NO. 81-51 INTHE 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, Stateof Montana, Defendants and Respondents.

meal from: DistrictCourt of theFirstJudicial 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: 

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## 111982Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Plaintiff (andappellant) Archie W. McPhail, filed an action in District Court, Lewis and Clark County,asking the court to declare invalid a rulepromulgated 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 DistrictCourt. 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. TheMontana legislature enacted the Psychologists LicensureAct that same year. The act provided a comprehensive licensure procedure forpsychologists practicing in the state, and created the Montana Board of Psychologists to administer examinations and issue licenses to qualified psychologistswishing to practice within the state. The act required thatpersons wishing to practice psychology within the statepass 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 hadestablished 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 licensemay be issued to an individualwho 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-ona program which is primarily psychological, and in additionhas 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 inpart: "Applicantswho meet the qualifications for licensure as described in Section 66-3208must have all five (5)years of qualified professional experienceobtained after receiving the Master's Degree 

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# .." McPhail's application for a license under the grandfather clause was rejected by the board solelybecause he did not have the required fiveyears 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 actionhaving 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,apparentlywithout success. Early in 1979, the board sent a letter to the county attorney of Deer LodgeCounty stating thatMcPhail was engaged in the unauthorized practice of psychology, and referred the matter for "possiblecriminal proceedings." On May 25, 1979, McPhail filed the present action. The board sought dismissal of the action on the grounds that the prior dismissal ofMcPhailk suitbarred 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 rightby including a grandfather clause within the act. The purpose of section 66-3208(4),R.C.M.,was to exemptpracticing 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 clausebut his applicationwas 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

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### , 626 P.2d 1269, 38 St.Rep. 621; and Bell 

### v. Dept. of Licensing (1979), -Mont

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### , 594 P.2d 331, 36 St.Rep. 880,

we held that administrative rulesmust be strictly confined within the applicable legislative guidelines. In Bell, -- this Court reviewed rulespromulgated 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 Courtheld 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 thosepowers specifically conferred upon them by the legislature." 594 P.2d at 332. 

### Any rulepromulgatedby an administrative agency that is "outof harmony" with the enabling statute will be void. In Bell, we said: "Thecourtshave uniformly held that administrative regulations are 'outof harmony' with legislative guidelines if they: (1) 'engraftadditional 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 statuteprovided 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 sixmonths in a "commercialbarbershop." We held that the rule imposed an additional requirement not envisionedby the legislature and was invalid. Similarly, courts in other states have stricken administrative ruleswhich 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 requirementsmust be met. The legislature knewhow to prescribe such a chronological order. In section 37-17-302(2)(e), which deals with the qualifications of applicants notwithin the grandfather clause, the statute requires two years of professional experienceand that "Oneyear 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 McPhaillsexperience. Instead, itdenied him a licenseby promulgation of a rule "outof harmony" with the grandfather clause. We reverse the judgment of the District Court and order that the casebe remanded to the board so that itmay 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