Mont. Admin. R. Title 1 — General Provisions

title-1Mont. Admin. R. tit. 1Regulation

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Chapter 1.3 Attorney General Model Rules

Subchapter 1.3.2 Attorney General's Organizational and Procedural Rules Required by the Montana Administrative Procedure Act

Mont. Admin. R. 1.3.201 Introduction and Definitions

(1) Montana statutes are referred to collectively as the Montana Code Annotated (MCA).

(2) The Montana Administrative Procedure Act is referred to as "MAPA" and includes 2-4-101 through 2-4-711, MCA. MAPA outlines procedures that agencies must follow when:

(a) adopting, amending, or repealing agency rules;

(b) hearing contested cases; or

(c) issuing declaratory rulings.

(3) Each agency subject to MAPA must adopt rules describing its organization and procedures, per 2-4-201, MCA. Section 2-4-202, MCA, directs the Secretary of State to prepare a model form for a rule describing the organization of agencies and model rules of practice for agency guidance in fulfilling these requirements. It directs the Attorney General to prepare model rules of practice for agencies to use as a guide for contested case hearings and declaratory rulings. The model rules have been adopted for that purpose. Agencies may adopt the model rules by incorporating them by reference. Subsequent amendments may be adopted only by following the rulemaking procedure of MAPA. See 2-4-307, MCA.

(4) The term "register" refers to the Montana Administrative Register.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1200, Eff. 10/12/79; AMD, 1981 MAR p. 1196, Eff. 10/16/81; AMD, 1999 MAR p. 1225, Eff. 6/4/99; AMD, 2009 MAR p. 7, Eff. 1/16/09.
Mont. Admin. R. 1.3.202 Application of Montana Administrative Procedure Act

(1) MAPA applies to all state agencies as defined in 2-4-102, MCA. Note that the state Board of Pardons and Parole is subject to only the sections enumerated in 2-4-103, 2-4-201, 2-4-202, and 2-4-306, MCA, and the requirement that its rules be published.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1200, Eff. 10/12/79; AMD, 1999 MAR p. 1225, Eff. 6/4/99; AMD, 2009 MAR p. 7, Eff. 1/16/09.
Mont. Admin. R. 1.3.211 Contested Cases, Introduction

(1) A rule is an agency statement of general applicability that interprets law or describes agency requirements. It applies to all persons who are subject to the requirements or regulations of the agency and comes within the terms of the rule. A contested case involves an agency determination that affects the rights or responsibilities of a specifically named party. "Contested case" and "party" are defined by 2-4-102, MCA.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1225, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.212 Contested Cases, Notice of Opportunity to Be Heard

(1) All parties to contested cases must be provided notice of hearing. As illustrated by sample form 212a, the notice must include:

(a) the time, place, and nature of the hearing;

(b) the legal authority and jurisdiction under which the hearing is being

conducted;

(c) a citation to the statutes and rules involved;

(d) a short and plain statement of the issues involved;

(e) notice that formal proceedings may be waived pursuant to 2-4-603, MCA;

(f) a statement advising parties of their right to be represented by counsel at the hearing; and

(g) if applicable, a statement staying the agency action or detailing at what point the party's legal rights, duties, or privileges will be revoked or imposed.

Sample Form 212a: Notice of Contested Case Hearing

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [summary - for example: ) NOTICE OF HEARING ON the Insurance Producer's License of ) REVOCATION OF LICENSE John Doe] )

TO: [name of party]

At [time], [date], at [address], a hearing will be held for the [subject - for example: revocation of the insurance producer's license of John Doe].

The [agency] will make reasonable accommodations for persons with disabilities who wish to participate in this hearing or need an alternative accessible format of this notice. If you require an accommodation, contact [agency] no later than 5:00 p.m. on [date - no requirement specified in MAPA], to advise of the nature of the accommodation that is needed. Please contact [name, address, telephone, TTD number, fax, e-mail].

This hearing is held under the authority of [MCA section or agency regulation]. Violation of [MCA section or agency regulation] is alleged in that [statement of facts constituting alleged violation - for example: (Option 1: [Name] misappropriated to his own use money belonging to a policyholder, specifically the sum of $500 from Mary Smith on or about the 1st day of March, 2008); or (Option 2: [Name] misappropriated to his own use money belonging to a policyholder. A more definite and detailed statement of the allegation may be obtained by applying to [name, address].)

