Coate v. Omholt

No. 82-199

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

1983

ALFRED B. COATE,

P l a i n t i f f and R e s p o n d e n t ,

VS .
E . V. "SONNY" OJ"IHOLT,

D e f e n d a n t and A p p e l l a n t .

A p p e a l from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Lewis a n d C l a r k
H o n o r a b l e P e t e r G . Meloy, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike McGrath a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
J a y n e F. M i t c h e l l a r g u e d , H e l e n a , Montana

For Respondent:

L e a p h a r t Law F i r m , H e l e n a , Montana
W. ' W i l l i a m L e a p h a r t a r g u e d , H e l e n a , Montana

F o r Amicus C u r i a e :

J o h n W. N o r t h e y , H e l e n a , Montana

Submitted: December 9 , 1982

Decided: A p r i l 28, 1983
 CORRECTION. In prepdriny rhls Jylrllon ror p u b -
lication, we noted in our verification of titles a n d
Hon. D a n i e l J. S h e a citations the matters listed below. Corrections have
J u s t i c e , Supreme C o u r t been made on our copy of the opinion.
Room 414 J u s t i c e B u i l d i n g
215 N o r t h S a n d e r s
H e l e n a , Montana 59620

Date:

Re: May 2 6 , 1 9 8 3
C o a t e v. O m h o l t , No. 82-199, A p r i l 28, 1983

Page 2 , l i n e 1 3 f r o m b o t t o m -- A r t . - s h o u l d r e a d A r t . -
I11 11./
(Also c i t e d o n p. 11).
Page 6, l i n e 22 -- 4 S.W. 75 s h o u l d r e a d 4 S.W. 751.
Page 7, l i n e 1 -- S h a r i o
1 S t a t e -- S c h a r i o v. S t a t e .
Page 7, l i n e 5 f r o m b o t t o m -- 388 N.E. 762 s h o u l d r e a d 388 N.E.2d 7 6 2 J
-

WEST PUBLISHING COMPANY
Box 3526
St. Paul, MN 55165
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

The defendant, E V "Sonny" Omholt, Auditor of the State of
. .
Montana, appeals from a LaJis and Clark County District Court
judgmemt which declared unconstitutional two statutes which imposed
sanctions on district judges and supreme court judges if decisions
are not reached or opinions are not written within the procedural
constraints and time limits set by the statutes.
The District Court declared the statutes unconstitutional on
three grounds. First, in attempting to regulate the internal
operations of the judiciary by imposing procedures and time limits
for reaching decisions, the statutes violated the separation of
pwers doctrine as set forth in Article 111, S 1 of the Montana
Constitution. Second, by requiring the forfeiture of one mnth's
pay for a violation, the statutes violated Article VII, S 7(1) of
the Montana Constitution which provides that judicial salaries must
not be diminished during a term of office. Third, the forfeiture of
pay provisions violated the impairment of contract clauses of Art.
z
I, S 1-0of the United States Constitution and Art.223, S 31, of the
Montana Constitution. We affirm.
The statutes involved, sections 3-2-104 (applicable to supreme
court justices) and 3-5-21.2, MCA (applicable to district judges),
operate in essentially the same way. We s m r a i e the operation of
urarz
these statutes and we set forth the full text of the statutes in
Appdix A to this opinion.
Both statutes provide that decisions must be reached or
opinions written within 90 days of submission. If not, another
procedure is i-nvokedto allaw 30 more days t reach the decision or
o
write the opinion. On or before the 90th day of submission, a
district judge or supreme court justice, must. file an affidavit to
the chief justice giving the case name and nmber and the reason for
delay. The parties involved in the case must be given a copy of the

affidavit. Upon timely f i l i n g of the affidavit, the judge o r

iustice has an autamatic 30 more days t o reach a decision o r t o

write the opinion. To justify further delay a judge o r justice mst

f i l e another affidavit t o the supreme court before the expiration of

the 120th day, which affidavit must establish good cause for the

delay. A majority of the supreme court must detemine whether

additional tine should be given t o reach the decision o r t o write

the opinion.

The statutes are imprecise a s t o when o r how a violation occurs

i f the affidavits are timely filed. However, i f no affidavit is

f i l e d on o r before the 90th day of submission, o r on o r before the

120th day of submission, a violation i s automatic. It appears also

t h a t i f an affidavit is timely f i l e d but good cause i s not sham for

an extension of time beyond the 120 days, e i t h e r the supreme court

by a m j o r i t y vote, o r a party t o the case, may refer the case t o

the judicial standards conmission.

