IN THE SUPREME COURT OF THE STATEOF MONTANA

THE STATEOF MONTANA ex rel. THEDISTRICT COURT OF THE EIGHTH JUDICIALDISTR.ICTOF THE STATEOF MONTANA, INAND FOR THE COUNTY OF CASCADE, THE HONOFABLEJOHN

### M. McCARVEL,CHIEF JUDGE,and THOMASM. McKITTRICK and JOEL G. ROTH, DistrictJudges, Petitioners,

vs. JACK F. WHITAKER, RICHARD G. GASVODA and PATRICK 

### L. RYAN, individually and as the duly elected,qualified and acting Board of County Commissioners of CascadeCounty,Montana, 

### a political 

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wr* subdivisionand body politic of the ,,P/J State

### of Montana. \$k,f!j Ej~4-k. Respondents.

ORDERAND DECLARATORY JUDGMENT

Petitioners.,the district judges duly sitting in the Eighth Judicial District, seek a writ of mandate or alternative order to require the Board of County Commissioners of Cascade County, Montana.,to authorize the issuance of county warrants to pay for claims for expenses incurred in the operation of the d.istrictcourt in Cascade County. The Board has notified the petitioners that the 1983-84 fiscal year county budget for district court operations has been exceeded, and that the Board will not authorize county warrants tobe issued out of budget. The Boa"rdrelies on the provisions of section 7-6-2323, MCA, that liabilities inexcess of the detailed budget appropriations are not a liabil-ity of the County, but would become the personal liabilities of the members of the Board if they authorized the issuanceof such warrants. Petitioners contend that the operation of the district court is mandated by constitutional and statutory 1-awland that unless provision is made by the Commissioners to pay reasonable and necessary expenses of operation of the district court in the county, trials must be postponed, jurors and witnesses cannot be paid, and court salaries for judges and personnel will not be honored. Petitioners contend that the interruptionof the ordinary business of the court creates an emergency, forwhich theBoard has failed to make suitableprovision under the Board's statutory emergency powers. Upon receipt of the petition, we required a written response from the Board, and set hearing on the petition on Monday, June 4, 1-984. Upon such hearing, and having been duly advised,the Court finds and concludes: 1. Thebudget overrun for fiscal 1983-84has stopped or threatened to stop the efficient and orderly administration of justice and courtbusiness in Cascade County, and because thereof an emergency exists in said county. 2. The District Court of the Eighth Judicial District of the State of Montana in and for Cascade County is a court of competent jurisdiction for the purposes of this case within themeaning of section 7-6-2323(2)(a),PICA. 3. As such court of competent jurisdiction, said district court may issue orders for the payment of out-of-budget reasonable and necessary court expenditures.4. Compliance by the members of 

### the Board acting as a Board, or of any other county officer whose official action is necessary,with any order of said district court requiring payment of its reasonable and necessary court expenditures is wit-hinthe exception to personal liability of such officers provided 

### in section 7-6-2323(2)(a),MCA. 5. Nothing herein provided shall be construed to deprive the Board, its members, or any other county officer from exercising their official duties in passing upon the propriety of such claims,except that such claimsmay not be denied on the basis that they are out of budget when the district court has duly ordered the payment of the same. 6. This order,without more, shall be and constitute a declaratory judgment defining the power of the district court to provide for its continued operation for the efficient administration of iustice 

### in cases of budgeta.ryemergency. 7. Each party shallhear its or his own costs. DATED this lay of June, 1984.

ChieF JusticeMr. JusticeDaniel J. Shea, dissenting:

I agree with the Court that mandamus i.s not a proper remedy, and that, if anything, the case should be handled as

a petition for a declaratoryjudgment. However, I adhere to my original position that we shoul-d not decide the case unless and until the County Commissj.oners have failed to comply with an order of the District Court that the Commission make the necessary expenditures to fund the operations of the court. The District Court has failed to make such an order, and, absent that order and a refusal to comply, I would not grant any relief.