No. 82-199 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

ALFRED B. COATE, 

Plaintiff and Respondent, 

VS . 

E. V. "SONNY" OJ"IHOLT, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath argued, Assistant Attorney General, 

Helena, Montana 

Jayne F. Mitchell argued, Helena, Montana 

For Respondent: 

Leaphart Law Firm, Helena, Montana 

W. 'William Leaphart argued, Helena, Montana 

For Amicus Curiae: 

John W. Northey, Helena, Montana 

Submitted: December 9, 1982 

Decided: April 28, 1983 
Hon. Daniel J. Shea 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

CORRECTION. In prepdriny rhls Jylrllon ror publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

Date: 

Re: May 26, 1983 

Coate v. Omholt, No. 82-199, April 28, 1983 

Page 2, line 13 from bottom -- Art. - I11 should read Art. - 11. / 

(Also cited on p. 11). 

Page 6, line 22 -- 4 S.W. 75 should read 4 S.W. 751. 

Page 7, line 11 -- Shario State -- Schario v. State. 

Page 7, line 5 from bottom -- 388 N.E. 762 should read 388 N.E.2d - 762J 

WEST PUBLISHING COMPANY 

Box 3526 

St. Paul, MN 55165 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

The defendant, E. V. "Sonny" Omholt, Auditor of the State of 

Montana, appeals from a LaJis and Clark County District Court 

judgmemt which declared unconstitutional two statutes which imposed 

sanctions on district judges and supreme court judges if decisions 

are not reached or opinions are not written within the procedural 

constraints and time limits set by the statutes. 

The District Court declared the statutes unconstitutional on 

three grounds. First, in attempting to regulate the internal 

operations of the judiciary by imposing procedures and time limits 

for reaching decisions, the statutes violated the separation of 

pwers doctrine as set forth in Article 111, S 1 of the Montana 

Constitution. Second, by requiring the forfeiture of one mnth's 

pay for a violation, the statutes violated Article VII, S 7 (1) of 

the Montana Constitution which provides that judicial salaries must 

not be diminished during a term of office. Third, the forfeiture of 

pay provisions violated the impairment of contract clauses of Art. 

I, S 1-0 of the United States Constitution and Art.223, 

z 

S 31, of the 

Montana Constitution. We affirm. 

The statutes involved, sections 3-2-104 (applicable to supreme 

court justices) and 3-5-21.2, MCA (applicable to district judges) , 

operate in essentially the same way. We sumrraarize the operation of 

these statutes and we set forth the full text of the statutes in 

Appdix A to this opinion. 

Both statutes provide that decisions must be reached or 

opinions written within 90 days of submission. If not, another 

procedure is i-nvoked to allaw 30 more days to reach the decision or 

write the opinion. On or before the 90th day of submission, a 

district judge or supreme court justice, must. file an affidavit to 

the chief justice giving the case name and nmber and the reason for 
delay. The parties involved in the case must be given a copy of the 

affidavit. Upon timely filing of the affidavit, the judge or 

iustice has an autamatic 30 more days to reach a decision or to 

write the opinion. To justify further delay a judge or justice mst 

file another affidavit to the supreme court before the expiration of 

the 120th day, which affidavit must establish good cause for the 

delay. A majority of the supreme court must detemine whether 

additional tine should be given to reach the decision or to write 

the opinion. 

The statutes are imprecise as to when or how a violation occurs 

if the affidavits are timely filed. However, if no affidavit is 

filed on or before the 90th day of submission, or on or before the 

120th day of submission, a violation is automatic. It appears also 

that if an affidavit is timely filed but good cause is not sham for 

an extension of time beyond the 120 days, either the supreme court 

by a mjority vote, or a party to the case, may refer the case to 

the judicial standards conmission. 

Upon the c&ssion receiving the matter it appears that 

further proceedings and a hearing are contenplated before the 

emission, although the statute does not so state. Nonetheless, 

once the judicial standards co&ssion has acted and made a 

recormdation to the supre court, it appears that the supreme 

court must then sit as a court of review to determine whether the 

conanission's recmndation was proper. If there has been a failure 

to file an affidavit, it appears the corrunission must find a 

violation, and it further apars the suprem court would likewise 

have to find a violation. On the other hand, if the question is one 

of good cause for the delay, it appears that the c&ssion and this 

Court are granted sane discretion in determining whether a violation 

has occurred. 
If a violation is found this Court is compelled by statute to 

direct the state auditor to withhold a month's pay from the district 

judge or justice--this pay is forfeited. 

