NO. 81-51 

IN THE SUPREPIE: COURT OF THE STATE OF MONTANA 

1981 

ARCHIE W. McPHAIL, 

Plaintiff and Appellant, 

MONTANA BOARD OF PSYCHOLOGISTS of the 

Montana Department of Professional and 

Occupational Licensing, State of Montana, 

Defendants and Respondents. 

meal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Hon. James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Scribner, Huss & Hjort, Helena, Montana 

Barry Hjort argued, Helena, Montana 

For Respondents: 

Daniel G. Diemert argued, Helena, Montana 

Submitted: October 23, 1981 

Decided : FE% 11 m 

~iledFEB 11 1982 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Plaintiff (and appellant) Archie W. McPhail, filed an 

action in District Court, Lewis and Clark County, asking the 

court to declare invalid a rule promulgated by the Montana 

Board of Psychologists, and asking that the court order the 

board to issue him a license to practice psychology. On 

appeal, McPhail contends that a rule adopted and applied by 

the board engrafts an additional requirement on the psychologist 

licensure statutes that was not envisioned by the legislature, 

and is therefore invalid. We agree. We reverse the judgment 

of the District Court. 

McPhail has been employed on a fulltime basis as a 

psychologist supervisor at Warm Springs State Hospital since 

1970 and is also engaged in the private practice of psychology 

as an independent counselor. He received his masters degree 

in psychology in May 1971. The Montana legislature enacted 

the Psychologists Licensure Act that same year. The act 

provided a comprehensive licensure procedure for psychologists 

practicing in the state, and created the Montana Board of 

Psychologists to administer examinations and issue licenses 

to qualified psychologists wishing to practice within the 

state. 

The act required that persons wishing to practice 

psychology within the state pass an examination, possess a 

doctoral degree, and meet certain other prescribed requirements. 

See section 37-17-302, MCA. Before the enactment of the 

act, Montana had no standards regulating the practice of 

psychology. The act therefore contained a "grandfather 

clause" which applied to applicants for licensure who had 
established psychology practices before the adoption of the 

act, and exempted them from the doctoral degree requirement 

of section 37-17-302. The grandfather clause, section 66- 

3208 (4), R.C.M. 1947, provided: 

"(4) Prior to January 1, 1973, a license may 

be issued to an individual who has been a 

resident of the State for at least one (1) year 

and who holds a master's deqree from an accredited 

college or university based-on a program which is 

primarily psychological, and in addition has had 

five (5) years of professional experience satisfactory to the Board, provided he has met the 

requirements of Paragraphs (a) (b) (c) of Subsection 

(2) of this section." 

Acting under its rulemaking powers, granted by section 

37-7-202(1), MCA, the board adopted rule 40-3.90(6)-S90090 

(2) (f) M.A.C., which provides in part: 

"Applicants who meet the qualifications for 

licensure as described in Section 66-3208 must 

have all five (5) years of qualified professional 

experience obtained after receiving the Master's 

Degree . . ." 

McPhail's application for a license under the grandfather 

clause was rejected by the board solely because he did not 

have the required five years experience after obtaining his 

masters degree. McPhail sought judicial review of the board's 

decision in the District Court of Lewis and Clark County in 

December 1973. No further action having been taken in that 

case, the cause was dismissed with prejudice on May 10, 1978. 

After dismissal of the action, the parties attempted to 

negotiate their differences, apparently without success. 

Early in 1979, the board sent a letter to the county attorney 

of Deer Lodge County stating that McPhail was engaged in the 

unauthorized practice of psychology, and referred the matter 

for "possible criminal proceedings." On May 25, 1979, 

McPhail filed the present action. The board sought dismissal 

of the action on the grounds that the prior dismissal of 
McPhailk suit barred any subsequent legal action under the 

doctrine of res judicata. The District Court ruled that 

res judicata did not bar this action, and the board has not 

cross-appealed that ruling. 

Because he established his practice before the act 

became effective, McPhail had some kind of right to pursue 

his profession. The legislature obviously recognized such a 

right by including a grandfather clause within the act. The 

purpose of section 66-3208(4), R.C.M.,was to exempt practicing 

psychologists from the newly-enacted licensure requirements 

if they met other, less restrictive requirements. McPhail 

contends that he was qualified for licensure under the 

grandfather clause but his application was denied solely on 

the basis of the board's rule requiring five years experience 

after obtaining his master's degree. We hold that the rule 

is invalid because it is out of harmony with the grandfather 

clause. 

In Brd. of Barbers v. Big Sky College Etc. (1951), - 

Mont . - , 626 P.2d 1269, 38 St.Rep. 621; and Bell v. Dept. 

of Licensing (1979), - Mont . - , 594 P.2d 331, 36 St.Rep. 880, 

we held that administrative rules must be strictly confined 

within the applicable legislative guidelines. In Bell, -- this 

Court reviewed rules promulgated by the Board of Barbers 

requiring all barber colleges to employ a fulltime "instructor," 

who must achieve a certain minimal percentage score on an 

examination. This Court held that such rules were invalid 

because they exceeded the express grant of rulemaking authority 

conferred upon the board by statute. "Administrative agencies, 

of course, have only those powers specifically conferred upon 

them by the legislature." 594 P.2d at 332. Any rule promulgated 
by an administrative agency that is "out of harmony" with 

the enabling statute will be void. In Bell, we said: 

"The courts have uniformly held that administrative 

regulations are 'out of harmony' with legislative 

guidelines if they: (1) 'engraft additional and 

contradictory requirements on the statute' (citing 

cases); or (2) 'if they engraft additional, noncontradictory requirements on the statute which 

were not envisioned by the legislature.' (citing 

cases)." 594 P.2d at 333. 

In -- Brd. of Barbers, we considered a factual situation 

somewhat similar to the present case. In that case, the 

statute provided that an applicant serve a one-year apprenticeship before being eligible for licensure as a barber. By 

rule, the board added to this statutory condition a requirement that the one year apprenticeship must include at least 

six months in a "commercial barbershop." We held that the 

rule imposed an additional requirement not envisioned by the 

legislature and was invalid. 

Similarly, courts in other states have stricken administrative rules which have added conditions for licensure 

under grandfather clauses. See Bloom v. Texas State Bd. 

of Exam. of Psychologists (Tex. 1973), 492 S.W.2d 460; and 

Whittle v. St. Bd. of Examiners of Psychologists (Okla. 

The board here has promulgated a rule clearly imposing 

an additional requirement not envisioned by the legislature. 

The statute requires a master's degree and five years of 

professional experience, and prescribes no chronological 

order in which these requirements must be met. The legislature 

knew how to prescribe such a chronological order. In section 

37-17-302(2)(e), which deals with the qualifications of 

applicants not within the grandfather clause, the statute 

requires two years of professional experience and that "One 
year of this experience shall be post doctoral." The legislature 

clearly chose not to impose a chronological requirement in 

the grandfather clause. 

The board is statutorily charged with reviewing the 

character of an applicants professional experience. In its 

reliance upon this rule, the board failed to examine the 

character of McPhaills experience. Instead, it denied him a 

license by promulgation of a rule "out of harmony" with the 

grandfather clause. 

We reverse the judgment of the District Court and order 

that the case be remanded to the board so that it may consider 

McPhail's application on the merits of his professional experience 

both before and after he received his master's degree. 

We Concur: 

Chief Justice