NO. 81-35 

IN THE SUPREBE COURT OF THE STATE OF MONTANA 

1981 

STATE BAR OF MONTANA, an 

unincorporated associated, 

Petitioner, 

HON. PEG KRIVEC, Commissioner of 

Political Practices of the State of 

Montana, et al., 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

W. William Leaphart, Helena, Montana 

W. William Leaphart argued, Helena, Montana 

Hughes, Bennett, Kellner and Sullivan, Helena, Montana 

John Alke argued, Helena, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Jack Lowe argued, Helena, Montana 

/ &A . I 

/ 

Submitted: March 27, 1981 

Decided: August 20, 1981 

A_UG 2 0 1981 Filed: ' 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

State Bar of Montana, an unincorporated association 

instituted by this Court, [(1975), 165 Mont. 1, 530 P.2d 

7651 filed its petition in an original proceeding in this 

Court, seeking a declaratory judgment that Initiative 85 

(Title 5, Ch. 7, MCA) violates the state constitution with 

regard to the supervision and licensing of attorneys and 

further that it is unconstitutionally vague so as to deny 

members of the State Bar of Montana due process of law. 

The respondents are the Hon. Peg Krivec, commissioner of 

political practices of the State of Montana, designated in 

the Initiative as its administrative officer, and Mike 

Greely as the attorney general of the State of Montana, who 

is charged with enforcing the provisions of the Initiative. 

James H. Goetz, a Bozeman attorney, appeared as an 

intervenor. All parties agree that this Court has original 

jurisdiction of this cause under the 1972 Mont. Const., Art. 

7, § 2, and under Title 27, Ch. 8, MCA, the Uniform Declaratory 

Judgments Act, and Title 27, Ch. 19, MCA, relating to injunctions. 

We find that the petition of the State Bar of Montana 

raises a justiciable controversy and we assume jurisdiction 

for the purpose of a declaratory judgment in accordance with 

this opinion. 

This is the second occasion on which we have issued an 

opinion relating to Initiative 85. In Montana Automobile 

Association v. Mike Greely, Attorney General, et al., Cause 

No. 81-45, Decided July 30, 1981, we upheld the validity of 

the Initiative after emending it. It is the context of the 

emended act that we consider here. 

On its face, Initiative 85 applies to lawyers plying 

their trade by appearing before state and local governmental 

-2- 
entities on behalf of clients. The principal issues raised 

by the petition of State Bar of Montana are: (1) that 

Initiative 85 violates the doctrine of separation of powers 

between the judicial and executive functions, and (2) that 

section 2(4)(b) of the Initiative is unconstitutionally 

vague. 

We hold that Initiative 85, when considered as emended 

in Montana Automobile Association, supra, and given the 

interpretations which apply to the Initiative as hereinafter 

set forth, is not an unlawful intrusion into the power of 

this Court regarding attorneys, and further is not unconstitutionally 

vague as claimed. 

The issues of unconstitutional invasion of the judicial 

power and unconstitutional vagueness are interlaced because 

they relate to two subsections of the Initiative which we 

will consider and discuss together. 

We begin by pointing out that the State Bar of Montana 

raises no objection to the application of the Initiative to 

the practice of lobbying by attorneys before the legislature. 

The opposition of the State Bar is directed toward "nonlegislative lobbying", as that activity is defined in section 

2 (4) (b) , (also designated as section 5-7-102 (4) (b) , MCA) . 

That subsection states: 

" (4) 'Lobbying' includes: 

"(b) the practice of promoting or opposing 

official action by any public official in the 

event the person engaged in such practice expends 

$1,000 per calendar year or more exclusive of 

personal travel and living expenses." 

The subsection obviously points at official action by 

"any public official" and as such hinges on the definition 

contained in the Initiative of a "public official." That 
definition is found in section 2(3) of the Initiative (also 

designated as section 5-7-102 (3) , MCA) : 

"(3) 'Public official' means any individual, 

elected or appointed, acting in his official 

capacity for the state or local government or 

any political subdivision thereof, but --- does not 

include those acting --- in a judicial or -- quasijudicial capacity." 

The rules applicable to judicial interpretation of 

initiatives are the same as those applying to legislation 

enacted by the legislature. State v. Dixon (1921), 59 

Mont. 58, 76, 195 P. 841. Laws can be expressed only in 

words and such words must be reasonably and logically 

interpreted according to grammatical and statutory rules. 

State v. Fox-Great Falls Theatre Corporation (1942), 114 

Mont. 52, 66, 132 P.2d 689. In construing definitions, 

courts will determine the meaning of the definitions as 

found in the legislative act. State v. Jacobson (1938), 

107 Mont. 461, 464, 86 P.2d 9. The function of the court in 

construing the legislation is simply to ascertain and state 

what terms or matters are contained in the legislation. 

