                              No. 14284
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1979


THE STATE OF MONTANA,
                    Plaintiff and Respondent,

        VS.

JOHN EDWARD DAUGHERTY,
                    Defendant and Appellant.


Appeal from:    District Court of the Second Judicid District,
                Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
      For Appellant:
          Patrick D. McGee argued, Butte, Montana
      For Respondent :
          Hon. Mike Greely, Attorney General, Helena, Montana
          Sheri K. Sprigg argued, Assistant Attorney General,
           Helena, Montana
          John G. Winston, County Attorney, Butte, Montana
          Michael E. Wheat argued, Deputy County Attorney,
           Butte, Montana


                                    Submitted:    November 5, 1979
                                      Decided :   DEC 1 0 1979
Mr. Chief Justice Frank I Haswell delivered the Opinion of
                         .
the Court.
          Defendant appeals from his conviction of forgery follow-
ing a bench trial in the District Court of Silver Bow County.
          In March, 1977, a federal tax return check was stolen
from the mailbox of Hubert J. Worring in Butte, Montana. This
check was allegedly endorsed and cashed at Ossello's by defendant
John Edward Daugherty and Donna LaTray on March 28, 1977.           They
allegedly received a television set, a CB radio and some cash
in the exchange.
          After determining that the endorsement was forged, the
federal government stopped payment on the check.           Ossello's filed
a complaint with the federal government about having to bear the
loss on the forged check.        Lee Scott, a special agent of the
Secret Service, was assigned to investigate the matter in August,
1977.
          Scott secured a description of the people who cashed the
forged check and went to local law enforcement agencies to find
someone   Y J ~ Omatched   the description.    Defendant, who was in the
Silver Bow County jail on an unrelated drug charge, was listed
as a possible suspect.
          Scott went to the jail to question defendant.         He advised
defendant of his Miranda rights and secured a signed waiver of
those rights.     Scott secured a written statement and handwriting
exemplars from defendant.
          Application for leave to file an information against de-
fendant was filed and the case received a number indicating it
was to be tried in Department I1 of the District Court which is
presided over by Judge Freebourn.        The county attorney filed a
notice for substitution of another judge.          No judge was specifi-
cally called in by Judge Freebourn.           Judge Olsen took the case.
          On November 10, 1977, defendant was arraigned before
Judge Olsen on the forgery charge.     He refused to enter a plea
and Judge Olsen entered a not guilty plea on his behalf.        Defen-

dant objected at this time to being tried in a state court, argu-
ing that the federal courts had exclusive jurisdiction over this
matter since a federal tax return check was involved.
           Having waived his right to a jury trial, defendant was
tried on March 13, 1978, before Judge Olsen, Department No. I,
Silver Bow County.     Defendant again objected to the jurisdiction
of this Court and the power of Judge Olsen to hear the case, con-
tending the matter was within the exclusive jurisdiction of the
federal courts and that Judge Olsen had been improperly substi-
tuted for Judge Freebourn.
           Defendant was convicted of the crime of forgery and sen-
tenced to ten years in the Montana State Prison.     He appeals from
this judgment and sentence.
           Defendant specifically raises two issues for review on
appeal :
           1.   Did the procedure used herein for the substitution
of a District Court judge constitute reversible error?
           2.   Did the District Court lack subject matter jurisdic-
tion because the crime involved a federal tax refund check?
           Defendant contends that Judge Olsen did not have the power
to hear the case and convict defendant because the rule on dis-
qualification and substitution of judges was not followed.       We
agree.
           Pursuant to 1972 Mont. Const., Art. VII, S2, this Court
in December 1976, adopted a rule for disqualification and substi-
tution of judges.     The rule states, in pertinent part:
           "Any judge or justice of the peace must not sit or
           act in any action or proceeding:


