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. 'WilliamLeaphart argued, Helena, Montana For Amicus Curiae: John W. Northey, Helena, Montana

Submitted: December 9, 1982 Decided: April 28, 1983Hon. 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 citationsthematters listed below. Correctionshave 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 setby 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 salariesmust not be diminished during a term of office. Third, the forfeiture of pay provisions violated the impairment of contract clauses of Art. 

# z I,S 1-0of the United States Constitution and Art.223, 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 sameway. We sumrraarize the operation of these statutes and we set forth the full text of the statutes in AppdixA 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-nvokedto allaw 30 more days to reach the decisionor 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 fordelay. The parties involved in the casemust 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 orjustice mst fileanother affidavit tothe 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 towrite the opinion. The statutes are imprecise astowhen 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 filedbut good cause isnot 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 recmndationwas proper. If there has been a failure to file an affidavit, it appears the corrunission must find a violation, and it further aparsthe suprem court would likewise have to find a violation. On the other hand, if the question isone of good cause for the delay, it appears that the c&ssion and this Court are granted sane discretion indetermining whether a violation has occurred.If a violation is found this Court is compelled by statute to direct the state auditor to withhold amonth's pay from the district judge or justice--thispay 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. SEPARATIONOF 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 perproperly belonging to one branch shall exercise any perproperly 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 exrel. 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 decisionwill 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.tthe holdings do suggest is that there is a third realm of judicial activity, neither substantive nor adjective law, a realm of 'proceedings which are sovital to the efficient functioning of a court as to be beyond legislativepower.' 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 alonedetermine 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-makingpower, 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 in its verv nature as a court, that to --A --- -- divest it of its absolute corrunand within these 

# _--

. - 

## - spheres is to make meaningless the very phrase 

### --- udicial per." (Emphasisadded7 107U. Pa. ;.Rev. at 29-30. To the questions posed above the courts have answered with virtual unanimity that the separation of persdoctrine does not prmit the legisl-atureto intrude. For example, in Houston v. Williams (1859), 13 Cal. 24, the court struck down a statutewhich required that in all cases the California Suprm Court must render

awritten opinionwith 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 particularbe admitted?" 13 Cal. at 25. TO the same effect, see Vaughan v. Harp (18871,49 Ark. 160, 4 SOW. lil Ocampov. 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-dvisementfor more than 60 days and which deprived the court of jurisdiction if no decision was reached within 90 days. inquoting fromone 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 suchpersare not inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the Constitution or established inpursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departmntsof 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 Legislaturemust 

### be the judge of the order in which it will dispose ofcases andwhat period of time proper disposition shall require. Theremay 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_' fc in Gk&u 

### v. State (Ohio1922), 138N.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 regardedwith 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 struckdown a statutewhich set time limits for the trial courts to hear testimonyon a creditor's claim, andwhich furtherprovided that the trial court lost jurisdiction if the testimony was not heard within that tk. Inholding 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 timewithin which any court 

### in the exercise of its judicial function shall hear or determine amatter 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, 388N.E. 762, 766-767. 

## zip 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 amnthly salary, to file an affidavit to the effect that the judge had no cases assigned for decisionwhich were older than 90 days. The court held that this statute violated a section of the Nevada Constitutionwhich 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 statuteviolated the separation of persclause of theNevada 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 actionwithin fixed timeperiods

as being an unconstitutional interference with judicial functions. In Sandsv. Albert PikeMotor 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 interferencewith judicial functions, a requirement that

a judge must hear a motion to set aside a bail bond forfeiture within 30 days of themotion. 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 casesbearing

on this issue. We emphasize also that defendant seems to concede that time limits within which judicial decisions must be made areproperly 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 tobe takenby the judiciary--includingthe forfeiture of

one mnth's pay if a violation is found--is mandated by the statutes. As the District Court stated: 

### " [nlothingis 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, canbe con.struedto give the legislature the perto 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." (Ehphasisadded.) 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 cdssionconsistingof five persons and provide for the appointment thereto of two district judges, one attorney, and two citizenswho 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 constitutionexpressly directed or permitted." Even hy the mst liberal construction standardswe cannot read eitherArt. 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: "Thetotality of the effect of Chapter 375 is to interfere with the internal operations of the judiciary in the samemanner as if the judiciary would impose limitations on the legislature as to its internal operations, such as the n-r of cdttees,the timewithinwhich 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 legislatureand the constitution authorizing the legislature to govern its affairs without interference from the other constitutional branches of government." PAPT 11. DIMINUTIONOF SALARYAND IMPAImOF 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 constitutionalprovisions. 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 1month, which pay is forfeited by the justice.'' Section 3-5-212, which applies todistrict 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 forfeitedby 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. .lfiIS 31,provides: 

