                                                                                              05/30/2017


                                           DA 16-0595
                                                                                          Case Number: DA 16-0595

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 125

DRAGGIN’ Y CATTLE COMPANY, INC., and
ROGER and CARRIE PETERS,

              Plaintiffs and Appellants,

         v.

JUNKERMIER, CLARK, CAMPANELLA,
STEVENS, P.C.,

              Defendant,

NEW YORK MARINE and GENERAL INSURANCE
COMPANY,

              Intervenor and Appellee.

APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV 11-87AX
                        Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                        Timothy B. Strauch, Strauch Law Firm, PLLC, Missoula, Montana
                        Donald L. Harris, Harris, Gannett & Varela, PLLC, Billings, Montana
                        (Counsel for Draggin’ Y Cattle Co. and Peters)
                        Thomas Marra, Marra, Evenson & Bell, PC, Great Falls, Montana
                        (Counsel for Junkermier, Clark, Campanella, Stevens, P.C.)

                For Appellee:
                        Gary M. Zadick, Ugrin, Alexander, Zadick & Higgins, PC, Great Falls,
                        Montana
                        (Counsel for New York Marine and Gen. Ins. Co.)
                                                    Submitted on Briefs: April 5, 2017
                                                               Decided: May 30, 2017

Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Roger and Carrie Peters and Draggin’ Y Cattle Company, Inc., (collectively Peters)

entered into a stipulated settlement with Junkermier, Clark, Campanella, Stevens, P.C., and

Larry Addink (collectively Junkermier). The presiding judge—Judge George Huss—

determined that the stipulated settlement was reasonable and entered judgment against

Junkermier’s insurer, New York Marine and General Insurance Company. New York

Marine appealed and questioned Judge Huss’s impartiality.

¶2     We concluded in that appeal that Judge Huss should have disclosed a potential

conflict of interest. We referred the case to the District Court to determine whether Judge

Huss should have been disqualified for cause. The District Court concluded that Judge

Huss was required to recuse himself and should have been disqualified. The District Court

also vacated all orders that Judge Huss issued after he should have been disqualified. Peters

contend that the District Court erred in ruling that Judge Huss should have been

disqualified and in vacating Judge Huss’s orders.

¶3     We affirm.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶4     This is the third time this matter has been before this Court. Draggin’ Y Cattle Co.

v. Addink, 2016 MT 98, 383 Mont. 243, 371 P.3d 970 (hereafter Draggin’ Y II); Draggin’

Y Cattle Co. v. Addink, 2013 MT 319, 372 Mont. 334, 312 P.3d 451 (hereafter Draggin’ Y

I). We restate the relevant facts briefly.

¶5     Peters sued Junkermier in January 2011 for damages related to tax services

Junkermier performed for Peters. Junkermier requested that New York Marine defend and


                                             2
indemnify them against Peters’s claims. New York Marine defended Junkermier subject

to a reservation of rights throughout the suit. In the first appeal, we reversed a grant of

summary judgment in Junkermier’s favor and remanded. Draggin’ Y I, ¶ 51. Judge Huss

assumed jurisdiction of this underlying action following remand.

¶6     Peters and Junkermier entered into a settlement agreement and stipulation for entry

of judgment without New York Marine’s participation or authorization in November 2014.

On December 5, 2014, New York Marine filed a motion to intervene and requested

additional discovery and a stay of the scheduled reasonableness hearing. Ten days later,

Judge Huss granted New York Marine’s motion to intervene, denied its motions for

additional discovery and to stay, and held the reasonableness hearing. New York Marine

contested the stipulated settlement’s reasonableness and denied liability for the settlement.

Judge Huss concluded that the stipulated settlement was reasonable and entered judgment

in the amount of $10,000,000 in Peters’s favor. New York Marine appealed, and Peters

cross-appealed.

¶7     For the first time on appeal, New York Marine asserted that Judge Huss had an

apparent conflict of interest stemming from a sexual harassment complaint that his former

court reporter filed against him.     New York Marine alleged that Judge Huss had

individually entered into a stipulated settlement without the participation or authorization

of the Office of the Court Administrator (OCA), which acted as Judge Huss’s insurer by

paying for his defense under a reservation of rights. New York Marine alleged further that

the OCA had filed a declaratory judgment action in which it contested the stipulated




                                             3
settlement amount’s reasonableness.1 Judge Huss’s potential conflict of interest, New York

Marine contended, violated the Montana Code of Judicial Conduct and should have

resulted in Judge Huss’s disqualification.

