*1 382 CAUSE OF MONTANA,
COMMON оrganization a state CAUSE, COMMON non-profit Washington, D.C., corporation, Appellant, Plaintiff v. capacity his
ED
ARGENBRIGHT,
COMMISSIONER OF POLITICAL
as
State of Montana,
PRACTICES
THE
OF
OFFICE OF
COMMISSIONER
and the
POLITICAL PRACTICES
Montana,
State
Respondents.
Defendants
No. 95-323.
21,
February
1996.
Submitted
Rehearing
1996.
Denied June
April
Decided
1996.
23.
St.Rep.
386.
Mont.
For Sherwood, Smith; Reynolds, Motl & Helena. Mazurek, Attorney General, Hon. P. Respondents: Joseph
For Scheier, Attorney (argued) M. Ass’t General Helena. James Opinion LEAPHART delivered Court. JUSTICE Common Cause filed a Pursuant to § (Commis- of Political Practices rulemaking with the Commissioner sioner) rulemaking pro- requesting the Commissioner institute *3 forth in Montana clarify lobbying to the definition of set the ceeding Act, 5-7-102(6), pe- The Commissioner denied the Lobbying complaint in District Court seek- Cause then filed a tition. Common The peremptory and a writ of mandamus. declaratory relief ing pursu- the to Commissioner’s motion dismiss granted District Court Com- 12(b)(6), subsequently M.R.Civ.P.The court denied to Rule ant the Cause judgment. to alter or amend Common Cause’s motion mon deny- and the order dismissing complaint from the order appeals the We reverse and judgment. to alter or amend ing its motion remand. appeal: following issues on presents
Common Cause deny to grant the Commissioner discretion 1. Does § 5-7-111,MCA, without mandatory rulemaking under § for rulemaking proceedings? initiating first remedy? an approрriate 2. Is Mandamus
BACKGROUND M.R.Civ.P., 12(b)(6), under Rule this matter was dismissed Since completion of responsive pleading filing to the of prior alleged were the District Court those discovery, facts before complaint. alleged complaint, Cause’s As in the Common leading years to this is as For background up litigation many follows: public Cause has worked to assure full disclosure of the money lobby persons spend legislators of Montana and amounts effort, public part officials.As of this Common Cause wrote then and pass revising Initiative 85 Montana’s Act Lobbying worked and lobbying expenditures be requiring reported to the Commissioner. Act one purposes states that of its is “to require money disclosure of amounts of for spent lobbying.” Section 1981, 5-7-101(1), MCA. In this Court recognized that of purpose provide money Initiative 85 was “to for disclosure of spent to public influence action of require officials elected officials to disclose their business Montana interests.” Automobile Ass’n v. Greely (1981), 378, 399, 632 300, 311. 193 Mont. P.2d In order gauge effectively the Lobbying accomplishing how Act was purpose, this surveys, Common Cause conducted two one in 1984 and one in 1994. surveys sought responses These from principals as to their under standing ofwhat activities constituted “lobbying”under the Lobbying and, thus, expenditures Act concerning those activities were law, required, by reported. to be The survey results, which were to the appended complaint, indicate that there is substantial dis agreement among the principals as to which activities are included within the definition “lobbying.” of alleged that this disagreement as to are reportable what lobbying expen ditures, results inconsistent of reporting lobbying expenditures. Cause, According inconsistency, turn, to Common thwarts statutorily-stated Lobbying Act’s purpose making public money spent lobbying. 5-7-101(1), amounts of for See MCA. In other words, it is Common Cause’s contention that unless there is consis tency understanding in thе be reported, what must in the final analysis, reports have no meaning. light surveys,
In of these two a petition Common Cause filed 29, rulemaking pursuant MCA, April request- Commissioner to ing institute proceeding purpose clarifying lobbying Lobby- the definition set forth in the 5-7-102(6), at ing Act MCA. Common Cause’s also invokes *4 specific duty 5-7-111,MCA, the Commissioner’s promul- to necessary carry rules the gate purposes Lobbying to out Act. In for rulemaking, Common Cause set forth a proposed 24, On defining lobbying. 1994, rule June the Commissioner denied the basis that the rule proposed by Common Cause 386 alter, enlarge Lobbying way and
