No. 86-559
IN THE SUPREME COURT OF THE STATE OF MONTANA
BUTTE-SILVER BOW LOCAL GOVERNMENT,
and the Chief Executive Officer
and the Council of Commissioners
of Butte-Silver Bow Local Govern-
ment, a political subdivision of the
State of Montana,
Appellants,
ARNOLD OLSEN, DISTRICT JUDGE OF THE
DISTRICT COURT OF THE SECOND JUDICIAL
DISTRICT OF THE STATE OF MONTANA, IN
AND FOR THE COUNTY OF SILVER ROW,
Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Goetz, Madden & Dunn; James H Goetz argued, Bozeman,
Montana
For Respondent:
R. Lewis Brown argued, Butte, Montana
Submitted: June 17, 1987
Decided : Auqust 14, 1987
Filed: AUG 141 w
9
Clerk
two year collective bargaining agreement. A May 1986 union
vote favored the reclassification of court deputies at the
proposed lower grade. In at least two other union meetings,
members were told of the appeal process in regard to
reclassification. Negotiations continued to the point where
the government offered a 10.4% salary raise over two years:
4.8% for 1986-87, 5.6% for 1987-88. No salaries were to be
reduced. While negotiations continued, Judge Olsen entered
an ex parte order on August 8, 1986, granting a 10.2% salary
increase for 1986-87 to the eight members of the court staff.
The court gave two reasons for its action. First, that
the government failed to submit the budget to the District
Court as required by local ordinance and Montana law, and
second, that the budget preparation worksheet was inadequate
because it was not line itemized as to salary figures and
recipients. To avoid a contempt citation, Butte-Silver Bow
included the eight salary increases in its 1986-87 budget but
noted that the increases were subject to final disposition of
the order. A motion for reconsideration was filed on August
11, 1986. On September 22, 1986, Judge Olsen set the hearing
on the motion for reconsideration for September 23, 1986.
That same day the union voted 23-7 to accept the government's
contract which included the revised classification scheme.
Minutes of the meeting indicate that the court deputies
protested the union's acceptance of the classification
system. After the September 23 hearing, the judge denied the
motion for reconsideration, concluding:
[a]s a matter of fact, that by some plan,
conspiracy, or mistake, the union and
management leadership determined to
demote and denigrate the employees of the
Judges and the Clerk of Court, and by
that action demoralized these personnel
of the Court system.
Another union vote was taken in October 1986 due to some
confusion about the September 1986 contract ratification
vote. At that meeting, the union, for a second time, voted
to accept the revised classification system. Inadvertently,
Butte-Silver Bow has been paying court staff salaries
pursuant to the contract agreed to by itself and the union,
not at court-ordered levels.
The first issue is whether the District Court had
inherent powers to set the salaries of certain court staff by
a sua sponte and ex parte judicial order. We begin by
referring to our statement in Board of Com'rs. v. Eleventh
Jud. Dist. Court (1979), 182 Mont. 463, 470-71, 597 p.2d 728,
732:
We admonish the District Courts to use
the statutorily implied funding power we
recognize here with judicious restraint.
The constantly changing demands upon the
judicial system must be worked out in a
spirit of independent identity and
balance among legislative, executive, and
judicial branches of government by
reasonable interaction tempered with
respect for the limitations of their
power.
Inherent judicial power to compel funding in Montana should
only be used when an emergency arises or when the established
methods for providing funding have failed. State ex rel.
Hillis v. Sullivan (1913), 48 Mont. 320, 137 P. 392. he
Washington Supreme Court addressed this issue in Matter of
Salary of Juvenile Director (Wash. 1976), 552 P. 2d 163, 173:
If separation of powers has as a basic
element the preservation of the rule of
law, court decisions must not be biased
in favor of court funding ... These
considerations, as well as recognition
that inherent power derives from the need
to protect the functioning of an
independent branch, have led courts to
set a high standard for the application
of inherent power in funding matters.
The burden is on the court to show that
the funds sought to be compelled are
reasonably necessary for the holding of
court, the efficient administration of
justice, or the fulfillment of its
constitutional duties. (Citations
omitted.) In addition, it is generally
recognized, as stated in the oft-quoted
case-state ex rel. Hillis v. ~ullivan,48
Mont. 320, 329, 137 P. 392 (19131, that
inherent power is to be exe-rcised only
when established methods fail or when an
emergency arises. (Citation omitted.)
