43-1 A county has no legal obligation to provide solid waste disposal and landfill services to towns that have used the county's landfill on a charge-per-load basis where there is no refuse disposal district or interlocal agreement between the towns and county to provide such services. January 25, 1989
43-2 1.  For the purposes of the Montana Comprehensive State Insurance Plan and Tort Claims Act, a trustee-operated rural fire district is a political subdivision separate and distinct from the county in which it is located.  2.  The trustees of a rural fire district may not incorporate under the Montana Nonprofit Corporation Act. January 26, 1989
43-3 The respondent in a URESA action is required to pay a $40 appearance fee. He or she may be excused from such payment upon filing an affidavit in accordance with section 25-10-404, MCA. February 10, 1989
43-4 Section 61-3-509(1), MCA, requires the vehicle-related taxes referred to therein to be distributed proportionately to rural fire districts on the basis of all mill levies applicable to personal property located within the geographical boundaries of such districts. For distribution-entitlement purposes, the residence or assignment address appearing on the certificate of registration controls. February 13, 1989
43-5 In an emergency situation, section 53-21-129, MCA, allows for a person at any time to be detained and treated until the next regular business day when that person must be released or proceedings initiated pursuant to section 53-21-121, MCA. February 23, 1989
43-6 Payroll record information, including the names, addresses, and wages of private employees working on a publicly-funded project, that is reported to the Department of Highways is subject to public disclosure. The social security numbers of those employees are not subject to public disclosure. February 27, 1989
43-7 Youth court records concerning a youth proceeded against as or found to be a delinquent youth are not confidential and thus not subject to the sealing requirements of the Youth Court Act as amended by chapter 515, 1987 Montana Laws. March 8, 1989
43-8 1.  A person is not required to be licensed as a real estate broker or salesman in order to obtain and organize information from potential sellers of real estate, and, for a fee charged to the seller only, to advertise that information to interested potential buyers.  2.  A person is not required to be licensed as a real estate broker or salesman in order to receive a fee, commission, or compensation for referring the name of a potential buyer of real estate. March 10, 1989
43-9 A professional land surveyor registered in the state of Montana need not be a resident of Montana when signing off on certificates of survey. April 19, 1989
43-10 A county welfare department has no statutory authority to file a lien against the real property of a general assistance recipient who received more general assistance funds than those to which the recipient was entitled. April 20, 1989
43-11 Upon the immediate approach of an authorized emergency vehicle making use of only visual signals pursuant to section 61-9-402, MCA, other drivers must yield the right-of-way and/or stop. They may then proceed past such signal with caution and at a speed no greater than is reasonable and proper under the existing conditions. May 3, 1989
43-12 Special peace officers of a class I railroad are exempt from the prohibition against concealed weapons set out in section 45-8-316, MCA, but they may carry a concealed weapon only when on duty and when necessary for the protection of the property of the class I railroad employing the officer. The special peace officer must follow the permit procedure of section 45-8-19, MCA, in order to carry a concealed weapon ar any other time. May 19, 1989
43-13 1.  A municipality retains all authority granted to it under sections 7-13-4301 to 4345, MCA, with respect to providing water and sewer services after a county water and sewer district has been incorporated which includes the municipality.  2.  A county water and sewer district may not exercise the right of eminent domain with respect to municipal property located within the district and utilized by the municipality to provide sewer services.  3. Persons receiving municipal sewer services but residing within a county water and sewer district are required to pay that portion of property taxes imposed pursuant to section 7-13-2302, MCA, with respect to the district's expenditures unrelated to principal and interest payments for bonded indebtedness. Whether those persons are sufficiently benefited by expenses associated with bonded indebtedness so as to be responsible for property tax amounts attributable to such indebtedness is a question of fact inappropriate for resolution through an Attorney General's Opinion.  4.  The board of county commissioners must assume the expense attendant to providing notice of intent to levy property taxes on behalf of a county water and sewer district.  5.  If a tax increment provision exists in a municipality's urban renewal plan, the municipality will receive revenue for use in the urban renewal area attributable to application of a county water and sewer district's property tax levy upon the incremental taxable value.  6.  The property tax limitations in Initiative No. 105 and 1987 Montana Laws, chapter 654 do not apply to taxing jurisdictions formed after tax year 1986. May 22, 1989
43-14 County road and bridge department employees regularly working four 10-hour days per week are entitled to eight hours' pay under section 2-18-603, MCA, for all nonworked holidays. May 23, 1989