would amend Act in a not proposed by and the rule Legislature envisioned reasonably necessary purpose was not to effectuate the of Cause Act. Lobbying
Thereafter, application Common Cause filed an peremptory declaratory complaint writ of mandamus and relief in the District requested requiring Common Cause a writ of mandamus Court. institute rulemaking procedure to a promulgate Commissioner to Lobbying which activities are included in specifying rules Act’s lobbying. Additionally, sought of a decla definition mandatory duty had ration that Commissioner violated by 5-7-111,MCA, “promulgate publish him to and imposed on carry necessary provisions [the Act] out the ....” The 12(b)(6), Rule pursuаnt Commissioner moved dismiss M.R.Civ.P., granted and the District Court his motion. Common appeals. Cause
DISCUSSION not for failure to state complaint A should be dismissed beyond plaintiff prove claim it appears unless doubt can no claim support set of his which would entitle him to relief. of facts 202, 207, Mont. (1995), v. W.R. & Co. 272 900 P.2d Lockwood Grace 314, 317. 12(b)(6),M.R.Civ.P., under Rule has the effect
Amotion dismiss admitting well-pleaded allegations complaint. all In motion, light is construed in the considering complaint allegations all offact contained plaintiff, favorable to the most are taken as true. therein (1994), v. Christensen
Lockwood,
(quoting
We does complaint unless pleading stage at the initial litigation River Lumber any set of facts. Tobacco cause of action under state a 271, 855, P.2d 857. “This is (1978), Mont. Yoppe Co. v. based a statute that upon the cause of action is true when especially underlying no factual interpreted where previously not been has Consultants, Lottery Inс. Smith v. Video developed.” has been record *5 (1993), 54, 57-58, case, present 260 Mont. P.2d In the the 5-7-111, Lobbying question, MCA, Act in has section not by interpreted been this Court. previously hinges interpretation this the appeal upon Resolution of of two statutory 5-7-111, MCA, 2-4-315, Section provisions: and provides as Section follows: (1) to make rules. The prom- Commissioner commissioner shall ulgate publish necessary carry and rules out the provisions of the Administrative chapter in conformance with Montana and, particular, provide necessary Procedure Act in shall rules salary, expenses, any payments allocate and other lobby- between and ing activities other activities not connected with lobbying for any person solely activities are whose not limited to lobbying.
(2) be Such rules shall and designed promote effect the purposes chapter, express implied. of this or Such rules shall be as easily simple and with complied as possible. argues that this statute mandates that the publish
Commissioner “shall” necessary rules to carry out the provisions of “necessity” the Act and that the is established by the well-pleaded, undisputed allegations complaint. its argues 5-7-111, MCA, Cause that creates a legal duty, clear violation ofwhich warrants issuance of a writ of mandamus. The Commissioner focuses on fact that he duty has a promulgate necessary carry rules out the provisions of chapter “in with the Montana Administrative Procedure Act” conformance (MAPA). MAPA, 2-4-315, He that argues MCA,gives him discretion to determine whether the rule propounded by Common Cause is “necessary” any or whether Section MCA, provides as follows: adoption, amendment, for repeal
Petition or of rules. An or, person session, interested not legislature when is legislature member of the on behalf of an person may interested an petition agency requesting promulgation, amendment, or days of a rule. ... Within 60 repeal after submission of a petition, deny either shall the petition writing (stating denial) shall rulemaking proceedings reasons or initiate through accordance with 2-4-302 2-4-305.
