No. 86-559 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BUTTE-SILVER BOW LOCAL GOVERNMENT, 

and the Chief Executive Officer 

and the Council of Commissioners 

of Butte-Silver Bow Local Government, a political subdivision of the 

State of Montana, 

Appellants, 

ARNOLD OLSEN, DISTRICT JUDGE OF THE 

DISTRICT COURT OF THE SECOND JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN 

AND FOR THE COUNTY OF SILVER ROW, 

Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Goetz, Madden & Dunn; James H Goetz argued, Bozeman, 

Montana 

For Respondent: 

R. Lewis Brown argued, Butte, Montana 

Submitted: June 17, 1987 

Decided : Auqust 14, 1987 

Filed: AUG 14 19w 

Clerk 
two year collective bargaining agreement. A May 1986 union 

vote favored the reclassification of court deputies at the 

proposed lower grade. In at least two other union meetings, 

members were told of the appeal process in regard to 

reclassification. Negotiations continued to the point where 

the government offered a 10.4% salary raise over two years: 

4.8% for 1986-87, 5.6% for 1987-88. No salaries were to be 

reduced. While negotiations continued, Judge Olsen entered 

an ex parte order on August 8, 1986, granting a 10.2% salary 

increase for 1986-87 to the eight members of the court staff. 

The court gave two reasons for its action. First, that 

the government failed to submit the budget to the District 

Court as required by local ordinance and Montana law, and 

second, that the budget preparation worksheet was inadequate 

because it was not line itemized as to salary figures and 

recipients. To avoid a contempt citation, Butte-Silver Bow 

included the eight salary increases in its 1986-87 budget but 

noted that the increases were subject to final disposition of 

the order. A motion for reconsideration was filed on August 

11, 1986. On September 22, 1986, Judge Olsen set the hearing 

on the motion for reconsideration for September 23, 1986. 

That same day the union voted 23-7 to accept the government's 

contract which included the revised classification scheme. 

Minutes of the meeting indicate that the court deputies 

protested the union' s acceptance of the classification 

system. After the September 23 hearing, the judge denied the 

motion for reconsideration, concluding: 

[a]s a matter of fact, that by some plan, 

conspiracy, or mistake, the union and 

management leadership determined to 

demote and denigrate the employees of the 

Judges and the Clerk of Court, and by 

that action demoralized these personnel 

of the Court system. 
Another union vote was taken in October 1986 due to some 

confusion about the September 1986 contract ratification 

vote. At that meeting, the union, for a second time, voted 

to accept the revised classification system. Inadvertently, 

Butte-Silver Bow has been paying court staff salaries 

pursuant to the contract agreed to by itself and the union, 

not at court-ordered levels. 

The first issue is whether the District Court had 

inherent powers to set the salaries of certain court staff by 

a sua sponte and ex parte judicial order. We begin by 

referring to our statement in Board of Com'rs. v. Eleventh 

Jud. Dist. Court (1979), 182 Mont. 463, 470-71, 597 p.2d 728, 

732: 

We admonish the District Courts to use 

the statutorily implied funding power we 

recognize here with judicious restraint. 

The constantly changing demands upon the 

judicial system must be worked out in a 

spirit of independent identity and 

balance among legislative, executive, and 

judicial branches of government by 

reasonable interaction tempered with 

respect for the limitations of their 

power. 

Inherent judicial power to compel funding in Montana should 

only be used when an emergency arises or when the established 

methods for providing funding have failed. State ex rel. 

Hillis v. Sullivan (1913), 48 Mont. 320, 137 P. 392. he 

Washington Supreme Court addressed this issue in Matter of 

Salary of Juvenile Director (Wash. 1976), 552 P. 2d 163, 173: 

If separation of powers has as a basic 

element the preservation of the rule of 

law, court decisions must not be biased 

in favor of court funding . . . These 

considerations, as well as recognition 

that inherent power derives from the need 

to protect the functioning of an 

independent branch, have led courts to 
set a high standard for the application 

of inherent power in funding matters. 

The burden is on the court to show that 

the funds sought to be compelled are 

reasonably necessary for the holding of 

court, the efficient administration of 

justice, or the fulfillment of its 

constitutional duties. (Citations 

omitted.) In addition, it is generally 

recognized, as stated in the oft-quoted 

case-state ex rel. Hillis v. ~ullivan, 48 

Mont. 320, 329, 137 P. 392 (19131, that 

inherent power is to be exe-rcised only 

when established methods fail or when an 

emergency arises. (Citation omitted.) 