### " [n] o 

# . . . law impairing the obligation of contracts

# . ..shallbe 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 mandatedby the statutes. And assuming that the 1-egislaturecan indirectly violate the constitutionby 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 allservices required. As applied here, defendant claims that the legislature canwithhold judicial salaries if a judgedoes 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 rmvefrom 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, expresslyprohibited 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 theNevada court struckdown statutes setting deadlines for judicial opinions and requiring affidavits of compliance as a condition of gettingpaid. We will not, as the defendant urges, sanction an indirect violation of the Constitutionby upholding a scheme for reduction of salariesmandated by the legislature but administeredby the courts. We mst, therefore, conclude that the challenged statutes violate Wt. VII, S 7 of ourConstitution forbiddinga reduction of judicial salaries during a term of office.Asshg,however, that it ispermissible to indirectlyviolate

an express mandate of the Constitution, the statutes challengedhere 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 sopartly in considerationof the salarybenefits 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.stitutionallyimpairing 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 constitutionallyprotected.'I 609 P.2d at 994. Although defendant concedes the constitutional protection accorded judicial salaries through the impairment clauses, the argument nonetheless ismade 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 ofthe warrant. Clearly, a justice or judge has no contxactual right toexpect payrent of servicehe 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, ina 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 iscontemplated by this statute. Section 2-16-406, has been inexistence 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 [thedefendant 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 officialsmentioned 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 orwhich 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 tothe same constitutional objections made concerning the challenged statuteshere. We need not belabor the point, however, because thisinterpretation is so c1earl.yin 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 interpretationwill undoubtedly come as a great shock to those state officials who claim a right to their salarieswithout a requirement that they file affidavits orperform 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. Prn111. 

### THEAPPLICATION OF rnICLEVII, 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 legislatureas 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 followingpromulgation." The 1889 Constitution did not contain such a provision. The judicial article was silent on the role of the supreme court in making ap-llaterules of pra.cticeor civil rules of practice. It

was simply assumed that the legislature had unrestricted authorityto 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.uthorityin 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 Wersof the bar. Concerning the remainingportion of (3)we stated: "The second sentence of subdivision (3)obviouslymans, without the necessity for any strained construction, that as to rules of appellate procedure and rules of procedure for other courts, such as the Ylntanahles 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.ationgoverning 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 andconstitutional 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 perto 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 functioningof the courts a.s to go beyond legislativepower.'" 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 judiciarywill be preserved in the very grant of judicialpower." 107 U. Pa. L.Rev. at 33. Ifwe 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 strikedown the legislationas having gone beyond the authority conferred on the legislature as provided for in this constitutionalprovision. The trial court aptly described the situation that would exist if the statuteswere considered tobe procedural rules and thereforenecessarily subject to the requirements and restrictions of Art. VII, S 2(3): "Chapter 375 [sections3-2-104 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 affirmed.

We Concur:

Chief JustibeAPPENDIX A

3-2-104. Salaries

# - expcnaea. (1) The salaries of justices of the uupremecourtareprovided forin 2-16-405. (2) 11any cause, motion,or other praceding remains pending andunde. cided foraperiod of90daya after ~ubmission for decision,thejustice ofthe rupremecourtwho has been amigned towrite theopinion, order, ordecision of theeounshall submit an affidaviton or before the90th day tothechief justice settingf~nh thecasename. cause number, and thereaJon thematter 

### bu notbeendecided.Copinoftheaffidavitmust befurnishedtoallparties tothematter pending. Acause, motion, or other proceeding is considered ~ubmltted for decision when all hearings havebeen held andfinalbrief8have been submitted by ell parties to the matter pending. Upon the filing of the affidavit, thejustice shall have an ndditionul 30 days to decide the matter which has ban submitted. No cause. motion, or other pnrreding may remainundecided formore than 120days after suhmisnion fordecision vithout the approval of a majority of the other nlernbcrs of the supreme court forgood cause shown in an affidavit requesting additional time. If ajustice ofthe nupreme court riolntcs the provisions of this section, any party ~oa matterpending in violation of this scction or. Iry 11 mnjoritv vote, theother mtmbcrnofthesupremecourt may referthen~atter to thej"dicin1 standards mmmiuion. If the court. acting upon the recomrnendatior, 01thenJmmis- ,ion, determines thejustice is nut in conlplianre wilh this srctian. it %hall order that the state auditor not isstlc it warrallt f11rpaytnmt of srrvirea for 1month,which payis forfeited t~y ttirjustice. (3) Actual and necessary travel expenses c~f tllcjustices of the supreme murt shall be the travel expenses, as defined and pn)vidrd in 2-18-501 through 2-18-50:].illcurred in theperformunce oftheir officialduties.

3-6-212. Submission of nffidavit

# - payment of salary

## - commi~rioa todeterminecompliance.(1)lfanvcause.motion,or otherproceeding remains pending and undecided for a ~)c.riotlof 90 days after cubmission for decision, the district courtjudge I~eforc. wllrlm the matter ib pending shallsubmit anaffidavit on or irefore the 90th day tothe chief justiceofthesupremecourt settingforth thecasename.cause number. andthe wn thematterhasnot been derided.Copies ofthe affidavittilust be furnished toall parties to the matter pending. A cause, motion, or other proceeding in considered submitted for decision when nll hearings have been 

### held and final briefshave been submitted by all pilrtirs to the matter pmdbg.Upon thefilingoftheaffidavit,thedistrictjudge shallhaveannclditioliJ30daystodecidethematter which hasbeen sul)mittctl.Nocause,motion, orotherproceeding may remainundecided for more tlintl 120daysaftersub- &ion fordecisionwithout theapproval of a majority ofthesupremecourt 

### fmgoodcauseshown in annffidnvitrequesting atltlitii~nnl tirne. (2) 

### Ifsdistrictjudge violates theprovisions ofthis section,any party to 8 matter pending in violation of this section or. by n majority vote, the Supremecourtrnnyreferthemntter tothejudicial rtiindvrdsconirnission.

(3) Iftheaupremecourt,actingupon therecommendation ofthecommis

### don,determinesthatthejudge isnot in compliance with thissection,it shnll derthat the stateauditor not issue a warrant for paynlcnt of services fur Imonth,whichpay isforfeitedby thejudge.