¶8     We concluded that Rule 2.12, M. C. Jud. Cond., required that Judge Huss disclose

his participation in his personal stipulated settlement to the parties because the

circumstances “could potentially cause the judge’s impartiality reasonably to be

questioned.” Draggin’ Y II, ¶ 31. But we declined to determine whether Rule 2.12 required

Judge Huss to disqualify himself because such a determination “requires findings of fact

and conclusions of law following the presentation of evidence.” Draggin’ Y II, ¶ 31. We

therefore “determine[d] that the appropriate course of action [was] to refer the

disqualification issue to a district judge to hear the matter pursuant to § 3-1-805, MCA.”

Draggin’ Y II, ¶ 31. In a subsequent order, this Court assigned the Honorable Russell C.

Fagg to preside over the disqualification proceeding.

¶9     Upon referral, Judge Fagg set a disqualification hearing, at which Judge Huss

testified. The court’s ensuing order concluded that Judge Huss was required to recuse

himself and should have been disqualified from presiding over the stipulated settlement.

The District Court concluded further that the new judge assigned to the case would need to

decide the issues raised by the parties after New York Marine intervened in the case. The




1
  We have since addressed the OCA’s suit concerning Judge Huss’s personal stipulated settlement.
State v. Berdahl, 2017 MT 26, 386 Mont. 281, 389 P.3d 254. In Berdahl, we held that the
stipulated settlement was not enforceable against the State because Judge Huss entered into the
settlement without the State’s consent in violation of Montana statute. Berdahl, ¶ 23.


                                               4
court’s order therefore had the effect of vacating all of Judge Huss’s orders after New York

Marine intervened.

                                STANDARD OF REVIEW

¶10    We review judicial disqualification questions de novo. Draggin’ Y II, ¶ 10. Our

inquiry requires an objective examination of the circumstances surrounding potential

judicial disqualification and an accurate interpretation of the Montana Code of Judicial

Conduct. Draggin’ Y II, ¶ 10.

                                      DISCUSSION

¶11 1. Whether the District Court correctly concluded that Judge Huss was required to
recuse himself and should have been disqualified.

¶12    The District Court issued findings of fact regarding both the Peters’s case and the

suit against Judge Huss. The court’s findings related to the Peters’s case focused on the

time period following the Peters/Junkermier stipulated settlement. The court also made

findings related to the suit against Judge Huss regarding the circumstances and procedural

posture of that case and what Judge Huss agreed to under his stipulated settlement. Finally,

the court’s findings addressed the overlap in the two stipulated settlements’ timelines. The

court found that

       Judge Huss did not disclose to the litigants in this case the existence of his
       confessed judgment in favor of [the court reporter], the fact that he had
       contractually agreed to cooperate in her execution of that judgment against
       the OCA, or the fact the OCA had challenged the reasonableness of Judge
       Huss’ stipulated judgment.

¶13    The court then reviewed the Montana Code of Judicial Conduct, particularly Rule

2.12(A). Based on its interpretation of the Code and “the above facts,” the court determined



                                             5
that Judge Huss’s “impartiality might reasonably have been questioned at the time he

presided over and evaluated the stipulated settlement in this litigation, including the

December 15, 2014, reasonableness hearing and [New York Marine’s] request for

discovery regarding the settlement’s reasonableness.” In making this determination, the

court highlighted our observation in Draggin’ Y II that “Judge Huss presided over a hearing

in which an insurer questioned the reasonableness of a stipulated settlement while the

reasonableness of his own personal stipulated settlement was being questioned by his

insurer.” Draggin’ Y II, ¶ 30. The District Court concluded that under “Rule 2.12(A) and

Montana law, Judge Huss was required to recuse himself and should have been disqualified

from presiding over the settlement executed in this case.”

¶14    Peters argue on appeal that the District Court erred by concluding that Rule 2.12(A)

provided grounds for Judge Huss’s disqualification. Peters contend that the evidence does

not reasonably call Judge Huss’s impartiality into question. In support of this position,

Peters assert that the OCA’s declaratory judgment action did not affect Judge Huss because

he never had any personal or financial interest in the OCA lawsuit, the OCA did not pursue

its allegation that the stipulated settlement was unreasonable, and Judge Huss’s interests in

the case against him had been resolved by the time New York Marine had moved to

intervene in the present case. Relying on Reichert v. State, 2012 MT 111, 365 Mont. 92,

278 P.3d 455, Peters argue that Judge Huss’s interest was “too remote, too speculative and

too contingent” to warrant disqualification under Rule 2.12. Finally, Peters assert that the

District Court relied too heavily on our decision in Draggin’ Y II to conclude that Judge

Huss should have disqualified himself, instead of independently reviewing the evidence.


