                                                                                  -.
                                                                                   .
                                                                                  -,
                                                                                       .,
                                                                                       ,
                                                                                                 .q
I *-                       FOR
         L.f>%T'PPP O F RUT;=                          FINAI, c.~r?-.n 0%   ~rrrzs;.ri,n ~2
-N
THE DISQUhL,".FICAI"ICiN AN6
‘~UBST~TUTLON   OF JUDGES
                                                  1
                                                  I
                                                  )
                                                       --
                                                       wISQUz&IF;CATIOI.J  Ap;D:: .,..
                                                                                    .,
                                                       S U ~ S T ~ ~ ~ T JUE&~~ ~ C "
                                                                          ~ ' )
                                                                                       -5
                                                                                       "
                                                                                       ^
                                                                                            CS
                                                                                  Ct




        -,!,r
            an      erd:>r d a t e 2   ,Tu!'I    2%   1987, we established rules
for the 6isq~alificatic.nan2. ~:ihsti-lii"i~n o f j ~ d g e sio                    . .i
                                                                                  clv;*
3rd
       . . .
     criminal cases,     The ru:.es had an effectl--.7e 8ate of
September 1, 1 9 8 7 , In o?ur order we provided Fo.r cortml-ients,
 .-
:-vi.tinq ai-tsrnevs, ir;i",ges and other interestei.: parties to
.-

s u b m i t c o m m e n t s on the rules h- Decenber 1, 19t?7.
        We    h     e cccsi,dereii the co~ments that h a v e beer1 maze#
and where          justified, have              amended    the   rules as     attaches

        The       Code Coms/',esi,o~erfor 'Montana Code A n n o t a t e 6 has
s e t f o r t 5 tke r u l e s as t h e -
                                   were prcm~Lgilted by us 0 : * J u l y
                                                            1

29, 1387, Zesignatlnq the r u l e s as s"r:-l-803,     3-I-8O4 and
                         -
3--1-g05, ~ C A . RE 4ra~ve a2c;p';ed those J
                             7                        ir the final
form cf the rules,
            Fcr the benefit sf those parties appearing and making
                                                                ~.
c n ~ m . e r i t s , we zdd hereto cur reesoes for disposit~.os:
Fee f o r Substitutioc of a Judge
            The r u l e s 5 n their ~ . x n a lf o r m reflect thzt there i s a
                                       +


:l:
 :n
  L(           Fee oi $109 f o r a motion to e-uhstitute a 'udqe.         This
is i acccrci2 with $ .?.5-'-20i.(?)
       z                                        which designates the fees to
be collected by the c l e r k oS the district court. The earlier
fori. of o : r-rrles seemcc? to require the payrnert of such a fee
                   u:
i n c:rm
          .lna:,
                        cases, azd in cases where a judge is disc;ua!ifie,"
 *
EOT     cause.            Si?ce 5 ?5-2.-.201 (pi ?ro-.vi.des a F e e only f o r
motions f o r substitution of judges, we have aeen6ed t h e rules
accordingly,
      5e~ara.j~ of     p a r t i e s ri,:i;i-.in$: ccm-mene r s . t i ? respec;t to
                                                                l
the       fee objected to its a m ~ u n t ,that it ha2 an impact upor
poor c . .e n t s , constituted a salc of justice, acc *,vroLated the
       il                                            - '
separation of powers between the Ieqisiature and the
judiciarv. However the fixing 05 court fees is a matter for
                -              .
the Ifqislature.  It is i n the Leaislatuse thzt obiectiirs
mu$& find their remedy.
      We will note other comments by reference to the rule as
numbered in the ! : n a - Code Annotated::
                 .otia

2-1-863. Disaualificatinc
            -                        3:      judges.
           *,
               arncnsed this r u l e to state that if appiles to
           i e he-se
           m
                                                                         -'
a.il courts in Montana except a court of impeachment in the
state senate. The earlier version nay have keen construed to
                . .
omit certain mualclpal or c i t y court j u l g e s .
                                     .   -
      We have itirther p r o x ~ i o e dthat a judge is disqualified
~-
I r ne is rel;l"ced to an attorne:.
      3
                                           of record for a party by
ccnsanpuirity or affinity within the fourth degree of
kjxdred.  The rule formerly prcvided for any reiationship to
                                                              -,
a party w i t h i n the sixth degree, but this court has
considered that degree too renete.
      i?e c3..-&kny ameni?ed subsectior 3 of t i - j ~ s rule to pro~.ric:.e
      r-  L   ~   ~  ~  -  ~  ~  ~  -


that no fil2g.e may sit on appeal in a czae where he cr she
                            .

rendered the judgment or order zppealed from.

