No. 13082 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 5 

THE STATE OF MONTANA, EX REL, THE 

DEPARTMENT OF SOCIAL AND REHABILITATION 

SERVICES, 

Petitioner, 

ROSE COLE and SHARON VJNGOM, Individually 

and on behalf of all others similarly situated, 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Petitioner: 

Thomas H. Mahan argued, Helena, Montana 

For Respondents : 

James Dorr Johnson argued, Butte, Montana 

Stephen L. Bunch argued, Helena, Montana 

Submitted : July 16, 1975 

Decided: $lJ!,gX 1975 

Filed : iLLbj qgq5 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an original proceeding in which petitioner 

sought an appropriate writ to review the proceedings in a case 

pending in the district court of Silver Bow County entitled: 

Rose Cole, et al., Plaintiffs v. Theodore Carkulis, Director, 

et al., Defendants, wherein a temporary restraining order was 

issued on the 30th day of June, 1975, which order restrained 

petitioner from implementing and operating certain emergency 

rules until further order of the court, and also provided that 

notice be given by the petitioner to all Medicaid providers and 

recipients that the Medicaid program would operate at pre-July 

1, 1975 levels until the further order of the court. 

Petitioner further alleged that the 1975 Legislature 

cut the amount of money requested by petitioner by the approximate sum of $1,600,000 for the biennium, and to meet such 

budgetary cut it would be necesssary to curtail some of the 

programs which would be of least harm to the welfare recipients. 

Further, that delay in the final resolution of this matter would 

cause a state-wide emergency of major proportions,.and that since 

it was also alleged that no questions of fact need be determined, 

an expeditious consideration of the matter would be in the interests of justice and alleviate continued hardship which may be 

suffered by all recipients of welfare in this state. 

Counsel was heard ex parte, the matter taken under 

advisement, and thereafter an order was issued calling for an 

adversary hearing and vacating the temporary restraining order 

of the district court until the further order of this Court. 

The adversary hearing was held, briefs filed, counsel heard in 

oral argument, and the matter submitted for decision. 

It is not disputed that the 1975 Legislature reduced 

the amount of money requested by petitioner in the approximate 
amount of $1,600,000 for the biennium and that it would be 

necessary to make adjustments so that the Department could 

live within its budget. 

Following consultations with its advisory council, 

the Department of Health, Education and Welfare of the Federal 

Government, with persons in the medical field, and the experience 

of the Department and its staff, it was determined that it would 

be necessary to cut approximately $300,000 per month from its 

programs to stay within the budget. 

To meet this situation the Department determined to 

curtail the medically needy program in Montana, as set forth in 

section 71-1516, R.C.M. 1947, under authority of section 71-1517, 

R.C.M. 1947. An emergency rule was adopted and steps taken 

to establish a regular rule. The Department felt that the emergency rule was necessary because it could not exceed 120 days 

in duration and it would give the Department an opportunity to 

complete the action necessary to establish a regular rule, without 

loss of funds. The hearing on the regular rule is set for 

August 15, 1975, at Helena, Montana, at which time all persons 

and groups affected can be heard and such evidence will be considered by the Department before final adoption of a regular rule. 

Respondents contend the "emergency" claimed by the 

Department is not a legitimate basis for an emergency rule and 

this was the reason for the commencement of the action in the 

district court. 

Amicus Curiae, Administrative Code Committee of the 

Montana Legislature, takes no position on the respective merits 

of the parties' positions herein, but requests this Court to 

establish precedents as guidelines under the Administrative Procedure Act. However, it does not appear that this original 

proceeding is a proper forum and being aware of the necessity for 

immediate action we decline to do so. 
The statute dealing with an emergency rule is section 

82-4204, R.C.M. 1947, which provides in subsection (2) : 

"(2) If an agency finds that an imminent peril 

to the public health, safety or welfare requires 

adoption of a rule upon fewer than twenty (20) 

days' notice and states in writing its reasons for 

that finding, it may proceed, without prior notice 

or hearing or upon any abbreviated notice and hearing 

that it finds practicable, to adopt an emergency rule. 

The rule may be effective for a period not longer 

than one hundred and twenty (120) days, but the 

adoption of an identical rule under subsections (1) (a) 

and (1) (b) of this section is not precluded. The 

sufficiency of the reasons for a finding of imminent 

peril to the public health, safety or welfare shall 

be subject to judicial review. 11 

We have been favored with voluminous briefs and extensive 

arguments as to what is "an imminent peril to the public health, 

safety or welfare. I I 

Upon review of the admitted facts, the statutory law, 

consideration of the briefs, and arguments of counsel, it is our 

holding that the circumstances existing here entitled the Department to enact an emergency rule. 

It is therefore ORDERED that the temporary restraining 

order of the district court issued on June 30, 1975, which by 

this Court's order of July 7, 1975, was vacated until the further order of this Court, is now permanently vacated and set 

aside. Further, 

action. 

We Concur: 

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