IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA ex rel.
THE DISTRICT COURT OF THE
EIGHTH JUDICIAL DISTR.ICTOF
THE STATE OF MONTANA, IN AND
FOR THE COUNTY OF CASCADE, THE
HONOFABLE JOHN M. McCARVEL, CHIEF
JUDGE, and THOMAS M. McKITTRICK and
JOEL G. ROTH, District Judges,
Petitioners,
vs.
JACK F. WHITAKER, RICHARD G.
GASVODA and PATRICK L. RYAN,
individually and as the duly
elected, qualified and acting
Board of County Commissioners of
Cascade County, Montana, a political
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w r*
subdivision and body politic of the ,,P/J
State of Montana. \$k,f!j E j ~ 4 - k .
Respondents.
ORDER AND DECLARATORY JUDGMENT
Petitioners., the district judges duly sitting in the
Eighth Judicial District, seek a writ of mandate or
alternative order to require the Board of County
Commissioners of Cascade County, Montana., to authorize the
issuance of county warrants to pay for claims for expenses
incurred in the operation of the d.istrict court in Cascade
County.
The Board has notified the petitioners that the 1983-84
fiscal year county budget for district court operations has
been exceeded, and that the Board will not authorize county
warrants to be issued out of budget. The Boa"rd relies on the
provisions of section 7-6-2323, MCA, that liabilities in
excess of the detailed budget appropriations are not a
liabil-ity of the County, but would become the personal
liabilities of the members of the Board if they authorized
the issuance of such warrants.
Petitioners contend that the operation of the district
court is mandated by constitutional and statutory 1-awl and
that unless provision is made by the Commissioners to pay
reasonable and necessary expenses of operation of the
district court in the county, trials must be postponed,
jurors and witnesses cannot be paid, and court salaries for
judges and personnel will not be honored. Petitioners
contend that the interruption of the ordinary business of the
court creates an emergency, for which the Board has failed to
make suitable provision under the Board's statutory emergency
powers.
Upon receipt of the petition, we required a written
response from the Board, and set hearing on the petition on
Monday, June 4, 1-984. Upon such hearing, and having been
duly advised, the Court finds and concludes:
1. The budget overrun for fiscal 1983-84 has stopped or
threatened to stop the efficient and orderly administration
of justice and court business in Cascade County, and because
thereof an emergency exists in said county.
2. The District Court of the Eighth Judicial District
of the State of Montana in and for Cascade County is a court
of competent jurisdiction for the purposes of this case
within the meaning of section 7-6-2323 (2)(a), PICA.
3. As such court of competent jurisdiction, said
district court may issue orders for the payment of
out-of-budget reasonable and necessary court expenditures.
4. Compliance by the members of the Board acting as a
Board, or of any other county officer whose official action
is necessary, with any order of said district court requiring
payment of its reasonable and necessary court expenditures is
wit-hin the exception to personal liability of such officers
provided in section 7-6-2323(2) (a), MCA.
5. Nothing herein provided shall be construed to
deprive the Board, its members, or any other county officer
from exercising their official duties in passing upon the
propriety of such claims, except that such claims may not be
denied on the basis that they are out of budget when the
district court has duly ordered the payment of the same.
6. This order, without more, shall be and constitute a
declaratory judgment defining the power of the district court
to provide for its continued operation for the efficient
administration of iustice in cases of budgeta.ry emergency.
7. Each party shall hear its or his own costs.
DATED this l a y of June, 1984.
ChieF Justice
Mr. J u s t i c e Daniel J. Shea, d i s s e n t i n g :
I a g r e e w i t h t h e C o u r t t h a t mandamus i.s not a proper
remedy, and t h a t , i f a n y t h i n g , t h e c a s e should be handled a s
a p e t i t i o n f o r a d e c l a r a t o r y judgment. However, I a d h e r e t o
my original position that we shoul-d n o t decide the case
unless and until the County Commissj.oners have failed to
comply with an order of the District Court that the
Commission make the necessary expenditures to fund the
operations of the court. The D i s t r i c t C o u r t h a s f a i l e d t o
make s u c h a n o r d e r , a n d , a b s e n t t h a t o r d e r and a r e f u s a l t o
comply, I would n o t g r a n t a n y r e l i e f .