No. 05-678 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 7

PATRICIA BOE, on behalf of herself and other similarly situated, Plaintiff and Appellant,

v. COURT ADMINISTATOR FOR THE MONTANA JUDICIAL BRANCH OF PERSONNEL PLAN AND POLICIES, an administrative subdivision of the State of Montana, Defendant and Respondent.

APPEAL FROM: The District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 2005-0546, Honorable Ingrid G. Gustafson, Presiding Judge

COUNSEL OF RECORD: For Appellant: Robert L. Stephens, Jr., Sout hside Law Center, Billings, Montana For Respondent: Hon. Mike McGrath, Montana Attorn ey General, John C. Melcher, Assistant Attorney Gene ral, Helena, Montana

Submitted on Briefs: June 14, 2006 Decided: January 10, 2007 Filed:

__________________________________________ ClerkJustice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 Patricia Boe (Boe), a longtime judicial assi stant for the District Court in Billings, appeals the District Court’s dismissal of her Complaint challeng ing various provisions

of the Montana Judicial Branch Personnel Plan. The court dismissed Boe’s Complaint on the ground that it lacked subject matter jurisdiction. We affirm. ISSUE ¶2 The dispositive issue on appeal is whether the District Court co rrectly decided it lacked subject matter jurisdiction. FACTUAL AND PROCED URAL BACKGROUND ¶3 In 2001, the Montana Legislature asked the Montana Supreme Court to adopt a plan of personnel administration for employees of the judicial branch. The Judicial Branch Personnel Plan (Plan) had to incl ude provisions addressing classification and pay, recruitment and selection, performance appraisal, training, an d promotion. Upon adoption and implementation of the Plan, count y judicial employees were transferred to

the Montana Judicial Branch th ereby becoming State employees. See Senate Bill 176 (2001)(now codified at § 3-1-130, MCA). This transfer was to occu r in a manner that preserved all the existing rights and am enities the employees enjoyed as county employees. The Legislature established a deadline for transfer of July 1, 2003. ¶4 In May 2005, Boe, a judicial assistant si nce July 1985 for the District Court of

the Thirteenth Judicial District in Billi ngs, Yellowstone County, filed a Complaint contesting the validity of the Plan. In particular, she cl aimed the Plan contained pay inequities and disparities, was arbitrary and ca pricious and contrary to State policy, and

2violated her equal protection and due proce ss rights. The State moved to dismiss the Complaint, arguing that the Supreme Court had exclusive jurisdiction over the Plan, and therefore the District Court lacked subj ect matter jurisdiction. The District Court agreed. Boe appeals the court’ s dismissal of her Complaint. STANDARD OF REVIEW ¶5 Whether a court has subject matter jurisdic tion is a question of law. We review

a district court’s conclusions of law to determine whether they are correct. CBM Collections, Inc. v. Ferreira , 2005 MT 170, ¶ 4, 327 Mont. 479, ¶ 4, 115 P.3d 211, ¶ 4. DISCUSSION ¶6 Boe argues that the creati on of the position of Court Administrator and a Plan through legislative enactment does not invest an exclusive jurisdic tional prerogative in the Supreme Court, but rather creates a sepa rate administrative or executive function, and that the delegation of administrative or executive authority to a political subdivision is not a judicial function; therefore, she argues there is no reservation of exclusive jurisdiction for purposes of challenging the application and administration of that Plan. ¶7 The State counters that this issue was resolved by this Court when it previously exercised original jurisdiction to entertai n petitions on personnel issues arising from operation of the Plan in In re Petition for Revisions and Adoption of the Montana

Judicial Branch Personnel Plan and Policies , No. 03-374 (Mont. 2003) and In re Petition for Revision and Adoptio n of the Montana Judicial Branch Personnel Plan and

Policies , No. 04-186 (Mont. 2004). Additi onally, the State points out that Goetz v.

