IN TWB MATTER OF THE RULES ON
THE EISQUALIP1CP;TION AP?D                                   O R D E R
SUBSTITCT1ON     JCDGES




      The Honorable Robert M. Holter, President of the Ecntana
Judges Association, petitioned t k i s C o u r t to revise our rules
on the disqualification and suhstituticn of judges. Pursuant
to the power placed in this Court by Article VII, Section 2,
of the 1972 Montana Constitution, this Court aiopts the
"1lo.i.ing r u l e e f f e c t i v e as of September l i 1987, with a
cowment period to be in e f f e c t until December 1 , 1987:

                   D I S W A L I F I C A T I O X CF JUDGES

          A n y justice, judge, or justice of the peace
     must n a t sit or act in any action or proceeding:
          3 , To which he is a party, or in which he is
     interested;
          2. When he is related to either party %I-
     consanguinity or affinity within the sixth degree,
     computed according to the rules of law;
          3, When he has been attorney or counsel in
     the action or proceezing f o r any party or when he
     rendered or made the judgment, order or decision
     appealed from,



     .  -
     ~ucgc
          1   A noti.csn for substitution o f a eLstrict
           may be ma2e by any party to a proceeding o n l y
                                                             a




     in the rcanaer set forth herein.           in a civeii or
     crini~~ai case, each aciverse partyt in.cluding the
     state, is entitied           0r.e substimu"iofi of a dis-
     trict judge.
          (a) A r - o t i o n for substitutior of a district
     2udge shall be made by filing a written motion with
     the clerk, as fnllcws:

                                                                 FILED
        The ~ndersigred hereby saves f o r substitution
        of District Judge               in this cause,
A copy or' the motion shall be served upon a l l
parties to the proceeding and the clerk shall
-
imrcediately notify the judqe.         After a t r e . i
                                                  inl$
motion has been filed, the substituted judge shall
have no p o w e r to act ox the merits of the cause and
shall call in another judge, However, a resident
district judge who has previously been substituted
from the case may agree to set the calendar, draw a
jury, conduct all routine matters including ar-
raignments, omnibus hearings in criminal cases,
preiiniaary pre-trial cor:ferences and other matters
which do not go to the merits of the case, if the
sitting judge authorizes the same.
      (b) The firs* district judge ivhc has been
substituted or disqualified for cause s h a l l have
the duty of calling in all s h e i e " d s r c
                                    usg;n,itit
judges. It shall be the d u t y of the clerk of court
to stamp the name o f the judge to which the case is
assigned on the face of the initial pleading,
complaint, order to show cause, or infornation and
ail zcpies thereof,
      (c) When a judge is assigned to a cause far
twenty (20) consecutive days after service of
surmons, or ten (10) days after service of an order
to show cause, information or other initiating
document, and no motion for substitution of judge
hes been filed within said time periad, the right
to move f o r substitutior of a judge shall be deemed
waived.     IF the presiding judge removes himself,
the right to move f o r substitution of a judge is
reinstated, unless having been previously used, and
the time geriods shall m ? anew.
                              a         After the tiice
period shall have run as to the original parties to
the proceeding, no party who is joined or iater-
venes    thereafter      shall  have   any   right   of
substitution,
      (dl The m t i n n for substitution shall not be
effective for a n y purpose unless a filing fee is
paid to t h e clerk of the district court in the
amount set by haw, This filing fee is waived in
criminal cases where the sofendant has receive2 a
court-appointed co~nsel or in civil cases where
there has heec an affidavit ane. o r d e r waiving
filing fees,
      le) Any motion for substitution which is not
,xmeiy filed is void for all purposes. The judge
&   I




having jurisdiction shall. nake an order declaring
the motion void,
           I f ) W : ^ e l 2 r.-w judge b a s acce~ted iurisdic-
t i o r ? , the clerk of court shali mail a ' cop]- of the
assumption of jurisdiction to the a                        -
                                                     . . ~uaqe
                                                           .
and to each attorney or party of record.                     The
certificate cf service s h a l l be attached to the
assumption of jurisdiction form in the court file.
           (g) Khen a new trial is orciered ir?.       any case,
whether by order of the district court o r the
supreme court, each adverse party shall be entitled
to one additional motion for substitution of judge
in the manner provided herein. Such notion must be
filed, with the requiring filisq fee, within twenty
 (26) days after a new trial has been ordered by the
district court or after the remittitur has Seen
flied with the district court clerk.
  .7?                                               No right of
further substitution shall arise in cases remanded
by the supreme court w h i c h c a l l for edditional
hearicgs, hut not a new trial.