(Emphasis in original.) 

After reviewing the record, the court concluded: 

In the present controversy, there is a 

fundamental failure of proof by 

respondent Superior Court. No evidence 

in the record supports by a preponderance 

of the evidence-let alone by a clear, 

cogent and convincing 

showing-respondent's determination that 

the salary paid to the Director of 

Juvenile Services was so inadequate that 

the court [could] not fulfill its duties. 

Neither does the record show that an 

increase in salary was reasonably 

necessary for the efficient 

administration of justice. (Citation 

omitted.) Lacking such proof, there is 

no basis for the exercise of inherent 

power in the circumstances of this case, 

and respondent's attempt to do so imposed 

an improper check on the function of the 

legislative branch of government. 

An unreasoned demand for budgetary consideration is a threat 

to the image of and public support for the courts. Webster 

Cty Bd. of Sup'rs. v. Flattery (Iowa 1978), 268 N.W.2d 869, 

874. A true financial emergency exists when the local 

government refuses to pay legitimate court expenses and as a 

result, trials must be postponed, jurors and witnesses cannot 
be paid and salaries for judges and court personnel cannot be 

provided for; in other words, when the lack of funds stops or 

threatens to stop the efficient and orderly administration of 

justice and court business. See State ex rel. ~ist. Ct., 

~tc. v. Whitaker (Mont. 19841, 681 P.2d 1097, 41 St.Rep. 

1104. 

Analyzing this case under the two-part test of State ex 

rel. Hillis v. Sullivan, supra, we first must ask whether a 

true financial emergency existed to justify the imposition of 

the judge's salary order. The only justification offered by 

the trial judge was that, 

[Bly some plan, conspiracy, or mistake, 

the union and management leadership 

determined to demote and denigrate the 

employees of the Judges and the Clerk of 

the Court, and by that action demoralized 

these personnel of the Court system. 

This statement is not factual evidence of a true 

financial emergency in Silver Bow County District Court, but 

merely a subjective reflection on the budgeting process. The 

local government was not refusing to pay court staff 

salaries, nor was it proposing to reduce any court employee's 

salary. To the contrary, the government was proposing a 

10.4% salary increase over two years for these employees, and 

there appeared to be no impairment of court operations. 

The second part of the Sullivan test is whether the 

established methods for providing funding have failed. At 

the time the government entered its order, the government was 

following the required procedure for adopting an annual 

budget and submitting it to the union for ratification. The 

union voted 23-7 to ratify the contract. Under the contract, 

the employees had the right to appeal the reclassification, 

but the record fails to disclose that they exercised their 

right to appeal. We conclude that the established methods 
for funding the court positions had not failed, and therefore 

the District Judge had no inherent authority to enter an 

ex parte order establishing salaries for these positions. We 

refer to a particularly relevant concurrence in Webster Cty 

Bd. of Sup'rs. v. Flattery, supra, 268 N.W.2d at 879: 

If the courts can - function but the 

dispute is over the extent of the 

salaries, . . . which are to be 

provided, I come down on the side of the 

appropriating authorities. (Emphasis in 

original.) 

The second issue is whether the issue on appeal is 

moot. The burden to establish that the issue raised in an 

appeal is moot is a heavy one. See Combined Communications 

Corp. v. Finesilver (10th Cir. 1982), 672 F.2d 818, 821. In 

addition there are exceptions to the mootness rule, as the 

Ninth Circuit has so held: 

[The mootness] exception is limited to 

cases where 

(1) [Tlhe challenged action [is] in its 

duration too short to be fully litigated 

prior to its cessation or expiration, and 

(2) there is a reasonable expectation 

that the same complaining party would be 

subjected to the same action again. 

(Citations omitted.) . . . The exception 

to mootness for those actions that are 

capable of repetition, yet evading 

review, usually is applied to situations 

involving governmental action where it is 

feared that the challenged action will be 

repeated. The defending party being 

constant, the emphasis is on continuity 

of identity of the complaining party. 

(Emphasis in original.) 

Lee v. Schmidt-Wenzel (9th Cir. 1985), 766 F.2d 1387, 1390. 

The government argues that the mootness exception 

applies since the District Judge could again enter a budget 
order the following year (1987) prior to the time the 

government adopts a final budget. The District Judge argues 

that the issue on appeal is moot because the government 

adopted its budget and included the budget order therein, and 

that once the budget was adopted, it could not be changed. 

