 97-677

                                                                           No. 97-677

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                            1998 MT 4

                                                         ________________
                                                          )     RE IN IN
                                          IN RE DISTRICT COURT BUDGET)OPINION AND ORDER
                                                 ORDER, DATED October 1, 1997 )
                                                        _________________


¶1The First Judicial District Court Judges, Jeffrey M. Sherlock, Thomas C. Honzel,
and Dorothy McCarter (Judges), have, by counsel, filed their motion requesting that this
Court issue an order dismissing the appeal filed by the Board of Lewis and Clark County
Commissioners (Board). The Judges contend that their October 1, 1997 order is not
appealable under Rule 1, M.R.App.P. The Board has responded, arguing that the order
is appealable.


BACKGROUND

¶2In 1997 the Montana Legislature amended § 3-5-602, MCA, to increase the
amount of salary for court reporters. The statute went into effect on October 1, 1997,
and provided, in pertinent part that:
Each reporter is entitled to receive a base annual salary of not less than
$28,000 or more than $35,000 and no other compensation except as
provided in 3-5-604, . . .


¶3The Judges argue that the language "and no other compensation" has been
contained in the Montana statute for over 100 years and that despite this language court
reporters in this state, working for district Judges, have been receiving fringe benefits in
addition to their salary under the statute for decades. The Judges further state that the
Board threatened to discontinue the court reporters' fringe benefits after October 1, 1997,
and that the Judges, accordingly, ordered the Board to continue paying the fringe
benefits. The Judges' order, issued October 1, 1997, required the Board to provide the
court reporters of the Lewis and Clark County District Court the maximum salary
increase authorized by the 1997 Legislature and "all county employment benefits they
received prior to October 1, 1997, including but not limited to, health insurance, PERS
participation, and all other benefits said court reporters received prior to October 1,
1997." On November 25, 1997, the Board appealed this order directly to this Court.


DISCUSSION

¶4The Judges maintain that if the Board wishes to take issue with their October 1,
1997 order, the Board is required to file an appropriate civil action--whether that be a
petition for writ of mandamus pursuant to § 27-26-101, et seq., MCA; a petition for writ
of prohibition pursuant to § 27-27-101, et seq., MCA; or some other action.


¶5The Judges contend that Rule 1, M.R.App.P., is very restrictive and specifically
requires a civil action or a criminal action to be filed before any party, aggrieved by an
order, may appeal. The Judges argue that since the Board has failed to commence any


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civil action, nor has any civil action been commenced against the Board, there can be no
appeal and that the Board's appeal should be dismissed. The Judges also point out that
since no civil action has been commenced there are no named parties, no case number,
nor any court record which can be transmitted on appeal. They contend that their order
is simply an "administrative order" from which an appeal is improper under Rule 1,
M.R.App.P.


¶6In response, the Board argues that the Judges did not issue their order as an idle
act--they expected it to be obeyed unless withdrawn (which it has not been). In fact the
Judges expressly provided that failure to abide by the order "will constitute a contempt
of court and subject the county and its commissioners to possible fines and other
penalties.þ" According to the Board, no further steps are needed to effectuate the Judges'
order. The Board faces a clear choice--abide by the order or face contempt of court
charges.


¶7Under these circumstances, the Board argues that the Judges' order represents a
final order for purposes of Rule 1, M.R.App.P., and it cites to our decision in Butte
Silver Bow Local Gov't v. Olsen (1987), 228 Mont. 77, 743 P.2d 564, wherein we
accepted the direct appeal of a similar ex parte funding order of a Montana district court.


¶8Moreover, the Board argues that the alternative remedy suggested by the Judges
would fail to provide the Board with the requisite relief which it seeks. The Board
contends that the order is a final appealable order and that the question of whether there
might be an alternative approach is purely academic. Furthermore, citing Awareness
Group v. School District No. 4 (1990), 243 Mont. 469, 475, 795 P.2d 447, 451, and
Billings Associated Plumbing v. State Board of Plumbers (1979), 184 Mont. 249, 254,
602 P.2d 597, 600, the Board contends that a writ of prohibition would provide no relief
because the Judges have already acted in issuing their order and because a district court
could not order the Judges to refrain from an act that has already occurred.


¶9Similarly, the Board contends that filing a petition for writ of mandamus would
be futile since the purpose of the writ is to compel activity and to require the performance
of an act which the law specifically enjoins as a duty or to compel the admission of a
party to the use and enjoyment of a right or office to which he is entitled and from
which he is unlawfully precluded. Sections 27-26-101 and 102, MCA. The Board
contends that if it opted to disobey the Judges' order and to await a mandamus action by
the affected court reporters, the Board would place itself in contempt of court, which it
is not willing to do. Furthermore, the Board cites our decision in Awareness Group for
the proposition that filing a petition for a writ of mandamus after the court has already
issued its order would be a meaningless act. See, Awareness Group, 795 P.2d at 451.
Finally, the Board points out that the Judges' order is not one from an administrative
agency but, rather, is a judicial order from the First Judicial District Court.


