                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    No. 03-374
              ___________________________________

IN RE PETITION FOR REVISIONS AND ADOPTION       )
OF THE MONTANA JUDICIAL BRANCH PERSONNEL )                           ORDER
PLAN AND POLICIES.                              )
            ___________________________________

       On June 6, 2003, Ed Smith, Clerk of the Montana Supreme Court, filed a Petition for
the Revision and Adoption of the Montana Judicial Branch Personnel Plan and Policies. The
Petition purports to be filed on behalf of Mr. Smith, personally in his capacity as Clerk of
this Court, and also on behalf of District Court Judges Thomas M. McKittrick, Julie Macek,
Dirk M. Sandefur and Katherine M. Irigoin. Substantively, the Petition requests that this
Court amend the Montana Judicial Branch Personnel Plan and Policies, adopted July 1,
2003, ("Plan") to exclude the personal staff of the state elected judicial branch officials from
the recruitment, classification and grievance provisions of the Plan. The Petition asserts that
this Court alone has the authority and inherent power to enact a personnel plan that affects
the judicial branch employees.
       In 2001, the Montana Legislature passed Senate Bill 176, commonly referred to as
the "State Assumption Bill." The Bill vested the Montana Supreme Court with the
responsibility of adopting a plan for the personnel administration for employees of the
judicial branch including "classification and pay, recruitment and selection, performance
appraisal, training, and promotion." Section 3-1-130, MCA. The legislation provided that
the plan would exclude certain employees, including the Clerk of this Court. When the
Court ultimately adopted the Plan, the Court included Policy No.: Section 100 which
provided, in part, that the Judges and Justices shall retain their inherent power to select and
hire their necessary assistants. The Court further exempted additional employees in the
judicial branch from the Plan, including law clerks on a temporary appointment. See Policy
No.: Section 100, 2.0.
       In the fall of 2002, prompted by a vote taken at the annual Montana Judges
Association meeting, the Association sought a sponsor to introduce legislation at the
upcoming legislative session, seeking to amend § 3-1-130, MCA, to expand the number of
legislatively exempt employees to include the personal staff of the elected judicial branch
officials. Legislation to this effect was introduced and passed but was ultimately vetoed by
Governor Judy Martz.
       The Petition before us seeks to amend the Plan to the extent that the provisions
regarding recruitment, classification and grievance provisions shall not apply to the personal
staffs of the state elected judicial branch officials, including the Clerk of the Montana
Supreme Court. At the outset, we observe that the Petition has not been signed by any
Judges or Justices nor by any attorney stating that he or she is representing any Montana
Judges or Justices in a representative capacity. Rather, the Petition is signed by Mr. Ed
Smith who is Clerk of this Court. Mr. Smith is not a licensed attorney and cannot represent
other individuals in a representative capacity. Therefore, the Petition, as it applies to the
Judges and Justices, is denied without prejudice.
       As the Petition relates to employees of the Clerk of the Montana Supreme Court's
office, we conclude the Petition is well taken and has merit. The Clerk of the Montana
Supreme Court is a state-wide elected official. The Clerk has been specifically exempted
from the Plan. Section 3-1-130, MCA. In addition, the Deputy Clerk of Court is appointed
by the Clerk of Court, serves at the pleasure of the Clerk of Court, and is not subject to the
Plan. Sections 3-2-406 and 2-16-213(1), MCA; Conboy v. State (1985), 214 Mont. 492, 693
P.2d 547. Excluding the Clerk and the Deputy Clerk, there are five remaining employees
of the Clerk of the Supreme Court's office. Historically, the Clerk of the Supreme Court, as
a state-wide elected official, has exercised his or her authority to recruit, hire, classify,
establish levels of pay, discipline and in all respects manage the employees of the office.
The Clerk's office is funded by the legislature with a discreet budget to carry out the
functions of the office. We conclude that we improvidently included these employees in the
recruitment, classification, pay and grievance provisions when we recently adopted the Plan.
After further consideration, it appears to us that the Clerk of the Supreme Court's office
would be better served by returning the few employees in the Clerk's office to the direct
supervision and control of the Clerk of this Court in all respects. Moreover, the five
employees of the Clerk's office, all of whom have considerable tenure, have expressed their
dissatisfaction with our attempt to classify their positions in the Plan.
       Article VII, Section 1, of the Montana Constitution vests judicial power of the state