                                             6
¶15    Peters rightly point out that we “decline[d] to address whether Rule 2.12 required

Judge Huss to disqualify himself.” Draggin’ Y II, ¶ 23. Instead, we “address[ed] whether

Judge Huss initially should have disclosed the circumstances to the parties.” Draggin’ Y

II, ¶ 23. Our comment that “Judge Huss presided over a hearing in which an insurer

questioned the reasonableness of a stipulated settlement while the reasonableness of his

own personal stipulated settlement was being questioned by his insurer” supported our

conclusion that “Judge Huss was required to disclose” to the parties his own recent

stipulated settlement. Draggin’ Y II, ¶ 30. The District Court considered this statement,

but based its findings of fact and conclusions of law on the evidence introduced following

our referral in Draggin’ Y II. The court made specific findings regarding the Peters’s case,

the case against Judge Huss, and the overlap between the two cases. The court entered its

conclusions of law on the basis of these findings of fact and its interpretation of Rule 2.12.

It entered its order on the basis of our instruction to determine whether disqualification was

warranted. The District Court did not rely improperly on our decision in Draggin’ Y II in

determining that Judge Huss should have disqualified himself.

¶16    Both parties rely on Reichert in arguing their respective positions. In Reichert, we

addressed whether Rule 2.12 required four justices to recuse themselves from deciding an

issue involving the election of Supreme Court justices. Reichert, ¶ 42. Given the nature

of the claims, our analysis focused on Rule 2.12(A)(2)(c). Reichert, ¶¶ 41-51. That

subsection is one of a number of specific circumstances Rule 2.12 enumerates that might

lead to reasonable questions about a judge’s impartiality. M. C. Jud. Cond., Rule 2.12(A).

It provides that a judge’s impartiality might reasonably be questioned when “[t]he judge


                                              7
knows that the judge . . . has more than a de minimis interest that could be substantially

affected by the proceeding.” M. C. Jud. Cond., Rule 2.12(A)(2)(c). Reichert thus focused

on whether the justices knew they had “more than a de minimis interest that could be

substantially affected by the proceeding.” Reichert, ¶ 45 (emphasis in original). In making

this determination, we relied on cases from other jurisdictions that “reached similar

conclusions about the necessary degree of interest” a judge must have in a proceeding to

support disqualification. Reichert, ¶ 46. Disqualification under Rule 2.12(A), however, is

“not limited” to only those circumstances articulated in Rule 2.12(A)(1)-(5). M. C. Jud.

Cond., Rule 2.12(A). Rather, the “ultimate question” under a Rule 2.12 analysis is whether

the judge’s “impartiality ‘might reasonably be questioned.’” Reichert, ¶ 50 (quoting M.

C. Jud. Cond., Rule 2.12(A)).

¶17    In Reichert, we considered the United States Supreme Court’s due process analysis

in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009), and observed

that, “[b]ecause the codes of judicial conduct provide more protection than due process

requires, most disputes over disqualification will be resolved without resort” to

constitutional due process considerations. Reichert, ¶ 31 (citation and internal quotations

omitted). The applicable standards of judicial conduct resolve the question presented in

this case. Here, our focus is not whether Judge Huss had a personal “interest that could be

substantially affected by the proceeding,” but instead whether his participation in his

personal stipulated settlement could reasonably raise concerns about his impartiality in the

instant proceedings. Reichert turned on the application of Rule 2.12(A)(2)(c), under which

we concluded that “any biasing influence is too remote, too speculative, and too contingent


                                             8
to mandate recusal.” Reichert, ¶ 45. This case involves the overarching principle of

impartiality contained in Rule 2.12(A).

¶18    Rule 2.12 governs judicial disqualification under the Code. Draggin’ Y II, ¶ 18;

State v. Dunsmore, 2015 MT 108, ¶ 13, 378 Mont. 514, 347 P.3d 1220; Reichert, ¶¶ 41-42.