The plaintiff, a district judge of the Sixteenth Judicial 

District, challenged the constitutionality of these statutes, and 

they were properly held to be unconstitutional on three grounds. 

PART I. SEPARATION OF POCIJERS 

The essential question is w!nether the legislature, in enacting 

time limits and setting forth the enforcement procedures for 

judicial decision-making, has exercised a power that properly 

belongs to the judicial branch of government. We conclude that, 

based on the separation of powers clause of our state constitution, 

that the question of when cases shall be decided and the manner in 

which they shall. be decided, is a matter solely for the judicial 

branch of government. 

The separation of powers provision, contained in the general 

govemnt section of Art. 111, S 1, 1972 Montana Constitution, 

provides : 

"The power of the govemment of this state is 

divided into three distinct 

branches--legislative, executive, and judicial. 

No person or persons charged with the exercise 

of per properly belonging to one branch shall 

exercise any per properly belonging to either 

of the others, except as in this constitution 

expressly directed or permitted." 

By this provi.sion, each branch of gove-t is made equal, 

coordinate, and ind-ependent. By this we do not mean absolute 

independence because "absolute independence" cannot exist in our 

form of government. It does mean, however, " . . . that the powers 

properly belonging to one depar-t shall not be exercised by 

either of the others." State v. Johnson (1926), 75 Mont. 240, 243 

P. 1073; State ex rel. Judge v. Legislative Finance Corn. (1975), 

168 Mont. 470, 543 P.2d 1317. With only one exception (State ex 
rel. Emerald People's Util. v. Joseph (Ore. 1982) , 640 P. 2d 1011) , 

the suprew courts of those states called on to answer the question 

have declared that the essential nature of a constitutional court 

encompasses the right to determine when a judicial decision will be 

made. 

These holdings are best surmnarized in a law review article 

entitled, Legislative Control Over Judicial Rule-Making: - A Problem 

- in Constitutional Revision (1958), 107 U. Pa. L.Rev. 1, 31-32: 

"P7ha.t the holdings do suggest is that there is a 

third realm of judicial activity, neither 

substantive nor adjective law, a realm of 

'proceedings which are so vital to the efficient 

functioning of a court as to be beyond 

legislative power.' This is the area of minimum 

functional integrity of the courts, 'what is 

essential to the existence, dignity and 

functions of the court as a constitutional 

tribunal and from the very fact that it is a 

court.' Any statute which moves so far into 

this realm of judicial affairs as to dictate to 

a judge how he shall judge or how he shall 

comport himself in judging or which seeks to 

surround the act of judging with hampering 

conditions clearly offends the constitutional 

scheme of the separation of powers and will be 

held invalid." 

The courts have recognized as the authors state, that certain 

judicial functions require that the courts alone determine how those 

functions are to be exercised. Even assuming the right under many 

state constitutions, and indeed, the need for the legislature to be 

involved in rule-making where the courts and the legislature have 

concurrent rule-making power, the authors state: 

"Grant the necessity for concurrent jurisdiction 

in the field of procedure, immediately another 

problem presents itself. Should there not be 

,mt-e realm of judicial adiministration entirely 

free from legislative supervision? Or shall the 

legislilture be permitted to d.ictate to the 

courts every detail of their internal reqimen: 

cansnand appellate courts to issue written 

opinions in every case, declare within what time 

cases shall be heard, deny to the court the 

power to issue its mandate until a prescribed 

period of time after judgment shall have 

elapsed? -- There are spheres of activity - - so 

fundamental -- and so necessary to a court, - so 
inherent --A 

in its verv nature --- as a court, -- that to 

divest _-- it of its absolute corrunand within these 

spheres is to make meaningless . - the very phrase - 

--- 

udicial per. " (Emphasis added7 107 U. Pa. 

;.Rev. at 29-30. 

To the questions posed above the courts have answered with 

virtual unanimity that the separation of pers doctrine does not 

prmit the legisl-ature to intrude. For example, in Houston v. 