The Commissioner contends he was within his discretion when, days the above statute within 60 after receiving Common rulemaking, Cause’s he concluded that the rule impermissibly statutory Common Cause would alter the definition “lobbying” legislature, the term enacted the Montana and thus petition. He then that a he denied the contends writ of mandamus is of a compel discretionary not available to exercise act. Court concluded that under § The District determine had discretion to which rules are Commissioner “neces- was sary” appropriate; and the Commissioner within his discre- denying petition; tion in Common Cause’s that the court could compel issue a of mandate to the Commissioner to promul- writ rule. gate specific held, agreed, District Court Commissioner deny had to either
Commissioner discretion initiate *6 This upon conclusion was based the court’s rulemaking proceedings. 2-4-315, of MCA.We review that conclusion law to interpretation § of County not it Carbon Union whether or is correct. v. determine Co., (1995), 469, 459, 680, Mont. P.2d Coal Inc. 271 898 Reserve MCA, deny 2-4-315, grantthe Commissioner discretion to 1. Does § MCA, 5-7-111, mandatory rulеmaking for without petition § a initiating rulemaking proceedings? first 2-4-315, MCA, “may that provides person an interested Section promulgation, amendment, the or agency requesting an petition that, days “[w]ithin ...” farther after provides of a rule. It repeal the agency deny petition a either shall the in petition, of submission denial) rulemaking for the shall initiate writing (stating reasons or 2-4-302 2-4-305.” in through Implicit in accordance with proceedings that ruling reasoning 2-4-315, is the District Court’s § the rule,” “a promulgation for the and since Com- petitions addresses rule, statutory the specific a discretion proposed mon Cause’s Petition any rulemaking need for a deny triggered was without petition to the that, although 2-4-315, MCA, grant does We determine proceeding. deny petition a in far as it relates so the Commissioner discretion rule, that same grant it does not the Commissioner proposed ato regard request to a broader the Commissioner with discretion rules, rulemaking any to determine whether mandatory engage not, or by petitioner a proposed whether a rule specific does set forth petition Common Cause’s Although than do consideration, nothing proposal. more a We that rule is for solely requesting adoption petition as Cause’s not read Common merely a rule in rather, proposes petition specific of a rule — rulemaking that the Commissioner initiate request of its context necessity general. Under the Administrative ofrules determine the Montana, for must include “the rule petition Rules of requests promulgate, repeal.” amend or petitioner 1-3-205(a)(iii). comply prereq R. In order to with the Mont. Admin. MAPA, proposed Common Cause had to submit a rule. uisites of However, scope not mean that the ofrules the Commissioner that did thereby proposed proposed was limited to the rule. The could consider than a nothing point departure. rule was more model N.A.A.C.P. (D.C.Cir. 1975), 432, 434, aff’d, Federal Power Comm’n 520 F.2d v. (1976). 662, 1806, 48 425 U.S. 96 S.Ct. L.Ed.2d the Commissioner and District Court erred in assuming Both matter presented petition proposed was rule. setting rule, forth a proposed In addition to administrative clearly asks Commissioner to initiate a rulemaking Likewise, pursuant to MCA. in its proceeding, application preliminary complaint declaratory writ mandamus Court, compel relief in District Common Cause seeks to the Commis initiate rulemaking It proceedings. compel sioner does seek to rule adoption specific Common Cause. We hold although grants Commissioner the discre deny tion to in so far as it pertains proposed rule, to a summarily deny petition there is no such discretion to which seeks legal obligation to invoke the Commissioner’s engage mandatory rulemaking under (D.D.C.