You are entitled to attend this hearing and respond and present evidence and arguments on all issues involved in this action.

You have a right to be represented by counsel at the hearing. If you desire to contest the proposed agency action, or to waive formal proceedings pursuant to 2-4-603, MCA, you must notify [name, address] in writing within [number of days which provides reasonable opportunity to prepare] days of service of this notice on you. Failure to notify [name] will result in [proposed agency action - for example: revocation] on the date of this hearing.

Dated this _________ day of ________________, 20.

(must be signed by:) By [authorized person's signature]

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1226, Eff. 10/12/79; AMD, 1981 MAR p. 1196, Eff. 10/16/81; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.213 Contested Cases, Emergency Suspension of a License

(1) Pursuant to 2-4-631(3), MCA, if an agency makes a determination that public health, safety, or welfare requires emergency action, the agency may order immediate suspension of a license. The order must include findings justifying emergency action, and revocation proceedings must be promptly instituted and determined.

(a) See sample form 213a.

Sample Form 213a: Notice of Immediate Suspension or Revocation of a License

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [type of license and ) NOTICE OF [action taken - for ex: name of holder (for example: Insurance ) SUSPENSION OF PRODUCER'S Producer's License of John Doe)] ) LICENSE] AND HEARING FOR ) [SUSPENSION OR REVOCATION] ) OF [TYPE OF LICENSE]

TO: [name of license holder]

At [time, date], at [room, building, address], a hearing will be held for the [suspension or revocation] of the [type of license] of [name of license holder].

The [agency] will make reasonable accommodations for persons with disabilities who wish to participate in this hearing or need an alternative accessible format of this notice. If you require an accommodation, contact [agency] no later than 5:00 p.m. on [date - no requirement specified in MAPA], to advise of the nature of the accommodation that is needed. Please contact [name, address, telephone, TTD number, fax, e-mail].

This hearing is held under the authority of [Section ________, MCA]. Violation of [MCA section or agency regulation] is alleged.

Pending the hearing, the [type of license] of [name of license holder] is [suspended or revoked] as of the date of this notice. This [suspension or revocation] is based on - for example: Option 1: misappropriation to his own use money belonging to a policyholder, specifically the sum of $500 from Mary Smith on or about the 1st day of March, 2008; or Option 2: misappropriation to his own use money belonging to a policyholder. A more definite and detailed statement of the allegation may be obtained by applying to [name, address].

The [agency] finds that the public welfare imperatively requires emergency action, in that [finding of fact - for example: John Doe has notified the commissioner that he intends to continue the practice of retaining for his own use initial payments received by him from his clients].

You are entitled to attend the hearing and present evidence and arguments on whether the [suspension or revocation] should be made permanent. You have a right to be represented by counsel at the hearing. If you wish to contest [suspension or revocation], or if you desire to waive formal proceedings under 2-4-603, MCA, you must notify [name, address] in writing within [number of days which provides a reasonable opportunity to prepare] days of service of this notice on you. Failure to notify [name] of your contest of this action will result in [suspension or revocation] on the date of this hearing.

Dated this ______ day of __________________, 20.

(must be signed by:) By [authorized person's signature]

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1228, Eff. 10/12/79; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.214 Contested Cases, Default Order

(1) In a contested case, if a party does not appear to contest an intended agency action, the agency may enter a default order. If a default is entered, pursuant to 2-4-623, MCA, the order must be in writing and include findings of fact and conclusions of law.

(a) See sample form 214a.

Sample Form 214a: Default Order

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as original )

Notice] ) DEFAULT ORDER

)

On [date], a Notice of Proposed [agency action - for example: Revocation of Agent's License] was served on [name, address], by the sheriff of [county], Montana. A copy of the sheriff's return is attached to this order and marked Exhibit A. A copy of the notice is attached to this order and marked Exhibit B.

The notice provided an opportunity for hearing if requested within [number] days. More than [number] days have elapsed since service of the order and no request for hearing has been received. The [agency official] considered the evidence and exhibits and makes the following determinations:

FINDINGS OF FACT

[For example: On the 1st day of March, 2008, John Doe appropriated to his own use money belonging to a policyholder, specifically $500 from Mary Smith, as is indicated by sworn statements by two witnesses, Mary Jones and Robert Jones, both being competent to testify and having personal knowledge of the transaction under consideration.]