           "4. In a district court, when a motion for a
           substitution of a judge had been filed. In a civil
        case, each adverse party is entitled to two substi-
        tutions of a judge. In a criminal case, the state
        and each defendant is entitled to one substitution
        of a judge.
        "A motion for substitution of a judge shall be made
        by filing a written motion for substitution reading
        as follows: 'The undersigned hereby moves for sub-
        stitution of another judge for Judge
        in this cause.' The clerk of court shall immediately-
        give notice thereof to all parties and to the judge
        named in the motion. Upon filing this said notice
        the judge named in the motion shall have no further
        power to act in the cause other than to call in
        another judge, which he shall do forthwith, and to
        set the calendar.
        "When a case is filed in a multi-iudqe district, it
        shall be the duty of the clerk of court to stamp the
        name of the iudse to which the case is assiqned on the
        face of the summons, order to show cause, or informa-
        tion and all copies thereof.
        "Whenever a judge is assigned a case for ten consec-
        utive days and the attorneys of record on both sides
        have knowledge of the assignment for that period of
        time, and if during this time no motion for substitu-
        tion of a judge is filed against him, all rights to
        move for substitution of a judge shall be deemed
        waived by all parties, unless the presiding judge dis-
        qualified himself thereafter in which case the right
        to move for substitution of a new judge is reinstated
        and the ten day period starts running anew.
        "Whenever a new party enters a case, the ten day period
        begins anew as to that party. During that time all
        other parties may file any motions for substitution
        of a judge allowed by this rule and not previously
        filed by them.
        "Whenever an acceptance of jurisdiction is filed by a
        new judge it shall be the duty of the clerk of court,
        forthwith, to mail a copy thereof by certified mail
        with return receipt requested, to all attorneys of
        record. Service thereof may also be made by delivery
        of a copy personally, or by getting a written receipt
        from the attorneys therefor. Proof of service, how-
        ever made, shall be stapled to the acceptance of juris-
        diction so served, in said file." (Emphasis supplied.)
        34 St.Rep. 26, 27.
This Court found a similar situation in Wheeler v Moe (1973), 163
                                                 .
Mont. 154, 515 P.2d 679.   One of the issues in that case concerned
the power of a judge assignd to a case without formal notice after
the disqualification of another judge in the same district.   This
Court found the actions of the second judge void.   We stated:
       "After the affidavit was filed, Judge Green was
       without jurisdiction to act further in the matter
       except in those limited instances outlined in the
           statute. The record does not disclose that another
           judge, including Judge Brownlee, was called in as
           provided for in the statute. No notice was given to
           the parties or their attorneys that another judge
           had been called in or that the action had been trans-
           ferred to another judge. Judge Green was without
           authority to act, and Judge Brownlee, presiding in
           Judge Green's stead and not having been called to
           assume jurisdiction, was also without authority to
           act in the matter." Wheeler v. Moe, supra, 515 P.2d
           at 682.
           Research has revealed no published local court rule of
the Second Judicial District regarding transfer of cause between
the two departments upon disqualification of either one or the
other of the judges.    Our decision therefore is of necessity based
on this Court's rule for disqualification and substitution as enum-
erated above.
           A review of the record reveals that the District Court
failed at nearly every step to follow that rule.
           There is no evidence in the record which indicates that
Judge Freebourn specifically called in Judge Olsen to handle the
case nor is there any evidence that Judge Olsen filed an acceptance
of jurisdiction.    Further, there was a failure to deliver a copy
of such acceptance of jurisdiction to the attorneys of record or
to receive a written receipt from the attorneys therefor.
           Coupled with the failure to follow the proper disqualifi-
cation procedure, there is the lack of published local rules deal-
ing with court practice in the Second Judicial District.      At page
109 of the transcript, Judge Olsen states:     "   ...   it has been
the rule, custom, and practice in this jurisdiction that when       ...
a motion for substitution [of one judge is] submitted, the other
judge in this district assumes jurisdiction."      The failure to pub-
lish this variation on the Supreme Court rule constituted inade-
quate notice to the defendant that some procedure other than the
Supreme Court rule was going to be used.    In effect then the de-
fendant was operating with one set of rules and the court with
another.    Such confusion cannot be tolerated and could easily have
been prevented by the publishing of the local rules.   We strongly
recommend that the judges of the Second Judicial District formu-
late and publish local court rules, and make copies of such rules
available to all members of the bar who practice before their
courts.    Such local rules must be consistent with already formu-
lated rules of this Court.
          The judgment is reversed and defendant is granted a new
trial.    This cause is remanded to the District Court and presiding
Judge Freebourn with instructions to call in another judge in con-
formity with this Court's Rule on substitution of judges at 34
St.Rep. 26.
          The defendant's contentions as to the second issue are
without merit.   Forgery is prohibited by both federal and state
laws and therefore the defendant may be tried in either a state
or federal court.   See section 45-6-325(1)(a), MCA; State v.
Stevens (1921), 60 Mont. 390, 199 P. 256; Ex Parte Groom (1930),
87 Mont. 377, 287 P. 638.
          Reversed and remanded.


                                          Chief Justice




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