Constitution and Montana law authorize a municipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be paid in installments.

The two-year residency requirement contained in Mont. Code Ann. § 7-4-2104(2) does not disqualify from standing for election a person who was transferred into a county commission district by virtue of reapportionment conducted pursuant to Mont. Code Ann. § 7-4-2102, as long as the person has resided at the same address, now in the new district, for the requisite two-year period.

The county commissioners are generally obligated to fund the library budget submitted by the library board within the limits set by Mont. Code Ann. § 15-10-420. The county has the power to enter an interlocal agreement under which it could bind itself to fund the library budget as submitted by the library board under Mont. Code Ann. § 22-1-309(1).

The President of the Senate and the Speaker of the House are prohibited by article V, section 9 of the Montana Constitution and by Mont Code Ann. § 5-2-104 from appointing a legislator as a member of the Board of Review as provided by Mont Code Ann. § 30-16-302. Designating a legislator as a nonvoting member does not circumvent this prohibition. Under Mont. Code Ann. § 30-16-301, the President and the Speaker can appoint a nonlegislator as a member of the Board.

An elementary school district that has not operated a school for three consecutive school years has been abandoned pursuant to Mont. Code Ann. § 20-6-209 and may not petition to reopen the school under Mont. Code Ann. § 20-6-502.

Upon oral pronouncement of a sentence that transfers legal custody of an inmate to the Department of Corrections, the financial responsibility for the inmate also transfers to Corrections.

A sheriff may receive compensation from a federal agency under the terms of a cooperative law enforcement agreement where the services rendered by the sheriff fall outside of his or her "official duties" without violating any of Montana's statutory or constitutional provisions.

The owners of real property who may vote in the elections contemplated by SB 242 are those owners specifically listed within the definition of Mont. Code Ann. § 50-60-101(14) whose interests appear in the real property records in the office of the county clerk and recorder 30 days before the election. Municipal jurisdictional areas existing under Mont. Code Ann. § 50-60-101(11) prior to the effective date of SB 242 lose jurisdiction to enforce municipal building code provisions as of the effective date of the bill, but such jurisdiction may be revived if it is approved by the voters in the election required by section 8 of SB 242 prior to December 31, 2001.

The Montana Board of Crime Control may reimburse counties for detention costs for Indian youth placed in a regional youth detention facility pursuant to an order of a tribal court.

Withdrawn October 19, 2001. See 49 Op. Att'y Gen. No. 11

An airport authority commissioner may only be removed for cause during his or her term of appointment. "For cause" means some type of misconduct or neglect of duty. As long as commissioners are exercising powers authorized by law, they are not subject to removal during their term of office.

Absent the findings required by Mont. Code Ann. § 76-3-511(2), a local governing body must adopt subdivision regulations for water supply and sewage and solid waste disposal that are as stringent as the standards adopted by the Department of Environmental Quality under the Sanitation in Subdivisions Act. Mont. Code Ann. § 76-3-511 grants local governments the authority to incorporate by reference comparable state regulations or guidelines, but local governments retain discretion to determine the best method of adopting minimum requirements. Review of a proposed subdivision for compliance with local subdivision regulations must occur at the preliminary plat stage.

Telemarketers who are exempt from the registration and bonding requirements of the Montana Telemarketing Registration and Fraud Prevention Act are not exempt from other provisions of the Act.

The mill levy cap provided in Mont. Code Ann. § 15-10-420(1)(a) (2001), as amended by HB 124, is calculated with reference to the total property tax assessed in the previous year, and not by reference to the amount levied for any particular purpose in any prior year. Local governments may not derive “carry forward” authority under Mont. Code Ann. § 15-10-420(1)(b) (2001) based on the difference between the mill levy set in 2000 and the amount the local government would have been authorized to levy under Mont. Code Ann. § 15-10-420(1) (1999). The “carry forward” authority provided in Mont. Code Ann. § 15-10-420(1)(b) (2001), as amended by HB 124, will be available whenever the local government levies fewer mills than would be authorized to reach the mill levy cap provided in subsection (1)(a), and is measured by the difference between the number of mills actually levied and the number of mills the local government would have been allowed to levy to reach the cap. The “carry forward” mills may be levied in a future year and expended by the local government for any lawful purpose it chooses.

A local government may levy additional mills pursuant to Mont. Code Ann. § 15-10-420(1) (2001) sufficient to make up the difference between the amount reimbursed by the state for light vehicle fees and taxes pursuant to House Bill 124, section 1, and the amount of fees and taxes assessed by the local government for FY 2001.