Williams (1859), 13 Cal. 24, the court struck down a statute which 

required that in all cases the California Suprm Court must render 

a written opinion with reasons. The court said: 

"If the Legislature can require the reasons for 

our decisions to be stated in writing, it can 

forbid their statement in writing, and enforce 

their oral announcement, or prescribe the paper 

upon which they shall be written, and the ink 

which shall be used. And yet no sane man will 

lustify any absurd pretension, but where is the 

limit to this per if its exercise in any 

particular be admitted?" 13 Cal. at 25. 

TO the same effect, see Vaughan v. Harp (18871, 49 Ark. 160, 4 SOW. 

lil 

Ocampo v. Cabangis (Pa. 1910) , 15 Phil. 626. 

In State ex rel. Kostas v. Johnson (Ind. 1946), 69 N.E.2d 592, 

the court struck down a statute which forbade a lmer court to hold 

an issue under a-dvisement for more than 60 days and which deprived 

the court of jurisdiction if no decision was reached within 90 days. 

in quoting from one of its previous cases, the court stated: 

"'Courts are an integral part of the government, 

and entirely independent, deriving their pwers 

directly from the Constitution, in so far as 

such pers are not inherent in the very nature 

of the judiciary. A court of general 

jurisdiction, whether named in the Constitution 

or established in pursuance of the provisions of 

the Constitution, cannot be directed, 

controlled, or impeded in its functions by any 

of the other departmnts of the govemnt. The 

security of human rights and the safety of free 

institutions require the absolute integrity and 

freedom of action of courts."' 69 N.E.2d at 

595. 

In speaking directly to the statute, the court further stated: 

"[Tlhe court and not the Legislature must be the 

judge of the order in which it will dispose of 
cases and what period of time proper disposition 

shall require. There may be, and probably are, 

abuses and unjustified delays by courts in the 

disposition of cases, but the remedy is within 

the judicial branch of the cpvemment, not the 

legislative, or perhaps at the polls when a 

delinquent judge caws up for reelection. " 69 

N.E.2d at 596. 

In striking dm a statute which limited the time within which. 

Ohio courts could hear or determine the case, the Ohio Supreme Court 

Scd?q r_' f c 

in Gk&u v. State (Ohio 1922), 138 N.E. 63, declared: 

"True, the general subject-matter of procedure 

by the parties to the cause, proscribinq the 

manner of invoking the jurisdiction, - the 

plea-dings, and the time within which the 

jurisdiction shall be invoked, in short, the 

adjective law of the case, has always been 

regarded with the proper province of legislative 

action, yet - the legislative branch of the -- 

ovemrnent is without constitutional authorit 

--- zo limit thrjudicial branch of the -- goverm-enE 

- jn respect - to when ---- it shall hear or determine 

g cause - ofaction within its lawful - 

jurisdiction." (-ha-sis added.) 138 N.E. at 

64. 

And in 1978, an Ohio court struck down a statute which set time 

limits for the trial courts to hear testimony on a creditor's claim, 

and which further provided that the trial court lost jurisdiction if 

the testimony was not heard within that tk. In holding that the 

statute was directory only and that the court did not lose 

jurisdiction by a failure to hear testimony within the statutory 

tb limits, the court said: 

" 'An act of the General. A~sembly, attempting to 

peremptorily prescribe the time within which any 

court in the exercise of its judicial function 

shall hear or determine a matter properly within 

its jurisdiction, is a legislative invasion of 

judicial power, and, as such, is unreasonable 

and unconstitutional and therefore null and 

void. ' " In re Wlintock (1.978) , 58 Ohio Misc. 

5, 388 N.E. zip 762, 766-767. 

In State v. Merialdo (Nev. 1954), 268 P.2d 922, the ~evada 

Supreme Court struck down a statute which required each d.istrict 

court judge, before receiving a mnthly salary, to file an affidavit 

to the effect that the judge had no cases assigned for decision 
which were older than 90 days. The court held that this statute 

violated a section of the Nevada Constitution which provided that a 

ludge's salary could not be reduced during his term of office. 268 

P.2d at 925. The court further held that the statute violated the 

separation of pers clause of the Nevada Constitution. 268 P.2d at 

926. 

And, of course, other decisions have struck down legislation 

imposing tine limits for judicial action. In Waite v. Rurgess (Nev. 

