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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 7311
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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What is the proper court in which to file a request Declaratory

Customer Question

What is the proper court in which to file a request for a Declaratory Ruling or Judgment on the meaning of a particular state statute? Since the statute has statewide effect, I would assume that a court with statewide jurisdiction would be the appropriate venue. Note that the question is not the application of the statute to a particular set of local circumstances, but the meaning of the statute as unniversally applied statewide. Accordingly I would expect that filing in a local district court, whose jurisdiction, unless I am wrong, extends only within that district, would NOT be the appropriate venue to get such a determination. If you would like a specific example of a statute or phrase that I question, please request such clarification. Thank you.
Submitted: 2 years ago.
Category: Legal
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer, unfortunately courts do not issue "advisory rulings" (this is actually a Constitutional and jurisdictional issue).Courts are limited to ruling on matters that are actually in dispute - so unless you have two parties that are disputing the interpretation of a particular statute, there isn't going to be any court that will address your issue.As far as what court has the authority to rule on the matter, any court can rule on a statutory interpretation issue, so you are going to want to pick one that is best situated to exercise jurisdiction over both the "subject matter" and "personal jurisdiction" of the parties before it. A state trial court ("District Courts" - will generally be the appropriate place to start, but some cases need to be brought in Federal Court (in which case you would start in the Federal District Court, or even in Bankruptcy Court).
Customer: replied 2 years ago.
Perhaps I did not articulate the question properly. I was of the understanding that if the meaning of a statute was in doubt that one would file a request for a Declaratory Judgment prior to the dispute arisisng such that it could be determined the party's rights in the case that the complaint is filed. Here is an example: Montana Annotated Code (MCA) 15-17-323(1) mandates that an assignment of a tax lien certificate be made by the county to any person who pays the delinquent taxes to the county. (I omit the precedural details) The terms of the assignment at MCA 15-17-323(2) are that the county assigns "all right, title, and interest of the county". The first question for the court is whether this assignment is in every way as valid as any other contractual assignment, or whether it is somehhow diffferent. That is, does "all" mean "all" or does in this case "all" mean "some" in terms of the rights (formerly of the county) that were assigned.
Next phase is that MCA 15-17-121(2)(a) defines "costs" as "the cost incurred by the county as a result of a taxpayer's failure to pay taxes when due" and further that it includes the administrative costs of "any other administrative task associated with accounting for or collecting deinquent taxes." Clearly (or apparently) the county is allowed to recover the costs of pursuing and collecting delinquent taxes.
The main question to be presented to the court is that if the assignment transfers all of the county's rights, and the assisgnment is as contractually valid as any other assignment, and where "all" means "all" rather than simply "some", then by virtue of this assignment, the purchaser of the tax lien certificate steps into the shoes of the county and has the right to the same reimbursements as did the county previously, that is, all costs incurred as a result of a failure to pay taxes as well as all costs from collecting those delinquent taxes.
Sorry for all the details, but this is an example. The tax liien statuutes are underlitigated in Montana, and while this may seem like an obvious question, it is a matter that would best be clarified prior to filing any complaint such that the plaintiff (the purchaser of the certificate and holder of the assignment) can understand his position and legal rights. The question is therefore, how does one do this, and my understanding is that filing for a declaratory ruling or judgment on the issue is the procedure.
Thank you.
Expert:  CalAttorney2 replied 2 years ago.
I believe I do understand what you are asking, but the answer unfortunately is that the court will not issue an "advisory ruling."Courts are very limited in the scope of their authority (as I noted above this is a constitutional issue), and they cannot decide a case unless there is an actual dispute or controversy.In your example above, if there was a taxpayer contesting an actual assignment by the county, the taxpayer could sue the county and/or the party that the assignment was made to and receive a judgment determining the validity of the assignment (and by extension perhaps reach a ruling on whether or not the statute is enforceable, although courts generally will try to find alternative grounds to decide an issue prior to making a ruling as to whether or not a statute is constitutional first). However, again in following your example above, a potential buyer of property or a lien, could not ask the court for an opinion as to whether or not the assignment is valid. There is not yet a dispute or controversy and the court would not have jurisdiction to make a ruling.For a discussion of these issues in general, see this article:, although you can find many like it online (this is often the fodder for First Year Law School, Constitutional Law classes, so there are quite a few articles and publications on the topic).