CONCLUSIONS OF LAW

[For example: Section 33-17-1001(1), MCA, provides that the commissioner may revoke an insurance producer's license if he finds that the licensee has misappropriated or converted to his own use money belonging to policyholders. The commissioner has so found; thus cause exists under 33-17-1001(1)(d), MCA, for the revocation of the insurance producer's license of John Doe.]

ORDER

[For example: The insurance producer's license of John Doe is revoked effective August 1, 2008.]

Dated this _________ day of ________________, 20.

(must be signed by:)

By [authorized person's signature]

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1228, Eff. 10/12/79; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.215 Contested Cases, Informal Disposition

(1) Informal disposition of contested cases is permissible pursuant to 2-4-603, MCA.

(2) Informal proceedings in contested cases must give the parties an opportunity to present to the agency or the hearing examiner written or oral evidence challenging the agency's actions, its refusal to act, its justifications for determination, or other evidence relating to the contested case.

(3) An informal conference may be conducted prior to the proceedings in order to define issues, determine witnesses, and agree upon stipulations.

(4) A record of proceedings conducted under this part must be made in accordance with 2-4-604, MCA.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1229, Eff. 10/12/79; AMD, 2014 MAR p. 683, Eff. 8/15/08.
Mont. Admin. R. 1.3.216 Contested Cases, Application for More Definite and Detailed Statement

(1) A party who has been given notice of a contested case hearing may apply to the agency or the designated hearing examiner for a more definite and detailed statement of the issues involved in the hearing.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1230, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.217 Contested Cases, Discovery

(1) In all contested cases, discovery is available to the parties in accordance with Rules 26 through 37 of the Montana Rules of Civil Procedure. However, Rule 27 and Rule 37(b)(1) and 37(b)(2)(D) shall not apply. All references to the "court" shall be considered to refer to the appropriate "agency"; all references to the use of the subpoena power shall be considered references to ARM 1.3.230; all references to "trial" shall be considered references to "hearing"; all references to "plaintiff" shall be considered references to "a party"; all references to "clerk of court" shall be considered references to the person designated by the department head to keep documents filed in a contested case.

(2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the agency in which the action is pending, the refusal to obey the agency order shall be enforced as provided in ARM 1.3.230.

(3) If a party seeking discovery from the agency in which the action is pending believes he has been prejudiced by a protective order issued by the agency under Rule 26(c), M.R.Civ.P., or, if the agency refuses to make discovery, that party may petition the district court for review of the intermediate agency action under 2-4-701, MCA.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/24/77; AMD, 1979 MAR p. 1230, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.218 Contested Cases, Hearing Examiners

(1) An agency may appoint a hearing examiner to conduct a hearing in a contested case.

(2) A hearing examiner appointed under this part may:

(a) administer oaths or affirmations;

(b) issue subpoenas;

(c) provide for the taking of testimony and depositions;

(d) set the time and place for hearing;

(e) set motion and briefing schedules; and

(f) by mutual consent of the parties, hold conferences to consider narrowing or simplifying the issues.

(3) If a defending party notifies the agency that the party will appear at the hearing to contest the intended action, the agency must advise all parties of the appointment of either an agency member or a hearing examiner to manage the case, as illustrated by sample form 218a.

(4) Pursuant to 2-4-611(4), MCA, an agency may disqualify a hearing examiner if the agency determines personal bias, lack of independence, disqualification by law, or other disqualification criteria exist. A motion to disqualify filed by a party must be supported by affidavit.

Sample Form 218a: Order Appointing a Hearing Examiner

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as ) APPOINTMENT OF HEARING

original notice] ) EXAMINER

)

TO: All Interested Persons

On [date], a notice of hearing for [for example: revocation of insurance producer's license] was served on [name]. On [date], the agency received written notice that [name] will appear at the hearing to contest the intended agency action. [Name] is appointed the hearing examiner in the above action. All correspondence and motions in the above matter should be directed to the hearing examiner at [address].

The [agency] will make reasonable accommodations for persons with disabilities who wish to participate in this process and need an alternative accessible format of this notice. If you require an accommodation, contact [agency] no later than 5:00 p.m. on [date - no requirement specified in MAPA], to advise us of the nature of the accommodation needed. Please contact [name, address, telephone, TTD number, fax, e-mail].

Dated this _________ day of ________________, 20.

