                               No. 84-02
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1984



ROBERT F. DOWNS,
               Plaintiff and Respondent,


BERNARD SMYK, a/k/a BERNARD L.
SPYK, and LOIS A. SMYK,
               Defendants and Appellants.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Roy Rodeghiero, Judge presiding.


COUNSEL OF RECORD:

        For Appellants:
               Jackson Law Firm, Helena, Montana

        For Respondent :
               Calton and Harnman, Billings, Montana



                               Submitted on Briefs:    March 23, 1984
                                            Decided:   July 26, 1984



Filed: JL,
Mr. Justice Daniel J.           Shea delivered the Opinion of the
Court.


       Defendant, Bernard L.            Smyk, appeals a n order of the
                                                       .
Yellowstone County District Court djsmissing his petition to
disqualify Judge Charles Luedke for cause.                    We affirm and
remand this cause to the jurisdiction of Judge Luedke.
       The sole issue is whether there is substantial evidence
to support the findings and conclusions of the trial court
that Judge Luedke is not biased or prejudiced against Smyk,
t-herefore making it proper to dismiss Smyk's pet.ition for
disqualification.
       Plaintiff,    Robert       Downs,       sued   Smyk    for    specific
performance of an agreement between the parties concerning a
parcel of real property.            Pursuant to the agreement, Downs
made the downpayment of $60,000 and was to "control any
contractual negotiations until                [Smyk] has contributed1' an
equal investment.        Downs later received an offer to buy the
property at a price well above what he and Smyk had paid, but
Smyk     refused    to    sell.         The    dispute    centers    on   the
interpretation           of       the         above-quoted      contractual
language--e.g., whether it gives Downs the right to sell.
The case was assigned to Judge Luedke.
       One year later, Judge Luedke partially granted Downs'
motion     for   summary      judgment, giving        Downs   an    undivided
one-half    interest in the real property                in question, and
accounting of all rents and profits.              Smyk appealed. from that
judgment and it was affirmed and remanded in Downs v. Smyk
(1979), 185 Mont. 16, 604 P.2d 307.              After remand and further
discovery, Judge Luedke granted Downs '                  second motion for
summary judgment to allow Downs the right to sell the real
property in question, and also ruled that Smyk had n.o right
to a jury trial.       Smyk appealed a.ga.in.
      While his second appeal was pending, Smyk                   filed an
action against Judge Luedke and Downs in                     federal court,
claiming he had been denied his constitutional right to a
jury trial when Judge Luedke entered summary judgment against
him. The defendants moved for dismissal or summary judgment
based    on - judicata.
            res                     Smyk later moved         for voluntary
dismissal., but Downs contested it because he felt the suit
had been filed in bad faith, and he demanded attorney fees.
The federal district court granted the defendants' motion to
dismiss and granted attorney fees to Downs as he was the only
defendant to make an a.ppearance and request a-ttorney fees.
Smyk's appeal to the Ninth Circuit was dismissed.
      On Smyk's second sta.te court appeal, this Court held
that the trial court acted properly in denying the jury trial-
and in givinq Downs control over con-tract negotiations for
one year, but reversed the summary judgment, holding that
there existed a question of fact whether the contract gave
Downs a right to sell the parcel.                  Downs v. Smyk     (Mont.
1982), 651 P.2d        1238.       The case was sent back to Judge
Luedke's court for trial on that issue.
      Downs then petitioned this Court for a rehearing, and
while the petition was pending, Smyk moved for substitution
of judge in the District Court under section 3-1-802, MCA.
Downs objected and         petitioned this Court for a writ of
supervisory control.       This Court found Smyk's substitution to
be improper, because a sitting judge cannot be removed while
the     Supreme    Court   still    has   before    it   a    petition   for
rehearing.        State ex rel. Downs v . District Court (Cause No.
82-482), Montana Supreme Court Order dated December 28, 1982.
       Smyk subsequently moved by affidavit to disqu.a.lify Judge
Luedke for cause pursuant to section 3-1-802, MCA.                          The
disqual-ification hearing was held on August 2, 1983, before
Judge Roy C. Rodeghiero.        Judge Rodeghiero entered findings
and    conclusions    that    Judge      Luedke      was   not    biased     or
prejudiced     for   purposes      of    section      3-1-802,     MCA,     and
dismissed Smyk's petition.
       Smyk presents three factual bases for his contention
that Judge Luedke is biased and prejudiced, none of which
have any merit.        First, that Judge Luedke is biased and
prejudiced as evidenced by his rulings against Smyk.                       But,
the jury trial ruling was legally correct, as was the first
ruling for summary judgment.            Even though the second summary
judgment ruling was partially reversed, that in no way shows
that Judge Luedke was biased against Smyk.                      Second, Smyk
contends that because he campaigned overtly against Judge
Luedke, the judge must be prejudiced against him.                   However,
Judge Luedke testified that he did not even know Smyk had
campaigned against him until Smyk said so in court.                   Third,
Smyk    maintains    that    because     he    and    Judge      Luedke    were
adversaries in the federal court action, and because Downs
and Judge Luedke "were represented by the same attorney" in
that action, that is clear bias and a conflict of interest.
In the federal action, however, Judge Luedke was only a
nominal defendant, and never made an appearance.                  At no time
was he represented by Downs' attorney, he simply joined Downs
in his motion for dismissal of that action.                     It should be
noted tha.t attorney fees were awarded to Downs alone.
       Smyk   also   relies   on    two       statutes     to    support   his
position, but the statutes do not apply to this case.                       He
first argues that under section 3-1-802, a judge may not sit
on a ca.se   ". . .   when he rendered or made the jud-gment,
order, or    decision appealed."                 However, section 3-1-802
applies to trial court judges substituting for appellate
justices.    It has no appl.ication here.                Second, Smyk argues
by analogy that Judge Luedke could not sit as a juror (under
section 46-16-304 (2)(c), MCA, because he was an "adversary"
in the federal case, and he therefore cannot sit as a judge.
Judge Luedke's nominal. participation in that case has been
d.iscussed and, further, disqualification of judges for cause
is controlled by section 3-1-802, MCA, and not by other code
sections by analogy.
     Section   3-1-802,      MCA,    was          not    intended   to   reach
situations   where,    a.s   here,   a           party   litigant   seeks   to
disqua.1.ify a trial judge on the basis of the party's own
unilateral actions.     Smyk's "overt" campaigning against Judge
Luedke and Smyk's subsequent federal action fall far short of
establishing bias or prejudice on the part of Judge Luedke.
Smyk's other contentions are equally without merit.
     The order of the trial court dismissing Smyk's petition
for disqualification is affirmed, and this cause is remanded
for trial to the jurisdiction of Jud.

                                         :
                                         .   -
We Concur:




fl     Justices