It provides that “[a] judge shall disqualify himself or herself in any proceeding in which

the judge’s impartiality might reasonably be questioned.” M. C. Jud. Cond., Rule 2.12(A).

The comments to Rule 2.12 reiterate that “a judge is disqualified whenever the judge’s

impartiality might reasonably be questioned.” M. C. Jud. Cond., Rule 2.12 cmt. [1]. The

Code defines “impartiality” as an “absence of bias or prejudice in favor of, or against,

particular parties or classes of parties, as well as maintenance of an open mind in

considering issues that may come before a judge.” M. C. Jud. Cond., Terminology,

“Impartiality.”

¶19    Determining whether a party might reasonably question a judge’s impartiality

requires an examination of the nature of the judge’s interest in the issues before the judge.

M. C. Jud. Cond., Rule 2.12; M. C. Jud. Cond., Terminology, “Impartiality.” By definition,

an inquiry into whether a judge can remain impartial given the judge’s interest in a

particular issue requires an examination of how that interest may affect the judge’s

objectivity. M. C. Jud. Cond., Terminology, “Impartiality”; see Draggin’ Y II, ¶¶ 29-30

(concluding that although a judge’s average personal experiences shape the judge’s

perspective, such experiences do not “necessarily preclude a judge from maintaining an

‘open mind in considering issues that may come before a judge[;]’” therefore, such




                                             9
experiences “do not generally lead to reasonable questions about the judge’s impartiality

and subsequent disqualification under Rule 2.12”).

¶20     We are mindful that “[a]n independent, fair, and impartial judiciary is indispensable

to our system of justice.” M. C. Jud. Cond., Preamble [1]. We are mindful also that the

Code cautions against “[u]nwarranted disqualification” because “[a]lthough there are times

when disqualification is necessary to protect the rights of litigants and preserve public

confidence in the independence, integrity, and impartiality of the judiciary, judges must be

available to decide matters that come before the courts.” Draggin’ Y II, ¶ 29 (quoting M.

C. Jud. Cond., Rule 2.1 cmt. [1]); Reichert, ¶ 49 (quoting M. C. Jud. Cond., Rule 2.1 cmt.

[1]).

¶21     As the District Court observed, the procedural posture and circumstances

surrounding the stipulated settlement in the Peters’s case are strikingly similar to those

surrounding Judge Huss’s personal stipulated settlement. Peters and Junkermier entered

into their stipulated settlement without New York Marine’s participation or authorization

on November 13, 2014. Under the stipulated settlement, Junkermier confessed to a

judgment of $10,000,000; it assigned any rights it may have had against New York Marine

to Peters; and it agreed to cooperate with Peters in executing the stipulated settlement

against New York Marine. Peters agreed under the stipulated settlement not to execute the

judgment against Junkermier. New York Marine thereafter intervened, denied liability for

the settlement, and contested the stipulated settlement’s reasonableness. Judge Huss held

the reasonableness hearing on December 15, 2014, and he issued the order concluding that

Peter’s stipulated settlement was reasonable on March 5, 2015.


                                             10
¶22    The case against Judge Huss began in February 2014 when his court reporter filed

a sexual harassment complaint against him. Similar to Junkermier, Judge Huss requested

that his “insurer”—the OCA—defend and indemnify him against those claims. The OCA

paid for Judge Huss’s defense, subject to a reservation of rights, until it concluded that it

was not obligated to do so given the nature of the allegations against him. One month

before Peters and Junkermier entered into their stipulated settlement, Judge Huss and the

court reporter entered into a “Stipulation and Confession of Judgment Resulting From the

State of Montana’s Refusal to Defend and Indemnify.” Judge Huss entered into the

stipulated settlement without the OCA’s participation or authorization.          Under the

stipulated settlement, Judge Huss confessed to a judgment of $744,371; he agreed to

cooperate in executing the judgment against the OCA; he assigned his rights against the

OCA to the court reporter; and the court reporter agreed not to execute the judgment against

Judge Huss in his personal capacity. One month before the reasonableness hearing in the

present case, the OCA filed an action seeking a judicial declaration that it was not

responsible for Judge Huss’s stipulated settlement. In its complaint, the OCA contested

the stipulated settlement’s reasonableness and denied any liability for the settlement. Two

weeks after presiding over the reasonableness hearing in the present case, Judge Huss filed

an answer to the OCA’s complaint in which he asserted that his own stipulated settlement

was reasonable.