We reason that the "capable of repetition, yet evading 

review" exception to the mootness rule is more tenable since 

the court could in the absence of our decision, make a budget 

order for 1987 and the years beyond. We conclude that the 

issue on appeal is not moot. 

We reverse and vacate the order of August 8, 1986, and 

the order of October 3, 1986, which denied the government's 

We co: 

A 

concur: 

@E&H~ Justices 
Mr. Justice John C. Sheehy, dissenting: 

In a recent case Mead v. McKittrick (Mont. 1986), - 

P.2d - , 43 St.Rep. 1886, we upheld the right of a district 

judge to hire his own secretary, saying "if an employee's 

duties are intimately related to the functioning of the 

judicial process, then personnel decision regarding that 

employee are also part of the process" (citing Forrester v. 

White (7th Cir. 1986), 792 F.2d 647, 655). 

The classification of court employees within a general 

matrix of county employees for pay purposes is a matter of 

direct concern to the court and the judicial process. Here 

the District Court found that the classification of its 

employees by the union and the city-county management served 

to "demote and denigrate" the court employees. The majority 

dismisses that finding as "subjective," a new standard of 

appellate review. Yet it clearly is true that if court 

employees are demoted to a lesser pay grade than their duties 

and responsibilities require, they are denigrated. The 

judicial process is directly affected, because court 

employees would not be properly compensated when compared to 

city-county employees of similar rank in responsibility. 

There is no "unreasoned demand" for budgetary 

consideration involved in this case, and the basis for 

Webster Cty. Bd. of Sup'rs. v. Flattery (Iowa 1979), 268 

N.W.2d 869 therefore does not apply here. What jumps out of 

the record is that the independent professional consultant 

favored classifying court personnel at a higher grade. The 

union and management bargained that away without any 

consideration of the rights of the District Court to 

properly-compensated employees, or of the adverse effect on 

the judicial process. The District Court here had an 
inherent - and a statutory right to act to protect the judicial 

process. Section 3-1-113, MCA. It does not have to wait 

until the emergency actually occurs. It has a right to 

forestall the emergency. Only a few years ago, when the 

county commissioners of Cascade County refused to provide 

proper funds for the operations of its District Court, this 

Court ordered the county commissioners to provide those funds 

for the very purpose of avoiding an impending emergency. We 

did not wait until the collapse occurred, although here the 

majority indicate an actual emergency is necessary for a 

court to act. 

In like vein, there is no logic in the position that 

because Court employees are paid the same as last year, they 

are not adversely damaged by the matrix pay plan. 

Self-esteem may be more important to an employee than the pay 

involved. 

Inadvertently or not, the city-county did not comply 

with the District Court orders either before or after it was 

brought to the attention of management. The orders of the 

District Court have not been and are not now being obeyed. 

The orders which are the subject of this appeal have had no 

more effect than scraps of paper. It may be fortunate that 

the majority are unwilling to test the efficacy of our orders 

in Butte. 

I would not concede to the management of the city-county 

of Butte-Silver Bow, nor to its negotiating team, nor to the 

union negotiations the right to classify adversely court 

employees for purposes other than court business. Therefore, 

I would affirm the orders of the District Court. 

I concur in the foregoing dissent. f 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Butte-Silver Bow appeals the denial of its motion for 

reconsideration of an order setting the salaries of court 

personnel in Silver Bow County District Court. The issues on 

appeal are: 

(1) whether the District Court had inherent powers to 

set the salaries of certain court staff by a sua sponte and 

ex parte judicial order; 

(2) whether the issue on appeal is moot. 

We reverse. 

In 1983, the employees of Butte-Silver Bow organized a 

union to represent their interests in collective bargaining 

negotiations. The agreement to organize incorporated a job 

classification system but also provided for review of the 

system by a union-management committee. The purpose of the 

review process was to lay the groundwork for a revised job 

classification system that would more accurately reflect the 

requirements of each position. Salaries would then be 

adjusted accordingly. A point system was used to rate each 

employee, and interviews and surveys were conducted. The 

committee then met to classify each employee under the 

revised system with the understanding that dissatisfied 

employees could appeal their new classifications. 

Between 1984 and 1986, the committee reached agreement 

on reclassification with many employees, but an impasse 

remained with eight district court employees. An independent 

professional consultant hired to resolve the dispute favored 

reclassifying certain court personnel at a grade higher than 

that proposed and endorsed an appeals process for those 

dissatisfied with their reclassifications. The entire 

reclassification process was part of the negotiations for a