author: JUSTICE LEAPHART JUSTICE ERDMANN CHIEF JUSTICE TURNAGE: JUSTICE GRAY,

text:
    COMMON CAUSE OF MONTANA, a state organization of COMMON CAUSE, a Washington, D.C., non-profit corporation, Plaintiff and Appellant, v. ED ARGENBRIGHT, in his capacity as COMMISSIONER OF POLITICAL PRACTICES of the State of Montana, and the OFFICE OF THE COMMISSIONER OF POLITICAL PRACTICES of the State of Montana, Defendants and Respondents.
    No. 95-323.
    Submitted February 21, 1996.
    Rehearing Denied June 4, 1996.
    Decided April 23. 1996.
    53 St.Rep. 386.
    917 P.2d 425.
    276 Mont. 382.

      For Appellant: James P. Reynolds (argued) and Deborah S. Smith; Reynolds, Motl & Sherwood, Helena.
    For Respondents: Hon. Joseph P. Mazurek, Attorney General, James M. Scheier, Ass’t Attorney General (argued) Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Pursuant to § 2-4-315, MCA, Common Cause filed a petition for rulemaking with the Commissioner of Political Practices (Commissioner) requesting the Commissioner to institute a rulemaking proceeding to clarify the definition of lobbying set forth in the Montana Lobbying Act, § 5-7-102(6), MCA. The Commissioner denied the petition. Common Cause then filed a complaint in District Court seeking declaratory relief and a peremptory writ of mandamus. The District Court granted the Commissioner’s motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. The court subsequently denied Common Cause’s motion to alter or amend the judgment. Common Cause appeals from the order dismissing its complaint and the order denying its motion to alter or amend the judgment. We reverse and remand.

Common Cause presents the following issues on appeal:

1. Does § 2-4-315, MCA, grant the Commissioner discretion to deny a petition for mandatory rulemaking under § 5-7-111, MCA, without first initiating rulemaking proceedings?

2. Is Mandamus an appropriate remedy?

BACKGROUND

Since this matter was dismissed under Rule 12(b)(6), M.R.Civ.P., prior to the filing of a responsive pleading or the completion of any discovery, the only facts before the District Court were those alleged in Common Cause’s complaint. As alleged in the complaint, the background leading up to this litigation is as follows: For many years Common Cause has worked to assure full public disclosure of the amounts of money that persons spend to lobby Montana legislators and public officials. As part of this effort, Common Cause wrote and then worked to pass Initiative 85 revising Montana’s Lobbying Act and requiring that lobbying expenditures be reported to the Commissioner.

The Lobbying Act states that one of its purposes is “to require disclosure of the amounts of money spent for lobbying.” Section 5-7-101(1), MCA. In 1981, this Court recognized that the purpose of Initiative 85 was “to provide for the disclosure of money spent to influence action of public officials and to require elected officials to disclose their business interests.” Montana Automobile Ass’n v. Greely (1981), 193 Mont. 378, 399, 632 P.2d 300, 311. In order to gauge how effectively the Lobbying Act was accomplishing this purpose, Common Cause conducted two surveys, one in 1984 and one in 1994. These surveys sought responses from principals as to their understanding of what activities constituted “lobbying” under the Lobbying Act and, thus, which expenditures concerning those activities were required, by law, to be reported. The survey results, which were appended to the complaint, indicate that there is substantial disagreement among the principals as to which activities are included within the definition of “lobbying.” Common Cause alleged that this disagreement as to what are and are not reportable lobbying expenditures, results in inconsistent reporting of lobbying expenditures. According to Common Cause, this inconsistency, in turn, thwarts the Lobbying Act’s statutorily-stated purpose of making public the amounts of money spent for lobbying. See § 5-7-101(1), MCA. In other words, it is Common Cause’s contention that unless there is consistency in the understanding of what must be reported, in the final analysis, the reports have no meaning.

In light of these two surveys, Common Cause filed a petition for rulemaking pursuant to § 2-4-315, MCA, on April 29, 1994, requesting the Commissioner to institute a rulemaking proceeding for the purpose of clarifying the definition of lobbying set forth in the Lobbying Act at § 5-7-102(6), MCA. Common Cause’s petition also invokes the Commissioner’s specific duty under § 5-7-111, MCA, to promulgate rules necessary to carry out the purposes of the Lobbying Act. In its petition for rulemaking, Common Cause set forth a proposed rule defining lobbying. On June 24, 1994, the Commissioner denied the petition on the basis that the rule proposed by Common Cause would alter, amend and enlarge the Lobbying Act in a way not envisioned by the Legislature and that the rule proposed by Common Cause was not reasonably necessary to effectuate the purpose of the Lobbying Act.

Thereafter, Common Cause filed an application for peremptory writ of mandamus and complaint for declaratory relief in the District Court. Common Cause requested a writ of mandamus requiring the Commissioner to institute a rulemaking procedure to promulgate rules specifying which activities are included in the Lobbying Act’s definition of lobbying. Additionally, Common Cause sought a declaration that the Commissioner had violated the mandatory duty imposed on him by § 5-7-111, MCA, to “promulgate and publish rules necessary to carry out the provisions of [the Lobbying Act] ....” The Commissioner moved to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., and the District Court granted his motion. Common Cause appeals.

DISCUSSION

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.

Amotion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Lockwood, 900 P.2d at 317 (quoting Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Lockwood, 900 P.2d at 317.

We have stated that we do not favor the short circuiting of litigation at the initial pleading stage unless a complaint does not state a cause of action under any set of facts. Tobacco River Lumber Co. v. Yoppe (1978), 176 Mont. 267, 271, 577 P.2d 855, 857. “This is especially true when the cause of action is based upon a statute that has not been previously interpreted and where no underlying factual record has been developed.” Smith v. Video Lottery Consultants, Inc. (1993), 260 Mont. 54, 57-58, 858 P.2d 11, 13. In the present case, the section of the Lobbying Act in question, § 5-7-111, MCA, has not previously been interpreted by this Court.

Resolution of this appeal hinges upon the interpretation of two statutory provisions: Section 5-7-111, MCA, and § 2-4-315, MCA. Section 5-7-111, MCA, provides as follows:

Commissioner to make rules. (1) The commissioner shall promulgate and publish rules necessary to carry out the provisions of this chapter in conformance with the Montana Administrative Procedure Act and, in particular, shall provide rules necessary to allocate salary, expenses, and any other payments between lobbying activities and other activities not connected with lobbying for any person whose activities are not solely limited to lobbying.
(2) Such rules shall be designed to effect and promote the purposes of this chapter, express or implied. Such rules shall be as simple and easily complied with as possible.

Common Cause argues that this statute mandates that the Commissioner “shall” publish rules necessary to carry out the provisions of the Lobbying Act and that the “necessity” is established by the well-pleaded, undisputed allegations of its complaint. Common Cause argues that § 5-7-111, MCA, creates a clear legal duty, the violation of which warrants the issuance of a writ of mandamus. The Commissioner focuses on the fact that he only has a duty to promulgate rules necessary to carry out the provisions of the chapter “in conformance with the Montana Administrative Procedure Act” (MAPA). He argues that MAPA, § 2-4-315, MCA, gives him discretion to determine whether the rule propounded by Common Cause is “necessary” or whether any rules are necessary. Section 2-4-315, MCA, provides as follows:

Petition for adoption, amendment, or repeal of rules. An interested person or, when the legislature is not in session, a member of the legislature on behalf of an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. ... Within 60 days after submission of a petition, the agency either shall deny the petition in writing (stating its reasons for the denial) or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305.