3-1-809,            Substitution o f district judges.
          This rule was amecde? to make it clear that it does not
i n c l ~ z e water court fudges, nor      workers' compensation
judge *
       In subsection I ( & ) we c l a r i f i e d ?)-;at i; subs:itcte2~
judge has      power to decide Legal issues in the case after
hj-s substitl;"_ton and tbut he a           ztterd 0 1 , to r ~ -L A , a+ : ~ * -
                                                                      -=            %A



matters              in e
            thereafter        cause,    W e  eliminated any
participation by a substituted judge in amnlhus hearings in
criminal cases.
                                                            - . -.A
      In cornectkoa with subsection i ( c ) WE- "-*a v - ~ e i ~ * p ~ J
                                                                  A:=-.   A   <*-



ccrnents that we shni*id make pro-~isioos?or subsiitution if a
new judge assumes jurisdiction because of t5e internal
opezating rules of a wiilti-judge court.     T h a t problem hae
been taken care of in the a~~erdment   hereto.
      Fcrther with respect to sizbseetior I i c )          at the
suggestion of one district judge, an2 same other observers,
we crcwided a right o f one s~xbstituti~on one third-part:?
                                             to
                              . .
defendant who is not a.3 orlqlnal pzrt:; in a; p e r d i n g c a c e .
                                               n[
The former rule nade no such provision,
                                                    . -.
      Subsection I l d ) was amended to make it speclrzc that nc
f i r fee is r          e by        i8.w   ir criminal cases for the
substitution c f jndges.
                                                 ,  -
       In subsection lie? ve provii';ed that the -13dai. f o r whiii*
                                                      .
                                                      .   ,   ~




                                     '  '
subs.titution i s sought has ?urrsdicticn to determine the
-1rne1,iness of a m o t i o n for substitution,
L.




       Several coininmentsbrcugh-to  o u r attnnticn that though
           - "
we had eariler pro-zided for a mnticn for s 7 x b s t i t u t i o n after a
new ",rial     had been crdered b y tie dlLsitri.ct court or on
appeal,     we   ha.d   not r      e   for those cases where                        aitrr
appeai. a surrmary judgment cr 133smissal is reversed n -
modified aid t h e cause remanded to district court fcr further
proceedings in t h e same cailsi-1. Siibsecticn l i g ) has heen
                                                            .- -
amended to take care of that problem, W e ha~re also prociced
that i p criminal czses, nc substitution arises when the cause
is remanded for resentenci-9.
3-1-805.             *.
            Disqualir;cation    for c a u s e .
      The first paragraph of this section was amended to show

        -P-ecticn
      aLt
      C  --,         1(a)      was     amended    to   eliminate   any
require~ent for tb.e payment of a f i l l c g f e e for a motion to
disqualify a judge for caase.


Appreciation
      The Supreme Court hereblr expresses its appreciation to
those persons ?!n
               iig     comeilts in respect to these ru.lss, The
comments gave us f u r t h e r reason for close s+zuc",y a n 2 intense
consideration.   Even though not aLI of t?~e suguesticns or
objections raised in the comments were acceded to 5; us they.
ne~,*esthelessgave us reason to consider the Sirection znd
force thatssliouid be actsoreed to these important rules arid
their practical application in the practice of Law.
      ACCORDINGLY, IT IS HEREBY ORDERED:
      1, m     f i n a l form of the rurles promulgakend by t h i s
court f o r the disqurLificatio;; and substitution of jiidgec
shall he as attached hereto and set forth therein,
      2. The effective date of said rules shall continue to
be September I, 1987,
       3 , The Cierk of L-l_sC o u r t i s directed to mail copies
o f these rules to the following:
       Cm e Cede Corm.issioner of the State of Montaaaa;
       ih
       r)ist-iet Court Judces    of the t a k e of Fcntaoa;
       Clerks of the District Courts of the State of Pflontana;
       United S t a t e s District Court Judges o : the State of
                                                 f
CSontaca;
       president       Executi-.re E i r e c t o r 0 5 the State Ear of
Montana:
       P - ~ c j d - n t 5,nd E ~ e e u t F ~ rDirector
       -   A                                   e              cf    i.l--taria   Trial
L a w e r s Association;
    .