(Emphasis in original.)
After reviewing the record, the court concluded:
In the present controversy, there is a
fundamental failure of proof by
respondent Superior Court. No evidence
in the record supports by a preponderance
of the evidence-let alone by a clear,
cogent and convincing
showing-respondent's determination that
the salary paid to the Director of
Juvenile Services was so inadequate that
the court [could] not fulfill its duties.
Neither does the record show that an
increase in salary was reasonably
necessary for the efficient
administration of justice. (Citation
omitted.) Lacking such proof, there is
no basis for the exercise of inherent
power in the circumstances of this case,
and respondent's attempt to do so imposed
an improper check on the function of the
legislative branch of government.
An unreasoned demand for budgetary consideration is a threat
to the image of and public support for the courts. Webster
Cty Bd. of Sup'rs. v. Flattery (Iowa 1978), 268 N.W.2d 869,
874. A true financial emergency exists when the local
government refuses to pay legitimate court expenses and as a
result, trials must be postponed, jurors and witnesses cannot
be paid and salaries for judges and court personnel cannot be
provided for; in other words, when the lack of funds stops or
threatens to stop the efficient and orderly administration of
justice and court business. See State ex rel. ~ i s t .Ct.,
~ t c . v. Whitaker (Mont. 19841, 681 P.2d 1097, 41 St.Rep.
1104.
Analyzing this case under the two-part test of State ex
rel. Hillis v. Sullivan, supra, we first must ask whether a
true financial emergency existed to justify the imposition of
the judge's salary order. The only justification offered by
the trial judge was that,
[Bly some plan, conspiracy, or mistake,
the union and management leadership
determined to demote and denigrate the
employees of the Judges and the Clerk of
the Court, and by that action demoralized
these personnel of the Court system.
This statement is not factual evidence of a true
financial emergency in Silver Bow County District Court, but
merely a subjective reflection on the budgeting process. The
local government was not refusing to pay court staff
salaries, nor was it proposing to reduce any court employee's
salary. To the contrary, the government was proposing a
10.4% salary increase over two years for these employees, and
there appeared to be no impairment of court operations.
The second part of the Sullivan test is whether the
established methods for providing funding have failed. At
the time the government entered its order, the government was
following the required procedure for adopting an annual
budget and submitting it to the union for ratification. The
union voted 23-7 to ratify the contract. Under the contract,
the employees had the right to appeal the reclassification,
but the record fails to disclose that they exercised their
right to appeal. We conclude that the established methods
for funding the court positions had not failed, and therefore
the District Judge had no inherent authority to enter an
ex parte order establishing salaries for these positions. We
refer to a particularly relevant concurrence in Webster Cty
Bd. of Sup'rs. v. Flattery, supra, 268 N.W.2d at 879:
If the courts - function but the
can
dispute is over the extent of the
salaries, ... which are to be
provided, I come down on the side of the
appropriating authorities. (Emphasis in
original.)
The second issue is whether the issue on appeal is
moot. The burden to establish that the issue raised in an
appeal is moot is a heavy one. See Combined Communications
Corp. v. Finesilver (10th Cir. 1982), 672 F.2d 818, 821. In
addition there are exceptions to the mootness rule, as the
Ninth Circuit has so held:
[The mootness] exception is limited to
cases where
(1) [Tlhe challenged action [is] in its
duration too short to be fully litigated
prior to its cessation or expiration, and
(2) there is a reasonable expectation
that the same complaining party would be
subjected to the same action again.
(Citations omitted.) ... The exception
to mootness for those actions that are
capable of repetition, yet evading
review, usually is applied to situations
involving governmental action where it is
feared that the challenged action will be
repeated. The defending party being
constant, the emphasis is on continuity
of identity of the complaining party.
(Emphasis in original.)
Lee v. Schmidt-Wenzel (9th Cir. 1985), 766 F.2d 1387, 1390.
The government argues that the mootness exception
applies since the District Judge could again enter a budget
order the following year (1987) prior to the time the
government adopts a final budget. The District Judge argues
that the issue on appeal is moot because the government
adopted its budget and included the budget order therein, and
that once the budget was adopted, it could not be changed.