Customer: replied 2 years ago.
I have just finished about two years of litigation on the subject and written almost 1000 pages on the issue, but the court side stepped the actual meat of the issue on a technicality, such that the real issue has not been yet addressed. I thought that it would best be determined prior to pursuing further efforts. May I vary the question to one of the constitutionality issue. While I cannot agree that the issue of the validity of the assignment is constitutional, there are other aspects of the statutes, also underlitigated, that do constitute a real constitutional issue, and the original question can be repeated in terms of "where would one file a challenge to the constitutionality of a state statute?" I would suspect that the local district court would not be appropriate, but rather one with statewide authority.
FYI, here is the issue: MCA 15-18-212(4) was amended in 2009 and prior to that date one needed to notify "interested parties", who are statutorily defined, of the attempt to collect the taxes. The amendment substituted the words "as listed on a property title guarantee (PTG)" and then continued with some conditions precedent. The bot***** *****ne is that not only is "listed on a PTG" not a constitutional characterization of those parties with 14th amendment rights to notification, the term PTG is nowhere defined in the statutes, which definition if it existed could provide that characterization, but of more importance, no such product identified as a PTG exists in the marketplace and cannot be provided by any title company (for reasons that I will not go into) and is a figment of the legislataures' imagination when the drafted the legislation and thus compliance with the notification statute is premised on an impossibility and THAT potentially constitutes the argument for the unconsitutionality of that statute. If one wanted to file a challenge to that statute on constitutional grounds, how would that be done, and in what venue? In this case you would be suing the state, and there would be two parties to the dispute, with the state represented by the attorney general.
My thought was that getting the facts on the other aspects of the statutes lined up prior to proceeding would be appropriate, so what do you know specifically about declaratory actions in this circumstance? I would refer you to: ***** ***** Who may obtain declaratory judgment: Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Apparently in Montana there is a specifically codified procedure to do precisely what I desire. Your thoughts?
Expert:  CalAttorney2 replied 2 years ago.
I fear I may have caused some confusion.The Constitutional issue I am talking about is not whether or not the state tax code is enforceable or proper, but rather whether or not the court can issue an "advisory opinion."A court cannot issue an opinion unless there is an actual dispute or controversy. If there is no present dispute or controversy, the court is not permitted to rule on the issue in advance of there being an actual dispute.
Customer: replied 2 years ago.
I have even guided you to the specific Montana Code section that covers the nature of my question. Irrespective of what the law is in other states, which is irrelevant in Montana, you can see from the Montana Declaratory Judgements Act that there are specific provisions for such requests codified into the law at MCA 27-8-202, et seq. Even my local attorneys agree on their applicability to our needs. The ony issue for clarification is the proper venue (court) for the filing, as being either in the local district where I am located, or in the local district (state capital) where the state and the legislature which passed the laws are domiciled, or some other jurisdiction, such as federal district, and if so, why.
Since we are clearly at an impasse perhaps I need to find counsel who is specifically familiar with Montana nuances and pecularities. Sorry it did not work out, but those seem to be the facts.
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer,I am going to "opt out" and allow another expert to follow up with you.Please do not post any further at this time as it will delay the next expert's ability to follow up.If you need any assistance in the meantime, please contact our customer service at: you for using our forum, and I do wish you the best of luck.Bill
Expert:  Irwin Law replied 2 years ago.
Hello. I am another expert here and I will try to assist with your question. I read the Montana statute 27 – 8 – 202. It is very clear on its face that it does not permit a person to seek an advisory opinion outside of an actual case or controversy. If the opinion you seek is about a provision in the tax code, then you must be involved in an actual situation that involves that tax code provision. For example, you mentioned an assignment of the county's delinquent tax bill to a party who pays the taxes, other than the owner. If you wish to obtain an opinion on the validity of that particular provision, you will have to default on your taxes and, have the county threaten you with that statute. Then, and only then may you sue the county and attack the statute. This is what all the lawyers are, in effect, telling you. Every state has numerous statutes that are ambiguous and even constitutionally invalid for one reason or another. But they will remain on the books unchallenged until there is an actual dispute or controversy where they become applicable. I hope that this has been helpful.
Customer: replied 2 years ago.