The Commissioner contends that he was within his discretion under the above statute when, within 60 days after receiving Common Cause’s petition for rulemaking, he concluded that the rule proposed by Common Cause would impermissibly alter the statutory definition of the term “lobbying” enacted by the Montana legislature, and thus he denied the petition. He then contends that a writ of mandamus is not available to compel the exercise of a discretionary act.

The District Court concluded that under § 2-4-315, MCA, the Commissioner had discretion to determine which rules are “necessary” and appropriate; that the Commissioner was within his discretion in denying Common Cause’s petition; and that the court could not issue a writ of mandate to compel the Commissioner to promulgate any specific rule.

The Commissioner held, and the District Court agreed, that the Commissioner had discretion to either deny the petition or initiate rulemaking proceedings. This conclusion was based upon the court’s interpretation of § 2-4-315, MCA. We review that conclusion of law to determine whether or not it is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

1. Does § 2-4-315, MCA, grantthe Commissioner discretion to deny a petition for mandatory rulemaking under § 5-7-111, MCA, without first initiating rulemaking proceedings?

Section 2-4-315, MCA, provides that an interested person “may petition an agency requesting the promulgation, amendment, or repeal of a rule. ...” It farther provides that, “[w]ithin 60 days after submission of a petition, the agency either shall deny the petition in writing (stating its reasons for the denial) or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305.” Implicit in the District Court’s ruling is the reasoning that § 2-4-315, MCA, addresses petitions for the promulgation of “a rule,” and since Common Cause’s Petition proposed a specific rule, the statutory discretion to deny the petition was triggered without any need for a rulemaking proceeding. We determine that, although § 2-4-315, MCA, does grant the Commissioner discretion to deny a petition in so far as it relates to a proposed rule, it does not grant the Commissioner that same discretion with regard to a broader request that the Commissioner engage in mandatory rulemaking to determine whether any rules, whether proposed by a petitioner or not, are necessary.

Although Common Cause’s petition does set forth a specific rule for consideration, that rule is nothing more than a proposal. We do not read Common Cause’s petition as solely requesting the adoption of a specific rule — rather, the petition merely proposes a rule in the context of its request that the Commissioner initiate rulemaking to determine the necessity of rules in general. Under the Administrative Rules of Montana, a petition for rulemaking must include “the rule the petitioner requests the agency to promulgate, amend or repeal.” Mont. Admin. R. 1-3-205(a)(iii). In order to comply with the prerequisites of MAPA, Common Cause had to submit a proposed rule. However, that did not mean that the scope of rules the Commissioner could consider was thereby limited to the proposed rule. The proposed rule was nothing more than a model or point of departure. N.A.A.C.P. v. Federal Power Comm’n (D.C.Cir. 1975), 520 F.2d 432, 434, aff’d, 425 U.S. 662, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976).

Both the Commissioner and District Court erred in assuming that the only matter presented by the petition was the proposed rule. In addition to setting forth a proposed rule, the administrative petition clearly asks the Commissioner to initiate a rulemaking proceeding, pursuant to § 5-7-111, MCA. Likewise, in its application for preliminary writ of mandamus and complaint for declaratory relief in District Court, Common Cause seeks to compel the Commissioner to initiate rulemaking proceedings. It does not seek to compel the adoption of any specific rule proposed by Common Cause. We hold that although § 2-4-315, MCA, grants the Commissioner the discretion to deny the petition in so far as it pertains to a proposed rule, there is no such discretion to summarily deny a petition which seeks to invoke the Commissioner’s legal obligation to engage in mandatory rulemaking under § 5-7-111, MCA.

In Common Cause v. Federal Election Comm. (D.D.C. 1987), 692 F. Supp. 1391, Common Cause challenged the Federal Election Committee’s (the Commission) decision to deny a petition for rulemaking associated with the use of “soft money” in connection with federal elections. The court held that any improper allocation of non-federal funds by a state committee would be a violation of the Federal Elections Campaigns Act (FECA), 2 U.S.C. § 431, et seq. “Yet, the Commission provides no guidance whatsoever on what allocation methods a state or local committee may use; the potential for abuse, intended orno, is obvious.” Common Cause, 692 F. Supp. at 1396. The court determined that when the agency denies rulemaking in a way that “flatly contradicts Congress’s express purpose, the court may— indeed must — intervene and correct the agency.” Common Cause, 692 F. Supp. at 1396 (citations omitted). Although recognizing that a revision of the Commission’s regulations was warranted, the court noted that Common Cause’s proposals did not limit or define the scope of the Commission’s consideration. The court stated:

However, the court need not go so far as to order the Commission to adopt the proposals of Common Cause, which appear to go beyond what the FECA requires in this area. Instead, the court need only require the Commission to review Common Cause’s Petition for Rulemaking in light of this opinion, with an eye to revising 11 C.F.R. §§ 102.5 and 106.1, as they relate to the portions of the 1979 FECA amendments discussed above.

Common Cause, 692 F. Supp. at 1396.

Similarly, although the Commissioner of Political Practices is under no compulsion to adopt the rules proposed by Common Cause, he cannot refuse to adopt any rules without first having engaged in a rulemaking procedure to determine whether any rules are “necessary.”

2. Is Mandamus an appropriate remedy?

The issuance or denial or a writ of mandate calls for a conclusion of law which we review to determine if it is correct. Franchi v. County of Jefferson (1995), [274 Mont. 272], 908 P.2d 210, 212; Becky v. Butte-Silver Bow Sch. Dist. 1 (1995), [274 Mont. 131], 906 P.2d 193, 195. Pursuant to § 27-26-102, MCA, a two-part standard applies to the issuance of a writ of mandate. Franchi, 908 P.2d at 212; State ex rel. Chisholm v. District Court (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. First, the writ is available when the party requesting it is entitled to the performance of a clear legal duty by the party against whom the writ is sought. Becky, 906 P.2d at 195. Second, if there is a clear legal duty, the district court must grant the writ if there is no plain, speedy, and adequate remedy available in the ordinary course of law. Franchi, 908 P.2d at 212; State ex rel. Cobbs v. Montana Dep’t of Social and Rehabilitative Servs. (1995), [274 Mont. 157], 906 P.2d 204, 206; § 27-26-102(2), MCA. In Chisholm, we clarified the inquiry: “A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it.” Chisholm, 731 P.2d at 325.

Regarding the first standard for mandamus, does the Commissioner have a clear legal duty to initiate rulemaking, the Commissioner contends that it is within his discretion to determine what rules are “necessary” as that term is used in § 5-7-111, MCA. We do not interpret the Commissioner’s discretion that broadly. The “as necessary” language of § 5-7-111, MCA, does not give the Commissioner discretion to ignore the initial mandate that he “shall” adopt rules. He cannot choose to take no action without first holding a hearing to determine whether rules are necessary. In Commonwealth of Pennsylvania v. National Ass’n of Flood Insurers (3d Cir. 1975), 520 F.2d 11, the Third Circuit Court addressed a similar issue. The State of Pennsylvania, on behalf of its citizens, sued the flood insurers and the Secretary of Housing and Urban Development for mandamus and injunctive relief for their failure to publicize the availability of flood insurance prior to the floods in question. As in the case sub judice, the district court dismissed the complaint and the plaintiff appealed. The federal law required that:

The Secretary shall from time to time take such action as may be necessary in order to make information and data available to the public and to any state or local agency or official, with regard to (1) the flood insurance program, its coverage and objectives. ...

Commonwealth, 520 F.2d at 26 (citing 42 U.S.C. § 4020). This statute, like the Montana statute presently at issue, contains the mandatory “shall” followed by the “as necessary” language. In interpreting the federal law, the Third Circuit held:

These paragraphs [42 U.S.C. § 4020], when read together, set forth a sufficient allegation which, if proved, warrants mandamus relief. ... Although § 4020 does contain language of discretion normally not subject to review under a petition for mandamus, the discretion authorized pertains only to the time and manner of acting. Specifically, the provision mandates that “the Secretary shall... take such action as may be necessary ...”

