NO. 83-169
IN THE SUPREME COURT OF THE STATE OF MOtJTANA
1983
ADA J. HARLEN, SHAUN R. THOMPSON
and RICHARD L. PARISH, d/b/a IIARLEN,
THOMPSON & PARISH, a partnership,
Plaintiffs and Appellants,
THE CITY OF HELENA, a political
subdivision of the State of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Shaun R. Thompson argued; Harlen, Thompson &
Parish, Helena, Montana
For Respondent :
Jeffrey Sherlock argued, City Attorney, Helena,
Montana
For Amicus Curiae:
Charles F. Moses for Yellowstone County Bar Assoc.,
Billings, Montana
Peterson, Schofield & Leckie for City of Billings,
Billings, Montana
Submitted: September 13, 1983
Decided: January 26, 1984
Filed: ;, '1, 2
I q94
-- -
Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
Plaintiffs filed a complaint in September, 1982,
challenging the validity of a Helena city ordinance. The
matter was brought before the District Court of the First
Judicial District, Lewis and Clark County, the Hon. Mark P.
Sullivan presiding. Plaintiffs and the defendant City
sought summary judgment, there being no factual disputes.
The trial court heard oral argument and accepted written
briefs, and entered its findings of fact and conclusions of
law and summary judgment for the defendant City on March 22,
1983. Plaintiffs appeal from the findings, conclusions and
judgment of that court. For the reasons stated below, we
reverse the judgment of the trial court.
The City of Helena operates under a charter and
exercises self-government powers. As such, it may exercise
any power not prohibited by the Montana Constitution, state
statute, or provisions of its charter. Mont. Const. art.
XI, Section 6; Section 7-1-101, MCA. Pursuant to this
authority, and following a public hearing, the Helena City
Commission adopted Ordinance No. 2188, denominated "An
Ordinance Establishing A Required Business License Fee For
Businesses in Helena, Montana. It This ordinance was
officially adopted September 21, 1981 and is now codified at
Helena Mont., City Code Sections 4-1-16-1 to 16-22 (1982).
For the purposes of this opinion, all citations to the
ordinance will be to the original uncodified version.
According to the terms of the ordinance, all persons,
firms, associations or corporations carrying on business in
Helena must apply for the general business license and pay
an annual fee based on the number of persons working for
the individual or entity receiving the license. See,
Sections 2, 18 and 20, Ordinance 2188. The application is
reviewed by the police and fire departments and also the
city building inspector, ostensibly to give these
authorities an opportunity to inspect for compliance with
fire, building and sanitation codes. In addition, the
police department is made aware of the existence of local
businesses and can then patrol these businesses to prevent
security problems. Section 11 further defines the scope of
regulation:
"Licensee Subject to Regulation. Every
person licensed under the provisions of
this Chapter shall be subject to
r e p ---------------- ---------------
-- u l a t i o n , inspection, control and
supervision ----------q e n e r a l police
under the -------------
powers of the City and of all of the
provisions of this Code and ordinances of
this Citv now in f o r c e , or which mav
hereafter be adopted in aid
.................................. of s u c 6
police power and regulation."
(emphasis added)
In addition, Section 7 provides that a business
license may be revoked and cancelled "for fraud or
misrepresentation in its procurement, or for a violation of
any of the provisions of this code or any other ordinance of
the City, or any State or Federal Statute." No individual,
firm, association or corporation may conduct its trade,
profession or vocation without this license, Section 18.
Persons or entities who live or maintain operations outside
Lewis and Clark County do not need a license to conduct
business if they deal with licensed businesses in the city
exclusively by "salesmen, telephone or mail." Section 18.
Ordinance 2188 does not provide penalties for
violations. However, general penalties for all ordinances
are found in Helena, Mont., Code Sections 1-3-1 to 1-3-4
(1982). These include a $500 fine and/or six months
imprisonment for violation of any section of the code
without a specific penalty provision; incarceration and
fines for wilful default of fine payments; public service
work while serving jail time; and revocation of any city
license. In addition, all property used in one's profession
is subject to a lien for the amount of any license fee due.
This penalty is cumulative and in addition to the penalties
described above. See Helena, Mont., Code Section 4-1-4
(1982).