Upon the c&ssion receiving the matter it appears t h a t

further proceedings and a hearing are contenplated before the

emission, although the s t a t u t e does not so state. Nonetheless,

once the judicial standards co&ssion has acted and made a

recormdation t o the s u p r e court, it appears that the supreme

court must then s i t as a court of review t o determine whether the

conanission's r e c m n d a t i o n was proper. I f there has been a f a i l u r e

t o f i l e an affidavit, it appears the corrunission must find a

violation, and it further a p a r s the suprem court would likewise

have to find a violation. On the other hand, i f the question i s one

of good cause for the delay, it appears that the c&ssion and t h i s

Court are granted sane discretion i n determining whether a violation

has occurred.
 If a violation is found this Court is compelled by statute to
direct the state auditor to withhold a month's pay from the district
judge or justice--this pay is forfeited.
The plaintiff, a district judge of the Sixteenth Judicial
District, challenged the constitutionality of these statutes, and
they were properly held to be unconstitutional on three grounds.
PART I. SEPARATION OF POCIJERS
The essential question is w!nether the legislature, in enacting
time limits and setting forth the enforcement procedures for

judicial decision-making, has exercised a power that properly
belongs to the judicial branch of government. We conclude that,
based on the separation of powers clause of our state constitution,
that the question of when cases shall be decided and the manner in
which they shall. be decided, is a matter solely for the judicial
branch of government.
The separation of powers provision, contained in the general
g o v e m n t section of Art. 111, S 1, 1972 Montana Constitution,
provides:
"The power of the govemment of this state is
divided into three distinct
branches--legislative, executive, and judicial.
No person or persons charged with the exercise
of p e r properly belonging to one branch shall
exercise any p e r properly belonging to either
of the others, except as i this constitution
n
expressly directed or permitted."
By this provi.sion, each branch of gv-
oet is made equal,
coordinate, and ind-ependent. By this we do not mean absolute
independence because "absolute independence" cannot exist in our
form of government. It does mean, however, " . . . that the powers
properly belonging to one d p r t
ea- shall not be exercised by
either of the others." State v Johnson (1926), 75 Mont. 240, 243
.
P. 1073; State ex rel. Judge v Legislative Finance Corn.
. (1975),
168 Mont. 470, 543 P.2d 1317. With only one exception (State ex
rel. Emerald People's Util. v Joseph (Ore. 1982), 640 P.2d 1011),
.
the suprew courts of those states called on to answer the question
have declared that the essential nature of a constitutional court
encompasses the right to determine when a judicial decision will be
made.
These holdings are best surmnarized i a law review article
n
entitled, Legislative Control Over Judicial Rule-Making: - Problem
A

- Constitutional Revision (1958), 107 U. Pa. L.Rev. 1, 31-32:
in
" 7 a tthe holdings do suggest is that there is a
Ph.
third realm of judicial activity, neither
substantive nor adjective law, a realm of
'proceedings which are so vital to the efficient
functioning of a court as to be beyond
legislative power.' This is the area of minimum
functional integrity of the courts, 'what is
essential to the existence, dignity and
functions of the court as a constitutional
tribunal and from the very fact that it is a
court.' Any statute which moves so far into
this realm of judicial affairs as to dictate to
a judge how he shall judge or how he shall
comport himself in judging or which seeks to
surround the act of judging with hampering
conditions clearly offends the constitutional
scheme of the separation of powers and will be
held invalid."
The courts have recognized as the authors state, that certain
judicial functions require that the courts alone determine how those
functions are to be exercised. Even assuming the right under many
state constitutions, and indeed, the need for the legislature to be
involved in rule-making where the courts and the legislature have
concurrent rule-making power, the authors state:
"Grant the necessity for concurrent jurisdiction
in the field of procedure, immediately another
problem presents itself. Should there not be
, t e realm of judicial adiministration entirely
m-
free from legislative supervision? Or shall the
legislilture be permitted to d.ictate to the
courts every detail of their internal reqimen:
cansnand appellate courts to issue written
opinions in every case, declare within what time
cases shall be heard, deny to the court the
power to issue its mandate until a prescribed
period of time after judgment shall have
elapsed? - - spheres - activity -
There are of so
fundamental - - necessary to a court, -
and so so
 _--
inherent in its verv nature - -a court, --
--A
as - that to
divest it of its absolute -c r u a d within -
.
ornn
spheres - - - meaningless the very phrase
is to make
these
udicial p e r . " (Emphasis added7 107 U Pa.
.
;.Rev. at 29-30.