Thank you for at least trying to assist, but there are clearly still some misunderstandings, probably due to the complexity of the issue. What began as my trying to simplify by asking a narrow question as to the extent of district court jurisdiction in terms of their rulings, presumably not extending beyond their district and thus not being binding in other jurisdictions, as opposed to say, a state supreme court ruing that is binding everywhere in the state, the issue has mushroomed and grown into other issues.
In that regard I would like to concentrate on how to achieve my goals with a discussion of what I can do, rather than what I cannot do. Generally there is always something you can do, but it may require creative thinking. It has been suggested that the use of the declaratory judgments act may accrue to my benefit. I am not sure if what I am trying to do actually is considered a request for an advisory ruling, but in any case, from what you are telling me, in order to do either, there must be an actual dispute and two adversarial parties to the dispute. Therefore if an individual cannot ask for a declaratory judgment or ruling, it is simply a matter of creating a dispute and naming a second party, which begets the question of who that should be.
Actually there already is a dispute, but due to the complexities, I had not made that clear and what I did mention was misunderstood. I am a tax lien certificate investor which involves a seldom encountered niche in administrative tax law that I find is almost universally misunderstood by attorneys who have an ingrained "civil law" mindset, and by that I mean no disrespect, but it is true. Tax lien law is an administrative procedure, rather than civil, and the differences are relevant, even if misunderstood. Are you familiar with tax lien certificates?? (Reference to MCA Title 15, Chapters 16, 17, and 18) The procedures vary from state to state, but a brief overview is that in Montana, if property taxes are not paid, a lien attaches to the property and a tax lien certificate is created which is then offered for sale to investors, since the county needs the $$, rather than the IOU from the property owner for the unpaid taxes...i.e. the tax lien. That tax lien certificate can be "purchased" from the county via the payment of the delinquent taxes. The county then has their $$ and they are happy. The conveyance takes the form of an assignment of the county's rights in that lien, but also transfers the collection responsibilities to the investor in the event of a default on the part of the taxpayer at the end of the three year redemption period.
After proper notice, if the taxes are still not paid by the property owner, the county, by operation of law, an administrative procedure, not a civil procedure, issues a tax deed to the investor and "wishes them well, and good by". Instead of a return of the investment with interest, the investor is given a piece of paper..the tax deed...which actually becomes a liability since it must be reviewed for propriety by the courts in a quiet title action before any further actions to take possession or eviction of the prior owner can continue. In short, the issuance of the tax deed simply provokes a lawsuit instead of a return of the investment. The court makes a determination based on the procedures that were followed that lead up to the issuance of the tax deed and based on their findings, either affirms the deed or if there were errors in the collection procedures, orders a redemption of the lien according (presumably) to the terms outlined at MCA 15-18-413 (2)(b), which statute specifically includes "costs" which are defined at MCA 15-17-121(2)(a) and (b) and (c). Other than in the case of a deliberately abandoned property, this quiet title action invariably provokes a vigorous dispute where all the nuances of the tax lien statutes are examined, or in this case, ignored by the court. In briefings, the issue of the assignment was discussed, but not so much in terms of dispute regarding its issuance, but in terms of its effect, that is, in terms of the inclusion of "costs" in the final redemption amount of the tax liens in the case where the deed is voided due to procedural errors and a redemption amount must be calculated. The dispute was whether the costs enumerated at MCA 15-17-121(2)(a) as being recoverable by the county were included in the assignment of the county's rights to the investor. It should also be noted that the assignment contract/document not only assigns "all of the county's rights, title, and interest in the property" but also conveys the right of the investor/purchaser in the event of a default in the payment of the taxes, to proceed to obtain either a tax deed, or redemption "as provided by law".
Ran out of space... to be continued...
Customer: replied 2 years ago.
The opposing argument was that the costs enumerated at MCA 15-17-121(2)(a) only apply to the county, to which the counter argument was that while that may be initially true, those precise cost rights were then transferred via the assignment of those rights to the purchaser/investor. The current issue is that this element was never specifically addressed or ruled upon, but rather simply ignored by the court, and when the final redemption amount was calculated, NO costs were allowed, not even those enumerated at subsection (c) as being "required by law", but that is a tangent.