¶23    At the disqualification hearing before Judge Fagg, Judge Huss acknowledged that

the OCA challenged his stipulated settlement, in part, on the ground that the settlement was

unreasonable. He testified that he had denied that the settlement was unreasonable and that


                                             11
the OCA continued to question the settlement’s reasonableness until at least February 2015.

He agreed that he had bound himself under the stipulated settlement to cooperate in

obtaining a judgment against the OCA. He agreed also that the settlement allowed the

court reporter to continue her sexual harassment claims against him if he breached his duty

to cooperate and that he could be exposed to personal liability. Finally, Judge Huss testified

that he remained a party in the OCA’s suit through at least February 2015. Judge Huss did

not disclose any information related to the claims against him or his personal stipulated

settlement to the parties here.

¶24    Peters’s claims that Judge Huss’s interests in the case against him were resolved by

the time New York Marine intervened in the present case are belied by the fact that Judge

Huss filed his answer to the OCA’s complaint after New York Marine moved to intervene.

Judge Huss’s testimony at the disqualification hearing contradicts further Peters’s assertion

that Judge Huss did not have any personal or financial interest in the OCA lawsuit. Judge

Huss testified that he had a duty to cooperate in obtaining a judgment against the OCA;

that if he breached that duty, the sexual harassment claims against him could resume; that

resuming the claims would expose him to personal liability; and that he remained involved

in the OCA’s action through at least February 2015. The fact that the OCA ultimately did

not pursue its allegation that the stipulated settlement was unreasonable does not change

the fact that the OCA continued to question the settlement’s reasonableness while Judge

Huss considered the reasonableness of Peters’s and Junkermier’s stipulated settlement.

Judge Huss’s ruling came on the heels of filing his answer denying that his settlement was

unreasonable, following the reasonableness hearing here.


                                             12
¶25    Our “objective examination of the circumstances surrounding [Judge Huss’s]

potential judicial disqualification” confirms the District Court’s ruling that Judge Huss’s

impartiality reasonably could be questioned. Draggin’ Y II, ¶ 10. Judge Huss continued

to have a present and immediate interest in his own personal stipulated settlement after

New York Marine intervened in the present case. The nature of Judge Huss’s interest in

his personal stipulated settlement raises reasonable questions regarding his “absence of

bias or prejudice in favor of, or against, particular . . . classes of parties”—e.g., parties

arguing for, or against, the reasonableness of stipulated settlements reached while their

insurer’s liability for defense and indemnity remains unsettled.        M. C. Jud. Cond.,

Terminology, “Impartiality.”     The circumstances surrounding Judge Huss’s personal

stipulated settlement, and the related litigation then pending, also raise reasonable

questions about his ability to maintain “an open mind in considering” the reasonableness

of the stipulated settlement at issue here. M. C. Jud. Cond., Terminology, “Impartiality.”

Accordingly, we do not agree with Peters that Judge Huss’s interest was “too remote, too

speculative, and too contingent” to warrant disqualification under Rule 2.12.

¶26    Based on the District Court’s finding of fact, we agree with its conclusion that Judge

Huss’s impartiality in deciding the stipulated settlement’s reasonableness “might

reasonably be questioned.” The District Court correctly held that Judge Huss was required

to disqualify himself pursuant to Rule 2.12(A).

¶27 2. Whether the District Court erred in vacating Judge Huss’s orders issued after
he should have disqualified himself.




                                             13
¶28    The District Court determined that the “new judge assigned to this case will need to

decide pending discovery issues, the stipulated judgment’s reasonableness, [New York

Marine’s] motion to dismiss Peters’ cross-claims, and any other issues which arise.” The

District Court’s order thus had the effect of vacating Judge Huss’s orders denying New

York Marine’s motions for discovery and for a stay, his order determining that the

settlement was reasonable, and the entry of judgment against New York Marine.

¶29    Peters argue that the District Court erred in vacating Judge Huss’s orders given that

the court did not find personal bias or prejudice. Peters first point out that we referred the

disqualification issue to the District Court to hear the matter pursuant to § 3-1-805, MCA.

That statute, Peters assert, provides that judicial disqualification may occur “only upon

proof of ‘personal bias or prejudice.’” (Quoting § 3-1-805(1), MCA). Peters thus claim

that the “purpose for remanding this case for a hearing under M.C.A. § 3-1-805(1) was to

determine if Judge Huss had demonstrated actual bias or prejudice against [New York

Marine].” In further support of their contention, Peters allege that this Court’s caselaw and

M. R. Civ. P. 61 prohibited the District Court from vacating Judge Huss’s decisions absent

a showing of personal bias or of prejudice to New York Marine’s substantial rights.