To the questions posed above the courts have answered with
virtual unanimity that the separation of p e r s doctrine does not
prmit the legisl-ature to intrude. For example, in Houston v.
Williams (1859), 13 Cal. 24, the court struck down a statute which
required that in all cases the California Suprm Court must render
a written opinion with reasons. The court said:

"If the Legislature can require the reasons for
our decisions to be stated in writing, it can
forbid their statement in writing, and enforce
their oral announcement, or prescribe the paper
upon which they shall be written, and the i kn
which shall be used. And yet no sane man will
lustify any absurd pretension, but where is the
limit to this p e r if its exercise in any
particular be admitted?" 13 Cal. at 25.
TO the same effect, see Vaughan v. Harp (18871, 49 Ark. 160, 4 SOW.
lil
Ocampo v Cabangis (Pa. 1910), 15 Phil. 626.
.
In State ex rel. Kostas v Johnson (Ind. 1946), 69 N.E.2d 592,
.
the court struck down a statute which forbade a lmer court to hold
a issue under a-dvisementfor more than 60 days and which deprived
n
the court of jurisdiction if no decision was reached within 90 days.
in quoting from one of its previous cases, the court stated:
"'Courts are a integral part of the government,
n
and entirely independent, deriving their pwers
directly from the Constitution, in so far as
such p e r s are not inherent in the very nature
of the judiciary. A court of general
jurisdiction, whether named in the Constitution
or established in pursuance of the provisions of
the Constitution, cannot be directed,
controlled, or impeded in its functions by any
of the other departmnts of the govemnt. The
security of human rights and the safety of free
institutions require the absolute integrity and
freedom of action of courts."' 69 N.E.2d at
595.
In speaking directly to the statute, the court further stated:
"[Tlhe court and not the Legislature must be the
judge of the order in which it will dispose of
 cases and what period of time proper disposition
shall require. There may be, and probably are,
abuses and unjustified delays by courts in the
disposition of cases, but the remedy is within
the judicial branch of the cpvemment, not the
legislative, or perhaps at the polls when a
delinquent judge caws up for reelection." 69
N.E.2d at 596.
In striking d m a statute which limited the time within which.
Ohio courts could hear or determine the case, the Ohio Supreme Court
r_'
Scd?q c
f