Commonwealth, 520 F.2d at 26 (emphasis added, citation omitted).

As to the significance of the phrase “as may be necessary,” the court stated:

The inclusion of the phrase “as may be necessary’ does not permit disobedience to the initial directive, implicit in the statutory framework, requiring the Secretary to first consider whether or not action should be taken.

Commonwealth, 520 F.2d at 26 (citations omitted).

In holding that mandamus was appropriate, the Third Circuit concluded that, although the Secretary had the final decision as to whether action was required, he could not make that decision without first weighing the considerations.

It is sufficient if the Secretary, having considered whether action should be taken, then determines that no action is necessary. But the Secretary cannot avoid taking the first step of evaluating the necessity of disseminating information. It is that step to which the Commonwealth has, in part, addressed its complaint. It is only at a hearing that the facts bearing upon this allegation may be developed. Accordingly, mandamus may issue to require the exercise of permissible discretion,... although the manner in which the discretionary act is to be performed is not to be directed by the Court.

Commonwealth, 520 F.2d at 26-27 (citation omitted).

We adopt a similar analysis in the context of the Lobbying Act. Although § 5-7-111, MCA, requires the Commissioner to adopt rules “as necessary,” that discretionary phrase does not permit the Commissioner to circumvent the initial directive that he “shall” adopt rules. The Commissioner has the ultimate discretion to determine what, if any, rules are necessary. He cannot, however, in the face of a petition alleging the necessity for rules, deny the petition without first conducting a hearing as to the question of necessity, this is his clear legal duty.

Assuming the truth of the allegations in Common Cause’s complaint, it has established that the Commissioner has a clear legal duty to engage in rulemaking. The question then becomes, does Common Cause have a plain, speedy, and adequate remedy in the ordinary course of law? Chisholm, 731 P.2d at 325. A review of MAPA reveals that there is no provision for appeal from, or judicial review of, the Commissioner’s decision to not initiate rulemaking under § 5-7-111, MCA. Thus Common Cause has no plain, speedy and adequate remedy in the ordinary course of law.

Common Cause’s complaint sets forth sufficient allegations which, if proven, warrant mandamus relief. See Carpet, Linoleum & Resilient Tile, Etc. v. Brown (10th Cir. 1981), 656 F.2d 564, 568, (citing Commonwealth, 520 F.2d at 26-27). We hold that mandamus can lie to compel the Commissioner to conduct rulemaking procedures before he makes his decision as to whether new or additional rules are necessary. The District Court erred in dismissing Common Cause’s complaint, thus, we reverse and remand the matter for further proceedings consistent with this opinion.

JUSTICES NELSON, HUNT and TRIEWEILER concur.

JUSTICE ERDMANN

dissenting.

I respectfully dissent. The majority decision has effectively removed the discretionary authority granted to the Commissioner under § 2-4-315, MCA, and then determines that since no discretion is involved, mandamus is an appropriate remedy.

As correctly noted by the majority, resolution of this appeal involves the interpretation of §§ 5-7-111 and 2-4-315, MCA. Section 5-7-111, MCA, is the legislative grant of rulemaking authority to the Commissioner and provides:

(1) The commissioner shall promulgate and publish rules necessary to carry out the provisions of this chapter in conformance with the Montana Administrative Procedure Act and, in particular, shall provide rules necessary to allocate salary, expenses, and any other payments between lobbying activities and other activities not connected with lobbying for any person whose activities are not solely limited to lobbying.
(2) Such rules shall be designed to effect and promote the purposes of this chapter, express or implied. Such rules shall be as simple and easily complied with as possible.

This statute requires the Commissioner to promulgate rules “necessary’ to carry out the provisions of the Lobbying Act in conformance with the provisions of the Administrative Procedure Act (MAPA). This reference to MAPA leads us to § 2-4-315, MCA, which provides:

An interested person or, when the legislature is not in session, a member of the legislature on behalf of an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. ... Within 60 days after submission of a petition, the agency either shall deny the petition in writing (stating its reasons for the denial) or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305.

Common Cause recognized the interplay between these two statutes when it specifically referenced and filed its “Petition for Rule-making” under § 2-4-315, MCA. There can be no question that § 5-7-511, MCA, requires that the Commissioner follow the provisions of MAPA (§ 2-4-315, MCA) when considering and promulgating rules.

Although § 2-4-315, MCA, does not require an interested person to file a proposed rule, § 1.3.205(a)(iii), ARM, requires that a petition for rulemaking include “the rule the petitioner requests the agency to promulgate, amend or repeal.” While the majority recognizes that Common Cause submitted a proposed rule in their petition, it found that both the Commissioner and the District Court erred in assuming that the only matter presented by the petition was the proposed rule. The majority then goes on to interpret Common Cause’s petition to be a general request for rulemaking — to determine whether rules are necessary — and not simply a request that the Commissioner adopt the rule submitted by Common Cause. Having found that the petition was not a request for adoption of a particular rule the majority holds:

We determine that, although § 2-4-315, MCA, does grant the Commissioner discretion to deny a petition in so far as it relates to a proposed rule, it does not grant the Commissioner that same discretion with regard to a broader request that the Commissioner engage in mandatory rulemaking to determine whether any rules, whether proposed by a petitioner or not, are necessary.

A review of Common Cause’s petition reveals that it was indeed a request for the adoption of a specific rule. The petition initially requested that the Commissioner adopt rules that define and specify “lobbying” activities under the Montana Lobbying Act. The petition goes on to state:

Montana Common Cause files this petition for rulemaking to address a void in the existing Lobbying Act rules: specifically, the failure of the rules to define actions that constitute “lobbying” or “lobbying activities.” ... Without rules that provide examples clarifying the definition of “lobbying” set forth in the Lobbying Act at § 5-7-102(6) MCA, it is certain that these disagreements will remain unresolved, and will continue to result in inconsistent and inaccurate reporting of lobbying expenditures. Promulgation of the rules requested below will help achieve the goal envisioned by 1-85 of full disclosure of lobbying expenditures.
....
First, Montana Common Cause requests the Commissioner to add a new § 101, and to renumber existing §§ 101 through 109 as new §§ 102 through 110.

Common Cause then included a three page, single-spaced proposed rule in their petition. The final sentence of the petition states: ‘WHEREFORE, Montana Common Cause requests the Commissioner of Political Practices to promulgate the rules defining lobbying set forth in section 3 of this Petition.” This rule proposal clearly comes under the provisions of § 2-4-315, MCA, and is not a broad request for the Commissioner to determine whether general, unspecified rules were necessary.

The Commissioner is not required to initiate the formal rule making process under § 2-4-315, MCA, in every instance. The statute grants the Commissioner the discretion to either initiate rulemaking proceedings or deny the petition. The effect of the majority’s opinion is to repeal the language in § 2-4-315, MCA, which grants the Commissioner the discretion to deny a petition.

In this case the Commissioner exercised his discretion under § 2-4-315, MCA, by denying the petition and stating his reasons for the denial. While the substance of the Commissioner’s actions are not before us, there is no question that the Commissioner properly followed the procedural requirements of § 2-4-315, MCA.

The majority opinion also creates a new category of rulemaking request not envisioned nor authorized by the legislature. The majority holds that a request can be made to an agency authorized to promulgate rules to “engage in mandatory rulemaking to determine whether any rules ... are necessary.” As noted, the Commissioner’s rule making authority is derived from § 5-7-111, MCA, which requires the Commissioner to promulgate rules in “conformance with the Montana Administrative Procedure Act.” MAPA does not envision that a vague general request can be made to an agency to “determine whether rules are necessary,” which request would then mandate initiation of the formal rulemaking procedure. The majority fails to cite any authority in MAPA or in the Lobbying Act for this new procedure.

