                                                                                         June 26 2012


               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        OP 12-0182

                                       2012 MT 134
                                    _________________

EMILY BLODGETT,

           Petitioner,

     v.                                                            OPINION
                                                                     AND
JUSTICE COURT, MISSOULA COUNTY,                                     ORDER
TOWNSHIP NO. 2, JUDGE KAREN A.
ORZECH, Presiding,

           Respondent.
                                    _________________


¶1     On March 20, 2012, Emily Blodgett filed with this Court a Petition for a Writ of

Supervisory Control wherein she alleged that the Missoula County Justice Court violated

§§ 3-10-231 through -234, MCA; Article VII, Sections 1 and 5 of the Montana

Constitution; and several of this Court’s prior decisions, when it allowed a retired District

Court Judge to preside over her jury trial. Blodgett contended that the presiding Justice

of the Peace Karen Orzech improperly called in retired District Court Judge Douglas

Harkin to preside over Blodgett’s jury trial, even though Judge Orzech was present in her

court, but otherwise involved with another case.

¶2     Because Judge Orzech had not had an opportunity to respond to Blodgett’s

petition, we issued an Order on March 21, 2012, granting Judge Orzech, or her designee,

time to prepare, file and serve her response to Blodgett’s petition. We also ordered that

all further proceedings in Blodgett’s underlying case be stayed pending our decision in



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this matter. In addition, we invited the Attorney General to participate in this case,

should he choose to do so, because our decision in this matter may affect other justice

courts in the State.1 On May 8, 2012, the Montana Association of Criminal Defense

Lawyers moved for leave of this Court to appear as amicus curiae in this matter.

¶3    Judge Orzech has now filed her response in this case wherein she states that

§ 3-10-231, MCA, provided the authority for her to call in Judge Harkin as a substitute

justice of the peace. Judge Orzech also asserts in her response that Blodgett has not

shown that § 3-10-231, MCA, was not complied with or that Blodgett was prejudiced by

having Judge Harkin preside over her jury trial.

                                      Background

¶4    On August 11, 2011, Blodgett was charged with a violation of § 45-5-624, MCA,

minor in possession of alcohol, a third or subsequent offense. The charge was filed in the

Justice Court of Missoula County, and was assigned to Judge Orzech in department two.

Blodgett made her initial appearance and pled not guilty.         After rejecting a plea

agreement in the case, Judge Orzech set the case for trial on February 27, 2012.

¶5    Because Judge Orzech had another case with a speedy trial deadline close to

Blodgett’s, Judge Orzech set both cases for trial on the same date with the hope that at

least one of the cases would be resolved prior to trial. However, neither case was

resolved, and both cases proceeded to trial as scheduled.



1
  We note that the Attorney General did not file a separate response, but Mark Mattioli,
Appellate Services Bureau Chief, signed Judge Orzech’s response on behalf of Shawn
Thomas, Deputy County Attorney for Missoula County.

                                            2
¶6     John Odlin, the Justice of the Peace for department one in Missoula County, was

holding his regular court that day, and was not available to preside over either of Judge

Orzech’s jury trials. Rather than postpone one of the trials, Judge Orzech called in Judge

Harkin, who had retired from the bench some time previously, to preside over Blodgett’s

jury trial while Orzech presided over the other jury trial.

¶7     Before the jury was sworn in her case, Blodgett objected to Judge Harkin’s

authority to proceed, but Judge Harkin overruled the objection and proceeded with trial.

At the conclusion of the trial, the jury found Blodgett guilty. Judge Harkin set sentencing

for March 20, 2012, and ordered the State to file a sentencing memorandum detailing

Blodgett’s criminal history and whether she had followed the terms of any prior

sentences.

¶8     Blodgett filed this Petition for a Writ of Supervisory Control prior to sentencing.

Blodgett also filed a Petition for a Writ of Certiorari to bring the record of the Justice

Court to this Court. We stayed the proceedings in Justice Court pending our decision in

this matter.

                                         Discussion

¶9     This Court has general supervisory control over all other courts and may, on a

case-by-case basis, supervise another court by way of a writ of supervisory control. State

v. Dist. Court of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 29, 358 Mont. 325, 246

P.3d 415 (citing Mont. Const. art. VII, § 2(2); M. R. App. P. 14(3)). Supervisory control

is an extraordinary remedy which we exercise only when (1) urgency or emergency

factors exist making the normal appeal process inadequate, (2) the case involves purely


                                              3
legal questions, and (3) one or more of the following circumstances exist: (a) the other

court is proceeding under a mistake of law and is causing a gross injustice,

(b) constitutional issues of state-wide importance are involved, or (c) the other court has

granted or denied a motion for substitution of a judge in a criminal case. Lamb v. Dist.

Court of the Fourth Judicial Dist., 2010 MT 141, ¶ 10, 356 Mont. 534, 234 P.3d 893.

