               IN THE SUPREME COURT OF THE STATE OF MONTANA                               July 10 2009

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IN RE REVISED RULES ON                                   )
                                                         )    ORDER
SUBSTITUTION OF DISTRICT JUDGES                          )
                             _____________


       Under the power vested in this Court by Article VII, Section 2 of the Montana
Constitution, the Court has established rules for the substitution of district judges, which
rules are codified at § 3-1-804, MCA. Earlier this year, the Court prepared and made
public proposed revised rules for substitution of district judges, the primary purpose of
which is to make the rules easier to read and understand. The Court has accepted
comments on the proposed revised rules, and has now agreed on a final revised version of
the rules.
       IT IS ORDERED that the attached rules for the substitution of district judges are
adopted, effective October 1, 2009.
       IT IS FURTHER ORDERED that copies of this Order with the attached revised
rules for the substitution of district judges be electronically published on the State Bar of
Montana website, http://www.montanabar.org, and on the website for the Judicial
Branch, http://www.courts.mt.gov.
       IT IS FURTHER ORDERED that the Clerk shall serve this Order with the
attached rules for substitution of district judges on each district judge of the State of
Montana, the Office of the Attorney General for the State of Montana; the Montana Trial
Lawyers Association, the Montana Association of Criminal Defense Lawyers, the Office
of Public Defender, the Montana County Attorneys’ Association, the Montana
Association of Criminal Defense Lawyers, the Code Commissioner and Director of Legal
Services for the Montana Legislative Services Division, and the State Bar of Montana.
       DATED this 9TH day of July, 2009.



                                                  /S/ MIKE McGRATH



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    /S/ W. WILLIAM LEAPHART
    /S/ JIM RICE
    /S/ PATRICIA COTTER
    /S/ JAMES C. NELSON
    /S/ JOHN WARNER
    /S/ BRIAN MORRIS




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3-1-804. Substitution of district judges.

                        SUBSTITUTION OF DISTRICT JUDGES
       This section applies to judges presiding in district courts. It does not apply to any
judge sitting as a water court judge, to a workers’ compensation court judge, or to a judge
supervising the distribution of water under 85-2-406, including supervising water
commissioners under Title 85, chapter 5, part 1.
       (1) Each adverse party is entitled to one substitution of a district judge.
       (a) In a civil action other than those noted in subsection (1)(b), a motion for
substitution by the party filing the action must be filed within 30 calendar days after the
first summons is served or an adverse party has appeared. A motion for substitution by
the party served must be filed within 30 calendar days after service has been completed in
compliance with M. R. Civ. P. 4.
       (b) In a criminal action; a child abuse and neglect proceeding under Title 41,
chapter 3; a youth court act proceeding under Title 41, chapter 5; or a mental health
commitment proceeding under Title 53, chapter 21, part 1, a motion for substitution by
the prosecution or the state must be filed within 10 calendar days after the district judge is
assigned pursuant to subsection (2)(a). A motion for substitution by the defendant,
parent, youth, or respondent must be filed within 10 calendar days after the defendant,
parent, youth, or respondent makes an initial appearance in the district court.
       (2)(a) When an initial pleading is filed, the clerk of court shall stamp the name of
the district judge to whom the case is assigned on the face of the original and all copies of
that document.
       (b) A motion for substitution of a district judge must be made by filing a written
motion with the clerk, as follows:
       The undersigned hereby moves for substitution of District Judge _______
       in this case.

The moving party shall serve copies of the motion for substitution upon all other parties
to the proceeding. The clerk shall immediately notify the district judge of the motion
and, if there has already been a substitution, the first district judge to whom the case was
assigned.


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          (3) In civil cases, the motion for substitution is not effective for any purpose
unless the filing fee for a motion for substitution required by 25-1-201 is paid to the clerk
of the district court. No filing fee is required in criminal cases or by parties who have
qualified for representation at public expense.
          (4) Any motion for substitution that is not timely filed is void. The district judge
for whom substitution is sought has jurisdiction to determine timeliness, and if the motion
for substitution is untimely, shall enter an order denying the motion.
          (5) After a timely motion has been filed, the substituted district judge does not
have power to act on the merits of the case or to decide legal issues in the case, except as
provided in subsection (10).
          (6) The first district judge who has been substituted or disqualified for cause has
the duty of calling in all subsequent district judges. In a multijudge district, all other
district judges in that district must be called before a district judge from another district is
called.
          (7) When a new district judge has accepted jurisdiction, the clerk of court shall
provide a copy of the assumption of jurisdiction to the first district judge to whom the
case was assigned and to each attorney or party of record. A certificate of service must be
attached to the assumption of jurisdiction form in the court file.
          (8) If the presiding judge in any action recuses himself or herself or if a new
district judge assumes jurisdiction in any action, the right to move for substitution of a
district judge is reinstated, except as to parties who have previously obtained a
substitution. The time periods run anew from the date of service of notice or other
document identifying the new district judge.
          (9) No party who is joined or intervenes has any right of substitution after the
time has run as to the original parties to the proceeding.
          (10) A district judge who has previously been substituted from the case may agree
to set the calendar, draw a jury, and conduct all routine matters including arraignments,
preliminary pretrial conferences in civil cases, and other matters that do not address the
merits of the case, if authorized by the presiding district judge.
          (11) When a new trial is ordered by the district court, each adverse party shall be


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entitled to one motion for substitution of district judge. The motion must be filed, with
the required filing fee, within 20 calendar days after the district court has ordered a new
trial.
         (12) When a judgment or order is reversed or modified on appeal and the cause is
remanded to the district court for a new trial, or when a summary judgment or judgment
of dismissal is reversed and the cause remanded, each adverse party is entitled to one
motion for substitution of district judge. The motion must be filed, with the required
filing fee, within 20 calendar days after the remittitur from the supreme court has been
filed with the district court. There is no other right of substitution in cases remanded by
the supreme court.
         In criminal cases, there is no right of substitution when the cause is remanded for
resentencing.




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