Montana AG Opinions — 2000

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.

A city with general government powers may appropriate funds to a private, non-profit corporation for operation of a private museum, if it is determined that the operation of the museum is for a public purpose and if the city enters into a contract with the corporation guaranteeing the public purpose of the enterprise. Article V, section 11(5), of the Montana Constitution limits only appropriations made by the Montana legislature and does not limit expenditures by local governments.

A substitute city court judge may be selected by the sitting city judge from a list of qualified persons regardless of the availability of another city judge or justice of the peace. If a sitting justice of the peace has been disqualified pursuant to Mont. Code Ann. § 3-1-803 or -805, the substitute justice must be another justice of the peace and may not be someone who has qualified to act as a substitute justice under Mont. Code Ann. § 3-10-231(2). If the sitting justice of the peace is sick, disabled or absent, the substitute justice may be a person who has qualified under § 3-10-231(2), as long as another justice of the peace or a city judge is not readily available. If the sitting justice of the peace is on vacation or in training, the substitute justice is chosen in the same manner as if the justice were sick or absent, as long as there is not another justice of the peace from the county of the sitting justice. In determining who is available to act as a substitute justice of the peace, the sitting justice may rely upon letters from other justices and city judges that they are unavailable. Such letters should not be relied upon indefinitely, however. After a reasonable time, as determined by the sitting justice, the justices and judges who wrote the letters should be contacted to determine if they are still unavailable.

Subject to the provisions of Mont. Code Ann. §§ 50-15-121 and -122, applications for marriage licenses should be treated as confidential records once they have been completed and filed with the clerk of the district court. Once a marriage has been reported to the Department of Public Health and Human Services on the form prescribed by the Department, the Department or the clerk of the district court may disclose to the public the names of the bride and groom, the date and place of the marriage, the name of the officiant and whether the ceremony was religious or civil. The clerk of court may not divulge or provide copies of applications for marriage licenses under Mont. Code Ann. § 50-15-121(1) unless the requestor is the applicant, the applicant’s spouse, child, parent, or guardian, or an authorized representative. For purposes of this statute, “authorized representative” has the meaning provided in Mont. Code Ann. § 50-5-1103(2).

A tank that has been granted eligibility for reimbursement under Mont. Code Ann. § 75-11-308 loses its eligibility status if the tank falls out of compliance with applicable state and federal laws and rules.