       West    Publisi:ing           Cnmp;lr,y,   i t '   a   request " a
                                                                       h:        it hi
                             -   ~
pxbiished in the P a c i t ~ cReporter;
      a x a t e Reporter, w i t h a request that i t be published in
      r
      .


the State Repcrter.-.
      I)P.TED this    &?         day of September, 1999.
3-3-RO'31           -          - of Judoes -- --- I -
                Disqualification - -
                           -                         z . I courts.
                       DZS(?!JAI,IFICATIOQ)? OF J U D G E
          &n?~ssectior, shall, in its a~pl.ication, apply to a?.?;
          n?' ,


courts             listed   ir,   section           3-1-101    except       a   ccurt    of
impeachment i n the s t a t e senate.
                                                      , .
         Any justice, judqe, justice of the Dsace, mnnlclpal
court judge or city court judge must not sit or act in any
a c t i o n or p r ~ c e e d i p - g :
         To
          2.           which      he       is   a   party,     or     i n   which   he   i s
interested.
          .
          ?
                   When he is related to e?lther party or any attor:'ey
or member of a firm of attorneys of record For a party b:~

according to the rules o f law;
     - , When he hzs been attorney or counsel in the a.ctic;n
     2

or oroceedfng for any party or when s i t t i n g ir a case on
appeal he as a judge i n the Lower ccart rendered or made the
indgment, order, or decision appealed from,

2-1-BF4.            Substitution - district . , S ,
                                     of                     -
                          SUBSTTTIJTLON OF DISTRICT JCCGES
                    erj
                     l in     i s l i r n k t e d in izs aaplication 6.0 ;?isstrict
          rn* 4,
                                                          -
                                                                                    . .
                                                               -


co-jrts an6           > u d y s s presi.iiinq       therein:       i,t 6oes rat     rnciude
d-istrict court judges or other Llu6ges sitting is a water
cccrt .,
      judqe, rnr a \*?orkersZ
                            Cnmpensatioc Court j u d g e ,
     1 , A notion for substitution of a district 5udge may be
xade by awJv party to a proceeciinq o n l y in the manrer set
f r t h        herein.      in s CIVIL
                            -
                            <          ~    . - or criminal case,           e-lch   edverse
part'^,
    .               the
        inc.I~~(?J_rrg state, is -3t.lfll-d kc: r;pe
                 ~~  -
o f a district + u d a ~ .
                       A



      (a) A aotion for s u b s t i t 3 . 1 t i o n of a district judge aha1.L
be made by F i l i n ~ ~ written motion wi"
                          2                                  the clerk, as
foL1.?wc:
      "The    urdersigced     hereby    moves     for          substitution   of
District Judge                         - I - i l i ~cause*'"
                                                   i s i   l




       A copy of the motion shall be served upon all parties to
the proceeding and the clerk shall irmediate1)- notify the
judge. After a timely motion has Seen filed, the substituted
judge shall have no power to act on the merits of the cause
or to decide legal issues therein, and shall call in another
judge. However, a resident district judge who has previous?      -Y
been substftuted f r o m the case may agree to set the calendar,
draw a      jury, cor.i?cct aLI routine matters includinq
arraignments, preliminarv pretrial conferences in cxv11
                                                               .              ~




cases, and ether Ratters which do n o t go to the merits of the
case, if the judge La jurisdiction authorizes t h e same.
       (hi The first district judge who has been substituted
o r disq~alifieii for cause shall have t h e duty of a l-i r n g in
                                                             *           ~




a i l subsequent district judges.    It shall be the duty of the
clerk of court to stamp the name of the judge to which the
case is assigned on the face of the initial pleading,
camplaint, order to show cause, or information and all copies
thereof.
     (c) When 2 j ~ d g e is assiped to a cause =or ( 2 0 )
cc3secuti-o days after service o f summons, or te? (10) days
after service of an order to show cause, information or other
initiating docnnent, and no notion for substitution of judge
h a s heea filed w i t h s a i d time Fer-od, the riqht to move fcr
                                                    -
s&stitl;i--on    04-   a judge shall b e deemed wzived.                 If the
presiding judge removes himself or herself, or a new judge
a s s ~ m c s jurisdiction of the cause by v i r t ~ eo f the ir!terxal
o p e r a t i n g rules o f a multi-juege csurt, t h e r - J g h t   to nave f o r
~cbstitutiorr o f a judge is reinstated, unless i-avli,ng heen
previously used in the cause by the moving party, arid the
- e periods shall run a~e-w. A f t e r t h e time period sh;ll
.
m~