Plaintiffs, attorneys practicing within the city
limits, received notice of the ordinance application and fee
requirements early in 1982. They challenged the fee as
contrary to Section 37-61-211(3), MCA, which provides that
"[nlo license tax shall be imposed upon attorneys by a
municipality or any other subdivision of the state." City
authorities held enforcement of the ordinance in abeyance
while seeking an attorney general's opinion on its validity.
Although the attorney general did not make a specific
determination as to the legality of Ordinance 2188, he
concluded that any state statute, standing alone, that
prohibited local governments from licensing certain
professions or occupations did not apply to a local
government with self-government powers like Helena unless
the statute was made specifically applicable to a
self-governing authority. See, 39 0p. Att'y. Gen. No. 60
(1982).
Plaintiffs, dissatisfied with this opinion, pressed
their complaint in district court, challenging the statute
on the basis of Section 37-61-211(3), and also on grounds
that the ordinance violated provisions of the Montana
Constitution and the Helena City Charter. Specifically,
plaintiffs contended that, even if the statute in question
was somehow not applicable to the City, the ordinance and
fee amounted to an impairment of this Court's constitutional
authority to regulate attorneys. In any event, plaintiffs
alleged that the license fee was in essence a tax and, as
such, had been adopted contrary to the provisions of the
Helena City Charter, because all new taxes must be subjected
to voter approval, which the ordinance was not.
The trial court awarded summary judgment to the City
on all three issues. Plaintiffs in this appeal renew their
arguments that the ordinance is void as against the charter,
statute and/or the constitution. Because the City of
Billings has considered adopting an ordinance similar to the
one now in dispute, we granted leave to the Yellowstone
County Bar Association and to the City of Billings to file
amicus briefs on the matters raised by plaintiffs.
Upon review of the briefs and additional arguments by
the parties, we conclude that the constitutional issue is
dispositive of this case. Ordinance 2188 is invalid with
respect to attorneys because it infringes upon this Court's
constitutional authority to supervise and regulate attorneys
and the practice of law.
Mont. Const. art. VII, Section 2, c1.3, states that
this Court may "make rules governing . . . admission to the
bar and the conduct of its members." We have construed this
provision to give this Court "exclusive authority to
promulgate such rules." Matter of Petitions of McCabe &
Zeman (1975), 168 Mont. 334, 339, 544 P.2d 825, 827-28.
Even before the adoption of article VII, Section 2, clause
3 , we had held that the admission and regulation of
attorneys in Montana is a matter peculiarly within the
inherent power of this Court. Goetz v. Harrison (1969), 153
Mont. 403, 404, 457 P.2d 911, 912. Any attempt by another
branch of government to interfere with this constitutional
prerogative interferes with the doctrine of separation of
powers as codified in Mont. Const. art. 111, Section 1. Cf.
Matter of Senate Bill No. 630 (1974), 164 Mont. 366, 369,
523 P.2d 484, 486 (state legislation affecting admission to
bar contravenes Supreme Court authority over same subject).
As the Supreme Court of Pennsylvania concluded in Sterling
v. City of Philadelphia (1954), 378 Pa. 538, 106 A.2d 793:
"[Llawyers are officers of the courts and
it is solely from the courts that they
derive the authority to practice their
profession; the legislative branch of
government, whether state or municipal,
can neither grant nor revoke such
authority, nor prescribe or in any manner
interfere with their functions and
activities, nor regulate the conduct of
their practice. If, therefore, [an]. ..
ordinance involved any encroachment upon
the judiciary it would represent but a
vain attempt on the part of municipal
authorities to 2xercise a power which
they do not possess."
378 Pa. 538, 106 A.2d at 796.
Ordinance 2188 and the accompanying license fee were
without doubt drafted to deal with public health and safety
matters. This is obvious from a fair reading of the
ordinance and the evidence relating to its implementation.
Nevertheless, the language of the ordinance goes much
further than the City probably intended. Section 18, for
example, makes it abundantly clear that a person or persons
may not carry on a profession or occupatiorl without
procuring the license and paying the appropriate fee.
Section 11 broadly defines the scope of the City's police
powers, such that attorneys could theoretically be subjected
to future ordinances affecting standards of practice.