43-15 A county attorney has no obligation to act as counsel for hospital districts formed pursuant to section 7-34-2101, MCA. May 23, 1989
43-16 The phrase "unless otherwise provided by law," as used in section 7-2-102, MCA, does not authorize a city to enact a municipal ordinance reducing the number of hours during which city offices must be open. May 24, 1989
43-17 A police officer participating in a local police retirement fund may not buy an additional number of years toward retirement based upon prior out-of-state police service. June 1, 1989
43-18 A county planning board may not be designated to serve as the county zoning commission. However, members of one board may serve as members of the other so long as they meet the statutory requirements for membership of each board. June 1, 1989
43-19 When personal property is subject to a delinquent tax lien, a county is not required to tender payment to a person having a security interest in the personal property before seizing and selling such property. June 1, 1989
43-20 A police officer hired after July 1, 1975, who completes 20 years of service before reaching the age of 50 must continue serving as a police officer until he reaches age 50 in order to be eligible for retirement benefits. June 5, 1989
43-21 1.  A deficit in the school district's debt service fund should be eliminated through the budget and tax levy for the ensuing fiscal year.  2.  The limited cash reserve in the debt service fund is made up of a portion of the cash balance of the fund at the end of the fiscal year. The trustees are not required to include a limited cash
reserve in the debt service fund.  3.  The county superintendent may only increase the preliminary budget amount in the debt service fund to the amount of obligations for bonds and special improvement district
assessments contained in the county treasurer's statement pursuant to section 20-9-121, MCA.  4.  Anticipated delinquencies in tax payments may be included in the computations in preparing the school district's debt service fund in the preliminary budget and setting the levy for the ensuing fiscal year.
June 22, 1989
43-22 In the absence of applicable county zoning regulations, section 76-2-310, MCA, authorizes a city of the first class which has adopted a master plan to extend its zoning regulations extraterritorially within a three-mile radius of its corporate limits without reference to county boundary lines. June 27, 1989
43-23 Montana's nepotism statutes apply to members of public school boards for districts lying wholly or partially within an Indian reservation. Criminal prosecution of nepotism law violations by members who are Indians with respect to decisions made and implemented wholly on-reservation may be initiated only in federal court by the United States except for those violations occurring on the Flathead Indian Reservation. Finally, contracts entered into in contravention of the nepotism statutes are voidable. July 11, 1989
43-24 An elector nominating a candidate for a school trustee position under section 20-3-305(2), MCA, must be registered to vote at the time the nominating petition is filed. July 19, 1989
43-25 The "Buyer's Affidavit and Certification" submitted to the Board of Housing pursuant to the Mortgage Credit Certificate Program is subject to public disclosure. July 20, 1989
43-26 The board of county commissioners has final authority to approve subdivisions that are within the three-mile area immediately outside the corporate limits of the city when the city has a commission-manager form of government. July 20, 1989
43-27 Montana law does not permit criminal trials to be conducted on Sundays except to conclude a trial already initiated as specified in section 3-1-302, MCA. July 24, 1989
43-28 1.  Section 15-16-601, MCA, does not authorize county commissioners to compromise unpaid, delinquent property taxes.  2.  County commissioners do not possess inherent authority to compromise unpaid, delinquent property taxes. July 25, 1989
43-29 The state may not reimburse school districts for school bus transportation for February 2 and 3, 1989, when the districts closed in accordance with the governor's declaration of emergency. August 11, 1989
43-30 The phrase "statewide office" as used in section 13-10-601 (1), MCA, the statute that provides for automatic qualification to hold a primary election, means an office for which a statewide election is held, including the office of United States Senator. Thus, because the only election decided by a statewide vote in 1990 is for a seat in the United States Senate, a political party must have a candidate for United States Senator receive the requisite number of votes in the 1990 election in order to automatically qualify to nominate candidates by primary election in 1992. August 29, 1989
43-31 The board of trustees of a cemetery district has the authority to sell headstones and grave markers at the cemetery for use in the cemetery, so long as the profits are used in furtherance of the purposes of the cemetery district. September 7, 1989
43-32 1.  Absence from the state attributable to active military duty does not result in a vacancy within the office of public service commissioner.  2.  Elected members of the Public Service Commission may not receive additional compensation for simultaneous service in the Montana Army National Guard. September 12, 1989