                               .   ,
have run as t.c: the origr,nai parties to the proceedlrg, no
                                                                        -.
party who is ioined or intervenes thereafter shall ha-ve any
             -
   '~
rlgnt of substitutioc, except that one third party defendant
                    . '
who is not an or;glnal party in any pending cese may have a
r i g h t of one substitiition igithin twenty (20) d a y s a%ee tk!e
service upon t h e t  i party defenclart of a third party
complaint.
     id) The motion for substitutior shall not be effective
Lor any purpose unless a filing lee is paid tc the clerk of
.
=


the *.istrier court i n the amount set by law, No filing fee
is rewired by law in criminal cases.
     ief A:?? motion .for substitution which i s not timely
file2 i s voiz for ail purposes.         The jadge for whoin
e~bstitution i s eouglit shii?,l. have junisdictien ts determine
tiaeliness, and if   the motion for substitutioc is nrAtime:y,
shall make an order declaring the motion void,
      ( 5 ) h e a new jjdg4n has accepted juris&iction, the
clerk of cour.t shi;lT   mail a copy of the asslrmption o f
jurisdiction 40 the original judge and to each attorney or
party of record.       ~h~ C ~ ~ . C c: -
                                 a .:                          a
                                          o f s e r s v i c e sb 7 7 be
attached to the assunptir of gurisdicticjn form i.n the c o u r t
file.
                                           br                     -
     (0) When a new trial is orderes. k ; the d L s t r i c t oourC I
each adverse p a r t q shall therev~ponbe entitled to one xotion
for substitu"-,on o f judge in t h e manner p e e herein.
When on appeal the judgm~ect or -rder appealed froa is
                                                "A


                                               " .
reversed o r modified and the cause is re?&a?aea to the
d i s t r i c t court for a ilea; trial, or when a summary judqrner~i:or
jciigment      *.
            of ersnics~l. is reversed an6. the cause remanded,
each adverse part11 shall thereu~oche entitled to one motion
for substitutian of 7udge in the manner provided hcrein~
S;<:h aotion rr,-;st be f i l c ? d , with the recr.;jred
                                                            ..
                                                          fiilng fee in
                                                            d




 ~,
civai chsesr within twenty ( 2 0 ) d a y s after a new trial has
beeE ordered by the district court or after the remik_dtitur
                                                    -.
from the S~lprcjme Court has been filed w i t h the -?.strict
court, Mo other right of " r t h e r substitutio:~ shall arise ir
cases renansed by the supreme court.       ~r crimfral cases, no
                                                        T




further rig3t of substitution sha.11 arise when the cause is
                         .
remanded for resen-tencing

3-1-805.      Disqualification --
              -                for cause.
                       ~ ~ S Q r j ~ ~ , ; ~ l C A TFOR ?CAUSE
                                                     Zli
       This   section i s  limit&                               7 .
                                         in i t s a p ~ ~ i c a t i o tc j ~ d g e s
                                                                      n
presicjirrg i district courts, justice o f the peace courts,
                        --
municipal courts, s m a r ~claims ccurts, and city courts.
                                                       -              ~

      1. W'tene:wrer a party to any proceeding in a n y ool~rt
        -.
sha.1l r1l.e ar; affiearrit a l ? - e g i r g facts showing personal bias
or prejudice of the presiding judge, such :uage shall proceed
                                                                .         *


no further in the cause, Lf the a f f i d a - : i t is filed egainst a
district ju&ge, the matter shall be referred to the Montana
Supreme Court:, whereupon the Chief Justice shall assigr. a
district judge to hear "he matter. If the affidavit is filed
against a judge of a r.unicipa1 court, justice ccurt, or c i t y
court, any district judge presiding in the district O F the
court involved m a y appoint either a fust-ce of the pss~ce, a
                                              . -
municipal jrldq-e or a city court ~ u a g e , to hear any such
pr~ceeding,
     (a) ?.he a f f i c ' l a v i f for diqualificition must b e filed
nore tknn thirty (30) days before the date set for hearing or
&.*:
iL
      --
     &el.
        (b)The ~Pfidavitshall b e accompanied by a certificate
                                 .- - .
o f counsel of recard +-hat the azrrdavit has been made in good
faith.        - '
         Ac ;:fzdsvit     will be deernod not to have been mdde
qosd faith if it i s bzsed soiely on rulizgs in t h e case made
                      ' -
by the cha.l-ienged juage and frcn which an appeal c o u l d have
Seen taken.
         [c) Any affidavit which 4 5 n o t in proper form and Which
dces not allege showing personal bias or prejudice n a y be s e t
a s i d e as void.
      id1 The     ju6ge   appointee?    to    preside at    a
*.      '
aisquailfication proceeding may assess attorneys fees, costs
and damages against any party or his attorney who files such
disyualj.fica"_ion without   rejgorlabie   cause and  thereby
hinders, delays or takes urconscionzble ad-vantage of any
other party, or the c o u r t .