Finally, since I believe that this is a petition for rulemaking under § 2-4-315, MCA, and since even the majority concedes that the Commissioner has discretion under that statute, I would find that a writ of mandate is not a proper remedy. This Court has consistently held that mandamus is only available to compel performance of a clear legal duty not involving discretion. Jeppeson v. Dept. of State Lands (1983), 205 Mont. 282, 667 P.2d 428.

I would affirm the District Court.

CHIEF JUSTICE TURNAGE:

I join in the dissent of Justice Erdmann.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion.

First, I cannot agree with the Court’s implicit suggestion that the petition Common Cause filed with the Commissioner was one for a general rulemaking proceeding pursuant to § 5-7-111, MCA. The petition was made pursuant to § 2-4-315, MCA, and specifically requested promulgation of the proposed rules contained therein. As the Court recognizes, § 2-4-315, MCA, authorized the Commissioner — in his discretion — to either timely deny the petition in writing or institute rulemaking proceedings thereon in accordance with §§ 2-4-302 through 2-4-305, MCA. The Commissioner exercised his statutory discretion and denied the petition, stating as reasons that the proposed rules would impermissibly alter, amend and enlarge the statutory provisions and that the rules were not reasonably necessary to promote the purposes of the Lobbying Act. The Montana Administrative. Procedure Act (MAPA) does not provide for judicial review of a decision by the Commissioner pursuant to § 2-4-315, MCA.

Nor can I agree with the Court’s several judicial revisions of § 2-4-315, MCA. The statute is clear, and rather limited, in authorizing a petition by an interested person requesting the promulgation of “a rule.” Yet the Court at least implicitly rewrites § 2-4-315, MCA, to authorize or encompass a petition requesting the Commissioner to initiate generalized rulemaking proceedings pursuant to § 5-7-111, MCA, thereunder. Nothing in § 2-4-315, MCA, authorizes such a petition.

Having recast both the request originally filed by Common Cause and the statute under which it was submitted, the Court then adds to § 2-4-315, MCA, a requirement that receipt of a request for rule-making thereunder mandates the Commissioner to initiate a rulemaking procedure to determine whether rules are “necessary” pursuant to § 5-7-111, MCA. Such a requirement exists in neither statute.

Moreover, the Court judicially revises § 2-4-315, MCA, to provide Common Cause with a remedy it has not requested — namely, a “rulemaking proceeding” to provide a record upon which the Commissioner may again exercise his discretion regarding whether rulemaking is necessary. Common Cause specifically sought mandamus in the District Court to compel the Commissioner to institute a rulemaking proceeding “for the purpose of promulgating and publishing rules that specify activities encompassed within the Act’s definition of lobbying.” The Court refuses to grant mandamus in accord with Common Cause’s request, determining that the ultimate decision regarding what rules, if any, are “necessary” under § 5-7-111, MCA, remains a matter within the Commissioner’s discretion. While I agree that the requested mandamus cannot issue and that the “necessity” determination ultimately rests with the Commissioner, I cannot agree to the creation of an unrequested remedy not authorized by any statute. It is this Court’s obligation to either affirm the District Court’s denial of the requested writ of mandamus or reverse that denial. It is not our job to rewrite the requested relief, create a remedy, and then rely on those actions to reverse the District Court.

Finally, I disagree with the Court’s analysis of mandamus and its applicability here. The Court apparently concedes that our cases apply the “clear legal duty” aspect of mandamus narrowly, and correctly notes that the statutory directive of § 5-7-111, MCA, contains the discretionary “necessary” component. The Court then relies primarily on Commonwealth, in which the Third Circuit Court of Appeals determined that the phrase “as may be necessary” might support mandamus. There, the allegation was that the Secretary of Housing and Urban Development totally failed to perform certain statutory duties. The Third Circuit determined that “as may be necessary” required the Secretary to “first consider whether or not action should be taken.” Commonwealth, 520 F.2d at 26. The Third Circuit then stated that “[i]t is sufficient if the Secretary, having considered whether action should be taken, then determines that no action is necessary.” Commonwealth, 520 F.2d at 26. Finally, the Third Circuit concluded that “mandamus may issue to require the exercise of permissible discretion, although the maimer in which the discretionary act is to be performed is not to be directed by the court.” Commonwealth, 520 F.2d at 27 (citations omitted).

In the case presently before us, the Commissioner already has considered whether action should be taken and has exercised his discretion to determine that it should not. Thus, this case is factually distinguishable from Commonwealth. The lack of exercise of “permissible discretion” — which was the basis of the Third Circuit’s determination in Commonwealth that mandamus might issue — does not exist in this case.

Finally, the Court’s apparent reliance on the “hearing” required in Commonwealth to support its creation of a required “rulemaking proceeding” for the purpose of determining “necessity” is misplaced. As I read that case, the hearing required by the Third Circuit “at which the facts bearing upon this allegation may be developed” is the hearing in the federal district court on remand to determine the propriety of mandamus. See Commonwealth, 520 F.2d at 27. The hearing was required because of the allegation that the Secretary had failed to perform the statutory duties, including the total failure to exercise discretion. Thus, the hearing on remand in Commonwealth was to determine whether the Secretary had considered and evaluated the necessity of taking action.

Here, the Commissioner has exercised his permissible discretion. Nothing more can properly be accomplished by improperly issuing mandamus to require a “rulemaking proceeding” which is not authorized or contemplated by statute. If the Court’s intent is to judicially create a “contested case” proceeding under MAPA where none has been provided by the legislature, in order to provide for judicial review of the Commissioner’s subsequent exercise of discretion, it constitutes the kind of judicial activism which squarely intrudes into the legislature’s domain.

I would affirm the District Court’s denial of the application for a writ of mandamus.


source: Caselaw Access Project

author: JUSTICE ERDMANN

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GEORGE F. DRGA, Defendant and Appellant.
    No. 95-558.
    Submitted on Briefs April 11, 1996.
    Decided May 1, 1996.
    53 St.Rep. 401.
    916 P.2d 739.
    276 Mont. 399.
    For Appellant: John Keith, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Julie Macek, Deputy County Attorney, Great Falls.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from a decision of the Eighth Judicial District Court, Cascade County, denying George F. Drga’s motion to withdraw guilty plea and motion to set aside sentence. We reverse.

The dispositive issue on appeal is whether the District Court erred in denying Drga’s motion to withdraw a guilty plea and refusing to set aside Drga’s conviction and sentence when it made no determination regarding Drga’s fitness to proceed.

FACTS

In July 1994, Drga was charged with felony stalking for harassing and intimidating his ex-wife. Upon a stipulation signed by Drga’s former attorney and the Cascade County Attorney’s Office, Drga was sent to Warm Springs State Hospital for a mental evaluation. Drga was diagnosed with “Dementia of the Alzheimer’s Type and Probable Alzheimer’s Disease” and declared to be seriously mentally ill and unable to understand the proceedings against him or to assist in his own defense.

As a result of the mental evaluation, the parties stipulated that Drga was unfit to proceed. The District Court then suspended all proceedings and ordered the matter be reviewed at a later date. Drga was sent back to the state hospital where it was determined that he was not mentally unfit to proceed. He returned to District Court and pled guilty based on a plea agreement with the Cascade County Attorney's Office. The District Court accepted the plea but refused to follow the county attorney’s sentencing recommendation. Instead, the District Court sentenced Drga to five years with all but 349 days suspended with credit given for the 349 days served and he was released.