43-33 The Board of Dentistry, having succeeded to the functions of the Board of Denturitry, may not reconsider a prior decision of the Board of Denturitry to issue a denturist's license. September 12, 1989
43-34 The method for calculating longevity pay increases for undersheriffs and deputy sheriffs in section 7-4-2510, MCA, is mandatory and may not be altered through collective bargaining. September 15, 1989
43-35 1.  The school district of residence of a special education student whose custodial parent is imprisoned is the school district where the custodial parent resided prior to being imprisoned.  2.  If a special education student is admitted to a school district that is not his district of residence, his district of residence is responsible for that student's tuition. September 19, 1989
43-36 1.  The school district of residence for special education purposes of a child for whom the Department of Family Services has temporary legal custody is the district of residence of the child's parents, regardless of whether the child is placed in a foster home in a separate school district.  2.  The school district of residence for special education purposes of a child for whom the Department of Family Services has legal custody following termination of parental rights and before a permanent placement is accomplished is the same as that of the physical location of the district court that ordered the termination. 40 Op. Att'y Gen. No. 69 (1984) is overruled insofar as it conflicts with the holding of this opinion. September 19, 1989
43-37 Section 2-9-316, MCA, does not grant counties the authority to levy taxes in response to a district court order that a judicial budget or budget deficit be funded. September 21, 1989
43-38 1.  When a county becomes a purchaser of a tax sale certificate pursuant to section 15-17-214, MCA, the county is not required to pay special assessments levied against the property after the tax sale.  2.  When a county assigns its interest as purchaser of a tax sale certificate, it must collect from the assignee all delinquent taxes and assessments clue on the property that is the subject of that interest, unless the assignee is a municipality. If the assignee is a municipality, the county must collect only delinquent taxes (excluding assessments) and costs.  3.  If a municipality takes an assignment of interest in a tax sale certificate from a county pursuant to section 15-17-317, MCA, the municipality must reassign that interest only if a subsequent
purchaser pays both the municipality's purchase price and any delinquent assessments against the property, plus interest, penalties, and costs.  4.  If either a country or a municipality takes a tax deed to property
pursuant to section 15-18-211, MCA, the granting of the tax deed extinguishes the lien created by any special assessment against the property which becomes payable prior to the issuance of the deed, but leaves unaffected any lien created by a special assessment which first becomes payable after issuance of the
September 25, 1989
43-39 Crane games are "gambling devices" utilized for "gambling activity" and because such devices are not clearly authorized by Montana law, they are prohibited. October 3, 1989
43-40 1.  A county attorney does not have authority to file a petition for the involuntary commitment of an alcoholic pursuant to section 53-24-302, MCA.  2.  A county attorney does not have authority to represent a spouse,
guardian, relative, certifying physician, or the chief of an approved public treatment facility in a proceeding for the involuntary commitment of an alcoholic under section 53-24-302, MCA.
October 20, 1989
43-41 Although section 7-8-4201 (2)(a), MCA, requires a two-thirds vote of the city commission to sell city land, a city having self-government powers may enact a superseding ordinance allowing the sale of such land by simple majority vote. November 1, 1989
43-42 The Montana Human Rights Act applies to public school districts lying wholly or partially within Indian reservations on district-owned lands and prohibits the school district from granting employment preferences to Indians unless specifically required by federal statute. Indian tribes do not have a federally-protected interest in requiring that such preferences be granted their members or other Indians. November 16, 1989
43-43 1.  Article VI, section 5(2) of the Montana Constitution has no effect upon the salary of an elected member of the Public Service Commission but restricts his right to accept additional compensation from the state for service in the Montana Army National Guard.  2.  Article VI, section 5(2) of the Montana Constitution restricts the right of an elected member of the Public Service Commission to accept additional compensation from the state for service in the Montana Army National Guard when such duty constitutes state rather than federal service.  3.  To the extent applicable, as noted above, the constitutional limitation upon the right of elected officers of the executive branch to accept compensation from their elected office prohibits all compensation from the state resulting from service in the Montana Army National Guard, beginning with the first instance
of dual compensation.  4.  A public officer has a duty to repay unauthorized compensation and the state has a corresponding right to recover the same.  5.  The state auditor has the authority to compel an elected member
of the Public Service Commission to repay unauthorized additional compensation received from the state for service in the Montana Army National Guard.