¶10    Having reviewed Blodgett’s petition and Judge Orzech’s response wherein Judge

Orzech concedes that, under these circumstances, Blodgett’s Petition for Writ of

Supervisory Control is an appropriate remedy for the issue at hand, we conclude that

Blodgett’s petition implicates the factors set out above that would militate in favor of this

Court accepting supervisory control in this case. In particular, we conclude that the

Justice Court is proceeding under a mistake of law and is causing a gross injustice. Thus,

we accept supervisory control in this matter, and we proceed to address the main issue in

this case which is: Whether Judge Harkin was vested with authority under the provisions

set forth in § 3-10-231, MCA, to act as a substitute justice of the peace and preside over

Blodgett’s jury trial.

¶11    “The term ‘judge’ (which includes municipal and city court judges and justices of

the peace, § 3-1-1501(2), MCA), means a person who is ‘vested by law’ with the power

to perform judicial functions . . . .” Potter v. Dist. Court of the Sixteenth Judicial Dist.,

266 Mont. 384, 393, 880 P.2d 1319, 1325 (1994). And, one is vested with the authority

to act as a substitute justice of the peace only if all of the criteria of the authorization

procedure are followed. State v. Vickers, 1998 MT 201, ¶ 18, 290 Mont. 356, 964 P.2d

756.


                                             4
¶12    The judicial power of this State derives from Article VII of the Montana

Constitution. Section 5 of that Article provides for justices of the peace:

               (1) There shall be elected in each county at least one justice of the
       peace with qualifications, training, and monthly compensation provided by
       law. There shall be provided such facilities that they may perform their
       duties in dignified surroundings.
               (2) Justice courts shall have such original jurisdiction as may be
       provided by law. They shall not have trial jurisdiction in any criminal case
       designated a felony except as examining courts.
               (3) The legislature may provide for additional justices of the peace
       in each county.

Under the power granted it by Article VII, Section 5 of the Montana Constitution, the

Legislature has enacted the following statutory scheme to appoint an individual to

lawfully exercise the powers and authority of a judge as a substitute for a duly elected

justice of the peace:

               Circumstances in which acting justice called in – by whom. (1)
       Whenever a justice of the peace is disqualified from acting in any action
       because of the application of the supreme court’s rules on disqualification
       and substitution of judges, 3-1-803 and 3-1-805, the justice of the peace
       shall either transfer the action to another justice’s court in the same county
       or call a justice from a neighboring county to preside.
               (2) (a) The following requirements must be met to qualify a
       substitute for a justice of the peace:
               (i) Within 30 days of taking office, a justice of the peace shall
       provide a list of persons who are qualified to hold court in the justice’s
       place during a temporary absence when another justice or city judge is not
       available. The persons listed must be of good moral character and have
       community support, a sense of community standards, and a basic
       knowledge of court procedure.
               (ii) The sitting justice of the peace shall request and obtain from the
       commission on courts of limited jurisdiction established by the supreme
       court a waiver of training for the substitutes.
               (iii) Each person on the list, provided for in subsection (2)(a)(i),
       shall subscribe to the written oath of office as soon as possible after the
       person has received a waiver of training from the supreme court. The oath



                                             5
       may be subscribed before any member of the board of county
       commissioners or before any other officer authorized to administer oaths.
               (b) The list of qualified substitutes, the written oath, and the
       commission’s written approval and waiver of training for those substitutes,
       pursuant to subsection (2)(a)(ii), must be filed with the county clerk as
       provided in 3-10-202.
               (c) A county clerk may provide a current list of qualified and sworn
       substitutes to local law enforcement officers.
               (3) Whenever a justice is sick, disabled, or absent, the justice may
       call in another justice, if there is one readily available, or a city judge or a
       person from the list provided for in subsection (2) to hold court for the
       absent justice until the absent justice’s return. If the justice is unable to call
       in a substitute, the county commissioners shall call in another justice, a city
       judge, or a person from the list provided for in subsection (2).
               (4) During the time when a justice of the peace is on vacation or
       attending a training session, another justice of the peace of the same county
       is authorized to handle matters that otherwise would be handled by the
       absent justice. When there is no other justice of the peace in the county, the
       justice of the peace may designate another person in the same manner as if
       the justice were sick or absent.
               (5) A justice of the peace of any county may hold the court of any
       other justice of the peace at that justice’s request.

Section 3-10-231, MCA.2

¶13    This Court held in Vickers, that before an acting justice of the peace may exercise

jurisdiction, strict compliance with the provisions of § 3-10-231, MCA, is required.

Vickers, ¶¶ 24-29. Consequently, under this statute, an acting justice of the peace may be

called in only when the elected justice of the peace has been disqualified or whenever the

elected justice of the peace is sick, disabled or absent.

¶14    In the instant case, Blodgett contends that an acting or substitute justice of the

peace may not hold court at the same time that the elected justice of the peace is holding

court. Blodgett argues that because Judge Orzech was present in court holding trial in

2
  This statute was last amended in 1997 in response to this Court’s decision in Potter.
Sec. 1, Ch. 150, L. 1997.

                                               6
another matter, she was not disqualified, sick, disabled or absent as required by

§ 3-10-231, MCA. Thus, Judge Orzech could not call in a substitute justice of the peace

to preside over Blodgett’s jury trial.

