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                                                              1998 MT 243




                        BARBARA A. MONACO, in her official capacity as Chief Juvenile

                        Probation Officer for the Montana Twentieth Judicial District Court,




                                                     Petitioner and Respondent,




                                                                       v.




                         LAKE COUNTY, a Political Subdivision of the State of Montana,

                        acting by and through its County Commissioners, BARRY BAKER,

                          MIKE HUTCHIN, and DAVE STIPE, in their official capacities;

                          and SANDERS COUNTY, a Political Subdivision of the State of

                              Montana acting by and through its County Commissioners,

                         CAROL BROOKER, SHERRIE HOOTEN and STEVE WHEAT,

                                                      in their official capacities,




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                                                    Respondents and Appellants.




                                                             APPEAL FROM: District Court of the Twentieth Judicial
                                                                                 District,

                                                   In and for the County of Lake,

                                     The Honorable Robert S. Keller, Judge presiding.




                                                     COUNSEL OF RECORD:




                                                             For Appellants:




                          James H. Goetz (argued) and Richard J. Dolan; Goetz, Madden &

                                                     Dunn, Bozeman, Montana

                                                            For Respondent:




                       Herman A. Watson III, Anne H. Watson (argued); Watson & Watson,

                                                          Bozeman, Montana




                 David M. McLean; Knight, Dahood, McLean & Everett, Anaconda, Montana


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                                                       Submitted: July 14, 1998

                                                      Decided: October 15, 1998

                                                                     Filed:




                                    __________________________________________

                                                                     Clerk




                     Justice W. William Leaphart delivered the Opinion of the Court.



¶ Respondents appeal from the Twentieth Judicial District Court's entry of a Writ of
Mandamus.

¶ We reverse.

¶ In determining whether the District Court erred, we restate the issue:

¶ Whether the District Court erred in holding that Judge C. B. McNeil had inherent
power to override the statutory ceiling on salaries and set a higher salary for
Barbara Monaco, the Chief Probation Officer of the Twentieth Judicial District.

                                                         Standard of Review


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¶ The standard of review for a district court's findings of fact is whether they are
clearly erroneous. Trad Industries, Ltd. v. Brogan (1991), 246 Mont. 439, 447, 805
P.2d 54, 59. The grant of a Writ of Mandate will be "sustained on appeal unless there
is a showing the district court abused its discretion." State ex rel. Browman v. Wood
(1975), 168 Mont. 341, 348, 543 P.2d 184, 188.

                                            Factual and Procedural Background

¶ In 1986, District Court Judge C. B. McNeil appointed Petitioner, Barbara A.
Monaco (Monaco), as a Deputy Juvenile Probation Officer for the Twentieth Judicial
District, which includes Lake and Sanders Counties. In 1989, Judge McNeil
promoted Monaco to Chief Juvenile Probation Officer. Her starting annual salary
was $25,147.20. The County Commissioners for Lake and Sanders Counties (Lake)
approved subsequent increases to her salary until she attained a salary of $35,728.51.

¶ In 1996, Judge McNeil entered an order that set Monaco's salary at the rate of
$17.88 per hour for the 1996-1997 fiscal year. Judge McNeil then amended his order
and set Monaco's salary at $36,721.69. Lake subsequently advised Monaco by
memorandum that they had reduced her base salary to $22,000 but that she would
receive adjustments for longevity and cost of living. Lake's calculations were based
solely on § 41-5-704, MCA (1995). Section 41-5-704, MCA (1995), provides in
pertinent part:

                   (1) A chief probation officer shall receive for his services a salary specified by
                   the court, depending on the formal training and experience of each respective
                   officer, but such salary may be no lower than $17,000 a year and no higher
                   than $22,000 a year. In addition to such salary, the court shall, on or before
                   July 1 of each year, adjust and fix the salary of the chief probation officer for
                   a cost-of-living increase . . . .

                   (2) . . . each chief probation officer with more than 5 years of service is
                   entitled to receive an annual 1% longevity allowance. . . .



Sections 41-5-704(1) and (2), MCA (1995). Monaco filed a petition for a Writ of
Mandamus, requesting that the District Court order Lake to comply with its amended


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order.

¶ The Honorable Robert S. Keller, District Court Judge Retired, held a hearing and
issued Findings of Fact and Conclusions of Law. Relying on this Court's decision in
State v. Sullivan, the District Court concluded that a court could compel funding
only when there was an emergency or when established methods to provide funding
had failed. State v. Sullivan (1913), 48 Mont. 320, 137 P. 392. The District Court
concluded that Lake refused to pay Monaco's court ordered salary, that Sanders
County had apparently acquiesced in Lake's reduction of Monaco's salary, and that
established methods of funding had failed. The District Court ruled that Judge
McNeil had inherent authority to issue an ex parte order establishing Monaco's
salary. The District Court issued a Writ of Mandamus, affirming Judge McNeil's
order regarding Monaco's salary.