                                               2
in one Supreme Court, district courts, justice courts and such other courts as provided by
law. Article III, Section 1, mandates the separation of powers between the three branches
of the government. This Court has consistently recognized the inherent power of the
judiciary when dealing with personnel issues that impact directly on the smooth and efficient
operation of the courts. See Mead v. McKittrick (1986), 223 Mont. 428, 727 P.2d 517;
County Com’rs v. First Jud. Dist. Court, 2000 MT 258, 301 Mont. 496, 10 P.3d 805.
Therefore,
       IT IS HEREBY ORDERED THAT said Petition inasmuch as it applies to the
employees of the Clerk of the Montana Supreme Court's office is GRANTED. The Judicial
Branch Personnel Plan and Policies shall be amended forthwith in that the recruitment,
classification, pay and grievance provisions shall not apply to the employees of the Office
of the Clerk of the Montana Supreme Court. The remaining provisions of the Judicial
Branch Personnel Plan and Policies shall continue to apply to the employees of the Office
of the Clerk of the Montana Supreme Court.
       IT IS FURTHER ORDERED THAT the Petition for Revision and Adoption of the
Montana Judicial Branch Personnel Plan and Policies, inasmuch as it applies to District
Court Judges McKittrick, Macek, Sandefur, and Irigoin and other elected judicial officials,
other than the Clerk of the Montana Supreme Court, is DENIED WITHOUT PREJUDICE;
       DATED this 3rd day of December 2003.

                                                  /S/ JIM REGNIER
                                                  /S/ PATRICIA COTTER
                                                  /S/ W. WILLIAM LEAPHART
                                                  /S/ JAMES C. NELSON




                                             3
Justice Jim Rice concurring in part and dissenting in part.
       I concur with the Court’s granting of the petition with regard to the office of Clerk
of the Montana Supreme Court.
       I dissent from the Court’s denial of the petition with regard to the district court
judges. The Court denies the petition on the ground that it was signed by Mr. Ed Smith, who
the Court indicates cannot represent the other petitioners.         However, it should be
remembered that the request before us does not seek judicial relief, but, rather, revision of
the policies of the judicial branch. This is an internal operational matter which falls within
our state administrative responsibilities. A petition or other formal proceeding is not
requisite for such policy revisions. We can revise our internal policies via petition, letter,
phone call or even without a request at all. I would do so.




                                                  /S/ JIM RICE
Justice John Warner concurring in part and dissenting in part.

       I agree that the present petition, as it applies to the named District Judges, should be

denied without prejudice. Any petition requesting that employees of the judicial branch who

work directly for a district judge be excluded from the Judicial Branch Personnel Plan and

Policies should be brought to this Court by the District Judges themselves. The present

petition does not give any indication that all, or even a majority, of the 42 District Judges

desire that employees be exempted from the Judicial Branch personnel policies. Nor does

it tell us how many or what specific employees should be considered for exemption.

       I disagree that the employees of the Clerk of the Supreme Court, other than the

Deputy Clerk, should be excluded from four critical areas of the Judicial Branch Personnel

Plan and Policies. Exempting such employees is not in accord with either the legislative

direction to cover all employees of the branch with a personnel policy, nor is it a good

management decision.

       Historically, the various employees of the judicial branch of government were under

the supervision of the Supreme Court, District Judges, and the Clerk of the Supreme Court.

There was no overall personnel policy that applied to employees of the Judicial Branch. The

employees of the Clerk of the Supreme Court work for the Judicial Branch of Montana’s

government. They are assigned to the office of the Clerk. Such employees have different

duties, but work for the courts the same as the judicial assistants, law clerks, court reporters,

and juvenile probation officers who are assigned to the Supreme Court, the District Courts,

the Law Library and the Court Administrator’s Office. Such people are competent and

valuable. However, no reason is shown to set them apart from other branch personnel.

       With the passage of SB 176, administration of the Judicial Branch was unified. Some


                                               5
argue that such was a mistake, and some that it is a substantial improvement that was a long

time coming. However, there is no doubt that SB 176, a part of which is § 3-1-130, MCA,

changed the makeup of the Judicial Branch. It made the historical fact that the employees

of the Clerk of the Supreme Court were not covered by the Supreme Court personnel policy

irrelevant. The change wrought by SB 176 effects the entire branch. It is the clear

legislative directive that the Clerk’s employees are to be encompassed within the personnel

policies adopted by the Supreme Court. Considering the directive of § 3-1-130(1), MCA,

it is doubtful that the Clerk can promulgate personnel policies applying only to his office that

do not also have to be adopted by the Supreme Court.

       The Clerk does not have budgetary autonomy. His office is one of six programs in

the Judiciary’s Budget. 3 Legislative Fiscal Report, 2005 Biennium, Legislative Fiscal

Division, (June, 2003).1 There appears no reason to have separate personnel policies for

different budgetary programs.

