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Montana Administrative Register Notice 18-127 No. 11   06/10/2010    
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BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I through VI and the amendment of ARM 18.2.101 pertaining to incorporation of model rules and contested case procedures

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NOTICE OF PROPOSED ADOPTION AND AMENDMENT

 

NO PUBLIC HEARING CONTEMPLATED

 

TO:  All Concerned Persons

 

1.  On July 11, 2010, the Department of Transportation proposes to adopt and amend the above-stated rules.

 

2.  The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Transportation no later than 5:00 p.m. on July 1, 2010, to advise us of the nature of the accommodation that you need.  Please contact Renee Wuertley, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-9455; fax (406) 444-7206; TDD/Montana Relay Service (406) 444-7696; or e-mail rwuertley@mt.gov.

 

3.  The rules as proposed to be adopted provide as follows:

 

NEW RULE I  CONTESTED CASES, HEARING  (1)  The contested case hearing shall be conducted before the decision-making authority of the agency or a hearing officer designated in accordance with ARM 1.3.218.

            (2)  The presiding officer must ensure that all parties are afforded an opportunity to respond and present evidence and argument on all issues involved.

            (3)  The hearing must be recorded on an electronic sound recorder (tape recorder, digital sound recorder, or other electronic sound recorder) unless either party demands a stenographic record.  The cost of a stenographic record must be paid by the requesting party.

            (4)  Absent a determination by the presiding officer that the interests of justice require otherwise, the order of hearing is as follows:

            (a)  any opening statements requested or allowed by the presiding officer;

            (b)  presentation of evidence by the party asserting a claim for relief (the challenging party);

            (c)  cross examination by the opposing party;

            (d)  presentation of evidence by the opposing party;

            (e)  cross examination by the challenging party; and

            (f)  rebuttal testimony.

            (5)  Exhibits must be marked and must identify the person offering the exhibits.  The exhibits shall be preserved by the agency as part of the record of the proceedings.

            (6)  The presiding officer may hear closing arguments, request supporting briefs, and/or order a schedule for parties to submit proposed findings of fact and conclusions of law.

            (7)  The presiding officer may grant recesses or continue the hearing.

            (8)  The party challenging the agency action bears the burden of proof.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule I is necessary to add two subsections that do not appear in the Attorney General's model rules, for use by the department in contested case hearings.  The department's proposed rule adds (2) as a requirement that recording of the hearing occur via tape recorder, digital sound recorder or other sound recorder, as opposed to a stenographic recording.  This requirement will clarify how the hearing is to be recorded in all cases.  The department's proposed rule also adds (8) on burden of proof.  As per Montana Environmental Fund v. DEQ, 2005 MT 96, 326 Mont. 502, 112 P.3d 964, the Montana Supreme Court clarified the party challenging the agency's decision bears the burden of proof in an administrative proceeding.  Proposed (8) will clarify the effect of that court decision in the administrative rule for all parties appearing before the department.

 

NEW RULE II  CONTESTED CASES, RECORD  (1)  The record in a contested case must include:

            (a)  all pleadings, motions, and rulings;

            (b)  all evidence, either written or oral, received, or considered by the presiding officer;

            (c)  a statement of matters officially noticed;

            (d)  questions and offers of proof, objections, and rulings on objections;

            (e)  proposed findings of fact and conclusions of law, supporting briefs and exceptions; and

            (f)  any decision, opinion, or report by the presiding officer which must be in writing.

            (2)  At the request of any party, the record must be transcribed.  The cost of transcription is the responsibility of the requesting party.

            (3)  If a party seeks judicial review of a final agency decision, the hearing record (if any) must be transcribed.  The cost of transcription is the responsibility of the party appealing the final agency decision.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule II is necessary to expand (1)(e) and add (3) beyond the language contained in the Attorney General's Model Rule at ARM 1.3.220.  Proposed (1)(e) will include findings of fact, conclusions of law, supporting briefs and exceptions as part of the record, to clarify for parties appearing before the department that these documents are also part of the contested case record.  Proposed (3) will add language on the requirement for a transcription to be made of any hearing which was held, in the event of an appeal.  The language will clarify both the requirement itself and the responsibility for the costs of transcription for parties appearing before the department in a contested case proceeding.

 

NEW RULE III  GENERAL RULES, REPRESENTATION  (1)  A person appearing before the agency has the right to be accompanied, represented, and advised by a licensed attorney.  The agency shall advise a party to a contested case of the right to legal counsel.

            (2)  A corporation, partnership, limited liability company, limited liability partnership, cooperative, unincorporated association, estate, or trust appearing before an agency is considered a separate legal entity and may not appear on its own behalf through an agent other than a licensed attorney.