I-952), 245 P.2d 994, the Nevada Supren-e Court struck down 

legislation which required judicial action within fixed time periods 

as being an unconstitutional interference with judicial functions. 

In Sands v. Albert Pike Motor Hotel (Ark. 1968), 434 S.W.2d 288, the 

Arkansas Suprere Court struck down a statute which required the 

circuit court (the trial court) to affirm a workmen's canpensation 

decision after it has been on file for 60 days. In Resolute Ins. 

Co. v. Seventh Jud. Dist. Ct. of Okl. Co., Okl. (W.D. Okla. 1971), 

336 F.Supp. 497, a federal judge struck dm as an unconstitutional 

legislative interference with judicial functions, a requirement that 

a judge must hear a motion to set aside a bail bond forfeiture 

within 30 days of the motion. 

The federal courts have struck down provisions of the Federal 

Speedy Trial Act on grounds that the requirements for trial within 

the statutory deadlines constitute an unconstitutional encroachrnent 

of the judiciary. The provisions were held to infringe on the 

constitutionally autonmus power of the judiciary--that is, to 

violate the separation of powers doctrine. - See United States v. 

Brainer (D. Md. 1981) , 515 F.Supp. 627; and United States v. Howard 

(D. Md. 1977), 440 F.Supp. 1106. 

We make no attempt to catalog and. discuss all the cases bearing 

on this issue. We emphasize also that defendant seems to concede 

that time limits within which judicial decisions must be made are 
properly questions to be decided by the judiciary. However, 

defendant nonetheless puts forth two arc,nrments to uphold the 

validity of the statutes. 

He first argues that the statutes are constitutional because it 

is the judiciary which will always be making the final decision of 

how much time should be allowed to reach a decision or to write an 

opinion, and as to whether a violation has occurred. Defendant 

ignores, however, several mandatory aspects of the statutes, which 

we have already mentioned. Defendant further ignores the fact that 

any action to be taken by the judiciary--including the forfeiture of 

one mnth's pay if a violation is found--is mandated by the 

statutes. As the District Court stated: " [nlothing is clearer than 

+&at it is the legislature which is ccanranding the forfeiture." 

Defendant next argues, without attempting to discuss the 

application of the separation of pers provision to these 

provisions, that two provisions of the Montana Constitution, when 

read together, can be con.strued to give the legislature the per to 

enact the statutes imposing time limits on judicial decision-making. 

He relies on Art. VIII, S 12, which provides tha.t: " [tl he legislature 

shall by law insure strict accountability of all revenue received 

and money spent by the state and counties, cities, towns, and all 

other local governmental entities." (Ehphasis added.) He further 

relies on Art. VII, S 11, which, as it pertains here, requires the 

legislature to establish a five member judicial standards 

co~ssion. It provides: " [tlhe legislature shall create a 

judicial standards cdssion consisting of five persons and provide 

for the appointment thereto of two district judges, one attorney, 

and two citizens who are neither judges nor attorneys." 

The last clause of the separation of pawers provision, Art. 

111, S 1, declares that one branch shall not exercise a power 

belonging to another branch ". . . except as in this constitution 
expressly directed or permitted." Even hy the mst liberal 

construction standards we cannot read either Art. VIII, § 12, above, 

or Art. VII, 5 11 , above, to mean that the drafters of these 

provisions intended that time limits on judicial decision-making 

would be imposed. In fact, defendant's interpretation cannot be 

reasonably implied. 

Perhaps the trial court best described the effect of sections 

3-2-104 and 3-5-212, MCA, in canparing them with an attempt by the 

judiciary to interfere with the internal operations of the 

legislature: 

"The totality of the effect of Chapter 375 is to 

interfere with the internal operations of the 

judiciary in the same manner as if the judiciary 

would impose limitations on the legislature as 

to its internal operations, such as the n-r 

of cdttees, the time within which a camittee 

must act, the time each legislator must attend 

the sessions, limiting the time of discussion, 

limiting the time one bill must pass from one 

house to the other and the like. All of these 

legislative functions are internal with the 

legislature and the constitution authorizing the 

legislature to govern its affairs without 

interference from the other constitutional 

branches of government." 

PAPT 11. DIMINUTION OF SALARY AND IMPAIm OF CoNlPACT 

Although our decision on the separation of powers issue is 

dispositive, we nonetheless proceed to the two additional grounds on 

which the trial court held the statutes to be 

unconstitutional--diminution of salary and impairment of salary. 