       Not only is the unique exemption of five employees from four critical areas of the

branch personnel policy directly contrary to legislative direction, it is a bad business

decision. We have done the Clerk’s valuable employees a distinct disservice. We have now

placed the Clerk, the affected employees and this Court in a position where there are no

guidelines whatever from which to solve most problems, or answer many questions, that

might arise out of the terms and conditions of these persons’ employment. This Court, as



       1
        There are six “programs” in the Judiciary’s budget:
Supreme Court Operations, Boards and Commissions, Law Library,
District Court Operations, Water Courts Supervision, and the
Clerk of the Supreme Court. The Workers’ Compensation Court
is attached to the Department of Labor for administrative
purposes.

                                               6
the business head, or board of directors if you will, of the Judicial Branch of government

should strive to make the branch’s personnel policies, as well as other administrative

requirements, as consistent and uniform as is commensurate with an efficiently run

organization. We should not create separate enclaves or departments that have entirely

different policies and procedures unless justified by compelling business reasons. I see no

such reasons here.

       If the Clerk or his employees are dissatisfied with the classification plan that

determines their rate of pay, a request to change it could be discussed and considered. If the

Clerk would have petitioned for some other amendment to the branch policies that applied

particularly to his office, and if he had given the reasons therefore, this Court might consider

such request and perhaps grant all or part thereof. But, a near blanket exemption from the

Judicial Branch personnel policy is not warranted.

       I dissent.


                                                   /S/ JOHN WARNER




                                               7
Chief Justice Karla M. Gray, dissenting.



       I cannot dissent strongly enough from the Court's order in this original proceeding.

Under the guise of addressing an innocuous-sounding petition to revise our Judicial Branch

personnel-related plans and policies, the Court effectively amends § 3-1-130, MCA, a statute

duly enacted by the 2001 Montana Legislature, by judicial fiat. Indeed, it appears to strike

as unconstitutional--without ever saying the words--a portion of § 3-1-130, MCA, which

defines the judicial branch employees to which our personnel policies do and do not apply.

Can the Court exercise inherent judicial authority? Certainly. In theory, at least, the Court

can do so whenever it pleases. When it chooses to do so, however, I believe it has an

obligation to present a supportable legal analysis. The Court has not met that burden here.

Should we exercise such authority in this case? Certainly not, especially under the

circumstances presently before us. Finally, if the Court is going to resolve an issue which

touches directly on a statute, it ought to do so in an opinion, rather than a nonpublished

order, so that the law relating to the statute can be researched and “discovered.”

       It is important to set forth the background to this cause number filed by the Clerk of

this Court. As part of the state assumption legislation enacted in 2001, the Legislature

enacted what was later codified as § 3-1-130, MCA. That statute directs this Court to adopt

personnel, classification and pay policies for all employees of the judicial branch except

justices, judges, this Court's administrator, the state law librarian and the clerk of this Court.

As we progressed toward accomplishing this directive, the Clerk contacted members of the

Court to argue that the Legislature had intended to exclude all of the employees in his office.

We reviewed the materials he provided and did not agree. We also--in that regard--briefly

                                                8
discussed the "inherent judicial authority" approach to the statutory directive, and determined

to proceed in accordance with the statute.

       Subsequently, the Montana Judges Association--of which the Clerk is not a member--

decided to approach the Legislature to request that their confidential personal staff (not

including court reporters) be exempted from the statutory definition of judicial branch

employees subject to the branch's personnel, classification and pay policies. Among the

justifications discussed at the meeting were that other elected officials have confidential

personal exempt staff and judges must have such staff and be able to fire them without cause.

       The proposed legislation subsequently was introduced, significantly broadened to

include exemptions for all the employees in the Clerk's office (in addition to the Deputy

Clerk, who is exempt pursuant to § 3-2-406, MCA). The Clerk testified that, as a statewide

elected official, he was entitled to exempt staff and that his employees were of the same

confidential personal nature as the statutorily-authorized exempt staff for executive branch

officials. With the support of its proponents, the bill was amended to clarify that any staff

made exempt pursuant thereto still would be subject to the branch's pay plan. Ultimately,

the Governor vetoed the bill and the Legislature did not override the veto.