            (3)  A person appearing before an agency may proceed pro se, but may not appear through an agent other than a licensed attorney.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule III is necessary to add additional language to (2) on entity forms which require representation by a licensed attorney.  The Attorney General's Model Rule ARM 1.3.231 lists only "corporation" as requiring attorney representation.  The department's proposed rule will clarify that any of the business forms listed require representation by a licensed attorney in a contested case matter.  Proposed (3) will clarify a person may represent himself/herself, but cannot be represented by another person unless that person is a licensed attorney.  This will address lingering questions whether a person may be represented by an accountant or other agent, by clearly stating a person may only be represented by a licensed attorney when appearing before the department.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

NEW RULE IV  MOTIONS FOR SUMMARY JUDGMENT  (1)  Any party may move, with or without supporting affidavits, for summary judgment in the party's favor upon all or some of the contested issues in any proceeding that comes before the department.  A motion for summary judgment may be granted if the motion, affidavits, and other documentation show that there is no genuine issue as to any material fact and one party is entitled to a favorable decision as a matter of law.

            (2)  A party is entitled to a hearing on a motion for summary judgment.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule IV is necessary to clarify the ability of any party to move for and be granted summary judgment when appearing before the department.  The Montana Supreme Court held in Matter of Peila, 249 Mont. 272, 815 P.2d 139 (1991) that disposition of a contested case was proper by way of summary judgment and that the hearing on a motion for summary judgment was sufficient to satisfy 2-4-601, MCA.  The Attorney General's Model Rules do not address summary judgment, so the department will clarify via New Rule IV that summary judgment has been found by the court to be proper and may be used when appearing before the department.

 

NEW RULE V  TIME COMPUTATION  (1)  Time computation shall be governed by Rule 6(a) and 6(e), Mont. R. Civ. P.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule V is necessary to provide some timelines for conduct of a contested case matter before the department.  The Attorney General's Model Rules do not contain any timeline designations, thus the department clarifies via New Rule V that all time frames for filing of documents and for other matters will be identical to time frames used in the Montana Rules of Civil Procedure in all district courts in this state for parties appearing in a matter before the department.

 

NEW RULE VI  INFORMAL DISPOSITION OBJECTIONS, PETITION FOR JUDICIAL REVIEW  (1)  A party to an informal proceeding who is dissatisfied with a proposed decision may file written objections but is not entitled to oral argument before the agency decision maker.  Written objections must be filed within ten days of receipt of the proposed decision.

            (2)  A party who is dissatisfied with an informal agency decision may petition the district court as provided in 2-4-701, et seq., MCA.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed adoption of New Rule VI is necessary to add language on filing of objections and petitioning for judicial review of information dispositions when appearing before the department.  The Attorney General's Model Rules do not contain any language on these processes, thus New Rule VI is necessary to clarify the procedures for parties appearing before the department.

 

4.  The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:

 

18.2.101 MODEL PROCEDURAL RULES  (1)  Unless otherwise provided by law, the  The dDepartment of tTransportation herein adopts and incorporates by reference the Attorney General's right of participation procedural rules ARM 1.3.101 through 1.3.233, which set forth the attorney general's model rules for all matters which are within the scope of the Montana Administrative Procedure Act, 2-4-101 through 2-4-711, MCA. A copy of the model procedural rules may be obtained from the Department of Transportation, P.O. Box 201001, Helena, MT 59620-1001. and 1.3.102; the Attorney General's organizational and procedural rules ARM 1.3.201 through 1.3.233; and the Secretary of State's organizational and procedural rules ARM 1.3.301 through 1.3.313 with the exceptions contained in this subchapter. 

(2)  A copy of the model procedural rules may be obtained from the Department of Transportation, P.O. Box 201001, Helena, MT 59620-1001. 

 

AUTH: 2-4-201, 2-4-202, MCA

IMP:  2-4-201, MCA

 

REASON:  The proposed amendment to ARM 18.2.101 is necessary to correct the reference to the model rules which were amended and transferred by the Attorney General's Office and the Secretary of State in 2008.  The amendment will contain the correct references to model rules on public participation, contested case procedures, declaratory rulings, and rulemaking, all as required by the Montana Administrative Procedures Act.  The proposed amendment will also clarify that the department proposes to adopt some exceptions and additions to the Attorney General's Model Rules on contested case proceedings.

 

5.  Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Renee Wuertley, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-9455; fax (406) 444-7206; or e-mail rwuertley@mt.gov, and must be received no later than 5:00 p.m., July 8, 2010.

 

6.  If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Renee Wuertley at the above address no later than 5:00 p.m., July 8, 2010.

 

7.  If the agency receives requests for a public hearing on the proposed action from either ten percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date.  Notice of the hearing will be published in the Montana Administrative Register.  Ten percent of those directly affected has been determined to be 4 persons based on an average of 40 contested cases before the department annually.

 

8.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

9.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

10.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

 

 

/s/ Carol Grell Morris                         /s/ Jim Lynch                         

Carol Grell Morris                              Jim Lynch

Rule Reviewer                                    Director

                                                             Department of Transportation

           

Certified to the Secretary of State June 1, 2010.

 

 

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