The salary forfeiture provisions clearly violate these 

constitutional provisions. 

The penalty provisions of both statutes require a one mnth's 

forfeiture of pay in the event of a violation. Section 3-2-104, 

KA, which applies to supreme court justices, provides in part that 

the supreme court ". . . shall order that the state auditor not 

issue a warrant for paywnt of services for 1 month, which pay is 

forfeited by the justice.'' Section 3-5-212, which applies to 
district judges, provides in part that the supreme court ". . . 

shall order that the state auditor not issue a warrant for papnt 

of services for 1 month, which pay is forfeited by the judge." The 

trial court held that these statutes constitute both an 

unconstitutional diminution of salary and an unconstitutional 

impairment of contract. 

The state constitutional prohibition against diminution of 

judicial salaries during terms of office provides that "[a111 

justices and judges shall be paid as provided by law, but salaries 

shall not be diminished during terms of office." Art. VII, 5 7(1). 

The federal constitutional prohibition against impairment of 

contracts, Art. I, S 10, provides in prt: "no state shall . . . 

pass any . . . law impairing the obligation of contracts . . .I1 The 

state constitutional prohibition against impairment of contracts, 

zArt. .lfiI S 31, provides : " [n] o . . . law impairing the obligation 

of contracts . . . shall be passed by the legislature. 

In arguing that the prohibition against reduction of judicial 

salaries is not violated, defendant in effect argues that the 

legislature can do indirectly what it is prohibited from doing 

directly. Defendant concedes that the statute mandates a reduction 

in salary but argues that if the judiciary imposes the sanctions 

rather than the legislature, the constitution is not violated. This 

argument, of course, ignores the fact that the judicially-imposed 

reductions are mandated by the statutes. 

And assuming that the 1-egislature can indirectly violate the 

constitution by imposing the duties on the supreme court to forfeit 

the salaries of judges who do not cqly with the challenged 

statutes, the defendant next argues that the contract impaimnt 

clauses of the United States and Montana Constitutions are not 

violated because the legislature has reserved to itself the 

authority to condition payment of salaries on performance of all 
services required. As applied here, defendant claims that the 

legislature can withhold judicial salaries if a judge does not reach 

a decision within the th limits set by the challenged statutes. 

A constitutional provision prohibiting diminution of salaries 

during the term of office is designed to rmve from lawmakers the 

temptation to exert control over the other branches by promise of 

reward in the form of increased corrq?ensation or threats of 

punishment by way of reduced salaries. State ex rel. Jackson v. 

Porter (1920), 57 Mont. 343, 188 P. 375. In Jackson, we so 

interpreted the 1889 provision which applied to all elected public 

officers. The 1889 Constitution also contained a provision applying 

only to judges. Art. VIII, S 29, expressly prohibited the salaries 

of judges fram being increased or decreased. The provision with 

respect to all public officials was not carried over to our 1972 

Constitution; however, a similar provision applying to judges was, 

of course, placed in the 1972 Constitution. Art. VII, § 7 of our 

presmt Constitution, although now applying only to judicial 

compensation, still embodies the fundamental policy considerations 

set forth in Jackson. -- See also Merialdo, supra, 268 P. 2d at 925, 

where the Nevada Supreme Court so interpreted the judicial article 

of the Nevada Constitution which prohibits judicial salary 

reductions during a term of office. This was one ground on which 

the Nevada court struck down statutes setting deadlines for judicial 

opinions and requiring affidavits of compliance as a condition of 

getting paid. 

We will not, as the defendant urges, sanction an indirect 

violation of the Constitution by upholding a scheme for reduction of 

salaries mandated by the legislature but administered by the courts. 

We mst, therefore, conclude that the challenged statutes violate 

Wt. VII, S 7 of our Constitution forbidding a reduction of judicial 

salaries during a term of office. 
Asshg, however, that it is permissible to indirectly violate 

an express mandate of the Constitution, the statutes challenged here 

nonetheless cannot survive a challenge that they violate the 

impairment of contract clauses of our State and Federal 

Constitutions. 

