ROSEBUD COUNTY v DEPARTMENT OF REV
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NO. 92-227 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 ROSEBUD COUNTY, MONTANA and PHILLIPS COUNTY, MONTANA, Plaintiff/Intervener and Respondent, v. THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Defendant APPEAL FROM: and Appellant. District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding. COUNSEL OF RECORD: For Appellant: Paul Van Tricht, Tax Counsel, Office of Affairs, Department of Revenue, Helena, For Respondent: Larry Schuster, Attorney Montana; John C. McKeon, Attorney, Malta, Montana For Legal Montana Amici at Law, Phillips Great Falls, County Curiae: John Alke and Chris D. Tweeten, Hughes, Kellner, Sullivan & Alke, Helena, Montana Submitted on Briefs: Decided: October March 8, 18, 1992 1993 Justice William E. Appellant judgment of Montana the the Guide" method as the property The which Did dismiss Did dismiss on the the District the State of value have from County, the of heavy a "Green equipment err that forth several err in plaintiff, does denying suffered Court Montana, in plaintiff District set issues as follows: Court that grounds Court. Rosebud and reinstating market appellant grounds the (DOR) appeals Court, method and restate the on the 2. of and of We affirm. assessment. we consolidate 1. Cost" opinion Revenue District of determining plaintiff the of Judicial "Acquired tax delivered Department Sixteenth invalidating for Sr., Hunt, DOR's no actual denying have Court standing err to harm? DORIS as a political not motion motion to subdivision to sue the State itself? 3. Did attempt the to District amend requirements set 42.21.131, out in the in did ARM, Montana declaring not that comply DORIS the Procedure Administrative with Act (MAPA)? 4. is required market not Did to value heavy method equipment a particular assess Court all to heavy from guide for method property could of in equipment by employing 1975 through item err 5 15-8-111, determined green used District according adequately The if the the assessments December not be 2 at 100 31, located that percent MCA, and that establishing tax concluding market "Acquired Cost the market has been 1990, in of its value the green is Method"? value by DOR. the DOR of primary However, guide, various back-up methods, such as the acquired cost method, were employed. The green guides which equipment guides in average are by region guide if cost than the county assessors substantial loss green them guide complied method, with of market to the amended rule, MAPA and held address this value, the was much opposition regarding method Support contractors for fiscal to and the amendment and mining companies. 3 the the only be used of the county acquired cost primary method, The method. The result was a and revenue to the for implementation rule-making 1991. process At the new valuation State's lack in tables. County. the came the not be ascertained. value, on May 8, the in replace would directive. the of Although to all as the taxable impact, appropriately, method it the a formal hearing values assessment. objections DOR initiated a public cost out a letter use prices of DOR, began discussing item could to sale green of depreciation be employed, Rosebud County and Phillips In order the of of a particular national The market acquired method still directing rather concerns of the trends 4, 1991, DOR sent assessors there the average order. the primary method would On January plaintiffs working having as the the acquired tax using a nationwide and include of guide green involves 1990, Denis Adams, Director possibility green method represent In April the guide the of inability form of under hearing, method appointed of due to to audit auditors. letters from on Montana May notice a result as cost Plaintiffs Complaint of of the method, Rosebud for rule its invalidating an additional this June 42.21.131, There was 3, 1991, ARM, adopting issue. filed 16, of rule 1991. from 1991, and Conclusions Fact an Amended Relief On December of 13, County Declaratory administrative ARM, as adopted the On June hearing. to of hearing. and Phillips and Findings the Committee was published. County at Oversight amendment Injunctive administrative issued Revenue over adoption acquired the presided taken of the Court 1991, Legislature no action the 31, and the District Law and Order amendment The DOR appeals the to from 42.21.131, that order. T I. Did on the the District grounds Court that because establish it Montana 199 Mont. 434, suffered County not has suffered any to sue, one Human Rights 443, 1283, rights their employees about them without doing Citv County heavy so might of in 649 P.2d place Billings, has fact the 649 P.2d a potential equipment have only in for the v. in county. standing harm. In potential to order to economic of That court concluded the constitutional to consent 1288. in In caused Rosebud 4 have to assert respondents harm dismiss City refusing their to harm? not show 1288. standing at does actual Division did information need DORIS