Drga was later brought into District Court on a petition to revoke his suspended sentence for failure to comply with the conditions. He admitted the violations and was released again with further conditions. He then retained new counsel and filed a motion to withdraw his guilty plea, a motion to set aside the judgment and sentence, and a petition for habeas corpus. He alleged that there was no review regarding Drga’s fitness to proceed within the ninety-day statutory period, no subsequent hearing was held in which Drga was determined by the court to be competent, Drga’s plea was involuntary because it was merely a way to get the matter over with, and Drga had ineffective assistance of counsel in the prior proceedings. The court granted review of the petition for habeas corpus, held a hearing on the issue of whether Drga was being held illegally, and then denied the motions to withdraw guilty plea and to set aside sentence. From the denial of the two motions, Drga appeals.

DISCUSSION

Did the District Court err in denying Drga’s motion to withdraw a guilty plea and refusing to set aside Drga’s conviction and sentence when it made no determination regarding Drga’s fitness to proceed?

We review a District Court’s denial of a motion to withdraw a guilty plea and motion to set aside sentence for an abuse of discretion. State v. Johnson (1995), [274 Mont. 124], 907 P.2d 150, 152; State v. Arbgast (1983), 202 Mont. 220, 223, 656 P.2d 828, 830.

A court may adjudge a defendant lacks fitness to proceed and should be committed to an appropriate mental health facility. Section 46-14-221(1) and (2)(a), MCA. In that event, the court shall review the defendant’s fitness to proceed within ninety days of the commitment. Section 46-14-221(2)(c), MCA. Accordingly, the District Court committed Drga to the state hospital on December 8,1994, and set a hearing for review on March 15, 1995.

On February 22, the staff of the state hospital informed the court that, in its opinion, Drga was fit to proceed with the criminal charges pending against him. Drga did not appear at the March 15 hearing and it was postponed until April 21, 1995. Prior to the April 21 hearing, the parties signed a plea agreement whereby Drga would plead guilty in exchange for the county attorney’s recommendation to defer imposition of sentence for one year. The court then vacated the April 21 review hearing and set a change of plea hearing for May 1, 1995. At that hearing, the court accepted Drga’s change of plea to guilty for felony stalking.

Pursuant to § 46-14-222, MCA, proceedings can be resumed once a court has determined that the defendant has regained fitness to proceed. Furthermore, such a determination must be made “after a hearing if a hearing is requested.” Section 46-14-222, MCA. Ahearing was requested in the December 8, 1994, stipulation of the parties. The court therefore erred in vacating the fitness hearing and accepting Drga’s plea of guilty without making a determination that Drga had regained fitness to proceed. The State concedes that Drga’s conviction and sentence are invalid because the District Court erred in resuming proceedings when it had not determined that Drga regained fitness. Accordingly, we conclude that the court abused its discretion in denying Drga’s motion to withdraw a guilty plea and motion to set aside sentence.

Reversed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF CAROL L. MIKESELL, Petitioner and Respondent, and LAURENCE R. MIKESELL, Respondent and Appellant.
    No. 95-393.
    Submitted on Briefs January 25, 1996.
    Decided May 6, 1996.
    53 St.Rep. 418.
    916 P.2d 740.
    276 Mont. 403.

      For Appellant: Terry G. Sehestedt, Attorney at Law, Missoula.
    For Respondent: Clinton H. Kammerer, Attorney at Law, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Laurence Mikesell (Laurence) appeals from the opinion and order entered by the Fourth Judicial District Court, Missoula County, empowering the Social Security Administration (SSA) to garnish his social security benefits for delinquent child support and maintenance payments due Carol Mikesell (Carol) pursuant to their dissolution decree. Addressing only a portion of the order, we reverse.

The sole issue on appeal is whether the District Court erred in concluding that social security benefits may be garnished for unpaid maintenance accruing after a corresponding child support obligation terminates, but remains unpaid.

Laurence and Carol married on December 17, 1965, in Missoula, Montana. Their one child, Teddi, was born in 1973. In 1991, Carol petitioned for dissolution of the marriage and, after Laurence failed to appear or answer, the District Court entered his default and a final dissolution decree. Laurence moved to set aside the decree entered on his default, the District Court denied the motion and Laurence appealed. We affirmed in In re Marriage of Mikesell (1993), 257 Mont. 482, 850 P.2d 294.

The final decree designated Carol as Teddi’s primary residential parent while Teddi completed high school and required Laurence to pay $250 per month child support for that seven-month period. It also required him to pay Carol $500 per month maintenance for five years. Laurence did not make any of the child support or maintenance payments.

In 1995, Carol moved the District Court for an order determining child support and maintenance arrearages. Laurence responded by admitting that Carol’s calculations of the arrearage amounts were correct. The District Court entered an order determining child support arrearages of $1,750 and maintenance arrearages of $21,000 through March of 1995, for a total amount due Carol of $22,750, plus interest.

Carol subsequently requested the District Court to issue an order directing the SSA to withhold the total delinquent child support and maintenance amounts from Laurence’s social security benefits. Laurence contended that his benefits could be garnished only for maintenance which accrued during the seven months of court-ordered child support while Carol was Teddi’s custodial parent. The District Court granted Carol’s request and empowered the SSA to withhold the total amount of unpaid child support and maintenance. Laurence appeals.

Did the District Court err in concluding that social security benefits may be garnished for unpaid maintenance accruing after a corresponding child support obligation terminates, but remains unpaid?

We clarify at the outset that Laurence does not challenge the District Court’s order insofar as it relates to garnishment of his social security benefits for the seven months of child support and for the seven months of maintenance which became due during the time Carol was Tfeddi’s residential custodian. Thus, we do not address that portion of the District Court’s order authorizing garnishment of Laurence’s social security benefits for child support in the amount of $1,750 ($250 x 7) and maintenance in the amount of $3,500 ($500 x 7).

Generally, social security benefits are exempt from “execution, levy, attachment, garnishment, or other legal process. ...” 42 U.S.C. § 407(a). The statute “imposes a broad bar against the use of any legal process to reach all social security benefits.” Dean v. Fred’s Towing (1990), 245 Mont. 366, 371, 801 P.2d 579, 582 (citing Philpott v. Essex County Welfare Bd. (1973), 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608). However, legal process brought for the enforcement of a party’s legal obligations to provide child support or make maintenance payments is a specific exception to the broad exemption from garnishment provided to social security benefits by 42 U.S.C. § 407.42 U.S.C. § 659. Section 659 does not create a statutory right to relief via garnishment; it merely removes the obstruction of sovereign immunity from a garnishment proceeding otherwise authorized by state law. See Williamson v. Williamson (Ga. 1981), 275 S.E.2d 42, 45, cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638.

In Montana, both property exempt from execution and specific exceptions to those exemptions are contained in § 25-13-608, MCA. Subsection (1) of the statute exempts federal social security benefits to which the judgment debtor is entitled from execution; subsection (2) provides in pertinent part:

(2) Veterans’ and social security legislation benefits based upon remuneration for employment, as defined in 42 U.S.C. 662(f), are not exempt from execution if the debt for which execution is levied is for:
(a) child support; or
(b) maintenance to be paid to a spouse or former spouse if the spouse or former spouse is the custodial parent of a child for whom child support is owed or owing and the judgment debtor is the parent of the child.

Section 25-13-608, MCA.

The District Court concluded that § 25-13-608(2)(b), MCA, permits social security benefits to be garnished for all unpaid maintenance if child support amounts remain owing. In doing so, the court rejected Laurence’s argument that the statute does not authorize garnishment for maintenance which became owing after Carol ceased to be Teddi’s custodian. We review a district court’s conclusion of law to determine whether it is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citation omitted).