November 22, 1989
43-44 1.  The "base salary" of a sheriff under section 7-4-2503, MCA, is based on the class of the county and the county's population. For purposes of calculating longevity payments for sheriffs, total years of service with the sheriffs department are included.  2.  The "minimum base annual salary'' of a deputy sheriff or undersheriff for purposes of determining longevity payments under section 7-4-2510, MCA, is based on the sheriff's base
salary as set forth in section 7-4-2508, MCA. Each year of service with the sheriff's department is included when calculating longevity payments for a deputy sheriff or undersheriff.
November 28, 1989
43-45 A juvenile who is adjudicated delinquent under the Youth Court Act and whose case has not been transferred to district court is exempt from the registration requirement of the Sexual Offender Registration Act. November 29, 1989
43-46 The property tax limitations in sections 15-10-401 to 412, MCA, apply to assessment levies pursuant to section 7-13-2302, MCA, by a water and sewer district for the purpose of repaying a general loan obligation even if such district has never previously exercised its levy authority under that provision. December 7, 1989
43-47 1.  Concurrent trusteeship of both a volunteer fire department and a fire service area does not constitute a conflict of interest.  2.  Trusteeship in a volunteer fire department is not incompatible with simultaneous trusteeship in a fire service area. December 7, 1989
43-48 A county treasurer, when remitting taxes to a city, must break out the amount received from taxpayers as payment for the city's special improvement district assessments. December 12, 1989
43-49 1.  A justice of the peace has the authority to select his substitute during a temporary absence. If the justice is sick, disabled or absent and is unable to call a substitute, the county commissioners are authorized to call in a substitute. The justice, or when appropriate, the county commissioners, must look to the following substitution choices: (1) another justice, if available, (2) a city judge, or (3) a person from the list provided for in section 3-10-231(2), MCA. In the event a justice is on vacation or attending a training session, if there is no other justice in the county then the justice, and not the county commissioners, must look to the same substitution choices as those listed above.  2.  A county is generally required to compensate a substitute justice of the peace. However, the substitute justice may elect to waive compensation.  3.  The office hours of a justice court are set by the county commissioners, and during those hours the court is always open for the transaction of business, such as the filing of court documents with the clerk. However, a justice of the peace is not statutorily required to be present in justice court during every hour the justice court is open for business. Thus, a justice of the peace is nor precluded from acting as a city judge during the office hours of the justice coun. 40 Op. Att'y Gen. No. 26 at 100 (1983) is overruled as to holding number four, to the extent that it concludes that the board of county commissioners sets the hours of a justice of the peace. December 18, 1989
43-50 A petition for injunctive relief under section 40-4-121(3), MCA, must allege physical abuse, harm, or bodily injury. December 22, 1989
43-51 An acting justice of the peace who is called to act pursuant to section 3-10-231 (2) or (3), MCA, and who is otherwise qualified to serve under section 3-10-202, MCA, need not be a resident of the county where the court sits. January 23, 1990
43-52 Section 16-2-201, MCA, authorizes the Department of Revenue to apply a 5 percent discount to the price of liquor sold in unbroken case lots; the terms of the statute require that the discount apply to the retail price, which does not include liquor excise or license taxes. However, taxes are, in turn, based on the discounted retail price of the liquor, which results in the same amount of excise and license tax revenues as if the discount had been applied to the retail price with the taxes included. January 24, 1990
43-53 A city with self-government powers may not enact an ordinance extempting vehicles in a funeral procession from obeying traffic-control devices by designating such vehicles as "authorized emergency vehicles." January 31, 1990
43-54 A school board in the state of Montana may, as a condition of employment, require that employees of the school district be residents of the school district. This opinion does not address the question of whether, prior to effecting such a change during the term of a collective bargaining agreement, a school board may be obligated to bargain with its employees' collective bargaining representative. February 16, 1990