¶10We have considered the arguments raised by the Judges and by the Board and
conclude that there is merit in each side's legal position. On the one hand, we tend to
agree with the Judges that the order is likely not appealable under Rule 1, M.R.App.P.


¶11In this regard, however, we note that in Olsen, the case cited by Board, we did
entertain a direct appeal of the district court's ex parte judicial order granting a salary
increase to eight members of the court's staff. As pointed out by the Board, it in fact,


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does not appear that there was any underlying proceeding or action from which the appeal
in that case was taken. Olsen, 743 P.2d at 564-65. Notwithstanding, there was no issue
or argument raised in Olsen as to whether the district court's order was directly
appealable under Rule 1, M.R.App.P., or whether an underlying civil action or
proceeding was a necessary predicate to the appeal. Accordingly, Olsen is not dispositive
of the precise issue raised by the Judges in their motion to dismiss.


¶12We also tend to agree with the Board that, for the reasons it sets forth in its
memorandum of law, neither a petition for writ of prohibition nor a petition for writ of
mandamus would be appropriate or provide any meaningful relief given the posture of
the case at bar. It would be futile to seek to either prohibit or to compel an act already
accomplished. Awareness Group, 795 P.2d at 451.


¶13Nonetheless, we are concerned that this matter is on direct appeal without any
underlying record whatsoever, except for the Judges' order, and with the potential that,
even though the matter at issue appears to be primarily one of law, there may be factual
matters which will be of importance to our decision.


¶14With all of this in mind, we believe that the better approach in a case such as this
is that the party aggrieved by the Judges' order file an original proceeding in this Court
under Rule 17, M.R.App.P. This was the sort of procedure that was utilized in Gallatin
County v. Eighteenth Judicial District Court (1997), ___ Mont. ___, 930 P.2d 680, 54
St. Rep. 46. In that case the Board of Gallatin County Commissioners instituted an
original proceeding in this Court by way of a petition for writ of supervisory control
seeking relief from an order of the Eighteenth Judicial District Court directing the
Gallatin County Commissioners to provide and to pay for various jury room facilities at
the Gallatin County Law and Justice Center.


¶15We accepted supervisory control because of the state-wide importance of the legal
issues presented and because it was clear that urgency and emergency factors existed, not
the least of which was the interest of the Gallatin County taxpayers in avoiding extended
litigation beginning at the trial court level. Gallatin County, 930 P.2d at 683.


¶16Moreover, in that case, since it appeared that a factual record needed to be
developed, we were able to remand the entire matter for an evidentiary hearing to a
neutral district court judge for the purpose of developing a factual record and more
clearly defining the legal issues. Following that hearing and entry of the neutral judge's
findings and conclusions, and with the record developed in the neutral district court, we
were able to render our decision on the important legal issues raised. Gallatin County,
930 P.2d at 683-89.


¶17We believe that a similar procedure should be followed in the case at bar. Should
the Board choose to do so, it may file a petition for writ of supervisory control with this
Court pursuant to Rule 17, M.R.App.P., and raise therein whatever legal questions it
determines are at issue as a result of the Judges' order of October 1, 1997. In this
regard, and in order to expedite our review of this matter should the Board seek
supervisory control, we suggest that the Judges and Board jointly file a statement of
agreed facts and attach thereto the Judgesþ order and any other documents that are
necessary to our review of the legal issue or issues presented. To the extent that the
parties cannot agree on certain facts, those disputes can be pointed out and, if we deem


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it necessary, we can then remand for an evidentiary hearing in a neutral district court as
we did in Gallatin County.


¶18 On this basis, we conclude that the Judges' motion to dismiss the Board's instant
appeal should be granted without prejudice to the underlying merits of the case.
Accordingly,


¶19IT IS HEREBY ORDERED that the Judges' motion to dismiss should be and the
same is, hereby, GRANTED, and the appeal of the Board in this cause is DISMISSED
WITHOUT PREJUDICE TO THE MERITS.


¶20IT IS HEREBY FURTHER ORDERED that the Clerk of this Court give notice
of this order by mail to counsel of record.


¶21DATED this 13th day of January, 1998.


/S/       J. A. TURNAGE
/S/       JAMES C. NELSON
/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER
/S/       KARLA M. GRAY
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART




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