     2, Whenever a party to any proceeding in any
court shall file an affidavit alleging facts show-
ing persopal bias or prejudice of the presiding
judge# such judge shali proceed no further in the
cause.    Sf the affidavit is filed aqainst a dis-
trict judge, t h e matter shall be referred to the
Kontana Supreme Court, whereupon the Chief Justice
shall assigc a district judge to bear the matter.
i+=
 A  the affidavit is file6 against a judge of a
nucicipal or justice court, any district judge may
appoint another justice of the peace, or municipal
judge, to hear any such proceeding,
      (a) The affidavit for disqualification must
be filed more thac thirty 1301 days before the date
set f o r hearing or trial.      The pasty f i g the
affidavit for disqualification shall pay a filing
fee as s e t b y law. Failure to pay srrch filing fee
at the time of filing the affieavit will reader the
a-ffidavit null and v i ! and ineffective for any
                        oc
purpose,     The filing fee is waisred in criminal
cases     where     the    defendar~t has     received
court-appointed counsel, cr in civil cases where
there has been an affidavit and order waiving the
filing fees,
      (b) The affidavit shall be accompanied by a
certificate of counsel of record that the affidavit
has been made in qcnd faith. An affidavit will be
deemed not to have been made in good fa-ith if kt is
based solely on r u i i ~ g s in the case ma6e by the
     ckaLLenge~d judge ar,d       frcrrr. which an appeal c o u l d
     have Seen taken,
           (GI   &y   a f f i d a v i t w h i c h is n o t in proper form
     a . ~ d which does riot
                          allege facts showing personal
     ~'
     alas or prejudice mzv be set aside as void,
          i d ) The judge appointed to preside at a
     disqualification proceeding may assess attorneys
     fees, costs and damages against a.ny party or his
     attorney who files scch disquaLificatioi? without
     reasonable eaiise and thereby Binclers, delays or
     takes unconscionabie adventage of any other party,
     or the court,
ORGER SUPERSEDES SECTION 3-1-891 and 802, K C A :
     By the authority of Article VlI, Secticn 2, of the 1952
Montana Constitutioc, this rule supersedes and is to be used
to the exclusion of the rule on disqualification and substi-
tution of judges azoptec! by Supreme Court Crder dated June
30, 1981, and publishes a s section 3-1-801 and e 0 2 , I1CA.
EFFECTIVE BATE:
     rnhis rube shall take effect on September 1, 1.987


     The Porirara Supreme Court i r r v i t e s cements by attorneys,
judges, and other interested parties to he submitted to the
Clerk of this Court by December 1, 1987.               Following the
receipt of scch coments, this Court wiLi consiser the same
and make such changes as it finds to he appropriate
XOTICE:
     The Clerk or' this Court is directed to mail copies of
these rules to the following:
     D i s t r i c t Court Juiiges of the State of Montana;
      Clerks of the District Ccurts of the State of Montana;
      iTritedi States District Court Judges of the Stzte sf
Moritana:
      Clerks of the United S t z . t e s District Courts o f the Sta~te
of Montana;
      President arid Secretary o f the State r            of Mofitana;
                 presieent and Secret2r.i cf the lilnnra-a Trial X,aw;.ers
Assseiaticn;
     K   -   ~    ~ +
                  p a ,.-A 4        Company, wi""
                                                ,,r   a   request rhat   it   be
published in the P a c i f i c Reporter:
     State Reporter, w i t h a request that it be published in
    State R c n o r t e-.
the - -                r
     DATZD t h i s             /7
                          day of June; 1987,