motion no actual Rosebud respondents of denying that standing harm. in plaintiff The DOR claims sue err Billings disclose or court by of the personal order jeopardy the (1982), because being sued. case at bar, change in valuation County has Rosebud a substantial of interest found in that the protection of its tax base. to sue, Rosebud County had standing The District Court and we agree. II. Did the District on the State grounds that of Montana, Although County that Court County for Since administrative to its statutory not err all the of to bring and constitutional in denying to bar, against two Rosebud rather than under of persons during and MCA. -305, and substantive prior the the persons 2-4-302 interests. DOR's motion be rights determining proposition relief, hearings an action itself? sought. the procedural of MAPA by not holding the at of relief Sections to satisfy method case considered possess rule-making. Rosebud is entitled the for and declaratory are of the No. 55 v. Musselshell 1252, in by the type counties change the subdivision District standing to dismiss to sue the State 802 P.2d injunctive Because of DORIS failure rule School lacks MCA, they ยง 2-4-102(8), requirements as a political 525, cases can be distinguished County is suing DORIS motion does not have standing 245 Mont. Rosebud in denying plaintiff, DOR has cited (1990), damages. err to making value its of property, the State to protect The District Court did DORIS attempt to to dismiss. III. Did the District amend 42.21.131, Court err ARM, did not comply with in the Montana Administrative The Montana in declaring Administrative Procedure the requirements Act Procedure follows: 5 that set out (MAPA)? Act states in part as Notice, z-4-302. hearing, and submission of views. Prior to the adoption, amendment, or repeal of any (1) the agency shall give written notice of its rule, intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, the rationale for the intended action, and the time when, place where, and manner in which interested persons may present their views thereon. . . . . If any statute provides for a different method (3) of publication, the affected agency shall comply with the statute in addition to the requirements contained herein. However, in no case mav the notice period be less than 30 davs or more than 6 months. (4) Prior to the adoption, amendment, or repeal of any rule, the agency shall afford interested persons at least 20 days' notice of a hearing and 28 days from the day of notice to submit data, views, or arguments, orally or in writing. The DOR did January 1991 to adopt The in 1991, This process During with appeared proponents although distributed the did formal receiving objections by administrative rule-making process. hearing on May 8, 1991, county and state rule change. amendment in attendance form in on May 8, 1991. to the proposed return letters that officials Adams who There were no at the meeting, had previously been by Adams. The rule-making result of attempt hearing rule contingent its method. after the in a public of the proposed they to of an amended "rule" the administrative in opposition prior cost that DOR initiated culminated a large things found the implementation fiat The these the acquired Court District regarding met none of was that process the in this public, case was, in essence, the 6 Legislature, and a sham. certain affected agencies effectively not err were in the in finding denied their governmental that right process. DORIS attempt to participate The District Court to amend 42.21.131, did ARM, was invalid. IV. Did the District Court to assess all heavy according to 5 adequately determined According be noted that 22 percent conflict that less with the lower both than market 5 15-S-111(3), "reasonably necessary," DOR's notice of proposed rule The substance deficient, and the new rule We affirm We concur: the District market value value. of market method Even if necessity making. yields in question from value. Supervisor an assessment the amendment had been Section is not the amendment is in was not of the rule Court. is Cost Method"? 100 percent Therefore, MCA. value prohibited cost and procedure "Acquired its Adams and Property Director this market DOR is required MCA, DOR is than acquired that the 5 15-S-111(3), It agreed of by employing heavy equipment Noble that MCA, and 15-8-111, to in concluding at 100 percent equipment assessing should err demonstrated 2-4-305(6)(b), making in this invalid. in MCA. case is Justice Karla M. Gray did not participate 8 in this decision. March 18, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: PAUL VAN TRICHT, Tax Counsel Department of Revenue Mitchell Building Helena, MT 59620 LARRY SCHUSTER Attorney at Law 1200 32nd Street South, #42 Great Falls. MT 59405 JOHN C. McKEON Phillips County Attorney P.O. Box 1279 Malta, MT 59538 John Alke and Chris D. Tweeten Hughes, Kellner, Sullivan & Alke P. 0. Box 1166 Helena. MT 59624-l 166 ED SMITH CLERK OF THE SUPREME COURT STATE OF\ MONTANA
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