in G & v. State (Ohio 1922), 138 N.E. 63, declared:
k u

"True, the general subject-matter of procedure
by the parties to the cause, proscribinq the
manner of invoking the jurisdiction,- the
plea-dings, and the time within which the
jurisdiction shall be invoked, in short, the
adjective law of the case, has always been
regarded with the proper province of legislative
action, yet - legislative branch - -
the of the
ovemrnent is without constitutional authorit
--- thrjudicial branch - - goverm-enE
zo limit of the
j respect - when ----
-n to it shall hear or determine
g cause - ofaction within - lawful
its
jurisdiction." (-ha-sis added.) 138 N.E. at
64.
And in 1978, an Ohio court struck down a statute which set time
limits for the trial courts to hear testimony on a creditor's claim,
and which further provided that the trial court lost jurisdiction if
the testimony was not heard within that t k . In holding that the
statute was directory only and that the court did not lose
jurisdiction by a failure to hear testimony within the statutory
t b limits, the court said:
" 'An act of the General. A~sembly,attempting to
peremptorily prescribe the time within which any
court i the exercise of its judicial function
n
shall hear or determine a matter properly within
its jurisdiction, is a legislative invasion of
judicial power, and, as such, is unreasonable
and unconstitutional and therefore null and
,
void. ' " In re Wlintock (1.978) 58 Ohio Misc.
5, 388 N E 762, 766-767.
..z p i
In State v Merialdo (Nev. 1954), 268 P.2d 922, the ~evada
.
Supreme Court struck down a statute which required each d.istrict
court judge, before receiving a mnthly salary, to file an affidavit
to the effect that the judge had no cases assigned for decision
which were older than 90 days. The court held that this statute
violated a section of the Nevada Constitution which provided that a
ludge's salary could not be reduced during his term of office. 268
P.2d at 925. The court further held that the statute violated the
separation of p e r s clause of the Nevada Constitution. 268 P.2d at
926.
And, of course, other decisions have struck down legislation
imposing tine limits for judicial action. In Waite v Rurgess (Nev.
.
I-952), 245 P.2d 994, the Nevada Supren-e Court struck down
legislation which required judicial action within fixed time periods
as being a unconstitutional interference with judicial functions.
n
In Sands v. Albert Pike Motor Hotel (Ark. 1968), 434 S.W.2d 288, the
Arkansas Suprere Court struck down a statute which required the
circuit court (the trial court) to affirm a workmen's canpensation
decision after it has been on file for 60 days. In Resolute Ins.
Co. v Seventh Jud. Dist. Ct. of Okl. Co., Okl. (W.D. Okla. 1971),
.
336 F.Supp. 497, a federal judge struck d m as an unconstitutional
legislative interference with judicial functions, a requirement that
a judge must hear a motion to set aside a bail bond forfeiture
within 30 days of the motion.
The federal courts have struck down provisions of the Federal
Speedy Trial Act on grounds that the requirements for trial within
the statutory deadlines constitute an unconstitutional encroachrnent
of the judiciary. The provisions were held to infringe on the
constitutionally autonmus power of the judiciary--that is, to
violate the separation of powers doctrine. - United States v.
See
Brainer (D. Md. 1981), 515 F.Supp. 627; and United States v Howard
.
(D. Md. 1977), 440 F.Supp. 1106.
We make no attempt to catalog and. discuss all the cases bearing
on this issue. We emphasize also that defendant seems to concede

that time limits within which judicial decisions must be made are
properly questions to be decided by the judiciary. However,
defendant nonetheless puts forth two arc,nrments to uphold the
validity of the statutes.
He first argues that the statutes are constitutional because it
is the judiciary which will always be making the final decision of
how much time should be allowed to reach a decision or to write an
opinion, and as to whether a violation has occurred. Defendant
ignores, however, several mandatory aspects of the statutes, which
we have already mentioned. Defendant further ignores the fact that
any action to be taken by the judiciary--including the forfeiture of
one mnth's pay if a violation is found--is mandated by the
statutes. As the District Court stated: " [nlothing is clearer than
+a
&t it is the legislature which is ccanranding the forfeiture."
Defendant next argues, without attempting to discuss the
application of the separation of p e r s provision to these
provisions, that two provisions of the Montana Constitution, when
read together, can be con.strued to give the legislature the p e r to
enact the statutes imposing time limits on judicial decision-making.
He relies on A r t . VIII, S 12, which provides tha.t: [ lhe legislature
" t

shall by law insure strict accountability of all revenue received
and money spent by the state and counties, cities, towns, and all
other local governmental entities." (Ehphasis added.) He further
relies on Art. VII, S 11, which, as it pertains here, requires the
legislature to establish a five member judicial standards
co~ssion. It provides: " [tlhe legislature shall create a
judicial standards c d s s i o n consisting of five persons and provide
for the appointment thereto of two district judges, one attorney,
and two citizens who are neither judges nor attorneys."
The last clause of the separation of pawers provision, Art.
111, S 1, declares that one branch shall not exercise a power
belonging to another branch ". . . except as in this constitution
expressly directed or permitted." Even hy the m s t liberal
construction standards we cannot read either Art. VIII, § 12, above,
or Art. VII, 5 11, above, to mean that the drafters of these
provisions intended that time limits on judicial decision-making
would be imposed. In fact, defendant's interpretation cannot be
reasonably implied.
Perhaps the trial court best described the effect of sections
3-2-104 and 3-5-212, MCA, i canparing them with an attempt by the
n
judiciary to interfere with the internal operations of the
legislature:
"The totality of the effect of Chapter 375 is to
interfere with the internal operations of the
judiciary in the same manner as if the judiciary
would impose limitations on the legislature as
to its internal operations, such as the n -r
of cdttees, the time within which a camittee
must act, the time each legislator must attend
the sessions, limiting the time of discussion,
limiting the time one bill must pass from one
house to the other and the like. All of these
legislative functions are internal with the
legislature and the constitution authorizing the
legislature to govern its affairs without
interference from the other constitutional
branches of government."
PAPT 11. DIMINUTION OF SALARY AND I M P A I m OF CoNlPACT