       The Clerk then proceeded down parallel courses. As he had agreed to do at the end

of the legislative session, he had his staff participate in the exact same process we utilized

for promulgating our classification and compensation plan for all nonexempt judicial branch

employees. He also petitioned this Court to revise our personnel, classification and pay

policies to exempt all of his employees. As the Court properly notes in this latter regard, he

also purported to act on behalf of certain district court judges, but cannot do so as a matter

of law since he is not an attorney. The Clerk's filed petition, in its entirety (not counting the


                                               9
caption and signature line), is one and one-half pages long. It cites generally to Article VII,

Section 1 of the 1972 Montana Constitution, which vests judicial power in this Court, and

Article III, Section 1, which mandates the separation of powers between the three branches

of government. The Clerk provides no legal analysis or other citation to legal authority. Not

surprisingly perhaps, the petition--since it purports to merely request a change in our

branch's policies, rather than a judicial repudiation of a legislative enactment--was not served

on any other person or party.

       The Court's order states that, historically, the Clerk has had authority to do whatever

he desired with regard to his employees. While this may be true, the same could be said of

many other "historic" matters in the judicial branch which have been changed by the state

assumption legislation. Notwithstanding, the Court grants the petition, relying on the

"inherent judicial power" doctrine set forth in Mead and County Commissioners. Those

cases are not applicable for a number of reasons, and certainly do not support the notion that

the Clerk's employees are somehow different and "special" vis-à-vis other judicial branch

employees, especially those who do the same type of work.

       Before addressing the cases relied on by the Court, I believe it is important to point

out a number of anomalies with regard to the Clerk's position which have bearing--or should

have bearing--on this matter. First, the Clerk is not a judicial officer. Second--and

importantly--unlike justices, district court judges and all statewide, elected executive branch

officials, the Clerk's position is not a constitutional one. In other words, the position is a

statutory one, elected statewide and on a partisan basis as a historic carryover. See § 3-2-

401, MCA. Likewise, the duties of the office are statutorily limited by §§ 3-2-402 through

-404, MCA; the duties are mostly record keeping and fee collecting in nature, and also


                                              10
include "perform[ing] other duties as may be required by law and the rules and practice of

the supreme court." See § 3-2-402(1)(g), MCA. Stated differently, the Clerk's duties--and

those of his employees--are prescribed by statute and are, as one might expect from the title

of the position, largely clerical. This is not a position with judicial power, discretion or

authority and, therefore, is neither qualitatively nor quantitatively similar to the

constitutional positions filled by justices and district court judges. At the bottom line, the

Legislature created the Clerk's position and limited its duties. On that basis alone, it is clear

that the Legislature has the authority, under Article III, Section 1 of the 1972 Montana

Constitution, to require the employees of that office to be included in the judicial branch's

personnel, classification and pay plans and policies.

       Moreover, it strikes me that, by going to the 2003 Legislature for statutory "relief,"

the Clerk conceded the question of "inherent judicial authority" in this matter. The Court

having initially rejected the exercise of inherent judicial authority in adopting the plans and

policies as directed by § 3-1-130, MCA, and the Clerk having subsequently--but

unsuccessfully--sought relief through the appropriate avenues, I cannot understand how the

Court can sweep all that aside and now assert "inherent judicial authority."

       Furthermore, the fact is that "exempt" staff for other elected public officials are,

indeed, confidential personal staff. Exempt staff generally are policy advisers, deputy

officials, high level management positions, executive assistants and other necessarily

confidential staff. These are the kinds of confidential personal staff to which other elected

public officials are entitled. In the present case, as mentioned above, the Deputy Clerk is--by

separate statute--exempt personal staff of the Clerk and rightly so. The Deputy Clerk

generally is the hands-on manager of the office and, in the event of the Clerk's absence,


                                               11
disability or vacancy, is the person mandated by § 3-2-406, MCA, to perform the duties of

the office.

       The remaining five employees of the Clerk's office are not exempt by statute (unlike

all other exempt staff throughout state government). They also are not entitled to exempt

status because--while valuable employees of long standing--they are clerical staff with

statutorily circumscribed duties. The Clerk has not asserted otherwise in his petition or in

any communication with the Court. In fact, no information before us supports clerical staff

with these kinds of duties being confidential personal staff anywhere in Montana

government. Their loyalty ought to be to the jobs they perform, not to the Clerk. The Clerk

apparently wants to be able to fire them at will but, in the meantime, pay them at whatever

salary level he thinks is appropriate (notwithstanding his agreement at the Legislature to

comport with the branch's pay plan). No other employee in the judicial branch, except those

expressly exempt pursuant to § 3-1-130, MCA--or in all of state government, except

pursuant to statute--is in such a position. Under state assumption, and even ignoring § 3-1-

130, MCA, I believe it is inappropriate to place additional judicial employees in such a

position.

       I recognize that the Clerk's clerical staff are not satisfied with their recommended

placement within the judicial branch's classification and pay plans. I daresay the same is true

of many other employees in our branch and in the other two branches of government.