In Common Cause v. Federal Election Comm. 1987), 692 Supp. challenged F. the Federal Election Com- (the Commission) deny petition mittee’s decision to for rulemaking money” associated with the use of “soft in connection with federal *7 any improper elections. The court held that allocation of non-federal committee would be a funds a state violation of the Federal (FECA), 431, “Yet, Elections Act 2 U.S.C. Campaigns seq. et § provides guidance Commission no whatsoever on what allocation use; may abuse, local potential methods a state or committee orno, Cause, Supp. intended is obvious.”Common 692 F. at 1396. The way court determined that when the denies in a “flatly purpose, may— the court Congress’s express contradicts Cause, the agency.” indeed must —intervene and correct Common 692 omitted). (citations Although recognizing at 1396 that a Supp. F. warranted, was regulations revision of the Commission’s court proposals scope Common Cause’s did not limit or define the noted that Commission’s consideration. The court stated: 390
However, the go court neеd not so far as to order the Commission adopt proposals Cause, of Common appear to go the FECA beyond requires Instead, what in this area. the court only require need the Commission to review Common Cause’s Rulemaking light opinion, eye Petition of this with an 106.1, revising they 11 C.F.R. 102.5 and as portions §§ relate to the of the 1979 FECA amendments discussed above. Cause, Supp.
Common
692 F.
at 1396.
Similarly, although the Commissioner of Political Practices is under
adopt
Cause,
the rules
compulsion
no
he cannot
any rules without
adopt
having engaged
refuse to
first
in a rulemaking
“necessary.”
to determine whether
rules are
procedurе
remedy?
an appropriate
2. Is Mandamus
or denial or
The issuance
a writ of mandate calls for a
conclusion oflaw which we review to determine if it is correct. Franchi
(1995),
272],
210,
County
212;
[274
v.
Mont.
908 P.2d
of Jefferson
(1995),
Becky
131],
[274
v. Butte-Silver Bow Sch. Dist. 1
Mont.
193,
27-26-102, MCA,
two-part
195. Pursuant
P.2d
standard
Franchi,
a writ
212;
to the issuance of
of mandate.
908 P.2d at
applies
(1986),
441, 443,
v. District Court
State ex rel. Chisholm
Mont.
First,
party request
731 P.2d
the writ is available when the
performance
legal duty by
it is entitled to the
of a clear
ing
party
Becky,
Second,
against
sought.
whom the writ is
Regarding duty to initiate the Commis- legal rulemaking, have a clear sioner it is within his discretion to determine what contends sioner do “necessary” as that term is used We rules are broadly. the Commissioner’s discretion that The “as interpret give does not the Commis- necessary” language of adopt the initial mandate that he “shall” ignore discretion to sioner holding take no action without first He cannot choose to rules. rules are In Commonwealth to determine whether hearing
391 (3d Pennsylvania v. 1975), National Ass’n Flood Insurers Cir. 520 of of 11, the Third Circuit Court F.2d addressed similar issue. The State Pennsylvania, citizens, of its behalf sued the flood insurers and Secretary Housing and Urban Development for mandamus and injunctive relief for their failure to publicize availability of flood insurance to the floods in As in the prior question. judice, case sub complaint the district court dismissed the and the plaintiff appealed. requirеd The federal law that: Secretary shall from time to time take such may action as be
necessary in order to make information and data available to the
public
and to
official,
state or local
regard
with
(1) the flood insurance program,
coverage
objectives.
...
4020).
Commonwealth,
These U.S.C. when read together, set which, forth a sufficient allegation proved, warrants mandamus if Although relief. ... 4020 does contain language of discretion normally subject to review under a petition mandamus, discretion authorized pertains only to the time and manner of acting. Specifically, provision mandates that Secretary “the shall... take may such action as be necessary ...” Commonwealth, omitted). 520 F.2d at (emphasis added, citation significance
As to the the phrase may “as be necessary,” the court stated:
The inclusion phrase may “as necessary’ be permit does not directive, disobedience to the initial implicit in the statutory framework, requiring Secretary to first consider whether or not action should be taken. (citations omitted).
Commonwealth,
It Secretary, is sufficient if the having considered whether action taken, should be then determines that no action is necessary. But Secretary cannot avoid taking step first of evaluating the necessity of disseminating information. It is that step to which the has, Commonwealth in part, addressed its complaint. It is at a hearing that the facts bearing upon allegation may be Accоrdingly, may require mandamus issue to the exer- developed. discretion,... although the manner in which the permissible cise discretionary performed act is to be is not to be directed *9 Court. (citation omitted).
