No. 13092
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1975
I N THE MATTER O THE PETITIONS
F
O GERALD E. McCABE and N R O
F OTN
ZEMAN, f o r Admission t o t h e Bar
by e x a m i n a t i o n
ORIGINAL PROCEEDING:
Counsel o f Record:
For P e t i t i o n e r s :
Thomas A. Dooling a r g u e d , D i l l o n , Montana
F o r Respondent :
Hughes, B e n n e t t and Cain, Helena, Montana
Alan F. C a i n a r g u e d , Helena, Montana
Submitted : September 1 0 , 1975
Decided :
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Filed :
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Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an original proceeding, ancillary to petition-
ers' petitions for admission to the Bar by examination. Peti-
tioners here, among others, petitioned for a rehearing of this
Court's decision in In re Senate Bill No. 630, 164 Mont. 366,
523 P.2d 484, 31 St.Rep. 479, which was decided upon the Court's
own motion. Rehearing was denied August 26, 1974.
Subsequently, on July 9, 1975, petitioners filed a peti-
tion requesting permission to file a brief and be heard in oral
argument in connection with their petitions for admission by
examination and the Court's ruling with respect to Senate Bill
No. 630. The petition was granted by court order of July 21, 1975.
On Wednesday, September 10, 1975, petitioners appeared by
counsel, Thomas A. Dooling, Dillon, Montana. The State Bar of
Montana appeared in opposition through its counsel Alan F. Cain,
of the firm of Hughes, Bennett & Cain and Stuart L. Kellner of
Helena, Montana. Briefs were filed and oral arguments had before
the Court and the matter submitted.
The sole issue presented to the Court at this time is
whether or not the Court's construction of Article VII, section
2(3), 1972 Montana Constitution, as set forth in In re Senate
Bill No. 630, was so manifestly wrong as to require that it now
be overturned.
Article VII, Section 2, 1972 Montana Constitution provides:
"Section 2. Supreme court jurisdiction. (1) The
supreme court has appellate jurisdiction and may
issue, hear, and determine writs appropriate
thereto. It has original jurisdiction to issue,
hear and determine writs of habeas corpus and such
other writs as may be provided by law.
"(2) It has general supervisory control over all
other courts.
"(3) It may make rules governing appellate pro-
cedure, practice and procedure for all other courts,
admission to the bar and conduct of its members.
Rules of procedure shall be subject to disapproval
by the legislature in either of the two sessions
following promulgation.
"(4) Supreme court process shall extend to all
parts of the State." (Emphasis added)
Petitioners dwell at length on the history of admission
of attorneys, inherent power and legislative grants of power but
do not argue that the 1972 Montana Constitution speaks directly
to the question at hand and is completely dispositive of the
issue.
Petitioners have already taken and failed the Montana
Bar Examination--on two occasions in the case of petitioner
McCabe. As noted by petitioners in their brief, unless this
Court's decision in In re Senate Bill No. 630 is overturned
by this Court, petitioners have no standing to apply to take the
Montana Bar Examination in 1975.
With petitioners' applications to take the 1974 Montana
Bar Examination before it, this Court examined Rule XXV B2 of
the rules of this Court which disqualifies persons who did not
graduate from a law school accredited by the American Bar Asso-
ciation from applying to take the Montana Bar examination in all
cases after December 31, 1973.
The matter of In re Senate Bill No. 630 was occasioned by
the passage by the 1974 Montana legislature of an amendment to
section 93-2002(2), R.C.M. 1947, which purported to extend the
privilege of taking the Montana Bar Examination to nongraduates
of accredited law schools to December 31, 1975.
Such action by the legislature was in direct conflict
with Article VII, Section 2(3), 1972 Montana Constitution, thus
requiring this Court to construe and interpret the foregoing Con-
stitutional provision in order to rule on applications for the
1974 Bar Examination. In doing this, the Court specifically held
that the attempt by the legislature in Senate Bill No. 630
to control the qualifications of those who practice before this
Court violated the provisions of Article VII, Section 2(3) of
the 1972 Montana Constitution and the provisions of that Consti-
tution relating to separation of powers.
By brief and in oral argument before the Court, in the
instant proceedings, petitioners have failed to demonstrate any
sufficient reason for this Court to overturn its construction
of Article VII, Section 2(3), 1972 Montana Constitution, and
further failed to demonstrate why this Court should depart from
the time honored rule that questions once presented and decided
should be considered settled.