43-55 The governing body of a local government unit with self-government powers may enact an ordinance providing for the disposition by majority vote of the council of property held in trust for a specific purpose. February 21, 1990
43-56 A municipal fire department may not be merged with a rural fire district into a single fire protection agency; however, fire protection services may be provided in a cooperative fashion through an interlocal agreement which city voters may, by initiative, require the governing body of the city to pursue. February 22, 1990
43-57 The term "local governments" as used in section 15-1-111(6), MCA, includes all local government entities, including those generally considered "taxing jurisdictions," that lost revenue as a result of personal property tax reductions. July 25, 1991
43-58 1.  The 7 percent increase in section 7-4-2504(3), MCA, must be considered a cost-of-living increment (COLA) used to determine salaries for elected county officials in fiscal year 1982 and must be added to the base salary on July 1, 1982, before computing the COLA for fiscal year 1982-83.  2.  The two·year statute of limitations in section 27·2-211 (1 )(c), MCA, applies to wage claims by public officers, including elected
county officials and their deputies, and claims for longevity payments from deputy sheriffs and undersheriffs.
February 5, 1990
43-59 Failure of an election administrator to rotate the names of candidates on the ballot so that each candidate's name appears at the top of the list on substantially an equal number of ballots does not render the results of the election invalid. March 23, 1990
43-60 A standing committee of the Legislature not formally discharged prior to the final adjournment of the preceding session may meet during a special session for the purpose of gathering information and taking testimony on a matter not within the call of the special session. March 26, 1990
43-61 1.  A city judge is not prohibited by section 3-11-101, 3-1-301, or 3-1-302, MCA, from establishing regular sessions of the court during evening hours other than on Sundays or other legal holidays.  2.  Subject to the provisions of section 7-4-102(3), MCA, applicable to third -class cities or towns, so long as the city court is open between the hours of 8 a.m. and 5 p.m. Monday through Friday for the transaction of business, such as the filing of court documents with the clerk, section 7-4-102(1), MCA, does not prohibit the city judge from establishing regular evening sessions of the court.  3. Section 7-4-102(3), MCA, permits the governing body of a third-class city or town to set the office hours of the city court at times other than between 8 a.m. and 5 p.m. Monday through Friday except Sundays and other legal holidays. May 17, 1990
43-62 The Montana Board of Investments must comply with the environmental impact statement requirements of the Montana Environmental Policy Act when the Board considers whether to enter into a loan participation agreement where the underlying project benefiting from the agreement may significantly affect the quality of the human environment. June 21, 1990
43-63 Sections 7-14-1131 and 7-14-1132, MCA, mandate the governing body to levy the amount of tax certified annually to the governing body by the port authority. June 29, 1990
43-64 1.  The Department of Institutions may allocate state general fund appropriations to purchase services for certain priority populations from regional mental health centers.  2.  Pursuant to section 53-21-114, MCA, the mental health professional examining a person under a petition for involuntary commitment must determine whether the person has been informed of his rights and, if not, inform him of them. July 11, 1990
43-65 1.  In light of the nonrestrictive language in section 75-10-405(2)(c)(vi), MCA, allowing the department to delegate to local agents the implementation of the underground storage tank program, the department may delegate to properly designated local agents enforcement of the statutes and rules governing the program.  2.  The department's designated local agents may, on behalf of the department, use any of the enforcement methods available to the department.  3.  The letters of designation issued by the department delegating
authority to local agents are an appropriate method for delegation as long as the letters clearly define the rights, duties, and responsibilities of the department and local agents.