(must be signed by:)

By [authorized person's signature]

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1231, Eff. 10/12/79; AMD, 1981 MAR p. 1196, Eff. 10/16/81; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.219 Contested Cases, Hearing

(1) The contested case hearing shall be conducted before the decision making authority of the agency or a hearing officer designated in accordance with ARM 1.3.218.

(2) The presiding officer must ensure that all parties are afforded the opportunity to respond and present evidence and argument on all issues involved.

(3) Absent a determination by the presiding officer that the interests of justice require otherwise, the order of hearing is as follows:

(a) any opening statements requested or allowed by the presiding officer;

(b) presentation of evidence by the party asserting a claim for relief (the challenging party);

(c) cross examination by the opposing party;

(d) presentation of evidence by the opposing party;

(e) cross examination by the challenging party; and

(f) rebuttal testimony.

(4) All testimony must be given under oath or affirmation.

(5) Exhibits must be marked and must identify the person offering the exhibits. The exhibits shall be preserved by the agency as part of the record of the proceedings.

(6) The presiding officer may hear closing arguments, request written argument, or order a schedule for parties to submit proposed findings of fact and conclusions of law.

(7) The presiding officer may grant recesses or continue the hearing.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1232, Eff. 10/12/79; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.220 Contested Cases, Record

(1) The record in a contested case must include:

(a) all pleadings, motions, and rulings;

(b) all evidence, either written or oral, received, or considered by the presiding officer;

(c) a statement of matters officially noticed;

(d) questions and offers of proof, objections, and rulings on objections;

(e) proposed findings and exceptions; and

(f) any decision, opinion, or report by the presiding officer which must be in writing.

(2) At the request of any party, the record must be transcribed. The cost of transcription is the responsibility of the requesting party.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1232, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.221 Contested Cases, Evidence

(1) Unless otherwise provided by statute, all evidence introduced in a contested case hearing shall be received and evaluated in conformance with common law and statutory rules of evidence.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1232, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.222 Contested Cases, Ex Parte Communications

(1) Pursuant to 2-4-613, MCA, ex parte communications with the presiding officer or any person authorized to participate in the decision of the contested case are prohibited unless otherwise authorized by law.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1232, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.223 Contested Cases, Proposed Orders

(1) If a majority of the officials of the agency who are to render the final decision have not heard the case, a decision that is adverse to a party (other than the agency itself) may not be made until a proposed decision is served upon the parties and the parties are given an opportunity to file exceptions and briefs, and present oral argument to the officials responsible for making a final decision.

(2) All parties should be informed of any appeal or review procedures provided by the agency.

(3) The parties may waive compliance with this rule by written stipulation.

(4) The agency may adopt the proposed decision as the agency's final order.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1233, Eff. 10/12/79; AMD, 1981 MAR p. 1196, Eff. 10/16/81; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.224 Contested Cases, Final Orders

(1) A final decision or order adverse to a party in a contested case must be in writing and must include findings of fact and conclusions of law.

(2) See sample form 224a.

(3) Parties and their attorneys must be served with a copy of a final decision or order.

Sample Form 224a: Final Order

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as original Notice] ) FINDINGS OF FACT,

) CONCLUSIONS OF LAW, ORDER

) AND NOTICE OF OPPORTUNITY

) FOR JUDICIAL REVIEW

After notice and hearing on the proposed revocation of the insurance producer's license of John Doe, for appropriation of policyholder's money, the insurance commissioner considered the evidence and exhibits and makes the following disposition of this contested case:

PROPOSED FINDINGS OF FACT

Counsel for John Doe proposed that the commissioner find that: The personal check of Mary Smith was deposited to a trust account maintained by agent Doe. The commissioner does not accept this proposed finding of fact because it was contradicted by two witnesses, both maintaining that the bank account was used for personal purposes by John Doe.

FINDINGS OF FACT

The licensee, John Doe, received the personal check of Mary Smith in the amount of $500 on the 1st day of March, 2008. The licensee, John Doe, maintained two checking accounts, one designated John Doe Insurance, Trust Account, the other a joint checking account between John Doe and Jane Doe. The joint checking account had a mailing address which was 100 Main Street, Anytown, Montana. 100 Main Street is the residence of John and Jane Doe. Thereafter, over a period of two weeks, John and Jane Doe drew checks for rent, cash, and groceries against the $500 deposited. On March 1, 2008, John Doe gave to Mary Smith a receipt which read:

Received of Mary Smith the sum of $500 in payment of initial premium of life insurance policy to be issued by the Sandy Bottom Life Insurance Company of North Dakota in the amount of $150,000 insuring the life of Mary Smith.

