IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA ex rel. 

THE DISTRICT COURT OF THE 

EIGHTH JUDICIAL DISTR.ICT OF 

THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF CASCADE, THE 

HONOFABLE JOHN M. McCARVEL, CHIEF 

JUDGE, and THOMAS M. McKITTRICK and 

JOEL G. ROTH, District Judges, 

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 

Cascade County, Montana, a political [ FTq 4 F'C 

w r* subdivision and body politic of the ,,P/J 

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

Respondents. 

ORDER AND 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.istrict court 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 to be issued out of budget. The Boa"rd relies on the 

provisions of section 7-6-2323, MCA, that liabilities in 
excess 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 issuance of such warrants. 

Petitioners contend that the operation of the district 

court is mandated by constitutional and statutory 1-awl and 

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 interruption of the ordinary business of the 

court creates an emergency, for which the Board has failed to 

make suitable provision 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. The budget overrun for fiscal 1983-84 has stopped or 

threatened to stop the efficient and orderly administration 

of justice and court business 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 the meaning 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-hin the 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 claims may 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.ry emergency. 

7. Each party shall hear its or his own costs. 

DATED this lay of June, 1984. 

ChieF Justice 
Mr. Justice Daniel 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 declaratory judgment. 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.