The rule is clearly stated in . Dist. Ct., 145
Mont. 287, 310, 400 P.2d 648:
"'The general rule is that when the highest court
of a state has construed a constitutional pro-
vision, the rule of stare decisis--that a question
once deliberately examined and decided should be
considered as settled--applies, unless it is
demonstrably made to appear that the construction
manifestly is wrong. Decisions construing the
Constitution should be followed, in the absence
of cogent reasons to the contrary, as it is of the
utmost importance that our organic law be of certain
meaning and fixed in interpretation."
This Court measured Senate Bill No. 630 against Art. VII,
Section 2(3) and Article 111, Section 1 of the 1972 Montana Con-
stitution. In the course of such examination the Court construed
the language of Article VII, Section 2(3) as vesting in the Court
the exclusive control over the admission of attorneys and to make
rules governing admission to the bar and struck down Senate Bill
No. 630 as violating the Constitutional mandate calling for sep-
aration of powers.
In their brief petitioners devote considerable time and
effort to a sematic argument wherein petitioners attempt to show
that a reading of Article VII, Section 2(3), 1972 Montana Consti-
tution, leads irresistibly to the conclusion that the legislature
was granted the authority to disapprove rules for admission
of attorneys which might be promulgated by this Court.
Petitioners then launch a secondary discussion based on
the application of the doctrine of ejusdem generis, citing
Aleksich v. Industrial Acc.Fund, 116 Mont. 127, 139, 151 P.
1016, where that doctrine is defined as:
" * * * where an enumeration of specific thinas
& 2 -
is followed by some more general word or phrase,
such general phrase is to be held to refer to
-
things of the same kind as those enumerated."
(Emphasis supplied).
We do not have that situation here. We have a specific enumeration
in one sentence and a specific and unambiguous grant of veto power
in the next full sentence. In Burk v. Montana Power Co., 79 Mont.
52, 64, 255 P. 337, this Court held:
"The rule ejusdem generis is only a rule intended
to aid the court in arrivinq at the intention of
the legislature and cannot be invoked where its
application would result in a disregard of plain
and unambiguous language used in the statute."
Nothing can be gained by engaging in a sematic fencing
contest here, but rather a short and obvious discussion of the
construction of the constitutional provision will better serve
this opinion.
Constitutional provisions like statutes are to be con-
strued utilizing the same rules as apply to statutes. Martien v.
Porter, 68 Mont. 450, 219 P. 817. A familiar rule of statutory
construction often cited by this Court is that the language used
must be reasonably and logically interpreted, giving words their
usual and ordinary meaning. Burritt and Safeway v. City of Butte,
161 Mont. 530, 508 P.2d 563; Stafford v. Fox-Great Falls Theatre
Corp., 114 Mont. 52, 132 P.2d 689. Applying such rules to the
provision in question it is clear that the construction placed
upon it by this Court not only satifies the.rules but is the
only reasonable interpretation of which the language of the
provision will admit.
The subject provision grants to the Supreme Court the
right to make rules for five enumerated items. Only two of
those items relate to rules of procedure, viz: (1) appellate
procedure and (3) procedure for all other courts. The second
sentence of subdivision (3) obviously means, without the necessity
for any strained construction, that as to rules of appellate
procedure and rules of procedure for other courts, such as the
Montana Rules of Civil Procedure, the promulgation of such rules
is subject to disapproval by the legislature. As to rules which
might be promulgated by the Court relative to practice, admission
to the Bar, and conduct of members of the Bar, the legislature is
given no such veto authority. Under the principle of separation
of powers it follows then that the Supreme Court was given ex-
clusive authority to promulgate such rules.
Any other construction of the subject constitutional pro-
vision, such as that suggested by petitioners, would not only
strain the language used by the framers of the Constitution to
the breaking point, but would lead to the unseemly condition
where this Court's attempt to regulate the conduct of members of
the Bar and the qualifications for admission to the Bar, matters
peculiarly and traditionally within its competence, would be
constantly subject to ineffectual interference by the legislature.
Ineffectual, since even under petitioners' view, the legislature
could merely veto rules and would have no power to propose rules
of its own.
If the doctrine of separation of powers, which is speci-
fically embodied in the 1972 Montana Constitution, is to mean
anything, then even according to petitioners, this Court must
have the authority to control the practice of law. The framers
of the Constitution recognized this and clearly provided this
Court with such exclusive authority in Article VII, Section 2(3).
We have considered and decided the precise issues raised
by petitioners herein, and in the absence of any compelling argu-
ments by petitioners to do otherwise, the petitions are denied
and ordered dismissed.
Justice