No. 13082 INTHE SUPREME COURT OF THE STATE OF MONTANA 19

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THE STATE OF MONTANA, EX REL, THE DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Petitioner,

ROSE COLE and SHARON VJNGOM, Individually and on behalf of allothers 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 qgq5Mr. Chief Justice James T. Harrison delivered the Opinion of the Court.

This is an original proceeding inwhich petitioner sought an appropriatewrittoreview the proceedings in a case pending inthe district court of Silver Bow County entitled: Rose Cole, etal., Plaintiffs v. Theodore Carkulis, Director, et al., Defendants, wherein a temporary restraining orderwas 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 noticebe given by the petitioner to allMedicaid providers and recipients that theMedicaid program would operate atpre-July 

### 1, 1975 levelsuntil 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 tomeet such budgetary cut it would be necesssary tocurtail some of the programs which would be of least harm to the welfare recipients. Further, that delay in the finalresolution 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 sufferedby allrecipients 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 

### isnot disputed that the 1975 Legislature reduced the amount of money requested by petitioner inthe approximateamount of $1,600,000 for the biennium and that itwould be necessary tomake adjustments so that the Department could livewithin 

### itsbudget. Following consultationswith 

### itsadvisory 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 tocut approximately $300,000 per month from 

### its programs to staywithin thebudget. To meet this situation the Department determined to curtail the medically needy program inMontana, as set forth in section 71-1516, R.C.M. 

### 1947, under authority of section 71-1517, R.C.M. 1947. An emergency rulewas adopted and steps taken to establish a regular rule. The Department felt that the emergency rulewas necessarybecause it could not exceed 120 days in duration and itwould give the Department an opportunity to complete the action necessary to establisha regular rule, without loss of funds. The hearing on the regular rule isset for August 15, 1975, atHelena, Montana, atwhich time allpersons and groups affected can be heard and such evidence willbe consideredby the Department before final adoption of a regular rule. Respondents contend the "emergency" claimed by the Department 

### isnot a legitimate basis for an emergency rule and thiswas 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 establishprecedents 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 todo so.The statutedealing 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 orwelfare requires adoption of a ruleupon fewer than twenty (20) days' notice and states inwriting 

### itsreasons for that finding, it may proceed, without prior notice or hearing orupon any abbreviated notice and hearing that it finds practicable, toadopt 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 identicalruleunder subsections (1)(a) and (1)(b) of this section 

### isnot precluded. The sufficiency of the reasons for a finding of imminent peril tothe public health, safety orwelfare shall be subject tojudicial review. 11 We have been favored with voluminous briefs and extensive arguments as towhat 

### is "an imminent peril to the public health, safety orwelfare.II Upon review of the admitted facts, the statutory law, consideration of thebriefs, and arguments of counsel, it 

### is our holding that the circumstances existinghere entitled the Department toenact an emergency rule. It 

### istherefore

### 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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