3Harrison , 153 Mont. 403, 457 P.2d 911 (1969), supports the pr oposition that a district

court cannot declare an order of this Court invalid. ¶8 Relying on the language of S.B. 176, the District C ourt concluded that Boe was not “merely seek[ing] remedi al and equitable relief” fro m the implementation of the Plan but was seeking invalidation of the Plan and replacement of the Plan with a plan drafted by the District Court. The court ultimately held: The plain language of the legislati on assigns the task of adopting (and implicitly amending) the Plan exclusiv ely to the Montana Supreme Court. The District Court has no authority to revoke and modify the Judicial Branch Personnel Plan. [Boe] would need to petition the Montana Supreme Court directly to possibly obtain th e relief she seeks. Thus, [Boe’s] Complaint is dismissed, without prejudice. ¶9 We agree with the District Court and the State’s analysis and authority. In Cause No. 03-374, referenced above, the Clerk of the Supreme Court petitioned the Court, directly, on behalf of himself and four distri ct court judges, to exempt his staff and the confidential staff of the four judges from th e provisions of the Plan. We accepted original jurisdiction over the petition, gran ted it with respect to the Supreme Court Clerk’s staff, and denied it without prejudice w ith respect to the conf idential staff of the district court judges because the Clerk did no t have standing to pe tition on behalf of the judges. Notably, while all justices did not agree on wh ether the Clerk’s personnel should be exempt from the Pl an (Justices Rice and Warner concurring and dissenting and Chief Justice Gray dissen ting), they all agre ed that the Court was responsible for the creation and any subsequent modification of the Plan.

4¶10 Similarly, in Cause No. 04-186, six dist rict court judges asked the Court to revise the Plan “to reiterate, affirm, and recognize” the author ity of the judges to hire and retain personal staff. The Petition reques ted that these confid ential staff members be exempt from the Plan. We accepted ju risdiction but denied the Petition on the ground that it was vague and did not recogniz e the various staffing arrangements in all of the judicial districts. As a result, we appointed a five-member committee with Justice Rice as Chairman, to review and co nsider possible amendments to the Plan and report its recommendations to the Court. Thes e Orders recognize and establish that this Court is singularly responsible for the crea tion, implementation and modification of the Plan. As such, we have ex clusive jurisdiction over it and a district court cannot invalidate, modify, or replace any or all of it. ¶11 We also agree that Goetz provides support for this conclusion. While not involving the State’s Plan, Goetz holds that Montana district courts cannot sit in judgment of the Montana Supreme Court. Pl aintiff Goetz, a Yale graduate, brought an action against this Court seeking invalidatio n of a statute and a Supreme Court rule allowing graduates of the University of Montana law school to be admitted automatically to the Montana Bar but requiring graduates of other law schools to take

the written bar examination. Goetz claimed th at the statute and rule denied him equal protection under the United Stat es Constitution. He demande d that the district court issue a temporary restraining order and a preliminary injunction against the Supreme Court prohibiting the continuation of this practice. The Distri ct Court declined to do so, citing lack of jurisdiction. This Court agreed, and unequivoc ally held that “no Montana

5district judge has jurisdiction to sit in th e judgment of the Supreme Court of Montana”

in a case over which the Court has exclusive and original jurisdiction. We further proclaimed “[t]his Court has supervisory c ontrol over the [district courts]. The

converse is not true.” Goetz v. Harrison , 153 Mont. at 405, 457 P.2d at 912. ¶12 For the foregoing reasons, we conclude the District Court correctly determined it was without subject matter jurisdiction over Boe’ s Complaint. Therefore, we affirm the District Court’s dismissal of Boe’s Complain t, without prejudice. If Boe wishes to pursue this claim, the proper procedure is to file a Petition with this Court. ¶13 Finally, Boe raises two additional issu es on appeal: judicial immunity and violation of separation of powers. In Boe’ s response to the State’s motion to dismiss, she argued to the District Court that the doc trine of judicial immunity did not protect

the Court Administrator from this claim. Th is defense was not raised by the State nor

was it the basis for the District Court’s dismi ssal of Boe’s Complaint. As a result, this issue is not properly before us and we d ecline to address it. Additionally, Boe argues on appeal that should we affi rm the District Court’s dismis sal of her Complaint for lack of jurisdiction, the issue of a violation of separation of powers arises. She asks that we apply middle tier scrutiny to resolve the issue in her favor. This issue could have been

raised in the District Court but was not. As we have held on numerous occasions, we do not address arguments raised for the first time on appeal. T.L.S. v. Montana Advocacy Program , 2006 MT 262, ¶ 31, 334 Mont . 146, ¶ 31, 144 P.3d 818, ¶ 31 (citations omitted).

6¶14 Affirmed.

/S/ PATRICIA COTTER

We Concur:

/S/ JIM RICE /S/ BRIAN MORRIS /S/ JAMES C. NELSON /S/ JOHN WARNER

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