Although our decision on the separation of powers issue is
dispositive, we nonetheless proceed to the two additional grounds on
which the trial court held the statutes to be
unconstitutional--diminution of salary and impairment of salary.
The salary forfeiture provisions clearly violate these
constitutional provisions.
The penalty provisions of both statutes require a one mnth's
forfeiture of pay in the event of a violation. Section 3-2-104,
KA, which applies to supreme court justices, provides in part that
the supreme court ". . . shall order that the state auditor not
issue a warrant for paywnt of services for 1 month, which pay is
forfeited by the justice.'' Section 3-5-212, which applies to
district judges, provides in part that the supreme court ". . .
shall order that the state auditor not issue a warrant for p a p n t
of services for 1 month, which pay is forfeited by the judge." The
trial court held that these statutes constitute both an
unconstitutional diminution of salary and an unconstitutional
impairment of contract.
The state constitutional prohibition against diminution of
judicial salaries during terms of office provides that "[a111
justices and judges shall be paid as provided by law, but salaries
shall not be diminished during terms of office." Art. VII, 5 7(1).
The federal constitutional prohibition against impairment of
contracts, A r t . I, S 10, provides in prt: "no state shall ...
pass any . . . law impairing the obligation of contracts . . .I1 The
state constitutional prohibition against impairment of contracts,
z-
Art. .lfiI S 31, provides: " [n]
o . . . law impairing the obligation
of contracts . . . shall be passed by the legislature.
In arguing that the prohibition against reduction of judicial
salaries is not violated, defendant i effect argues that the
n
legislature can do indirectly what it is prohibited from doing
directly. Defendant concedes that the statute mandates a reduction
in salary but argues that if the judiciary imposes the sanctions
rather than the legislature, the constitution is not violated. This
argument, of course, ignores the fact that the judicially-imposed
reductions are mandated by the statutes.
And assuming that the 1-egislature can indirectly violate the
constitution by imposing the duties on the supreme court to forfeit
the salaries of judges who do not c q l y with the challenged
statutes, the defendant next argues that the contract impaimnt
clauses of the United States and Montana Constitutions are not
violated because the legislature has reserved to itself the
authority to condition payment of salaries on performance of all
services required. As applied here, defendant claims that the
legislature can withhold judicial salaries if a judge does not reach
a decision within the t h limits set by the challenged statutes.
A constitutional provision prohibiting diminution of salaries
during the term of office is designed to r m v e from lawmakers the
temptation to exert control over the other branches by promise of
reward in the form of increased corrq?ensation or threats of
punishment by way of reduced salaries. State ex rel. Jackson v.
Porter (1920), 57 Mont. 343, 188 P 375.
. In Jackson, we so
interpreted the 1889 provision which applied to all elected public
officers. The 1889 Constitution also contained a provision applying
only to judges. Art. VIII, S 29, expressly prohibited the salaries
of judges fram being increased or decreased. The provision with
respect to all public officials was not carried over to our 1972
Constitution; however, a similar provision applying to judges was,
of course, placed in the 1972 Constitution. Art. VII, § 7 of our
presmt Constitution, although now applying only to judicial
compensation, still embodies the fundamental policy considerations
set forth in Jackson. -- Merialdo, supra, 268 P.2d at 925,
See also
where the Nevada Supreme Court so interpreted the judicial article
of the Nevada Constitution which prohibits judicial salary
reductions during a term of office. This was one ground on which
the Nevada court struck down statutes setting deadlines for judicial
opinions and requiring affidavits of compliance as a condition of
getting paid.
We will not, as the defendant urges, sanction an indirect
violation of the Constitution by upholding a scheme for reduction of
salaries mandated by the legislature but administered by the courts.
We mst, therefore, conclude that the challenged statutes violate
Wt. VII, S 7 of our Constitution forbidding a reduction of judicial
salaries during a term of office.
 A s s h g , however, that it is permissible to indirectly violate
an express mandate of the Constitution, the statutes challenged here
nonetheless cannot survive a challenge that they violate the
impairment of contract clauses of our State and Federal
Constitutions.
In Olson v. Cory (1-980),164 Cal.Rptr. 217, 609 P.2d 991, the
California Supreme Court interpreted the impairment clauses as it
affects the judiciary's right to salary set by statute. The court
held that a judge entering office does so partly in consideration of
the salary benefits then offered by the state for that office. The
court held that if those salary benefits are reduced by the
legislature during a judge's term of office or during the unexpired
term of a predecessor judge, the judge is nonetheless entitled to
the contract for benefits during the remainder of the term. In
applying the impairment clause the court stated:
"Public employment gives rise to certain obligations
which are protected by the contract clause of the
Constitution. [Citations omitted.1 Promised
campensation is one such protected right. [Citations
omitted.] Once vested, the right to campensation cannot
be eliminated without uncon.stitutionally impairing the
contract obligation. [Citations omitted. I When
agreement of employment between the state and public
employees have been adopted by governing bodies, such
agreerents are binding and constitutionally protected.'I
609 P.2d at 994.
Although defendant concedes the constitutional protection
accorded judicial salaries through the impairment clauses, the
argument nonetheless is made that no i p i t
ma- exists if there is a
statutory basis for the legislature to condition payment of salary
on performance of all services required. Applied here, defendant
argues that the. legislature can properly condition payment of
judicial salaries based on timely filing of affidavits and timely
filing of judicial decisions. Defendant argues that ". . . such
failure on the part of a justice or judge constitutes a
non-perfomce of required services justifying the withholding of
the warrant. Clearly, a justice o r judge has no contxactual r i g h t