The resolution of the issue before us rests on the proper interpretation of § 25-13-608(2)(b), MCA. In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The intention of the legislature must be pursued. Section 1-2-102, MCA. If the language of the statute is clear and unambiguous, it requires no further interpretation; we will not resort to other means of interpretation unless the legislature’s intent cannot be determined from the plain words of the statute. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088 (citation omitted).

Under § 25-13-608(2)(b), MCA, social security benefits can be garnished for maintenance to be paid to a spouse or former spouse under the following three conditions: 1) the spouse or former spouse is the custodial parent of a child; 2) child support is owed or owing for that child; and 3) the judgment debtor is the parent of the child for whom child support is owed or owing. We address the conditions in reverse order.

The third condition, that the judgment debtor be the parent, is clear and unambiguous. Moreover, that Laurence satisfies this condition is not in dispute.

The second condition, that child support is owed or owing, provided the basis for the District Court’s conclusion that Laurence’s social security benefits could be garnished for the entire amount of unpaid maintenance. “Owed” is defined as “[t]o be bound to do ... something, especially to pay a debt;” “owing” means “[u]npaid.” Black’s Law Dictionary 1105 (6th ed. 1990). This clear and unambiguous condition also is satisfied here by the $1,750 in court-ordered child support which Laurence concedes remains unpaid.

The first condition contained in § 25-13-608(2)(b), MCA, limits garnishment of social security benefits for maintenance to maintenance to be paid to a former spouse who “is” the custodial parent of the child for whom child support is owed. The language of the statute clearly and unambiguously requires the former spouse to be the custodial parent during the period the maintenance to be paid, and for which social security benefits can be garnished, accrues.

In interpreting statutes, we must give language its plain meaning. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 509, 511 (citation omitted). Moreover, we cannot properly interpret a statute so as to omit any portion thereof. See § 1-2-101, MCA. Reading all portions of the statute at issue together, we conclude that § 25-13-608(2)(b), MCA, authorizes garnishment of a parent judgment debt- or’s social security benefits for maintenance to the extent that the maintenance is or was to be paid to the former spouse while the former spouse was the custodial parent of the child to whom child support is due and owing.

In this case, child support for Teddi from Laurence was ordered in 1991 for a seven-month period. None of that child support was paid and it remains owed and owing under § 25-13-608(2)(b), MCA. Maintenance from Laurence to Carol also was ordered in 1991, but for a period of five years; like the child support, none of the maintenance was paid. However, Carol was Teddi’s custodial parent for only seven months of the period during which maintenance was to be paid to her. Thus, the three conditions under which social security benefits may be garnished for maintenance pursuant to § 25-13-608(2)(b), MCA, were satisfied only during the seven-month period for which Carol was Teddi’s custodial parent. After Carol was no longer Teddi’s custodial parent, the first condition of § 25-13-608(2)(b), MCA, for garnishment of social security benefits for maintenance — that the maintenance accrue while the former spouse is the custodial parent— was no longer satisfied.

We conclude that Laurence’s social security benefits can be garnished for maintenance only for the amount of maintenance which accrued during the period that Carol was Teddi’s custodial parent. We hold, therefore, that the District Court erred in concluding that social security benefits are subject to garnishment for all maintenance that accrues while an unpaid child support obligation exists.

Reversed and remanded for the entry of an order consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, ERDMANN and NELSON concur.


text:
    IN RE THE MARRIAGE OF YANCY W. SHUPE, Petitioner and Appellant, and PAMELA J. SHUPE, Respondent and Respondent.
    No. 95-383.
    Submitted on Briefs January 18, 1996.
    Rehearing Denied June 4, 1996.
    Decided May 10, 1996.
    53 St.Rep. 447.
    916 P.2d 744.
    276 Mont. 409.

      For Appellant: Robert Eddleman, Attorney at Law, Columbus.
    For Respondent: Jill Deann Miller, Attorney at Law, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Yancy W. Shupe (Yancy) appeals from the Findings of Fact, Conclusions of Law and Order of the Thirteenth Judicial District Court, Stillwater County, denying his petition for modification of custody. The court based the denial on its conclusions that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act, 28U.S.C. § 1738A, and that Yancy failed to satisfy the statutory requirements for modification. We affirm.

The dispositive issues on appeal are:

1. Is Yancy’s appeal properly before us?

2. Did the District Court err in concluding that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act?

Yancy and Pamela Shupe (Pamela) are the parents of a minor child, Megan Shupe (Megan). Before the events at issue in this case, the family resided in Utah. In October of 1993, Yancy moved to Nye, Montana, to work at the Stillwater Mine; Pamela and Megan remained in Utah. Yancy and Pamela’s marriage was dissolved by a Utah district court on January 12,1994. In the decree of dissolution, the court granted Pamela sole custody of Megan and awarded Yancy liberal visitation rights.

Pamela and Megan remained in Utah immediately following the dissolution of the parties’ marriage. The record reflects that, between April of 1994 and J anuary of 1995, Pamela and Megan went back and forth between Montana and Utah on numerous occasions. Yancy moved some of Pamela’s belongings to Montana in July of 1994. The parties agree that Pamela and Megan lived with Yancy in Montana from January of 1995 until sometime in March of that year.

On March 9,1995, Pamela and Megan were involved in a single-car accident while returning to Nye from Dean, Montana; neither Pamela nor Megan was injured. Pamela was cited for driving under the influence of alcohol (DUI) and pleaded not guilty. Pamela and Megan returned to Utah later that month and lived with Pamela’s mother.

In April of 1995, Yancy moved the District Court for a temporary order changing Megan’s custody to him. He also petitioned for modification of custody pursuant to § 40-4-219, MCA. The District Court concluded that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act (PKPA) and, further, that Yancy failed to satisfy the statutory requirements for modification of custody. Yancy appeals. Additional facts are set forth below where necessary to our resolution of the issues.

1. Is Yancy’s appeal properly before us?

Pamela contends that the District Court’s order merely denied Yancy’s motion for temporary custody and that such an order is not appealable under Rule 1, M.R.App.P. While we agree with Pamela that Rule 1, M.R.App.P., does not authorize an appeal from an order denying a motion for temporary change of custody, we disagree that the District Court’s May 30, 1995, order was a mere denial of such a motion.

Yancy filed a motion for a temporary order changing custody and a petition for modification of custody under § 40-4-219, MCA, on the same date. The District Court held a hearing on May 14, 1995. The record reflects that, at the beginning of the hearing, the parties and the court were confused as to whether the hearing was limited to Yancy’s motion for temporary custody or whether his petition for modification also was being heard. The District Court first indicated that only Yancy’s motion for temporary custody was before it, then indicated that it also would hear Yancy’s petition for modification of custody and, finally, indicated again that only the motion for temporary custody was being heard.

The District Court’s findings of fact, conclusions of law and order state at the outset, and without further clarification, that “[t]his matter” was heard on May 14, 1995. The court’s findings and conclusions address both jurisdiction and custody modification. Regarding the latter, the court concluded that Yancy had not met the requirements of § 40-4-219, MCA, and denied Yancy’s “petition.”

On the basis of the record before us, we cannot conclude that the District Court’s order was limited to denying Yancy’s motion for a temporary change of custody. We conclude that the order at issue substantively denied Yancy’s § 40-4-219, MCA, petition for modification of custody on the bases of lack of subject matter jurisdiction and failure to satisfy the statutory requirements for custody modification. As a result, we hold that the District Court’s order is appealable under Rule 1, M.RApp.P., and that Yancy’s appeal is properly before us.