Dunphy v. Anaconda Company (1968), 151 Mont. 76, 80, 438 

P.2d 660. The fundamental rule of all statutory construction 

is that the intention of the legislative body (or the people) 

controls. Matter of Senate Bill No. 23, Ch. 491, Laws of 

1973, 168 Mont. 102, 104, 540 P.2d 975 (1975). It is not 

the function of the courtSto second-guess and substitute 

their judgment at every turn of the road for the judgment of 

the legislature in matters of legislation, and the same is 

true in the case of direct legislation by the people via the 

initiative process. Fritz v. Gorton (Wash. 1974), 517 P.2d 

911, 917, appeal dismissed 417 U.S. 902, 94 S.Ct. 2596, 41 
Clearly, the appearance by attorneys before any judicial 

tribunal at any level of state or local government is not to 

be considered lobbying under the definitions in the Act. It 

is in the sector of "quasi-judicial" functions that the 

State Bar sees vagueness and uncertainty, and in consequence, 

unlawful intrusion into the powers of this Court respecting 

attorneys. 

The State Bar contends that Art. VII, § 2(3), authorizes 

the Montana Supreme Court to govern the "admission to the 

bar and the conduct of its members"; that Art. 111, Section 

1, establishes three distinct branches of the governmentlegislative, executive and judicial; that section 3 (section 

5-7-103, MCA) of the Initiative provides far licensing of 

lobbyists by the commissioner of political practices; that 

section 2(6) (section 5-7-102(6), MCA) includes attorneys in 

the "lobbying for hire" definitions; and that the definition 

of nonlegislative lobbying, which we have quoted above, on 

its face includes the appearance by attorneys before administrative 

bodies in behalf of their clients. Accordingly, the State 

Bar contends that the Initiative, with its licensing, supervision 

and other provisions intrudes upon the power of this Court 

to regulate the conduct of attorneys in this state. 

Respondents reply that the application of the nonlegislative lobbying provisions to attorneys as well as 

other members of the public does not conflict with any rule 

or standard announced by the Supreme Court; that it does 

not impermissibly regulate the practice of law; that the 

power of this Court over the conduct of attorneys is not 

necessarily exclusive as to crimes committed by lawyers or 

other activities against the public interest and that in any 

event, the provisions of the Initiative are mutually reconcilable 

with the powers of this Court over attorneys. 
Since lobbying under the Initiative does not include 

using influence in opposing official action by public 

officials engaged in a quasi-judicial capacity, section 

2(4)(b), supra, the marked delimiting effect of that exception 

should be noted. Nowhere in the Initiative is the term 

"quasi-judicial" defined. Elsewhere in our statutes, for 

the purposes of the Executive Reorganization Act, a quasijudicial function is defined in section 2-15-102(9), MCA, 

as follows: 

"'Quasi-judicial function' means an adjudicatory 

function exercised by an agency, involving the 

exercise of judgment and discretion in making 

determinations in controversies. The term includes 

but is not limited to the functions of interpreting, 

applying, and enforcing existing rules and laws; 

granting or denying privileges, rights, or benefits; 

issuing, suspending, or revoking licenses, permits, 

and certificates; determining rights and interests 

of adverse parties; evaluating and passing on facts; 

awarding compensation; fixing prices; ordering action 

or abatement of action; adopting procedural rules; 

holding hearings; and any other act necessary to the 

performance of a quasi-judicial function." 

That definition of a quasi-judicial function is very 

broad. Its use in the Executive Reorganization Act appears 

to be primarily for section 2-15-121, MCA. In substance for 

that purpose, the section provides that an agency which is 

allocated to a department for administrative purposes shall 

exercise its quasi-judicial functions, among other functions, 

independently of the department to which it is assigned and 

without the approval or control of that department. 

While the definition of quasi-judicial function contained 

in the Executive Reorganization Act may be used as a reference 

point to determine the nature of such a function, we believe 

the better definition to be used in determining such action 

by "quasi-judicial" officials appears in statements from 

this Court. Since 1903, this Court has applied the same 

definition of "quasi-judicial" as is contained in Bair v. 

Struck (1903), 29 Mont. 45, 50, 74 P. 69, 71: 
". . . As distinguishing between acts quasijudicial and acts ministerial in their character, 

the following definitions we think correctly state 

the law: 

"'Quasi-judicial functions are those which lie 

midway between the judicial and ministerial 

ones. The line separating them from such as 

are thus on their two sides are necessarily 

indistinct; but, in general terms, when the law, 

in words or by implication, commits to any 

officer the duty of looking into facts, and 

acting upon them, not in a way which it specifically 

directs, but after a discretion in its nature 

judicial, the function is termed quasi-judicial.' . . . [Citation omitted.] 