In Olson v. Cory (1-980), 164 Cal.Rptr. 217, 609 P.2d 991, the 

California Supreme Court interpreted the impairment clauses as it 

affects the judiciary's right to salary set by statute. The court 

held that a judge entering office does so partly in consideration of 

the salary benefits then offered by the state for that office. The 

court held that if those salary benefits are reduced by the 

legislature during a judge's term of office or during the unexpired 

term of a predecessor judge, the judge is nonetheless entitled to 

the contract for benefits during the remainder of the term. In 

applying the impairment clause the court stated: 

"Public employment gives rise to certain obligations 

which are protected by the contract clause of the 

Constitution. [Citations omitted. 1 Promised 

campensation is one such protected right. [Citations 

omitted.] Once vested, the right to campensation cannot 

be eliminated without uncon.stitutionally impairing the 

contract obligation. [Citations omitted. I When 

agreement of employment between the state and public 

employees have been adopted by governing bodies, such 

agreerents are binding and constitutionally protected. 'I 

609 P.2d at 994. 

Although defendant concedes the constitutional protection 

accorded judicial salaries through the impairment clauses, the 

argument nonetheless is made that no impai-t exists if there is a 

statutory basis for the legislature to condition payment of salary 

on performance of all services required. Applied here, defendant 

argues that the. legislature can properly condition payment of 

judicial salaries based on timely filing of affidavits and timely 

filing of judicial decisions. Defendant argues that ". . . such 

failure on the part of a justice or judge constitutes a 

non-perfomce of required services justifying the withholding of 
the warrant. Clearly, a justice or judge has no contxactual right 

to expect payrent of service he has not rendered." 

In searching for a statutory basis for the legislature to 

condition papent, defendant cites but does not quote section 

2-16-406, MCA, a statute having absolutely no application to this 

case. This statute, in a most general way, specifies which services 

rendered by - all elected state officials must be considered as 

falling within the duties for which they are paid their annual 

salaries. Neither withholding of nor forfeiture of judicial 

salaries is contemplated by this statute. 

Section 2-16-406, has been in existence since 1895, although it 

has been amended several times over the years. It is part of that 

chapter dealing with salaries of the following elected state 

officials: the governor, lieutenant governor, chief justice and 

justices [it does not cover salaries of district court judges], 

attorney general, state auditor [the defendant here], superintendant 

of public instruction, public service cdssioners, secretary of 

state, and clerk of the supre court. The preceding statute 

(section 2-16-405, J!Oi) establishes the annual salaries for the 

elected state officials mentioned here. Section 2-16-406 specifies, 

in a most general way, the duties that must be performed for the 

salary received.. It provides: 

I' (1) The salary of each such officer shall be for all 

services required of him or which may hereafter devolve 

upon him by law, including all services rendered ex 

officio as a member of any board, commission, or 

committee, but shall not include actual necessary 

travel, lodging, and subsistence expenses incidental to 

his official duties. 

" (2) Unless otherwise provided by law, the salaries of 

officers must be paid out of the general fund in the 

state treasury monthly on the last day of the month." 

Defendant's interpretation of this statute renders it subject 

to the same constitutional objections made concerning the challenged 

statutes here. We need not belabor the point, however, because this 
interpretation is so c1earl.y in error. In effect, defendant argues 

that the legislature can withhold or forfeit the salaries of all 

state officials covered by the statute. Suffice to say that this 

interpretation will undoubtedly come as a great shock to those state 

officials who claim a right to their salaries without a requirement 

that they file affidavits or perform their duties within a specified 

We have held that the challenged statutes violate Art. VII, S 

7(1), which empowers the legislature to set judicial salaries 

subject to the restriction that such salaries cannot be reduced 

during a term of office. The legislature cannot directly establish 

an annual salary by one statute and then indirectly take away any 

part of that salary by a statute that imposes a forfeiture because 

an affidavit has not been filed or a decision has not been filed 

within the time limits set by the challenged statutes. These 

forfeiture provisions just as clearly violate the impairment of 

contract clauses of the State and Federal Constitutions. 

Prn 111. THE APPLICATION OF rnICLE VII, 5 2(3) 

In light of our holdings in Parts I and I1 d.eclaring the 

challenged statutes to be unconstituti.ona1, we think it important to 

discuss the role of the courts and the legislature as they relate to 

rule-making for the courts. The roles are specified in Art. VII, 5 

2 (3 ) , which provides : 

"It [the supreme court] may make rules governing 

appellate procedure, practice and procedure for all 

other courts, admission to the bar and conduct of its 

&rs. Rules of procedure shall be subject to 

disapproval by the legislature in either of the two 

sessions following promulgation." 