2. Did the District Court err in concluding that it did not have subject matter jurisdiction to modify custody under the PKPA?

A. APPLICABILITY OF THE PKPA

All fifty states have adopted the Uniform Child Custody Jurisdiction Act (UCCJA) in some form to address interstate custody disputes. See Meade v. Meade (4th Cir. 1987), 812 F.2d 1473, 1475. However, the UCCJA was found to be inadequate in addressing the problems of forum shopping and “child snatching” because it operated at the state level. Erler v. Erler (1993), 261 Mont. 65, 69, 862 P.2d 12, 15. Moreover, as the Utah Court of Appeals observed in Curtis v. Curtis (Utah Ct. App. 1990), 789 P.2d 717, 721 n.9, the UCCJA creates the possibility of several states having concurrent jurisdiction over child custody determinations.

Congress enacted the PKPA in 1980 to establish national standards under which the courts of various states could determine whether they had jurisdiction in a child custody proceeding and what effect to give custody determinations by courts of other jurisdictions. Erler, 862 P.2d at 15. Under the PKPA, full faith and credit ordinarily must be given to a custody determination made by a court of another state if that court appropriately exercised jurisdiction under PKPA standards. See 28 U.S.C. § 1738A(a); Erler, 862 P.2d at 15.

Two underlying purposes of the PKPA are to discourage continuing interstate controversies over child custody and to facilitate the enforcement of custody determinations of sister states. Erler, 862 P.2d at 15 (citation omitted). In this regard, the PKPA prevents the issuance of competing decrees of sister states. Erler, 862 P.2d at 16 (citing Nielsen v. Nielsen (La. 1985), 472 So. 2d 133, 136). Thus, the PKPA sets forth standards for determining the one state with jurisdiction to modify an existing custody order. See 28 U.S.C. §§ 1738A(d) and (f); Curtis, 789 P.2d at 721.

The purposes of the PKPA are achieved through both 28 U.S.C. §§ 1738A(d) and (f). 28 U.S.C. § 1738A(d) provides for continuing jurisdiction in the state in which the original child custody determination was made so long as certain enumerated requirements are satisfied (see Erler, 862 P.2d at 15), while 28 U.S.C. § 1738A(f) allows a court of a different state to modify a custody determination only when it has jurisdiction to make such a determination under its own laws and the court which made the original custody determination no longer has jurisdiction or has declined to exercise such jurisdiction (see Meade, 812 F.2d at 1476-77). Thus, Congress’ enactment of 28 U.S.C. §§ 1738A(d) and (f) remedied the problem of possible concurrent jurisdiction present in the UCC JA. Accordingly, where the PKPA applies, necessary jurisdictional determinations must be made thereunder.

Yancy argues that, pursuant to Erler, the PKPA does not apply to his petition for modification of custody. His reliance on Erler, however, is misplaced.

In Erler, the parties’ marriage was dissolved by a Montana district court in Missoula County and the mother was granted sole custody of the parties’minor children. The mother and children subsequently moved to Seattle, Washington and, thereafter, the father moved to modify custody in the district court in Missoula County. Erler, 862 P.2d at 13. On appeal, we affirmed the district court’s determination that it did not have subject matter jurisdiction under the PKPA, concluding that the PKPA did not apply because Montana was the only state involved in the custody dispute. Erler, 862 P.2d at 16.

Here, Yancy petitioned a Montana court for modification of the Utah court’s child custody determination regarding Megan. Thus, unlike in Erler, two states are involved in this custody dispute. The PKPA was enacted by Congress to address such a situation and to prevent the issuance of conflicting and competing custody decrees in sister states. Erler, 862 P.2d at 16. We conclude, therefore, that the PKPA is applicable here. Accordingly, we turn to the issue of whether the District Court erred in concluding that it did not have subject matter jurisdiction to modify custody under the PKPA.

B. SUB JECT MATTER JURISDICTION UNDER THE PKPA

The PKPA generally requires the courts of a state to enforce — and decline to modify — child custody determinations made by the courts of other states. 28 U.S.C. § 1738A(a). A specific exception to the general rule authorizes a court to modify a child custody determination made by a court in another state when two requirements are satisfied: (1) the court has jurisdiction to make a child custody determination; and (2) the court of the other state no longer has jurisdiction or has declined to exercise jurisdiction. 28 U.S.C. § 1738A(f).

(1) Analysis of Montana Jurisdiction

Under the first requirement of 28 U.S.C. § 1738A(f), a Montana district court must have jurisdiction to make the child custody determination pursuant to Montana law. See 28 § 1738A(f)(1). Since the custody dispute in this case has interstate ramifications, Montana’s version of the UCCJA governs whether a Montana district court has jurisdiction to make a custody determination under Montana law. See §§ 40-7-101 through 40-7-125, MCA. Section 40-7-104, MCA, provides that “[t]he jurisdictional provisions of 40-4-211 applytothis chapter.”

Section 40-4-211(1), MCA, sets forth four alternative bases under which a Montana district court has jurisdiction to “make a child custody determination by initial or modification decree.” Because the statute is written in the disjunctive, only one of the stated bases need exist in order for a Montana court to have jurisdiction under Montana law. The District Court addressed each alternative and concluded that it did not have jurisdiction to make a custody determination under § 40-4-211(1), MCA. Given the facts of this case, it is appropriate to limit our review to the District Court’s findings and conclusion under the § 40-4-211(1)(b), MCA, basis for jurisdiction.

Section 40-4-211, MCA, provides in pertinent part:

(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
....
(b) it is in the best interest of the child that a court of this state assume jurisdiction because:
(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and
(ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ....

The District Court found that neither the “significant connection” factor referenced in § 40-4-211(1)(b)(i), MCA, nor the “substantial evidence” factor referenced in § 40-4-211(1)(b)(ii), MCA, was satisfied in this case. Based on those findings, the District Court concluded that it did not have jurisdiction pursuant to § 40-4-211(1)(b), MCA, to make a custody determination.

We review a district court’s findings of fact to determine whether the findings are clearly erroneous. In re Marriage of Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309 (citation omitted). A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Marriage of Brownell, 865 P.2d at 309 (citation omitted). We review a district court’s conclusions of law to determine if the court’s interpretation of the law is correct. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863 (citation omitted).

The District Court found that “[t]here are not significant contacts with Montana” and did not further elucidate. Although the District Court used the language “significant contacts,” it apparently was referring to the “significant connection” factor contained in § 40-4-211(1)(b)(i), MCA; as set forth above, that statutory subsection, as it pertains to this case, requires that Megan and either Yancy or Pamela have a significant connection with Montana.

Here, Yancy lives and works in Montana and, as a result, clearly has a significant connection with this state. Indeed, Pamela does not dispute Yancy’s significant connection with Montana and the court did not find otherwise. With regard to Megan’s connection to Montana, the record reflects that she resided in Montana for nearly three months almost immediately preceding Yancy’s petition. In addition, she has visited Montana on numerous occasions and for varying periods of time since the parties’ divorce. Moreover, the record indicates that Megan’s paternal grandmother lives in Montana.

Pamela argues that “[tjhere is clearly sufficient evidence in the record to support the District Court’s determination” and, in support of her argument, sets forth facts of record indicating that Megan has a significant connection with Utah. However, evidence that Megan has a significant connection with Utah does not equate to a lack of a significant connection with Montana.

We note that the District Court’s ultimate finding that “[t]here are not significant contacts with Montana” is irreconcilable with its underlying findings regarding Megan’s, and even Pamela’s, connection with Montana. For example, the court found that Yancy and Pamela “both agree that [Pamela and Megan] resided in Montana from January, 1995 until March, 1995.” The court further found that Pamela opened a bank account in Montana in January of 1995 and that Pamela and Megan spent “periods of 1994” in Montana. Thus, the District Court’s finding that there are not significant “contacts” with Montana is not supported by substantial evidence and is clearly erroneous.

