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., Southside Law Center, Billings, Montana 

For Respondent: 

Hon. Mike McGrath, Montana Attorney General, John C. Melcher, 

Assistant Attorney General, Helena, Montana 

Submitted on Briefs: June 14, 2006 

 Decided: January 10, 2007 

Filed: 

__________________________________________ 

Clerk 
 Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 Patricia Boe (Boe), a longtime judicial assistant for the District Court in Billings, 

appeals the District Court’s dismissal of her Complaint challenging 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 correctly decided it 

lacked subject matter jurisdiction. 

FACTUAL AND PROCEDURAL 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 include provisions addressing classification and 

pay, recruitment and selection, performance appraisal, training, and promotion. Upon 

adoption and implementation of the Plan, county judicial employees were transferred to 

the Montana Judicial Branch thereby becoming State employees. See Senate Bill 176 

(2001)(now codified at § 3-1-130, MCA). This transfer was to occur in a manner that 

preserved all the existing rights and amenities 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 since July 1985 for the District Court of 

the Thirteenth Judicial District in Billings, Yellowstone County, filed a Complaint 

contesting the validity of the Plan. In particular, she claimed the Plan contained pay 

inequities and disparities, was arbitrary and capricious and contrary to State policy, and 

 2
violated her equal protection and due process 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 subject 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 jurisdiction 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 creation of the position of Court Administrator and a Plan 

through legislative enactment does not invest an exclusive jurisdictional prerogative in 

the Supreme Court, but rather creates a separate 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 entertain 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 Adoption of the Montana Judicial Branch Personnel Plan and 

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

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

court cannot declare an order of this Court invalid.

¶8 Relying on the language of S.B. 176, the District Court concluded that Boe was 

not “merely seek[ing] remedial and equitable relief” from 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 legislation assigns the task of adopting (and 

implicitly amending) the Plan exclusively 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 the 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 district court judges, to exempt his staff and the 

confidential staff of the four judges from the provisions of the Plan. We accepted 

original jurisdiction over the petition, granted it with respect to the Supreme Court 

Clerk’s staff, and denied it without prejudice with respect to the confidential staff of the 

district court judges because the Clerk did not have standing to petition on behalf of the 

judges. Notably, while all justices did not agree on whether the Clerk’s personnel 

should be exempt from the Plan (Justices Rice and Warner concurring and dissenting 

and Chief Justice Gray dissenting), they all agreed that the Court was responsible for 

the creation and any subsequent modification of the Plan. 

 4
¶10 Similarly, in Cause No. 04-186, six district court judges asked the Court to 

revise the Plan “to reiterate, affirm, and recognize” the authority of the judges to hire 

and retain personal staff. The Petition requested that these confidential staff members 

be exempt from the Plan. We accepted jurisdiction but denied the Petition on the 

ground that it was vague and did not recognize 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 consider possible amendments to the Plan and 

report its recommendations to the Court. These Orders recognize and establish that this 

Court is singularly responsible for the creation, implementation and modification of the 

Plan. As such, we have exclusive 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. Plaintiff Goetz, a Yale graduate, brought an 

action against this Court seeking invalidation 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 that the statute and rule denied him equal 

protection under the United States Constitution. He demanded that the district court 

issue a temporary restraining order and a preliminary injunction against the Supreme 

Court prohibiting the continuation of this practice. The District Court declined to do so, 

citing lack of jurisdiction. This Court agreed, and unequivocally held that “no Montana 

 5
district judge has jurisdiction to sit in the 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 control 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 Complaint, 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 issues 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 doctrine of judicial immunity did not protect 

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

was it the basis for the District Court’s dismissal of Boe’s Complaint. As a result, this 

issue is not properly before us and we decline to address it. Additionally, Boe argues 

on appeal that should we affirm the District Court’s dismissal 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 

 7