/s/ John Doe, Producer

Sandy Bottom Life Insurance

Company of North Dakota

The commissioner finds that John Doe appropriated to his own use money belonging to a policyholder.

CONCLUSIONS OF LAW

Section 33-17-1001(1)(2), MCA, provides that the commissioner may revoke an insurance producer's license if he finds that the licensee has misappropriated or converted to his own use money belonging to policyholders. The commissioner has so found; thus cause exists under 33-17-1001(1)(d), MCA, for the revocation of the insurance producer's license of John Doe.

ORDER

The insurance producer's license of John Doe is revoked effective August 1, 2008.

Dated this _________ day of ________________, 20.

(must be signed by:)

By [authorized person's signature]

NOTICE: You are entitled to judicial review of this Order in accordance with Section 2-4-702, MCA. Judicial review may be obtained by filing a petition in district court within thirty days after the service of this Order.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1234, Eff. 10/12/79; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.226 Declaratory Rulings, Introduction

(1) A party may seek a declaratory ruling from the agency when doubt exists as to how a statute or rule administered by an agency affects the party's legal rights.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1235, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.227 Declaratory Rulings, Content of Petition

(1) A petition for declaratory ruling must be typewritten or printed.

(2) The petition must include:

(a) the name and address of petitioner;

(b) a detailed statement of the facts upon which petitioner requests the agency to base its declaratory ruling;

(c) sufficient facts to show that petitioner will be affected by the requested ruling;

(d) the rule or statute for which petitioner seeks a declaratory ruling;

(e) the questions presented;

(f) propositions of law asserted by petitioner;

(g) the specific relief requested; and

(h) the name and address of any person known by petitioner to be interested in the requested declaratory ruling.

(3) See sample form 227a.

(4) The record in a declaratory ruling proceeding shall include:

(a) the petition;

(b) a statement of matters officially noticed;

(c) if for good cause shown the agency has held hearings on the petition, a stenographic record of the proceedings when demanded by a party; and

(d) the ruling.

Sample Form 227a: Petition for Declaratory Ruling

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [summary; for example: )

Application of John Doe, an insurance ) PETITION FOR

producer, for a declaratory ruling on the ) DECLARATORY RULING

applicability of 33-17-1001(1)(d), MCA, )

to his trust account] )

  1. Petitioner's name and address is [name, address].

  2. [Facts, for example: Petitioner maintains an insurance office in his residence in Anytown, Montana. As part of his business, petitioner maintains a trust account and a joint checking account under one number. Petitioner regularly deposits checks received from clients into the checking account for future transmittal to petitioner's employer, Sandy Bottom Insurance Company of North Dakota. The insurance commissioner has threatened to bring proceedings under 33-17-1001(1)(d), MCA, for revocation of petitioner's license.]

  3. The [statute, regulation, order] as to which petitioner requests a declaratory ruling is [number], which provides that [pertinent provisions].

  4. The question presented for declaratory ruling by the agency is [for example: whether the above statute makes the producer's license subject to revocation for maintaining a combination trust account and private account].

  5. Petitioner contends that [for example: his activity is not an illegal withholding, because he does not use any of the deposited money in trust for his own use].

  6. Petitioner requests a declaratory rule that [for example: he maintains one checking account for both trust and private moneys without violation of 33-17-1001(1)(d), MCA].

  7. (Option 1): Petitioner knows of no other party similarly affected; or (Option 2): Petitioner knows of the following parties who are similarly affected: [names].

Dated this _________ day of ________________, 20.

[name]

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1235, Eff. 10/12/79; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.228 Model Rule 23 Declaratory Rulings, Denial of Petition

(1) If the agency denies a petition for declaratory ruling, the agency must mail a copy of the order denying the petition to all persons named in the petition.

(2) An order denying a petition must include a statement of the grounds for denial.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1237, Eff. 10/12/79.
Mont. Admin. R. 1.3.229 Declaratory Rulings, Effect

(1) A declaratory ruling is binding between the agency and the petitioner concerning the set of facts presented in the petition.