Commonwealth, F.2d at 26-27 analysis in the context of the adopt Lobbying We a similar Act. 5-7-111,MCA, the Commissioner to Although requires adopt rules discretionary necessary,” phrase permit does not the Com- “as the initial directive that he adopt to circumvent “shall” missioner the ultimate discretion to The Commissioner has determine rules. cannot, however, what, He in the face of a any, if necessity rules, deny for the petition without petition alleging question necessity, as to the this is conducting hearing first his duty. clear legal allegations truth of the in Common Cause’s com-
Assuming the legal duty that the Commissioner has a clear it has established plaint, becomes, The then does rulemaking. question engage remedy ordinary in the speedy, adequate and plain, Cause have a Chisholm, at A review MAPA 731 P.2d reveals course of law? from, judicial of, appeal no or review the provision that there is rulemaking to not initiate under § decision Commissioner’s plain, speedy adequate has no and MCA. Thus of law. ordinary course remedy in allegations complaint sets forth sufficient
Common Cause’s & Carpet, mandamus relief. See Linoleum which, warrant proven, if (10th 1981), 564, 568, Tile, (citing Cir. 656 F.2d Etc. v.Brown Resilient 26-27). at We hold that mandamus can lie Commonwealth, 520 F.2d rulemaking procedures to conduct before the Commissioner compel whether new or additional rules are decision as to he makes his Common Cause’s dismissing Court erred necessary. The District matter for further thus, reverse and remand the we complaint, opinion. consistent with this proceedings concur. NELSON, HUNT and TRIEWEILER JUSTICES dissenting. ERDMANN JUSTICE effectively majority decision has re- dissent. respectfully
I authority to the Commissioner discretionary granted moved determines that since no discretion 2-4-315, MCA, and then under § remedy. appropriate an involved, mandamus is is in- appeal resolution of this majority, correctly noted As 2-4-315, MCA. Section 5-7-111 and interpretation of §§ volves authority to the legislative grant is provides: and Commissioner
(1) publish shall rules nec- promulgate The commissioner chapter this in conformance essary carry provisions out the and, particular, Procedure Act Administrative the Montana with salary, expenses, any necessary to allocate provide rules shall activities and other activities lobbying between payments other whose activities are not lobbying person with not connected limited solely lоbbying.
(2) promote to effect and designed rules shall be Such Such rules shall be as chapter, express implied. purposes of easily complied possible. with as simple and rules “nec- requires promulgate the Commissioner to This statute carry ofthe Act in conformance essary’ provisions out (MAPA). ofthe Administrative Procedure Act This provisions with provides: leads us to to MAPA reference or, session, person legislature when the is not in An interested may legislature person on behalf of an interested member of amendment, or agency requesting promulgation, an *10 days petition, a rule. ... Within 60 after submission of a repeal of deny writing (stating in agency petition either shall denial) or shall initiate rulemaking proceedings reasons for the through with 2-4-302 2-4-305. accordance between these two stat- recognized interplay referenced and filed its “Petition for Rule- specifically utes when it 2-4-315, 5-7- question MCA.There can be no that making” § § 511, MCA, requires provisions that Commissioner follow MCA) (§ 2-4-315, considering and rules. promulgating MAPA when MCA, an require person does not interested Although § 1.3.205(a)(iii),ARM, a rule, requires petition proposed file a § requests “the rule the rulemaking petitioner include majority recognizes repeal.” amend or While promulgate, petition, rule in thеir it found proposed Cause submitted Common assuming Commissioner and the District Court erred that both the rule. presented by petition proposed matter was the interpret petition Common Cause’s majority goes then determine whether rules are request for general be a —to adopt that the Commissioner simply request necessary —and Having petition Cause. found that the the rule submitted majority of a rule the holds: request adoption particular not a was that, although We determine grant does deny Commissioner discretion to a petition in so far as it relates rule, a it does not grant the Commissioner that same regard disсretion with to a broader request that the Commissioner engage mandatory determine rulemaking to any rules, whether proposed by petitioner not, whether or necessary. A petition review of Common Cause’s reveals that it was indeed a request adoption for the of a specific rule. The 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 for rulemaking to existing address a void in the Lobbying Act rules: specifically, the failure of the rules to define actions that “lobbying” constitute “lobbying activities.” ... Without that provide examples rules clari fying the definition of set “lobbying” forth in the Act at 5-7-102(6) MCA, it is certain that disagreements these will unresolved, remain and will continue to result in inconsistent and inaccurate reporting lobbying expenditures. Promulgation ofthe requested help rules below will achieve the goal envisioned 1-85 of full disclosure of lobbying expenditures. ....