¶15    Judge Orzech argues that we should liberally construe the term “absent” in

§ 3-10-231(3), MCA, to mean “unavailable” or “unable to act” rather than to strictly

construe the term to require that the justice of the peace be physically outside of the

courthouse.      Judge Orzech maintains that under Blodgett’s interpretation of

§ 3-10-231(3), MCA, if a justice of the peace falls inside the courthouse and is unable to

walk, he or she would have to be carried outside the courthouse and remain there while

the substitute justice of the peace acts on his or her behalf. Judge Orzech’s hypothetical

misses the mark since, rather than physically forcing an absence in this scenario, the

injured justice of the peace would simply be considered sick or disabled under

§ 3-10-231(3), MCA.

¶16    Nevertheless, we need not resolve this question of statutory interpretation under

the facts here because we hold that the requirements in § 3-10-231(2), MCA, for

qualifying an individual as a substitute justice of the peace were not met in this case.

Hence, for purposes of our discussion, we will assume that Judge Orzech was entitled to

call in a substitute justice of the peace.

¶17    Under § 3-10-231(2), MCA, several requirements must be met to qualify an

individual to act as a substitute justice of the peace. First, under § 3-10-231(2)(a)(i),

MCA, Judge Orzech was required within 30 days of taking office to provide a list of

persons who are qualified to hold court in her absence when another justice or city judge


                                             7
is not available. Judge Orzech has not presented this Court with any evidence to indicate

that she established such a list or that Judge Harkin’s name was on said list if one exists.

¶18    Second, under § 3-10-231(2)(a)(ii), MCA, Judge Orzech was required to request

and obtain from the Commission on Courts of Limited Jurisdiction a waiver of training

for the potential substitutes on her list. While Judge Harkin is obviously an experienced

and qualified jurist, there is nothing before this Court to indicate that Judge Orzech

requested or obtained a waiver of training for Judge Harkin.

¶19    Third, each person on Judge Orzech’s list is required to “subscribe to the written

oath of office as soon as possible after the person has received a waiver of training” from

this Court. Section 3-10-231(2)(a)(iii), MCA (emphasis added). Again, there is nothing

before this Court indicating that Judge Harkin subscribed to a written oath after receiving

a waiver of training.

¶20    Fourth, Judge Orzech was required to file the list of qualified substitutes, the

written oath, and the commission’s written approval and waiver of training for the

substitutes with the county clerk. Sections 3-10-202 and -231(2)(b), MCA. In her

affidavit filed with her response, Judge Orzech does not indicate that this procedure was

followed.

¶21    Fifth, and finally, we stated in Vickers that “a sitting justice of the peace must first

attempt to call in another duly elected justice of the peace, if there is one readily

available, or a city judge before calling in a substitute judge from the list provided for in

§ 3-10-231, MCA.” Vickers, ¶ 13 (citing Potter, 266 Mont. at 391, 880 P.2d at 1324);

see also State v. Beaupre, 2004 MT 300, ¶ 21, 323 Mont. 413, 102 P.3d 504. While


                                              8
Judge Orzech indicated that Judge Odlin, the other duly elected justice of the peace in

Missoula County, was unavailable, Judge Orzech does not indicate whether she

attempted to contact a city judge before calling in Judge Harkin.

¶22    We held in Potter, that “[u]nless the procedures required by [§ 3-10-231, MCA]

are followed, then no substitute justice is appointed, and the person seeking to exercise

the powers of a judge as his substitute has no authority or jurisdiction to do so. That

person is, quite simply, not a judge as he has not been vested by law with the power to

perform the functions of a judge.” Potter, 266 Mont. at 393, 880 P.2d at 1325; accord

Pinnow v. Montana State Fund, 2007 MT 332, ¶ 24, 340 Mont. 217, 172 P.3d 1273.

¶23    In this case, although Judge Harkin was qualified by his training and experience to

act as a substitute justice of the peace, he was not one at the time he presided over

Blodgett’s trial because the statutory procedures to vest him with the power to perform

judicial functions as a substitute justice of the peace had not been followed.

Consequently, any purported judicial acts performed by Judge Harkin in this case are

void ab initio. See Vickers, ¶ 29. Therefore,

¶24    IT IS ORDERED that Blodgett’s Petition for a Writ of Supervisory Control is

GRANTED. We hold that the jury trial in Missoula County Justice Court was void ab

initio and we remand this case for further proceedings.

¶25    IT IS FURTHER ORDERED that Blodgett’s Petition for a Writ of Certiorari is

DENIED as moot.

¶26    IT IS FURTHER ORDERED that the Motion by Montana Association of Criminal

Defense Lawyers for Leave to Appear as Amicus Curiae is DENIED.


                                            9
¶27    IT IS FURTHER ORDERED that the stay granted in this matter by Order dated

March 21, 2012, is lifted.

¶28    The Clerk of this Court is directed to give notice of this Order to Blodgett at her

last known address, to the Hon. Karen Orzech, Justice of the Peace, and to all counsel of

record.

       DATED this 26th day of June, 2012.



                                                 /S/ JAMES C. NELSON


We concur:


/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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