We reason that the "capable of repetition, yet evading
review" exception to the mootness rule is more tenable since
the court could in the absence of our decision, make a budget
order for 1987 and the years beyond. We conclude that the
issue on appeal is not moot.
We reverse and vacate the order of August 8, 1986, and
the order of October 3, 1986, which denied the government's
co:
We concur:
A
@E&H~
Justices
Mr. Justice John C. Sheehy, dissenting:
In a recent case Mead v. McKittrick (Mont. 1986), -
,
P.2d - 43 St.Rep. 1886, we upheld the right of a district
judge to hire his own secretary, saying "if an employee's
duties are intimately related to the functioning of the
judicial process, then personnel decision regarding that
employee are also part of the process" (citing Forrester v.
White (7th Cir. 1986), 792 F.2d 647, 655).
The classification of court employees within a general
matrix of county employees for pay purposes is a matter of
direct concern to the court and the judicial process. Here
the District Court found that the classification of its
employees by the union and the city-county management served
to "demote and denigrate" the court employees. The majority
dismisses that finding as "subjective," a new standard of
appellate review. Yet it clearly is true that if court
employees are demoted to a lesser pay grade than their duties
and responsibilities require, they are denigrated. The
judicial process is directly affected, because court
employees would not be properly compensated when compared to
city-county employees of similar rank in responsibility.
There is no "unreasoned demand" for budgetary
consideration involved in this case, and the basis for
Webster Cty. Bd. of Sup'rs. v. Flattery (Iowa 1979), 268
N.W.2d 869 therefore does not apply here. What jumps out of
the record is that the independent professional consultant
favored classifying court personnel at a higher grade. The
union and management bargained that away without any
consideration of the rights of the District Court to
properly-compensated employees, or of the adverse effect on
the judicial process. The District Court here had an
inherent - a statutory right to act to protect the judicial
and
process. Section 3-1-113, MCA. It does not have to wait
until the emergency actually occurs. It has a right to
forestall the emergency. Only a few years ago, when the
county commissioners of Cascade County refused to provide
proper funds for the operations of its District Court, this
Court ordered the county commissioners to provide those funds
for the very purpose of avoiding an impending emergency. We
did not wait until the collapse occurred, although here the
majority indicate an actual emergency is necessary for a
court to act.
In like vein, there is no logic in the position that
because Court employees are paid the same as last year, they
are not adversely damaged by the matrix pay plan.
Self-esteem may be more important to an employee than the pay
involved.
Inadvertently or not, the city-county did not comply
with the District Court orders either before or after it was
brought to the attention of management. The orders of the
District Court have not been and are not now being obeyed.
The orders which are the subject of this appeal have had no
more effect than scraps of paper. It may be fortunate that
the majority are unwilling to test the efficacy of our orders
in Butte.
I would not concede to the management of the city-county
of Butte-Silver Bow, nor to its negotiating team, nor to the
union negotiations the right to classify adversely court
employees for purposes other than court business. Therefore,
I would affirm the orders of the District Court.
I concur in the foregoing dissent.
f
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Butte-Silver Bow appeals the denial of its motion for
reconsideration of an order setting the salaries of court
personnel in Silver Bow County District Court. The issues on
appeal are:
(1) whether the District Court had inherent powers to
set the salaries of certain court staff by a sua sponte and
ex parte judicial order;
(2) whether the issue on appeal is moot.
We reverse.
In 1983, the employees of Butte-Silver Bow organized a
union to represent their interests in collective bargaining
negotiations. The agreement to organize incorporated a job
classification system but also provided for review of the
system by a union-management committee. The purpose of the
review process was to lay the groundwork for a revised job
classification system that would more accurately reflect the
requirements of each position. Salaries would then be
adjusted accordingly. A point system was used to rate each
employee, and interviews and surveys were conducted. The
committee then met to classify each employee under the
revised system with the understanding that dissatisfied
employees could appeal their new classifications.
Between 1984 and 1986, the committee reached agreement
on reclassification with many employees, but an impasse
remained with eight district court employees. An independent
professional consultant hired to resolve the dispute favored
reclassifying certain court personnel at a grade higher than
that proposed and endorsed an appeals process for those
dissatisfied with their reclassifications. The entire
reclassification process was part of the negotiations for a