Administrative Rules of Montana › Department 44 - SECRETARY OF STATE › Chapter 44.12 - COMMISSIONER OF POLITICAL PRACTICES - LOBBYIST DISCLOSURE › Subchapter 44.12.1 - General Policy - Lobbyist Disclosure › Rule 44.12.101A - PREAMBLE AND STATEMENT OF APPLICABILITY

Current through Register Vol. 13, July 5, 2024
(1)
				The 2002 rule revisions were the first substantive revision of the Montana
				Lobbyist Disclosure Act rules in 20 years. The 2002 revisions address
				inconsistencies and conflicts between the Act and previous rules, most of which
				were adopted in 1982. The commissioner of political practices determined that
				the 2002 rule changes only would be applied to legislative lobbying promoting
				or opposing the introduction or enactment of legislation before the legislature
				or legislators. Although rule language may appear to apply to non-legislative
				lobbying and legislative lobbying involving official action other than the
				introduction or enactment of legislation, the commissioner of political
				practices has determined that it is not possible to apply existing and new
				lobbying rules to these lobbying activities under the Montana supreme court
				decision in State Bar of Montana v. Krivec, 193 Mont. 477, 632 P.2d 707 (1981).
				In Krivec, the court cited its 1903 decision in Bair v. Struck, 29 Mont. 45,
				50, 74 P.69, 71, and applied the following definition of quasi-judicial
				functions:
"Quasi-judicial functions are those which lie midway between
				  the judicial and ministerial ones. The line separating them...[is] 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...."
"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 strictness be 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. Id., at page 483."
The Krivec court declared 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" (Id., at
				  p. 484). The court went on to recognize that legislators are public officials
				  under 5-7-102(13), MCA,
				  but the quasi-judicial function exemption does not prevent the reporting of
				  lobbying expenditures to support or oppose the introduction or enactment of
				  legislation under
				  5-7-102(6) (a),
				  MCA, (Id.). Based on Krivec, it is difficult if not impossible to discern what
				  actions fall "midway between the judicial and ministerial ones" and do not
				  involve some exercise of discretion. It appears that most lobbying activities,
				  except for the practice of promoting or opposing the introduction or enactment
				  of legislation before the legislature or legislators, are exempt from reporting
				  under Krivec.
(2) Based on
				the preceding, the commissioner has attempted to clarify legislative lobbying
				issues relating to promoting or opposing the introduction or enactment of
				legislation in 2002 rulemaking. It likely will be necessary to seek
				clarification of non-legislative lobbying issues in a future legislative
				session. Until the quasi-judicial function exemption and other non-legislative
				lobbying provisions of the Act are revised, either legislatively or via court
				decision, the rules will not be applied to non-legislative lobbying
				activities.
Sec.
					 5-7-111, MCA; IMP, Sec.
					 5-7-101,
					 MCA;