"'Where a power rests in judgment or discretion, 

so that it is of a judicial nature or character, 

but does not involve the exercise of the functions 

of a judge, or is conferred upon an officer other 

than a judicial officer, the expression used is 

generally "quasi-judicial"'. . . The officer may 

not in strictnessbe a judge; still, if his powers 

are discretionary, to be exerted or withheld 

according to his own view of what is necessary and 

proper, they are in their nature judicial." 

See also, State v. Montana Livestock Sanitary Board 

(1959), 135 Mont. 202, 205, 339 P.2d 487, 489; State v. 

State Livestock Sanitary Board (1960), 138 Mont. 536, 538, 

357 P.2d 685, 687; City of Billings v. Smith (1971), 158 

Mont. 197, 207, 490 P.2d 221, 227. 

We hold therefore, that when an attorney seeks to influence 

a public official exercising a quasi-judicial function who is 

acting in a matter or field in which the public official has 

discretion, such an attorney is not engaged in lobbying under 

the terms of the Initiative. This holding would not apply if 

the public official were a legislator covered under section 

2 (4) (a) of the Initiative. 

We make special note of proceedings before the Public 

Service Commission. Ordinarily, the making of rules and 

setting of rates in the regulation of utilities or public 

carriers is considered a quasi-legislative function. 

Section 2-15-102(10), MCA. Originally, the Public Service 

Commission was considered to be an arm of the legislature in 
the performance of its functions. However, it was included 

as one of the departments of the executive branch in the 

Executive Reorganization Act, sections 2-15-2601, -2602, 

MCA. The Public Service Commission is an example of an 

agency where quasi-legislative and quasi-judicial functions 

may overlap. In any event, our above-quoted definition of 

a quasi-judicia.1 function also applies to proceedings 

before the Public Service Commission. When that Commission 

is engaged in la quasi-judicial function as we have defined 

it, attorneys acting on behalf of clients or for themselves 

in such proceedings are not covered by the Initiative. The 

discretion of setting rates is, in our opinion, the power to 

exercise a quasi-judicial function. 

The State Bar has expressed the fear that the Initiative 

may also be construed to include official activities of a 

purely ministerial nature, such as paying filing fees to 

procure the recordation of deeds or other instruments. 

We allay those fears by stating that the purpose of the 

Initiative is directed toward legislative functions and not 

ministerial acts. Any attorney procuring the performance of 

a purely ministerial act by a public officia1,an act which 

could otherwise be required by mandamus, is not procuring an 

official to exercise a legislative function, and is not acting 

within the intent and purpose of the Initiative. 

So construed, we do not find the Initiative as emended 

by this Court in Montana Automobile Association, supra, to 

be so vague as to be unconstitutionally uncertain, nor does 

it intrude on the powers of this Court to regulate the 

conduct of attorneys. As so construed, the Act applies 

equally to attorneys and nonattorneys acting in the field of 

nonlegislative lobbying. No reason appears why attorneys 
should enjoy especial dispensation from application of the 

Initiative when they are acting in that field. There is an 

obvious public interest in the regulation and disclosure of 

lobbying activities. Section 17 of the Initiative places a 

duty upon the commissioner of political practices to promulgate 

rules necessary to carry out the purposes of the Initiative. 

Using these two opinions as guidelines, we expect that the 

commissioner will promulgate regulations properly applying 

to lobbying activities covered by the Initiative. Those 

regulations should apply equally to all lobbyists, including 

attorneys who lobby. While the commissioner has the power 

to suspend licenses of lobbyists, and the attorney general 

has power to enforce the provisions of the Initiative, none 

of those powers conflict with the right of this Court to 

supervise the conduct of the members of the Bar engaged in 

the practice of law. Irrespective of what may be said in 

this opinion or contained in the Initiative, we assert and 

maintain the right of this Court to supervise the conduct of 

the members of the Bar and we find that right and power 

undiminished by any provision of the Initiative. 

The interpretation of the Initiative which we have set 

forth here was in part suggested by the State Bar, and 

consented to by the respondents. We find no reason at this 

time to exercise any injunctive power directed to the 

commissioner of political practices or any other official. 

Such action is reserved for another time, if it is ever 

necessary. 

This opinion shall be and constitutes a declaratory 

judgment of this Court to which the parties will well and 

suitably conform themselves. No co2-t-s to any party. 

i/ Justice 
We concur: 

Chief ~ustice