¶30    Peters argue also that Rule 2.12(A) does not provide grounds for vacating a judge’s

decisions. Peters contend that New York Marine did not assert that Judge Huss should be

disqualified pursuant to Rule 2.12(A)(1), which requires personal bias or prejudice.

Rather, Peters assert, New York Marine claimed that Judge Huss should be disqualified

under Rule 2.12(A) because there were reasonable questions regarding his impartiality.

Peters claim, “A finding that Judge Huss’s impartiality might reasonably have been


                                             14
questioned under Rule 2.12(A) would be legally insufficient to vacate his decisions.” In

fact, Peters assert, the Code expressly prohibits using it as a “basis for litigants to seek to

change a judge’s decision.” (Quoting M. C. Jud. Cond., Scope [1]).

¶31    Peters misinterpret our rationale in Draggin’ Y II for referring the matter pursuant

to § 3-1-805, MCA. The statute “sets forth a procedure which must be followed when a

party believes the presiding judge cannot be fair and impartial in the proceeding.” In re

Guardianship & Conservatorship of A.M.M., 2016 MT 213, ¶ 21, 384 Mont. 413, 380 P.3d

736; see Draggin’ Y II, ¶ 22 (“A party also may seek disqualification by invoking the

procedures of § 3-1-805, MCA.”). The ordinary procedure requires a party to “file an

affidavit alleging facts showing personal bias or prejudice of the presiding judge.” Section

3-1-805(1), MCA. If the allegation of bias is made against a district court judge, “the

matter shall be referred to the Montana Supreme Court.” Section 3-1-805(1), MCA. If the

affidavit complies with a number of requirements articulated in the statute, “the Chief

Justice shall assign a district judge to hear the matter.” Section 3-1-805(1), MCA.

¶32    Here, New York Marine alleged on appeal in Draggin’ Y II that Judge Huss should

have disqualified himself under Rule 2.12 because there were reasonable questions

regarding his impartiality. Draggin’ Y II, ¶ 12. We declined “to address whether Rule 2.12

required Judge Huss to disqualify himself.” Draggin’ Y II, ¶ 23. We concluded that

determining whether Judge Huss should have been disqualified “require[d] findings of fact

and conclusions of law following the presentation of evidence.” Draggin’ Y II, ¶ 31. We

therefore determined that “the appropriate course of action [was] to refer the




                                              15
disqualification issue to a district judge to hear the matter pursuant to § 3-1-805, MCA.”

Draggin’ Y II, ¶ 31.

¶33    The circumstances are unique and dictated what we determined to be “the

appropriate course of action” in light of the assertions New York Marine made on appeal.

Draggin’ Y II, ¶ 31. New York Marine alleged facts raising serious questions about Judge

Huss’s impartiality, invoking the possibility of “personal bias or prejudice of the presiding

[district court] judge.” Section 3-1-805(1), MCA. Because the matter already was before

this Court on appeal, we invoked the statute to afford a fact-finding process. Draggin’ Y

II, ¶ 31. In accordance with our Opinion, the Chief Justice referred the disqualification

issue to the District Court “to hear the matter pursuant to § 3-1-805, MCA.” Draggin’ Y

II, ¶ 31.

¶34    We observed in Draggin’ Y II that “Rule 2.12 of the Montana Code of Judicial

Conduct and §§ 3-1-803, and -805, MCA, governs [sic] judicial disqualification.”

Draggin’ Y II, ¶ 18 (citing Dunsmore, ¶ 12; Reichert, ¶¶ 41-51). New York Marine’s

allegations—and the majority of our analysis in Draggin’ Y II—focused on Rule 2.12.

¶35    The Code establishes rules and standards meant to ensure that parties have their

cases decided by an impartial judge. E.g., M. C. Jud. Cond., Rule 1.2 (“A judge shall act

at all times in a manner that promotes public confidence in the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety and the appearance of

impropriety.”); M. C. Jud. Cond., Rule 2.2 (“A judge shall uphold and apply the law, and

shall perform all duties of judicial office fairly and impartially.”). As such, Rule 2.12

requires that a judge disqualify himself or herself whenever a party might reasonably


                                             16
question the judge’s impartiality—i.e. the judge’s “absence of bias or prejudice.” M. C.