A long-term lease with an option to purchase containing a provision allowing the City to terminate the agreement without penalty if the governing body of the City, in its sole discretion, fails to appropriate funds to make payments due under the lease in any fiscal year, does not create indebtedness of the City. A city may enter a long-term lease with an option to purchase containing a provision allowing the City to terminate the agreement without penalty if the governing body of the City, in its sole discretion, fails to appropriate funds to make payments due under the lease in any fiscal year without first putting the question to a vote of the people.

The Board of Investments may complete the payment of grants to the Montana University System from interest and income derived from the Montana Board of Science and Technology Development loans.

Occupational therapists are not authorized by Montana law to perform iontophoresis.

The Department of Commerce may not encumber unexpended funds from an appropriation for the Microbusiness Development Program by committing those funds after fiscal year-end.

A municipality with self-governing powers may, under Mont. Code Ann. §§ 7-6-1501 to -1509, establish a tiered resort tax schedule providing different tax rates, none of which exceed 3 percent, for similar goods or services according to the character of the business in which the goods or services are sold or offered.

The light vehicle registration fee established in 1999 Mont. Laws, ch. 515, §§ 1-3, ratified by the voters as L.R. 115, may not be assessed against tribally owned vehicles or vehicles owned by enrolled tribal members residing on their reservations. The light vehicle registration fee established in 1999 Mont. Laws, ch. 515, §§ 1-3, ratified by the voters as L.R. 115, may not be assessed against non-resident active duty military personnel stationed in Montana.

Mont. Code Ann. § 7-32-303(6) authorizes only one extension, not to exceed 180 days, to the requirement that every peace officer must attend and successfully complete, within one year of his or her initial appointment, an appropriate peace officer basic training course certified by the Board of Crime Control.

Mont. Code Ann. § 15-6-201(1)(a)(ii) does not exempt school district properties from paying reasonable solid waste management fees which do not exceed the cost of the services they use.

The public safety commission in a department of public safety created pursuant to Mont. Code Ann. title 7, chapter 32, part 1, may set the salary of a deputy sheriff employed in the department at any level at or above the amount that would be paid to the deputy under Mont. Code Ann. § 7-4-2508. The due process provisions of Mont. Code Ann. §§ 7-32-107 to -110 do not apply upon termination of an undersheriff appointed to serve in a department of public safety.

Part-time deputy county attorneys are entitled to longevity pay under Mont. Code Ann. § 7-4-2503(3)(d). The term “years of service” contained in Mont. Code Ann. § 7-4-2503(3)(d) means a calendar year, not 2080 hours of employment.

Both the Department of Public Health and Human Services and the county welfare boards have an interest in staffing patterns for the county public assistance offices, and staffing patterns should be determined through a process of consultation and negotiation between the Department and the county boards. In the event agreement is not reached, the Department of Public Health and Human Services has the final authority for determining the staffing patterns of a non-assumed county department of public welfare.

The holding in 48 Op. Att’y Gen. No. 10 applies to all marriage applications on file with a clerk of the district court, not only to those filed after the date of the opinion. Pursuant to Mont. Code Ann. § 50-15-122(5), a clerk of the district court may allow public inspection and copying of the marriage certificate filed pursuant to Mont. Code Ann. § 40-1-321, but not of the marriage license.

The county commissioners are required to fund the legal defense expenses of an indigent juvenile against whom a petition has been filed in youth court.

If the city council has already imposed the maximum mill levy authorized by statute in order to fund the firefighters' disability and pension fund, it may not levy an additional special tax or seek voter approval for an additional special tax, even if the fund's value is less than 4 percent of the taxable valuation of all taxable property within the city.

The City and County of Butte-Silver Bow, a consolidated government with self-government powers, has the authority to acquire and operate electric and natural gas utilities within and outside the boundaries of the local government unit.

Use of a county road right-of-way to gain access to streams and rivers is consistent with and reasonably incidental to the public’s right to travel on county roads. A bridge and its abutments are a part of the public highway, and are subject to the same public easement of passage as the highway to which they are attached. Therefore, the public may gain access to streams and rivers by using the bridge, its right-of-way, and its abutments. A member of the public must stay within the road and bridge easement to gain access to streams and rivers. Absent definition in the easement or deed to the contrary, the width of a bridge right-of-way easement is the same as the public highway to which it is attached. Access to streams and rivers from county roads and bridges is subject to the valid exercise of the county commission’s police power and its statutory power to manage county roads. Access to streams and rivers from county roads and bridges created by prescription is dependent upon the uses of the road during the prescriptive period.