(2) A declaratory ruling or notice of refusal to issue a ruling is a final agency decision subject to judicial review in the same manner as decisions or orders in contested cases.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1237, Eff. 10/12/79; AMD 2008 MAR p. 1700, EFF. 8/15/08.
Mont. Admin. R. 1.3.230 General Provisions, Subpoenas

(1) An agency conducting contested case or declaratory ruling proceedings may require the furnishing of information, attendance of witnesses, and production of evidence through subpoena and subpoena duces tecum.

(a) Subpoenas must be issued and served pursuant to the rules of civil procedure. Except as otherwise provided by law, costs associated with the subpoena must be paid by the party who requested it.

(b) In case of disobedience, an agency or other party may petition a district court to compel compliance with a subpoena or the giving of testimony.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1237, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.231 General Provisions, Representation

(1) A person appearing before the agency has the right to be accompanied, represented, and advised by counsel. The agency should advise a party to a contested case of the right to counsel.

(2) A corporation appearing before an agency is considered a separate legal entity and may not appear on its own behalf through an agent other than an attorney.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1237, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.232 General Provisions, Service

(1) Unless otherwise provided by law and these rules, all motions and pleadings must be served in accordance with the Montana Rules of Civil Procedure.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1238, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.
Mont. Admin. R. 1.3.233 General Provisions, Public Inspection of Orders and Decisions

(1) Agencies must maintain an index of all final orders and decisions in contested cases and declaratory rulings. All final decisions and orders must be available for public inspection on request. Copies of final decisions and orders must be given to the public on request after payment of the cost of duplication.

History

  • Authorizing statute(s): 2-4-202, MCA
  • Implementing statute(s): 2-4-202, MCA
  • History: Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1238, Eff. 10/12/79; AMD, 2008 MAR p. 1700, Eff. 8/15/08.

Part Chapter 1.4 Secretary of State Model Rules of Practice

Part Subchapter 1.4.1 Secretary of State Model Rules of Practice

Mont. Admin. R. 1.4.101 Agency Rulemaking Requirements

(1) Agencies conducting administrative rulemaking must comply with Title 2, chapter 4, MCA, which outlines the requirements for administrative rulemaking, and the model rules of practice in this chapter, that guide agencies and supplement the statutory requirements. Additional guidance can be found on the Secretary of State's website at https://rules.mt.gov.

History

  • Authorizing statute(s): 2-4-202, 2-15-401, MCA
  • Implementing statute(s): 2-4-202, 2-4-305, 2-4-306, 2-15-401, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.102 Administrative Rules – General Structure

(1) Every rule must be assigned a name or catchphrase and a three-part numerical identifier, with each part separated by a decimal point. For example, if a rule is numbered 44.23.501:

• "44" represents the title number assigned to the department or agency;

• "23" represents the chapter number;

• "5" (the first one or two digits in the third part) represents the subchapter number; and

• "01" (the last two digits) represents the individual rule number.

(a) The entire number is referred to as the rule number. When a Montana administrative rule is referred to in a rulemaking notice or in rule text, it shall be cited as "ARM (rule number)". For example, "ARM 44.23.501".

(b) The name or catchphrase assigned to a rule must be a short phrase which summarizes the contents of a rule.

(2) Each rule is broken down into sections and subsections which cover a single idea. Each rule must be drafted in an outline form using the format standards developed by the Secretary of State to ensure consistency.

(3) For capitalization, hyphenation, punctuation, and grammar requirements, refer to the Gregg Reference Manual. The Secretary of State adopts and incorporates by reference the Gregg Reference Manual, 11th edition, which sets forth rules of style, grammar, and usage. A copy of the manual may be obtained from McGraw Hill on their website at mheducation.com.

History

  • Authorizing statute(s): 2-4-306, 2-4-311, 2-15-401, MCA
  • Implementing statute(s): 2-4-306, 2-4-311, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.103 Montana Administrative Register Schedule and Submission Standards

(1) The schedule established by the Secretary of State for publication of the Montana Administrative Register, including filing deadlines for agency submissions, is at https://rules.mt.gov.

(2) SOS will post on its website a draft of the next year's publication schedule on July 1 of each year. Agencies may provide feedback on the draft publication schedule. SOS will post an official publication schedule on September 1 of each year.

(3) An agency may submit notices in advance of the filing deadline for inclusion in a future issue of the Montana Administrative Register and, except as provided in 2-4-306, MCA, rule changes included in the adoption notice are adopted on the date the adoption notice is filed with the Secretary of State and are effective after publication in the Register.