t o expect payrent of service he has not rendered."

In searching for a statutory basis f o r the legislature t o

condition p a p e n t , defendant c i t e s but does not quote section

2-16-406, MCA, a s t a t u t e having absolutely no application t o this

case. This statute, i n a most general way, specifies which services

rendered by - elected state o f f i c i a l s must be considered a s
all

f a l l i n g within the duties for which they are paid t h e i r annual

salaries. Neither withholding of nor forfeiture of judicial

salaries i s contemplated by t h i s statute.

Section 2-16-406, has been i n existence since 1895, although it

has been amended several times over the years. It i s p a r t of that

chapter dealing with salaries of the following elected state

officials: the governor, lieutenant governor, chief justice and

justices [it does not cover salaries of d i s t r i c t court judges],

attorney general, state auditor [the defendant here], superintendant

of public instruction, public service c d s s i o n e r s , secretary of

s t a t e , and clerk of the s u p r e court. The preceding s t a t u t e

(section 2-16-405, J!Oi) establishes the annual salaries f o r the

elected state o f f i c i a l s mentioned here. Section 2-16-406 specifies,

i n a most general way, the duties t h a t must be performed for the

salary received.. It provides:

I' (1) The salary of each such officer s h a l l be for a l l
services required of him o r which may hereafter devolve
upon him by law, including a l l services rendered ex
o f f i c i o as a member of any board, commission, o r
committee, but shall not include actual necessary
travel, lodging, and subsistence expenses incidental t o
h i s o f f i c i a l duties.

" ( 2 ) Unless otherwise provided by law, the salaries of
officers must be paid out of the general fund i n the
state treasury monthly on the l a s t day of the month."

Defendant's interpretation of this s t a t u t e renders it subject

t o the s m constitutional objections made concerning the challenged
a e

statutes here. W need not belabor the point, however, because this
e
interpretation is so c1earl.y in error. In effect, defendant argues
that the legislature can withhold or forfeit the salaries of all
state officials covered by the statute. Suffice to say that this
interpretation will undoubtedly come as a great shock to those state
officials who claim a right to their salaries without a requirement
that they file affidavits or perform their duties within a specified