First, requests Montana Common Cause the Commissioner to add a new existing to renumber 101 through 109 as §§ through new 102 §§
Common Cause then included a three page, single-spaced proposed petition. rule in their The final sentence of the petition states: ‘WHEREFORE, requests Montana Common Cause the Commis- promulgate sioner of Political Practices to defining lobbying set forth in section 3 ofthis Petition.” This rule proposal clearly comes provisions under the and is not a request broad general, for the Commissioner to determine whether unspecified rules were *11 required
The Commissioner is not to initiate the formal rule 2-4-315, MCA, every making process instance. The statute § grants the Commissioner the discretion to either initiate rulemaking deny petition. majority’s The effect of the proceedings opinion 2-4-315, MCA, repeal language grants is to which the Com- § deny a petition. missioner discretion In this case the Commissioner exercised his discretion under 2-4-315, MCA, by denying petition and stating his reasons for § the denial. While the substance ofthe Commissioner’s actions are not us, question there is no properly before Commissioner procedural requirements 2-4-315, followed the MCA. § majority opinion The also creates a category new of rulemaking not envisioned nor authorized request legislature. major- The ity request agency holds that a can be made to an authorized to promulgate “engage mandatory rules to rulemaking to determine necessary.” noted, whether rules ... are As the Commissioner’s making authority 5-7-111,MCA, rule is derived from rеquires which § to promulgate Commissioner rules in “conformance with the Montana Administrative Procedure Act.” MAPA does not envision vague general request that a can be made to an to “determine necessary,” whether rules are request would then mandate initiation of the formal procedure. majority The fails to any authority cite in MAPA or in the Act for this new procedure.
Finally, since I believe that
petition
this is a
for rulemaking under
2-4-315, MCA, and
majority
since even the
concedes that the Com
statute,
missioner has discretion under that
I would find that a writ
proper remedy.
of mandate is not a
consistently
This Court has
held
that mandamus is
compel performance
available to
of a clear
duty
legal
involving
discretion. Jeppeson Dept.
v.
State Lands
(1983),
205 Mont.
CHIEF JUSTICE TURNAGE: joinI Erdmann. in the dissent of Justice GRAY,dissenting. JUSTICE
I respectfully opinion. dissent from the Court’s First, I agree implicit cannot with the Court’s suggestion that the petition Common Cause filed with the Commissioner was one for a general rulemaking 5-7-111, proceeding pursuant MCA. The pursuant was made specifically requested promulgation of the contained therein. As recognizes, the Court authorized the Commis- timely deny his discretion—to either sioner—in in writ- ing rulemaking proceedings or institute thereon in accordance with through 2-4-302 Commissioner exercised his §§ statutory petition, stating discretion and denied the as reasons that *12 alter, amend and impermissibly enlarge rules would reasonably necessary that the rules were not statutory provisions and of the Act. The Montana Adminis- purposes to promote (MAPA) judicial provide Act does not review of Procedure trative. pursuant 2-4-315, to by the Commissioner § a decision judicial the Court’s agree can I with several revisions of Nor clear, limited, 2-4-315, MCA. The statute is and rather in authoriz- § person requesting promulgation an interested ing petition a 2-4-315, implicitly MCA, at least rewrites to “a rule.” Yet the Court § petition rеquesting a the Commissioner to encompass authorize or 5-7-111, rulemaking proceedings pursuant to generalized § initiate 2-4-315, MCA, authorizes such a MCA, Nothing thereunder. petition. originally filed Common Cause
Having
request
recast both
submitted, the
then
under which it was
Court
adds
and the statute
2-4-315, MCA,
receipt
request
that
of a
for rule-
requirement
to §
a rulemak-
mandates the Commissioner to initiate
making thereunder
“necessary”pursuant
rules are
to determine whether
ing procedure
in neither
exists
statute.