So...on the one hand, the issue of the validity of the assignment, and whether it in effect truly does transfer the rights of the county to cost reimbursements, has never been specifically adjudicated, and the core question is how to get that task accomplished. can appreciate that I am not so interested in what cannot be done, but what can be done, and how to proceed in that direction. The basic opinion of local counsel, but not elaborated upon, was that the declaratory judgment act would be the avenue to pursue and I am trying to get other visions on the issue, thus this current effort. I have other cases pending in other districts where it will need to be broached again, and a clear reading of the statute and its meaning and effects is also valuable to have for future business reasons. The goal is to determine whether the statute and assignment transfer rights and whether the investor is entitled to those costs, or not. If so, that needs to be brought to the court's attention whenever a tax deed quiet title action is pursued. If not, then that begets a completely separate possible cause of action for misrepresentation against the county that sells the certificate and the state than mandates its sale, since (presumably) the clear meaning of the law when read, as well as that involving contracts and assignments, would seem to indicate that the tax lien assignment is no different from any other contractual assignment, includes all rights to which the assignor was previously entitled, and includes the rights to cost reimbursements formerly enjoyed by the county, and if that is not true, then there may have been a misrepresentation of the facts when the certificates are advertised and sold, but that is another story entirely.
Finally, turning back to the issue of MCA 27-8-202. Your reading is that it clearly does not permit a person to seek an advisory opinion outside an actual case or controversy. First, it does not use the term "advisory opinion", but rather "declaration", and also says "any person interested (i.e. under the assignment), or whose rights, status, or other legal relations are affected by a statute...may have determined any question of construction or validity (precisely what I want) arising under the statute (or) contract...and obtain a declaration of rights, status, or other legal relations there under." I fail to see how that is clear on its face as disallowing what I seek. While the need for two parties may be covered elsewhere, even if not in the specific statute, the wording to me clearly states "a person", rather than "a person who is a party to an existing dispute" or something similar, "may obtain a declaration of rights and a determination of any question." So...please articulate how you develop your reading to the contrary.
Also, if you feel that a dispute and second party are esential...fine...that simply begets the question of precisely how do you create and thus fulfill that requirement??
Expert:  Irwin Law replied 2 years ago.
I was traveling most of yesterday and unable to ANSWER. Do you claim that you have an actual dollar amount of costs coming to you? If so, who says otherwise, i.e. who is refusing to pay you? They are your adversary. You start your legal proceeding by suing them in the county Circuit or Superior Court. That Court has jurisdiction over the case which would be an actual dispute. There is no other court you can go to. You mentioned a law suit but haven't said what it was about specifically or what the decision was. If the cost issue was not raised there, you may or may not still be able to sue over it. If it was, then you may have to appeal that decision to your Court of Appeals or Supreme Court. Unless and until the State's appellate courts have ruled on the question, the procedure followed by each county stands alone, I'm afraid. I'm on vacation this week using a borrowed MAC so communication is problematic. I have the feeling that I can wrap this up quickly with our additional services offer of direct contact. Please consider that if you still feel that your question hasn't been fully answered.
Customer: replied 2 years ago.
Thank you for at least attempting to answer, but further discussion is a waste of time. You have clearly not read what I just spent two hours composing. I explained not only the procedural background of the case, but the Quiet Title action that has been pursued and some of the relevant results. Despite that effort, you still do not have the foggiest notion of what is going on, what assistance I need, and your suggestion about filing suit is preposterous given that I just articulated that a quiet title action to review the deed is the proper avenue and that it has been briefed, ruled, and appealed. Therefore there is no doubt in my mind that you are unqualified to offer any assistance and that additionally you have not even bothered addressing the questions I just proposed in the prior message. Finally, your opinion as to what the statute says is completely conclusory and without any explanation. From those with which I may choose to consult, I require not only the "what", but clear details of the "why" including support.
If from your own curiosity you would like to read the briefs, those from the state supreme court proceeding are online at the Montana Supreme Court website docket search feature ( Be sure to select the closed case tab. On next page enter the case number ***** 14-0505. On next page select the case shown (Hansen v. Ward). Next page is the docket. Select the items you desire to read from columns on the right. Hover mouse over the numbered pdf file and click to download. The unnumbered pdf files are typically exhibits that are not available online.
Christian S. Hansen
Expert:  Irwin Law replied 2 years ago.
Too bad. I could have straightened this out for you in an inexpensive 15 minute phone call. I have opted out and referred this to someone else.