We have held that the challenged statutes violate Art. VII, S
7(1), which empowers the legislature to set judicial salaries
subject to the restriction that such salaries cannot be reduced
during a term of office. The legislature cannot directly establish
an annual salary by one statute and then indirectly take away any
part of that salary by a statute that imposes a forfeiture because
an affidavit has not been filed or a decision has not been filed
within the time limits set by the challenged statutes. These
forfeiture provisions just as clearly violate the impairment of
contract clauses of the State and Federal Constitutions.
P r n 111. THE APPLICATION OF rnICLE VII, 5 2(3)
In light of our holdings in Parts I and I1 d.eclaring the
challenged statutes to be unconstituti.ona1, we think it important to
discuss the role of the courts and the legislature as they relate to
rule-making for the courts. The roles are specified in Art. VII, 5
2 (3) , which provides:
"It [the supreme court] may make rules governing
appellate procedure, practice and procedure for all
other courts, admission to the bar and conduct of its
&s
r. Rules of procedure shall be subject to
disapproval by the legislature in either of the two
sessions following promulgation."
The 1889 Constitution did not contain such a provision. The
judicial article was silent on the role of the supreme court in
making ap-llate rules of pra.ctice or civil rules of practice. It
was simply assumed that the legislature had unrestricted authority
t legislate in this area.
o In fact, before the 1972 Constitution,
any authority of the supreme court in adopting either appellate
rules of procedure or civil rules of procedure, came expressly fran
the legislature, with the legislature reserving the right to repeal
any rules promulgated pursuant to this legislative authorization.

- sections 3-2-701 through 3-2-708, MCA, enacted in 1963.
See
Clearly, with the adoption of the 1972 Constitution, sections
3-2-701 through 3-2-708, were impliedly repealed, for Art. VII, S
2 (3) vests the rule-raking a.uthority in the supreme court subject

only to legislative veto. This provision changed the roles of the
supreme court and the legislature.
We have had only one occasion to interpret this clause in an
opinion. In Matter of McCabe (1975), 168 b o t 334, 544 ~ . 2 d
fn. 825,
the issue was whether the legislature or this Court could set the
standards for admission to the bar. In interpreting Art. VII, 5
2(3), we held that this Court has the exclusive control over
admission to the bar and conduct of W e r s of the bar. Concerning
the remaining portion of (3) we stated:
"The second sentence of subdivision (3) obviously mans,
without the necessity for any strained construction,
that as to rules of appellate procedure and rules of
procedure for other courts, such as the Ylntana hles of
Civil Procedure, the prmlgation of such rules is
subject to disapproval by the legislature." 168 Mont.
at 339, 544 P.2d at 828.
Without question, Art. VII , S 2 (3) vests in the supreme court
the authority to adopt rules for appellate procedure and trial and
appellate procedures "for all other courts." Just as clearly, the
legislature is empowered to veto any such rules promulgated by this
Court. However, once a legislative veto is exercised, the
legislature is not empwered to fill the vacuum by enacting its own
1egisl.ation governing appellate procedure or lower court procedure.
We have held i Part I of this opinion that the challenged
n
statutes constitute a direct infringmt on the functional and
constitutional integrity of the judiciary as a separate branch of
go~~ement, therefore that the statutes violate the separation
and
of powers clause (Art. 111, 5 1) of our State Constitution. The
constitutional provision giving rule-making power to the supreme
court and veto p e r to the legislature, does not encampass the kind
of legislation embodied in the challenged statutes. We held that
tim limits within which judicial decisions must be reached, fall
within what we recognized as the ". . . third realm of judicial
activity, neither substantive nor adjective [procedural] law, a
realm of 'proceedings which are so vital to the effective
functioning of the courts a s to go beyond legislative power.'"
. 107
U Pa. L.Rev. at 31-32. The internal operations of the courts, this
.

third realm of judicial proceedings, are not subject to legislative
veto:
"A constitutional [provision such as Art. VII, S 2 (3) 1
which expressly reserves ultimate authority over
procedure to the legislature need not be feared as
sanctioning legislative invasion of this last judicial
stronghold.. .. So long as a constitution maintains
the fundart?ental separation of powers [ A r t . 111, 5 16,
1972 Mont. Const.1 this area of functional independence
of the judiciary will be preserved in the very grant of
judicial power." 107 U Pa. L.Rev. at 33.
.
If we held, however, that the separation of powers doctrine was
not violated, we would then be required to examine the statutes in
light of Art. VII , S 2 (3), which gives only the veto power to the
legislature. The question would be whether the legislature, in the
face of Art. VII, § 2 (3), could validly enact statutes setting time