Jud. Cond., Rule 2.12(A); M. C. Jud. Cond., Terminology, “Impartiality.” The Rule

requires no separate showing of actual bias or prejudice. Reasonable questions regarding

a judge’s ability to remain impartial inherently raise questions about the party’s right to a

fair tribunal. Once it is determined that a judge’s impartiality reasonably has been placed

in question, it would be impossible to assess whether the judge’s decision might have been

the same had the judge not possessed the disqualifying interest. Prejudice is determined

by the existence vel non of the interest. We are unpersuaded by Peters’s arguments to the

contrary.

¶36      Because disqualification proceedings are premised upon a litigant’s constitutional

right to a fair and impartial tribunal, we are unpersuaded by Peters’s contention that a

violation of the Code cannot be the basis for vacating a judge’s decision. The Code

cautions that it is not “intended to be the basis for litigants to seek to change a judge’s

decision.” M. C. Jud. Cond., Scope [1]. The Code does not, however, expressly prohibit

a party from invoking its protections to vacate a judge’s orders when the Code requires

disqualification. In fact, we have reversed judges’ orders based on our conclusion that a

judge should have been disqualified under Rule 2.12. Bullman v. State, 2014 MT 78, ¶ 17,

374 Mont. 323, 321 P.3d 121 (reversing a district court’s denial of a postconviction relief

petition because a judge “was required to disqualify himself” under Rule 2.12); In re

B.W.S., 2014 MT 198, ¶¶ 16-19, 376 Mont. 43, 330 P.3d 467 (reversing a termination of

parental rights order because the judge “was required to disqualify himself” under Rule

2.12).


                                             17
¶37    As we held in Draggin’ Y II, Rule 2.12 “undoubtedly requires judges to disqualify

themselves if a party might reasonably question their impartiality.” Draggin’ Y II, ¶ 25.

The “judge’s obligation not to hear or decide matters in which disqualification is required

applies regardless of whether a motion to disqualify is filed.” M. C. Jud. Cond., Rule 2.12

cmt. [2]. In other words, Rule 2.12 mandates that a judge cannot proceed in a case when

disqualification is required under the Rule. Upholding the orders of a judge who should

not have heard or decided the matter in the first place is directly contrary to the black-letter

standards Rule 2.12 articulates.

¶38    Upholding such an order also would run counter to the Code’s Canons, which

“provide important guidance in interpreting the Rules.” M. C. Jud. Cond., Scope [2].

Canon 1 provides that “[a] judge shall uphold and promote the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety and the appearance of

impropriety.” M. C. Jud. Cond., Canon 1. Allowing a judge’s order to stand when the

judge should have been disqualified because his impartiality might reasonably have been

questioned does not “uphold and promote the independence, integrity, and impartiality of

the judiciary.” M. C. Jud. Cond., Canon 1.

¶39    We based our holding in Draggin’ Y II that “a judge should disclose information

that is relevant to a possible motion for disqualification” under Rule 2.12, in part, on our

determination that disclosure “advances one of the Code’s fundamental purposes—

promoting confidence in the judiciary.” Draggin’ Y II, ¶ 25. Vacating the orders of a judge

whose impartiality reasonably has been questioned similarly promotes confidence in the

judiciary. Analogously, we have accepted supervisory control to decide a substitution of


                                              18
judge question under § 3-1-804, MCA, in part because allowing the matter to proceed “may

cause uncertainty as to the validity of the District Court judge’s involvement and decisions

in this matter.” Goldman Sachs Group, Inc. v. Mont. Second Judicial District Ct., 2002

MT 83, ¶ 8, 309 Mont. 289, 46 P.3d 606; see also M. R. App. P. 6(3)(k) (allowing

immediate appeal in a civil case of an order granting or denying a motion for substitution

of judge); M. R. App. P. 14(3)(c) (allowing supervisory control over a court that has

granted or denied a motion for substitution of a judge in a criminal case).

¶40    We conclude that the District Court did not err in relying on Rule 2.12 to vacate

Judge Huss’s orders after he should have disqualified himself.

                                     CONCLUSION

¶41    We affirm the District Court’s order concluding that Judge Huss should have

disqualified himself and vacating the orders issued after he should have done so. The case

is remanded for further proceedings before a new judge.


                                                  /S/ BETH BAKER


We Concur:


/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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