In light of the District Court’s multiple findings regarding Pamela and Megan’s connection with Montana and the evidence of record as set forth above, it is clear that Megan had a significant connection with Montana as required by § 40-4-211(1)(b)(i), MCA. As previously stated, the parties do not dispute that Yancy has a significant connection with Montana and the District Court did not find otherwise. Thus, the additional § 40-4-211(1)(b)(i), MCA, requirement that one of the contestants also have a significant connection with Montana is satisfied in this case.

The District Court also found that there is not substantial evidence in Montana concerning Megan’s present or future care, protection, training and personal relationships. Pamela argues that the District Court’s finding in this regard is supported by substantial evidence because she and Megan “were only in Montana for a short period of time.” However, evidence that Megan and Pamela were only in Montana for a “short period of time” does not necessarily mean that substantial evidence regarding Megan’s present and future care, protection, training and personal relationships does not exist in Montana. Moreover, § 40-4-211(1)(b)(i), MCA, which contains the foregoing “substantial evidence” prerequisite to jurisdiction, is not time-related.

The record contains the following evidence which exists in Montana and which the District Court did not address in ultimately-finding that there is not substantial evidence in Montana regarding Megan’s present and future care, protection, training and personal relationships. Officer Silk It Wak Rivera, the highway patrol officer who investigated Pamela and Megan’s accident, testified about the details of the accident and Pamela’s DUI citation. Marilyn Kober, the Stillwater County Justice of the Peace, testified that Pamela had alcohol on her breath when she appeared on her DUI charge. Moreover, the record reflects that Pamela and Yancy’s neighbors and friends in Nye, Montana, have information about the parties’ roles in caring for Megan. For example, Cleo Eberhart (Cleo) testified that she did not have any concerns about Pamela’s capabilities as a mother and that she thought Pamela was a good mother. Cleo further testified that Pamela was Megan’s primary caregiver. Finally, as previously stated, Yancy and his mother — who is Megan’s paternal grandmother — live in Montana. In light of the foregoing evidence, we conclude that the District Court’s finding that there is not substantial evidence in Montana regarding Megan’s present or future care, protection, training and personal relationships for jurisdictional purposes under § 40-4-211(1)(b)(ii), MCA, is not supported by substantial evidence and, therefore, is clearly erroneous.

Based on our conclusions that the District Court’s jurisdictional findings under § 40-4-211(1)(b), MCA, are clearly erroneous, we hold that the District Court erred in concluding that it did not have jurisdiction under § 40-4-211(1), MCA, to make a custody determination.

(2) Analysis of Utah Jurisdiction

The fact that Montana has jurisdiction under its own laws to make a custody determination does not, however, resolve the issue of whether the District Court has jurisdiction under the PKPA to modify the original Utah custody determination. In order to do so, the second requirement of 28 U.S.C. § 1738A(f) also must be met; namely, that Utah no longer has jurisdiction or has declined to exercise such jurisdiction to modify its earlier custody determination. See 28 U.S.C. § 1738A(f)(2). Yancy did not file a motion or petition for modification of custody in Utah and the parties agree that Utah has not declined to exercise jurisdiction. Therefore, our review is limited to the District Court’s conclusion that Utah did not lose jurisdiction over matters relating to Megan’s custody.

Utah’s version of the UCCJA, set forth at Title 78, Chapter 45c of the Utah Code Annotated, governs whether Utah district courts have jurisdiction. Section 78-45c-3, Utah Code Ann., like § 40-4-211(1), MCA, sets forth four alternative bases under which a Utah district court would have jurisdiction to “make a child custody determination by initial or modification decree.” The District Court found that, when this proceeding was commenced in April of 1995, Utah was Megan’s home state. Based on that finding, the court concluded that “Utah did not lose its jurisdiction.”

Under § 78-45c-3(1)(a)(i), Utah Code Ann., Utah has jurisdiction if Utah was, in fact, Megan’s home state at the time Yancy commenced these proceedings. Section 78-45c-2(5), Utah Code Ann., defines “home state” as “the state in which the child immediately preceding the time involved lived with his parents [or] parent... for at least six consecutive months. ...” Yancy and Pamela agree that Megan lived in Montana with them from January until sometime in March of 1995. Therefore, the District Court’s finding that Utah was Megan’s home state is not supported by substantial evidence and is clearly erroneous.

Notwithstanding the District Court’s erroneous finding, however, the court’s conclusion that Utah has jurisdiction over matters involving Megan’s custody is not necessarily incorrect. It is well-established that we will affirm a district court’s decision which reaches the right result, regardless of the court’s reasoning. See Farmer’s Union Cent. Exch. v. Department of Revenue (1995), 272 Mont. 471, 475, 901 P.2d 561, 563; Bohmer v. Uninsured Employers’ Fund (1994), 266 Mont. 289, 291, 880 P.2d 816, 817.

Under Utah law, as in Montana, another basis for jurisdiction over custody determinations is that it is in the child’s best interests for Utah to assume jurisdiction because the child and at least one contestant have a significant connection with Utah and there exists in Utah substantial evidence regarding the child’s present and future care, protection, training and personal relationships. See § 78-45c-3(1)(b), Utah Code Ann. We note that the District Court did not address this basis for Utah jurisdiction, presumably because it concluded that Utah was Megan’s home state.

The record contains the following evidence regarding Pamela and Megan’s connection with Utah. Megan was born in Utah and has lived there most of her life, with the exception of approximately three months in which she lived in Montana and periods of time in 1994 when she visited Montana. After leaving Montana in March of 1995, Pamela and Megan returned to Utah and lived with Pamela’s mother and Megan’s maternal grandmother, Ivy Northlander. Additionally, Pamela’s other children, who are Megan’s half-siblings, live in Utah. Thus, the record reflects that both Pamela and Megan have a significant connection with Utah.

The record also reflects that substantial evidence exists in Utah concerning Megan’s present and future care, protection, training and personal relationships. For example, Lonni Watson, a friend of Pamela’s in Utah, testified that she did not have any concerns about Pamela’s ability to care for Megan and that Pamela “spoils [Megan] rotten.” Additionally, Pamela’s mother, Ivy, testified regarding Pamela’s relationship with Megan. Ivy testified that Pamela and Megan were living with her in Utah and that Megan was well cared for by Pamela.

In light of the foregoing evidence, we conclude that, at the time Yancy petitioned the District Court for modification of Utah’s custody determination, Utah had jurisdiction to make a child custody determination under § 78-45c-3(1)(b), Utah Code Ann. Thus, we hold that the District Court’s conclusion that Utah did not lose jurisdiction is correct. We observe, in this regard, that our conclusions that Montana and that Utah both have jurisdiction under their respective laws to make a child custody determination illustrate the problems regarding concurrent jurisdiction which can arise under the UCCJA and which were remedied by enactment of the PKPA.

Since Utah has jurisdiction to make a custody determination, the requirement of 28 U.S.C. § 1738A(f)(2) — that Utah no longer has jurisdiction to make a child custody determination or declined to exercise such jurisdiction — is not satisfied. Thus, notwithstanding that the requirement of 28 U.S.C. § 1738A(f)(1) — that Montana has jurisdiction to make a custody determination under Montana law — is satisfied, the District Court was not authorized to modify the original Utah custody determination regarding Megan under 28 U.S.C. § 1738A(f). Accordingly, we hold that the District Court correctly concluded that it did not have subject matter jurisdiction under the PKPA to modify Utah’s original custody determination in this case.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and NELSON concur.