1-imits (with sanctions other than a forfeiture or loss of judicial
salary) for the judiciary to reach its decisions. Again, we muld
be required to strike down the legislation as having gone beyond the
authority conferred on the legislature as provided for in this
constitutional provision.
The trial court aptly described the situation that would exist
if the statutes were considered to be procedural rules and therefore
necessarily subject to the requirements and restrictions of Art.
VII, S 2(3):
"Chapter 375 [sections 3-2-104 and 3-5-2121 is a statute
which attempts to govern the internal conduct of
judicial business. Like the rules governing conduct of
members of the bar, it is not a procedural rule within
the maning of the Montana Constitution, Article VII,
Section 2(3) .Even if the Supreme Court adopted the
language of Chapter 375 as as procedural rule, the
legislature has only the p e r , under Article VII, of
the Montana Constitution to disapprove."
It is therefore clear that if in Parts I and I1 of this opinion
we did not find the constitutional violations complained of, we
would nonetheless be required to hold that the legislature exceeded
its constitutional power under Art. VII, S 2(3) in enacting the
legislation.
For all of these reasons we hold the challenged statutes to be
unconstitutional. The judgment of the District.Court is affirmed.

We Concur:

Chief Justibe
 APPENDIX A

3-2-104. Salaries - e x p c n a e a . (1) The salaries of justices of the
uupreme court are provided for in 2-16-405.
(2) 11 any cause, motion, or other praceding remains pending and unde.
cided for a period of 90 daya after ~ubmissionfor decision, the justice of the
rupreme court who has been amigned to write the opinion, order, or decision
of the eoun shall submit an affidavit on or before the 90th day to the chief
justice setting f ~ n the case name. cause number, and the reaJon the matter
h
bu not been decided. C o p i n of the affidavit must be furnished to all parties
t the matter pending. A cause, motion, or other proceeding is considered
o
~ubmltted decision when all hearings have been held and final brief8 have
for
been submitted by ell parties to the matter pending. Upon the filing of the
affidavit, the justice shall have an ndditionul 30 days to decide the matter
which has ban submitted. No cause. motion, or other pnrreding may
remain undecided for more than 120 days after suhmisnion for decision vith-
out the approval of a majority of the other nlernbcrs of the supreme court
for good cause shown in an affidavit requesting additional time. If a justice
of the nupreme court riolntcs the provisions of this section, any party ~o a
matter pending in violation of this scction or. Iry 11 mnjoritv vote, the other
mtmbcrn of the supreme court may refer the n~atterto the j"dicin1 standards
mmmiuion. If the court. acting upon the recomrnendat ior, 01 the nJmmis-
,ion, determines the justice is nut in conlplianre wilh this srctian. it %hall
order that the state auditor not isstlc it warrallt f11r paytnmt of srrvirea for
1 month, which pay is forfeited t ~ y justice.
ttir
(3) Actual and necessary travel expenses c ~ f tllc justices of the supreme
murt shall be the travel expenses, as defined and pn)vidrd in 2-18-501
through 2-18-50:]. illcurred in the performunce of their official duties.

3-6-212. Submission of nffidavit - p a y m e n t o f s a l a r y - com-
m i ~ r i o a o d e t e r m i n e compliance. (1) lf anv cause. motion, or other pro-
t
ceeding remains pending and undecided for a ~)c.riotl o f 90 days after
cubmission for decision, the district court judge I~eforc.wllrlm the matter i b
pending shall submit an affidavit on or irefore the 90th day to the chief jus-
tice of the supreme court setting forth the case name. cause number. and the
w n the matter has not been derided. Copies o f the affidavit tilust be fur-
nished to all parties to the matter pending. A cause, motion, or other pro-
ceeding in considered submitted for decision when nll hearings have been
held and final briefs have been submitted by all pilrtirs to the matter p m d -
bg. Upon the filing of the affidavit, the district judge shall have an nclditioli-
J 30 days to decide the matter which has been sul)mittctl. No cause, motion,
or other proceeding may remain undecided for more tlintl 120 days after sub-
&ion for decision without the approval of a majority of the supreme court
fm good cause shown in an nffidnvit requesting atltlitii~nnltirne.
(2) If s district judge violates the provisions of this section, any party to
8 matter pending in violation of this section or. by n majority vote, the
Supreme court rnny refer the mntter to the judicial rtiindvrds conirnission.
(3) If the aupreme court, acting upon the recommendation of the commis-
don, determines that the judge is not in compliance with this section, it shnll
d e r that the state auditor not issue a warrant for paynlcnt of services fur
I month, which pay is forfeited by the judge.