The 1889 Constitution did not contain such a provision. The 

judicial article was silent on the role of the supreme court in 

making ap-llate rules of pra.ctice or civil rules of practice. It 

was simply assumed that the legislature had unrestricted authority 
to legislate in this area. In fact, before the 1972 Constitution, 

any authority of the supreme court in adopting either appellate 

rules of procedure or civil rules of procedure, came expressly fran 

the legislature, with the legislature reserving the right to repeal 

any rules promulgated pursuant to this legislative authorization. 

- See sections 3-2-701 through 3-2-708, MCA, enacted in 1963. 

Clearly, with the adoption of the 1972 Constitution, sections 

3-2-701 through 3-2-708, were impliedly repealed, for Art. VII, S 

2 (3) vests the rule-raking a.uthority in the supreme court subject 

only to legislative veto. This provision changed the roles of the 

supreme court and the legislature. 

We have had only one occasion to interpret this clause in an 

opinion. In Matter of McCabe (1975), 168 bfont. 334, 544 ~.2d 825, 

the issue was whether the legislature or this Court could set the 

standards for admission to the bar. In interpreting Art. VII, 5 

2(3), we held that this Court has the exclusive control over 

admission to the bar and conduct of Wers of the bar. Concerning 

the remaining portion of (3) we stated: 

"The second sentence of subdivision (3) obviously mans, 

without the necessity for any strained construction, 

that as to rules of appellate procedure and rules of 

procedure for other courts, such as the Ylntana hles of 

Civil Procedure, the prmlgation of such rules is 

subject to disapproval by the legislature." 168 Mont. 

at 339, 544 P.2d at 828. 

Without question, Art. VII , S 2 (3) vests in the supreme court 

the authority to adopt rules for appellate procedure and trial and 

appellate procedures "for all other courts." Just as clearly, the 

legislature is empowered to veto any such rules promulgated by this 

Court. However, once a legislative veto is exercised, the 

legislature is not empwered to fill the vacuum by enacting its own 

1egisl.ation governing appellate procedure or lower court procedure. 

We have held in Part I of this opinion that the challenged 

statutes constitute a direct infringmt on the functional and 
constitutional integrity of the judiciary as a separate branch of 

go~~ement, and therefore that the statutes violate the separation 

of powers clause (Art. 111, 5 1) of our State Constitution. The 

constitutional provision giving rule-making power to the supreme 

court and veto per to the legislature, does not encampass the kind 

of legislation embodied in the challenged statutes. We held that 

tim limits within which judicial decisions must be reached, fall 

within what we recognized as the ". . . third realm of judicial 

activity, neither substantive nor adjective [procedural] law, a 

realm of 'proceedings which are so vital to the effective 

functioning of the courts a.s to go beyond legislative power.'" 107 

U. Pa. L.Rev. at 31-32. The internal operations of the courts, this 

third realm of judicial proceedings, are not subject to legislative 

veto : 

"A constitutional [provision such as Art. VII, S 2 (3) 1 

which expressly reserves ultimate authority over 

procedure to the legislature need not be feared as 

sanctioning legislative invasion of this last judicial 

stronghold.. . . So long as a constitution maintains 

the fundart?ental separation of powers [Art. 111, 5 16, 

1972 Mont. Const. 1 this area of functional independence 

of the judiciary will be preserved in the very grant of 

judicial power." 107 U. Pa. L.Rev. at 33. 

If we held, however, that the separation of powers doctrine was 

not violated, we would then be required to examine the statutes in 

light of Art. VII , S 2 (3) , which gives only the veto power to the 

legislature. The question would be whether the legislature, in the 

face of Art. VII, § 2 (3) , could validly enact statutes setting time 

1-imits (with sanctions other than a forfeiture or loss of judicial 

salary) for the judiciary to reach its decisions. Again, we muld 

be required to strike down the legislation as having gone beyond the 

authority conferred on the legislature as provided for in this 

constitutional provision. 