Finally, Section 7 provides for revocation of the license
for "a violation of any of the provisions of [the Helena
City Code] . . . or any State or Federal Statute." When
read in conjunction with Section 18, it is clear that the
City could prohibit an attorney from practicing his
profession if his license was revoked for any reason
mentioned in Section 7. Finally, the last portion of
Section 18 gives extraterritorial application of the
provisions of Ordinance 2188 to professionals who reside
outside the City limits but who have occasion to practice
within the City.
We recognize the City's assertions that it does not or
will not attempt to regulate standards and qualifications
for attorney admission and practice. Nevertheless, we know
of no rule of law that allows us to consider only the City's
intentions as opposed to the unambiguous language of the
ordinance. Despite its original intent, the City has
adopted an ordinance which conditions an attorney's access
to the practice of law. As such, the ordinance intrudes
upon this Court's constitutional authority.
We recognize the City's general proposition that, as a
political subdivision exercising self-government powers, it
may exercise a broad range of powers not allowed traditional
general power governments, even to the point where it may be
"sharing" certain powers with the state
legislature. See, e.g., State ex rel. Swart v. Molitor
(Mont. 1981), 621 P.2d 1100, 1102, 38 St.Rep. 71, 72-3.
Nevertheless, the universe of powers available to a
self-governing authority may always be restricted by our
state constitution, state statutes, or local charter
provisions. Mont. Const. art. XI, Section 6; Section
7-1-101, MCA. This Court's constitutional authority to
regulate attorneys and the practice of law is but one
restriction on the prerogatives of local government units
exercising self-government powers.
Ordinance 2188 is invalid with respect to attorneys.
Accordingly, the judgment of the District CgHrt is reversed.
/"
We concur: /'
Chief Justice
ict
sitting in place of
~ 8 d ~ e ,
Mr. Justice Frank B. Morrison Jr.
Mr. Justice Daniel J. Shea specially concurs and will file a
separate opinion later.
SPECIAL CONCURRENCE OF MR. JUSTICE DANIEL J. SHEA
No. 83-169
ADA J. HAR.LEN, SHAUN R. THOMPSON
and RICHARD L. PARISH,
d/b/a HARLEN, THOMPSON & PARISH, a pa.rtnership,
.
Plaintiffs and Appellants,
vs.
THE CITY OF HELENA, a political subdivision
of the State of Montana.
Defendant and Respondent.
Dated: 6 ,1 9 8 5
Mr. Justice Daniel J. Shea, specially concurring:
I specially concur with the m.ajority. While 1 agree
pl.ainti.ffs are entitled to the relief they seek, I would
grant it based not only on the clear constitutional. premise,
but also upon the broader public policy consideration that
the practice of law is not a permissible area of
consideration within the scope of municipal regulation.
For example, 5 7-1-111, MCA provides in relevant part:
"Powers denied. A local government unit with
self-government powers is prohibited the exercise
of the following: .
. .(11) any power that applies
to or affects the standards of professional or
occupational competence esta-biished pursuant to
Title 37 (professions and occupations) as
prerequisites to the carrying on of a profession or
occupation;"
Therefore there is preclusion even without reaching the
constitutional prohibition.
Similarly, in S 7-1-113, MCA:
"Consistency with state regulation required. (1)
A local government with self-government powers j s.
prohibited the exercise of any power in a manner
inconsistent with state law or administrative
regulation in any affirmatively subjected by law to
state regulation or control."
Even more clearly dispositive is the code section
speci.fica1.l.y ad-vanced by plaj.ntiffs, section 37-61-211, MCA:
"Annual license tax-municipal tax prohibited ...
(3) No license tax shall be imposed upon attorneys
by a munici.palitv or any other subdivisi-on of the
state. "
The majority made reference to 39 Op. Atty. Gen. No. 60
(1982) , which provides that any state statute standing alone
does not prevent self-governing bodies from licensing
professions unless the statute was made specifical-ly
applicah1.e to the sel-f-governing body. An opin.ion of the
Attorney General i.s just that--an opinion. It does n.ot
diminish the statute. Further, the statut-ory language is
clear and unambiguous. Tt is unreasonable to read the
statute to be applied to non-self-governing bodies.
Therefore, for the reason relied on by the majority, and
for the reasons stated here, I would also reverse.