(4) Agencies submitting notices to SOS for publication in the Register must follow the format standards and use the system developed by SOS to ensure consistency and maintain professional publishing standards.

History

  • Authorizing statute(s): 2-4-302, 2-4-306, 2-15-401, MCA
  • Implementing statute(s): 2-4-306, 2-4-311, 2-4-312, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.104 Agency Approval Requirements

(1) Prior to electronically submitting a notice for publication in the Register, the agency employee must ensure the head of the agency, chairperson of the governing board, or agency-selected designee approves the submission. The approval shall be indicated by inclusion of the approver's name on the notice submission.

(2) The agency rule reviewer appointed in accordance with 2-4-110, MCA, may provide an electronic signature to indicate the signer's affirmation that the review was performed to the best of the reviewer's ability.

History

  • Authorizing statute(s): 2-15-401, MCA
  • Implementing statute(s): 2-4-110, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.105 Publication and Arrangement of the Montana Administrative Register

(1) The Montana Administrative Register (MAR) is published at https://rules.mt.gov according to the schedule referenced in ARM 1.4.103.

(2) In accordance with 2-4-312, MCA, the MAR is arranged into sections.

(a) Rulemaking notices that propose changes to current rules are published in the section named "Proposal Notices."

(b) Adoption notices identifying the new official rule text are published in the section named "Adoption Notices."

(c) Attorney General opinions and declaratory rulings and other special informational notices of agencies are published in the section named "Other."

History

  • Authorizing statute(s): 2-15-401, MCA
  • Implementing statute(s): 2-4-312, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.106 Public Participation and Comments

(1) A public hearing related to a rulemaking notice shall be conducted by and under the control of a presiding officer designated by the agency.

(2) In accordance with 2-4-305, MCA, an agency shall consider all comments received regarding the proposed rulemaking. If the rule is adopted and comments were received, the adoption notice must include a brief statement of reasons for and against the adoption of the rule. The agency may choose to summarize comments and agency responses as its "Statement of Reasons" in the adoption notice.

History

  • Authorizing statute(s): 2-15-401, MCA
  • Implementing statute(s): 2-4-302, 2-4-305, 2-15-401, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.107 Agency Filing Fees

(1) Starting in fiscal year 2028 and each fiscal year thereafter, an agency shall choose one of two methods for paying filing fees for the services provided by the Secretary of State in the review and publication of notices in the Montana Administrative Register (MAR).

(a) Pay $60 per page for each notice at the time of publication.

(b) Pay on an annual basis a fee based on the volume of notice submissions.

(i) 1 to 4 notices - $550

(ii) 5 to 9 notices - $1,650

(iii) 10 to 15 notices - $3,475

(iv) 16 to 25 notices - $4,400

(v) 26 to 35 notices - $8,675

(vi) 36 or more notices - $16,750

History

  • Authorizing statute(s): 2-15-401, 2-15-405, MCA
  • Implementing statute(s): 2-4-313, 2-15-405, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24; AMD, 2025 MAR, Notice No. 2025-24, Eff. 5/10/25; AMD, 2026 MAR, Notice No. 2026-17, Eff. 4/25/26.
Mont. Admin. R. 1.4.108 Bill Sponsor Contact

(1) For efficiency and accuracy, the Secretary of State uses the Legislative Services Division's roster at leg.mt.gov as the contact list for legislators to meet the requirements of 2-4-302, MCA.

History

  • Authorizing statute(s): 2-15-401, MCA
  • Implementing statute(s): 2-4-302, 2-15-401, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.
Mont. Admin. R. 1.4.109 Organizational Rule

(1) An agency shall adopt an organizational rule in accordance with 2-4-201, MCA. A model organizational rule contains:

(a) an overall description of the agency's history, purpose, and/or general duties;

(b) the organizational structure of the agency (i.e., list of divisions and/or organizational chart);

(c) a description of the functions of the agency divisions;

(d) a description of any boards, advisory committees, etc. attached to the agency;

(e) location and contact information where the public can obtain information or make requests; and

(f) any other information the agency deems beneficial.

History

  • Authorizing statute(s): 2-4-202, 2-15-401, MCA
  • Implementing statute(s): 2-4-201, 2-4-202, MCA
  • History: NEW, 2024 MAR p. 1472, Eff. 6/22/24.

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