The trial court aptly described the situation that would exist 

if the statutes were considered to be procedural rules and therefore 
necessarily subject to the requirements and restrictions of Art. 

VII, S 2(3): 

"Chapter 375 [sections 3-2-104 and 3-5-2121 is a statute 

which attempts to govern the internal conduct of 

judicial business. Like the rules governing conduct of 

members of the bar, it is not a procedural rule within 

the maning of the Montana Constitution, Article VII, 

Section 2 (3) . Even if the Supreme Court adopted the 

language of Chapter 375 as as procedural rule, the 

legislature has only the per, under Article VII, of 

the Montana Constitution to disapprove." 

It is therefore clear that if in Parts I and I1 of this opinion 

we did not find the constitutional violations complained of, we 

would nonetheless be required to hold that the legislature exceeded 

its constitutional power under Art. VII, S 2(3) in enacting the 

legislation. 

For all of these reasons we hold the challenged statutes to be 

unconstitutional. The judgment of the District. Court is af firmed. 

We Concur: 

Chief Justibe 
APPENDIX A 

3-2-104. Salaries - expcnaea. (1) The salaries of justices of the 

uupreme court are provided for in 2-16-405. 

(2) 11 any cause, motion, or other praceding remains pending and unde. 

cided for a period of 90 daya after ~ubmission for decision, the justice of the 

rupreme court who has been amigned to write the opinion, order, or decision 

of the eoun shall submit an affidavit on or before the 90th day to the chief 

justice setting f~nh the case name. cause number, and the reaJon the matter 

bu not been decided. Copin of the affidavit must be furnished to all parties 

to the matter pending. A cause, motion, or other proceeding is considered 

~ubmltted for decision when all hearings have been held and final brief8 have 

been submitted by ell parties to the matter pending. Upon the filing of the 

affidavit, the justice shall have an ndditionul 30 days to decide the matter 

which has ban submitted. No cause. motion, or other pnrreding may 

remain undecided for more than 120 days after suhmisnion for decision vithout the approval of a majority of the other nlernbcrs of the supreme court 

for good cause shown in an affidavit requesting additional time. If a justice 

of the nupreme court riolntcs the provisions of this section, any party ~o a 

matter pending in violation of this scction or. Iry 11 mnjoritv vote, the other 

mtmbcrn of the supreme court may refer the n~atter to the j"dicin1 standards 

mmmiuion. If the court. acting upon the recomrnendat ior, 01 the nJmmis- 

,ion, determines the justice is nut in conlplianre wilh this srctian. it %hall 

order that the state auditor not isstlc it warrallt f11r paytnmt of srrvirea for 

1 month, which pay is forfeited t~y ttir justice. 

(3) Actual and necessary travel expenses c~f tllc justices of the supreme 

murt shall be the travel expenses, as defined and pn)vidrd in 2-18-501 

through 2-18-50:]. illcurred in the performunce of their official duties. 

3-6-212. Submission of nffidavit - payment of salary - commi~rioa to determine compliance. (1) lf anv cause. motion, or other proceeding remains pending and undecided for a ~)c.riotl of 90 days after 

cubmission for decision, the district court judge I~eforc. wllrlm the matter ib 

pending shall submit an affidavit on or irefore the 90th day to the chief justice of the supreme court setting forth the case name. cause number. and the 

wn the matter has not been derided. Copies of the affidavit tilust be furnished to all parties to the matter pending. A cause, motion, or other proceeding in considered submitted for decision when nll hearings have been 

held and final briefs have been submitted by all pilrtirs to the matter pmdbg. Upon the filing of the affidavit, the district judge shall have an nclditioliJ 30 days to decide the matter which has been sul)mittctl. No cause, motion, 

or other proceeding may remain undecided for more tlintl 120 days after sub- 

&ion for decision without the approval of a majority of the supreme court 

fm good cause shown in an nffidnvit requesting atltlitii~nnl tirne. 

(2) If s district judge violates the provisions of this section, any party to 

8 matter pending in violation of this section or. by n majority vote, the 

Supreme court rnny refer the mntter to the judicial rtiindvrds conirnission. 

(3) If the aupreme court, acting upon the recommendation of the commisdon, determines that the judge is not in compliance with this section, it shnll 

der that the state auditor not issue a warrant for paynlcnt of services fur 

I month, which pay is forfeited by the judge.