                                                                Discussion

¶ Whether the District Court erred in holding that Judge C. B. McNeil had inherent
power to override the statutory ceiling on salaries and set a higher salary for
Barbara Monaco, the Chief Probation Officer of the Twentieth Judicial District.

¶ Lake argues in essence that the District Court made clearly erroneous findings in
determining, under this Court's decision in Sullivan, that Judge McNeil's exercise of
inherent power was justified. Lake first contends that because § 41-5-704, MCA
(1995), imposed a clear salary range for probation officers, the District Court could
only disregard § 41-5-704, MCA (1995), if it had justification for its exercise of
inherent power. Lake argues that there was no true financial emergency and that the
established methods of funding had not failed. Therefore, Lake contends, Judge
McNeil's exercise of inherent power was not justified and the District Court's Writ of
Mandamus should be reversed. Lake also argues that by interfering with the
Legislature's authority to set salaries, the District Court's exercise of inherent power
was inconsistent with the separation of powers provided under Montana's
constitution.

¶ Monaco argues that the District Court correctly found that there was a true
financial emergency and that established methods of funding had failed. Monaco also
argues, as a matter of equity, that because Lake approved her previous salary
increases, it waived any objection to Judge McNeil's ex parte order establishing her


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salary.

¶ This Court considered the doctrine of inherent authority in Sullivan. In Sullivan,
the board of commissioners of Lewis and Clark County (the County) gave notice that
it would only pay the salary of the district court's court attendant on days when a
jury was in attendance. The court ordered the County to pay the court attendant's
claim for a higher salary, finding that his services were necessary for the "proper
and expeditious transaction of the business of this court." Sullivan, 48 Mont. at 323,
137 P. at 393. The County refused to pay the court attendant's claim.

¶ The Court in Sullivan concluded that the idea of inherent power implies that "its
use is for occasions not provided for by established methods." Sullivan, 48 Mont. at
329, 137 P. at 395. The Court held that when such methods fail:

                   and the court shall determine that by observing them the assistance necessary
                   for the due and effective exercise of its own functions cannot be had, or when
                   an emergency arises which the established methods cannot or do not instantly
                   meet, then and not till then does occasion arise for the exercise of the inherent
                   power.



Sullivan, 48 Mont. at 329, 137 P. at 395. The Court in Sullivan concluded that both the
sheriff and the County had the duty to provide the services that the court attendant had
performed, and that the district court had not shown that recourse to the sheriff or the
County would fail. Sullivan, 48 Mont. at 331, 137 P. at 396. In later decisions, this Court
has reaffirmed its holding in Sullivan. See Butte-Silver Bow Local Govern. v. Olsen
(1987), 228 Mont. 77, 743 P.2d 564; Clark v. Dussault (1994), 265 Mont. 479, 878 P.2d
239.

¶ Under Sullivan, we first consider whether there was a true financial emergency.
The District Court found that the Youth Court depended on the effectiveness of its
Youth Probation operations, that Montana's juvenile justice system faced a funding
crisis, that Youth Probation offices functioned with insufficient staff and facilities,
and that Youth Probation offices coped with a surge in the number of juvenile cases.

¶ We conclude that the District Court's finding of an emergency was clearly


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erroneous. The District Court made broad findings about the condition of Montana's
juvenile justice system, but it made no finding that Lake's reduction of Monaco's
salary created a financial emergency that "justif[ied] the imposition of the judge's
salary order." Butte-Silver Bow, 228 Mont. at 81, 743 P.2d at 566. The District Court
did not find that Lake's reduction of Monaco's salary had "stop[ped] or threaten[ed]
to stop the efficient and orderly administration of justice and court business." Butte-
Silver Bow, 228 Mont. at 81, 743 P.2d at 566. Nor did the District Court find that
Monaco would leave her position as Chief Probation Officer or that she could not be
replaced in the event that Lake refused to comply with Judge McNeil's order.

¶ Under Sullivan, we also consider whether the established methods of funding failed.
Monaco contends that the only established method of funding was the District
Court's budget request. Monaco argues further that when Judge McNeil met several
times with Lake regarding her salary, he exhausted established procedures. Lake
contends however that the established method of funding was to petition the
Legislature to change the salary cap specified in § 41-5-704, MCA (1995), and asserts
that the Montana Juvenile Probation Officers Association succeeded in 1997 in
having the statute amended to increase salaries for probation officers.

¶ We conclude that the District Court's finding that the established methods for
funding failed was clearly erroneous. Monaco did not pursue the established method
for funding, which was to petition the Legislature to amend § 41-5-704, MCA (1995).
Compare Butte-Silver Bow, 228 Mont. at 82, 743 P.2d at 567 (concluding established
methods for funding court positions had not failed, because employees had not
appealed their reclassification).

¶ We hold that the District Court erred in ruling that Judge McNeil had inherent
authority to establish Monaco's salary above the statutory maximum, and we further
hold that the District Court abused its discretion in issuing the Writ of Mandamus.
Because these holdings are dispositive, we do not consider the other issues raised by
the parties.

¶ Reversed.

/S/ W. WILLIAM LEAPHART




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We concur:



/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.




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