July 23, 1990
43-66 School districts must, for purposes of calculating ANB, aggregate the numbers of full-time pupils in all schools in the district, except when a school of the district is located more than three miles beyond the incorporated limits of a city or town or when a school of the district is located more than three miles from another school of the district. July 18, 1990
43-67 Title 37, chapter 71, MCA, which requires a person performing public construction work to have a public contractor's license, applies to persons or firms who contract to sell and install carpeting on school district property where the value of the contract exceeds $5,000. July 30, 1990
43-68 A refuse disposal district is not a "political subdivision" as that term is used in section 17-5-1604(3), MCA. July 31, 1990
43-69 A qualified county superintendent of schools entering into a contractual agreement pursuant to section 20-3-201(3), MCA, to provide services in a county lacking a qualified county superintendent of schools is entitled to additional compensation for services rendered. July 31, 1990
43-70 A hospital district may fund a private nonprofit nursing home operating for the benefit of county residents, if the home complies with the admission standards and with other requirements provided by law concerning the operation of a long-term care facility. August 9, 1990
43-71 1.  The unpaid warrants of a hospital district may not be registered as county warrants and purchased by the county in which the hospital district is located.  2.  A hospital district does not have authority to borrow money from a commercial lending institution by use of a promissory note.  3.  A hospital district's board of trustees may enact an appropriate resolution directing the county treasurer as ex officio treasurer of the district, to register unpaid hospital district warrants, to redeem them in the order of their registration, and to pay a particular rate of interest on unpaid warrants.  4.  A hospital district may lease a district-owned hospital facility to a nonprofit corporation without restricting the right of the corporation, as an entity independent from the hospital district, to borrow money from a commercial lending institution for the purpose of running the hospital. August 14, 1990
43-72 The district court clerk may not charge a commencement filing fee for post-dissolution proceedings initiated under the continuing jurisdiction of the district court. September 12, 1990
43-73 The prohibition of section 2-6-109, MCA, against the distribution of mailing lists by state agencies applies to mailing lists of both individual persons and corporations. 38 Op. Att'y Gen. No. 59 at 207 (1979) is overruled insofar as it conflicts with the holding of this opinion. October 31, 1990
43-74 1.  The increases in the number of mills allowed for county road and bridge construction and maintenance in sections 7-14-2501 and 7-14-2502, MCA, are not exceptions to the property tax freeze in 1-105, as codified in section 15-10-402, MCA.  2.  "County rural property" is not a "taxing unit" as defined in section 15-1-101(2), MCA. November 5, 1990
43-75 The clerk of the district court and the county clerk, as well as their deputies, may not retain for their personal use compensation paid to them by title companies, credit bureaus, banks, realtors, and others for the preparation on a regular basis of abstracts of instruments recorded and filed in their respective offices. Such services are "official services" provided by the officers and the fees they receive for those services must be paid to the county general fund, the district court fund, or the state, as provided by law. November 8, 1990
43-76 Pursuant to section 32-1-362, MCA, with the consent of the Department of Commerce, a state chartered bank may directly market fixed annuities, provided that national banks are permitted to do so and that no state statute expressly prohibits such activity. November 16, 1990
43-77 1.  A deputy clerk of the district coun may act on behalf of the clerk of the district court in performing the clerk's duties and obligations.  2.  The clerk of the district court may not employ a chief deputy or deputy without authorization of the board of county commissioners.  3.  The clerk of the district court may not raise the salary of a deputy without authorization in the county budget and without specific approval of the county commissioners.  4.  The board of county commissioners may calculate the years of service of a county employee based upon the number of hours worked rather than the number of calendar years in part-time
November 29, 1990
43-78 The entire annual fee established for a refuse district may be collected on the tax notices due in the initial year of operation, even though services will be provided for only a portion of that calendar year. November 30, 1990
43-79 1.  Under section 2-18-702(1), MCA, a governing body must only obtain a two-thirds vote of all its officers and employees to authorize entry into an initial group insurance plan and, once so authorized, the governing body may enter into any such plan it deems appropriate and may modify that or subsequent group insurance plans without further vote.  2.  A governing body may agree to modify a group insurance plan covering employees represented for collective bargaining purposes unless such changes would affect employees in another collective bargaining unit represented by a different labor organization; in the latter situation, concurrence of both representatives is required before the modifications could be made. December 18, 1990