However, their displeasure over compensation matters does not relate to the issue of whether

they are, or should be, exempt staff. Apparently, while already paid substantially more than

that recommended by the same method we adopted for all other branch employees, they

want to receive biennial raises via the Clerk’s "budget" (which, in any event, is a simplistic


                                              12
way to look at the Clerk of Court "program" within the overall judicial branch's budget, for

which the Chief Justice is the ultimate approving authority), while other judicial branch

employees who are at or above the maximum for their (often lower) pay grades are facing

freezes until employees within their classification "catch up." It was not, and is not, possible

to promulgate branchwide policies and grade/pay plans based on individual employee

dissatisfaction. No other branch of government does so.

       Nor are the Court's passing citations to Mead and County Commissioners supportive

of its statement in this particular case that we have "consistently recognized the inherent

power of the judiciary when dealing with personnel issues that impact directly on the smooth

and efficient operation of the courts." Both were pre-state assumption cases and, while many

in the judicial branch remain adamantly opposed to state assumption, state assumption is the

law with which we must work--unless the Court plans more assertions of inherent judicial

authority. Furthermore, in neither case did the Court implicitly amend a duly enacted statute

by judicial fiat.

       In Mead, the issue was whether a judge and county commissioners acting pursuant

to a judicial action were entitled to judicial immunity pursuant to § 2-9-112(1), MCA, for

discharging the "personal secretary" of the judge's predecessor. We stated, in the pre-

assumption context, that they were entitled to such immunity. Mead, 223 Mont. at 430-31,

727 P.2d at 518-19. There is no immunity issue before us in this cause number.

       In any event, the key portions of Mead address the fact that the personal secretary was

a "key court employee." We stated that "[t]he efficient and proper administration of justice

requires that judges have personal secretaries with whom they can work professionally and

confidentially. As such, the personal secretary occupies a distinct and unique status among


                                              13
district court employees." Mead, 223 Mont. at 431, 727 P.2d at 519 (emphasis added). To

the extent Mead has any application whatsoever to this proceeding, it certainly does not

support making all of the Clerk's staff exempt employees, when their primary responsibilities

are to intake, docket and file public documents and respond to routine inquiries. Again, and

with all due respect to the employees at issue, they do not occupy a confidential or "distinct

and unique status."

       Nor does County Commissioners relate in any way to this proceeding or provide

support for the Court's actions here. That case involved issues relating to the extent to which

court reporters were subject to judicial authority or county authority. While we certainly

discussed the separation of powers and the power of the judiciary to control certain aspects

involving court employees, we did so in the context of various statutes applicable to, for

example, court reporters, county budgets and other employment requirements. County

Commissioners, ¶¶ 15-22. The court reporter statutes at issue in that case no longer exist.

Court reporters are part of the state assumption legislation and are no longer county

employees; nor are they exempt personal staff. Court reporters' pay, benefits and other work

requirements are now subject to statute, the grade/pay plan adopted by this Court, or

contract. See, e.g., §§ 3-5-601, MCA, et seq.

       Moreover, it is not altogether clear precisely which portions of our recruitment,

classification, pay and grievance provisions will not apply to the Clerk's employees.

Presumably, the Clerk will do his own advertisements, screening and the like in the event

of staff vacancies. Presumably, other statewide policies concerning exempt personal staff

will apply. The down side to all this, however, is that these five employees--with their

combined 79 years of service in the judicial branch--lose employment rights and job security.


                                              14
They can be discharged at any time by either the present Clerk or a future clerk, without

cause and without recourse. While some of the employees may believe they never had such

rights and security, it is clear that two of them--one of whom worked in the Court

Administrator's office and one of whom worked for the State Law Librarian--did have

employment rights prior to joining the Clerk's staff. By its action here, the Court simply

negates those pre-existing rights by the stroke of a pen. I question whether the Court's action

in that regard will withstand legal scrutiny in a future case. Mostly, though, I am shocked

that a Court which generally is so protective of employment rights would withhold those

rights from any permanent employees of our branch.

       Moreover, the Court's open invitation to district court judges and, I suppose, to itself

to petition for similar revisions for all or portions of their staffs is truly unfortunate. The

ultimate result, I fear, is that rather than using state assumption to forge a better branch by

equalizing and standardizing matters wherever possible--and especially regarding the critical

elements of how we treat our employees--the Court is creating internal divisions of huge

magnitude. Favoritism for some employees--or seeming favoritism which, however, also

guts employment rights--is a sure road to discord and upheaval within our branch of

government.

       With the exception of the Court's conclusion that the Clerk cannot request relief on

behalf of certain district court judges, I dissent from the entirety of the Court's order.



                                                   /S/ KARLA M. GRAY




                                              15