requirement
MCA.Such
2-4-315, MCA, provide
Moreover,
judicially
the Court
revises §
remedy
requested namely,
it has not
Cause with a
Common
—
upon
a record
Cоmmis-
“rulemaking proceeding” provide
regarding
his discretion
whether rulemak-
may again exercise
sioner
sought mandamus
specifically
ing is
to institute a
the Commissioner
compel
District Court to
and
promulgating
publishing
purpose
“for
proceeding
within the Act’s definition of
encompassed
activities
specify
in accord with
grant
refuses to
mandamus
lobbying.” The Court
determining that the ultimate decision
request,
Cause’s
rules,
“necessary”
any,
if
what
regarding
agree
discretion. While I
the Commissioner’s
remains a matter within
“necessity”
cannot issue and that the
mandamus
requested
that the
Commissioner, I cannot
ultimately rests with the
determination
by аny
remedy not authorized
unrequested
of an
to the creation
agree
to either affirm the District
obligation
Court’s
It is this
statute.
mandamus or reverse that
writ of
requested
Court’s denial
relief,
remedy,
create a
requested
rewrite the
job
It is not our
denial.
the District Court.
those actions to reverse
rely
then
and
analysis of mandamus and
the Court’s
Finally, disagree
I
with
cases
concedes that our
apparently
The Court
here.
applicability
narrowly,
mandamus
duty” aspect of
legal
“clear
apply the
correctly
statutory
directive of
con-
*13
taken,
action should be
considered whether
then determines that no
Commonwealth,
necessary.”
Finally,
action is
at
F.2d
may
Circuit concluded
Third
that “mandamus
issue to require the
discretion,
of permissible
although
exercise
maimer which the
discretionary act
be performed
is to
is not to be directed
the court.”
(citations omitted).
Commonwealth,
Finally, apparent the Court’s reliance on “hearing” required in support Commonwealth to its creation of required “rulemaking proceeding” for the purpose determining of “necessity” is misplaced. case, As read the hearing I required by the Third Circuit “at bearing upon may facts this allegation developed” be is the hearing in the federal district court remand to determine the propriety Commonwealth, of mandamus. See at F.2d 27. The hearing required allegation was because of the Secretary had perform statutory duties, failed to including the total failure to Thus, exercise discretion. hearing on remand in Commonwealth was to determine Secretary whether the had considered and evalu- the necessity taking ated action.
Here, the Commissioner has
permissible
exercised his
discretion.
Nothing
properly
more can
accomplished
be
improperly issuing
require
mandamus to
“rulemaking proceeding” which is not author-
contemplated by
ized
statute. If the
judicially
Court’s intent is to
create a “contested case” proceeding under MAPA where none has
provided by
legislature,
been
provide
judicial
in order to
discretion,
subsequent
exercise
it
Commissioner’s
review
squаrely intrudes
judicial
activism which
into
kind
constitutes
domain.
legislature’s
application
denial of the
affirm the District Court’s
I would
mandamus.
writ of
notes
discretionary “necessary” component.
then
tains
Court
relies
Commonwealth,
in which the Third Circuit
primarily on
Court of
phrase
may
necessary” might
determined that
“as
be
Appeals
There,
Secretary
allegation
mandamus.
was that the
support
totally
Housing
Urban
failed to
Development
perform
certain
statutory
may
duties. The Third Circuit determined
“as
be
necessary” required
Secretary
“first
consider whether or not
Commonwealth,
should be taken.”
action