q v r-h r - nmv7 OP THE RULES 3P<
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~ ? J B S T I ; C C T l ' ~ Q"~ JTJDGES
                            ~




         order dated June? 17, 1987, +chis C o u r t a d o p t e d 3et.j
           Bg
rU L-s on the disquaLification a r ~ d substitt~cior,
   I Fi                                             of judges to
become effective September ! I j.987, w i t h a corm.entperiod to
be in effect until December 1, 1987, After further review of
t h e adopted rules, we Ceem it necessary to make certain
cltrifying amendments,
      The Fnnorable Robert p4- t.:ol."-er, President of the bfontar~a
Judges kssockation, petitioned this Court to r e v i s e our rules
on the disqualification and substitution of judges. Pursuant
to the power placed in this Court b y Article VZI, Section 2,
of the I972 Mcntara Constitution, this C o u r t adopts the
followi~g rule effective as ofSeptember 1, 1487, with a
cnr?ne:li period to b e in effect ~ ~ r t i l
                                          December 1., 1987,
       IT I S THEREFORE ORDERED that the said order dated June
-i:, 1987, is hereby arne;.i?ed and by such amendment the full
  -9




text of 'rho r u l e s on cJis~quaiificatcri and substiiruticr: o f
juEges is hereby adopted an6 reads as fallows:


            ~3-1-8g3.             ~isquaiificatienof judges--all courts,]


                This section shall, i n its application, apply
           to ail courts.
                m-;i justice, judge, or justice of he peace
           must r o t sit rr act in any actioc or proceeSinq:
                           ,
                           .
                 I   To w h i c h he is a party, or i n which he is
                       I


           ,,terested;
           i^

                 2. When he is rela.ted to either party by
           consanguinity or affinity within the sixth degre
           computed according to the rules of Law;




                                                                      CLERK OF d$lPRWE t3m
                                                                                       B1
                                                                                        68
                                                                         STATE OF WONTAHA
      . ,
      3  Wher k-e has been, attorney or c c u n s e ~ in
the action or proceeding fcr ar;- party or when he
rendered or made t h e judymert, order or 6~ ' '
                                              ;CISLG~
appealed from.

(3-1-804,       Substitution of district judges.]
            CUBSTITUT~ON
            u
                                 DISTRICT JUDGES

     This section i s Pimite? in its application to
district courts and judges presiding therein.
      I, A motion for substitution o f a district
judge nay he nade by any party to a proceeding only
i n the ~ a n ~ eset f o r t herein*
                  r                  In a civil or
criminal case, each adverse party, including the
state, is entitled to one sul?stitutior o f a cis-
trict judge.
      (a) A motion f o r substitution c f a Zistri-t
judge shall be made by filing a written rnntfor with
the clerk, as follows:
      The undersigned hereby moves far substitution
      of District Judge              in t h i s cause.

A  copy of the notion shall be served upc- all
parties to the proceeding and the clerk shall
immediately notify the judge.
                                                            '   -
                                                After a t l m e i y
motion has been filed, the substituted judge shall
have ne power to act on the merits of the cause - and
shall call in another judge. However, a resiaent
district judge who has previously been substituted
from the case may agree to set the ca.lendar, draw a
jury, condiuct a l l routine matters including ar-
raignments,    omnibus hearings in criminal casesi
preliminary pretrial conferences and other oatters
which dc not go to the merits of t h e case, if the
sitting jurge authorizes the same,
      (b) The first district judge who has been
substit~ited or 2isqualified for cause shall h a v e
the d u t y of calling in all subsequent district
judges. It shail be the duty of the c l e r k of court
to stamp the name of the ;udge to which the case is
assigned on the face of the initial ?leading,
ccmplaint, crder to show cause, or i n f o r m a t h e and
ail copies thereof.
      i i When a j d g e is assigned to a cause f o r
       c
twenty (20) c o n s e c ~ ~ t k - : edays after s e r v i c e o f
sursSons,or ter; (10) days after service of an order
to show cause, infornation or other initiating
docuaent, and no motion for substitution of j u d g e
bas been filed within said time period, the riqht
to move f o r s u b s t i t u t i o n of a judge shall be Seemed
wa~ve2.       ~f      the presiding judge remcves . .            nrmself,
"_e erin?ii:      r;o mc1-e for substitution of a judge is
reinstated, unless having been previous* used, and      -

the rime r;rri&s              shall r u n anew.         $.Eter the t i i c e
period shali have run as to the original parties to
?h proceeding, no party who i s 30in~iS or i ~ t e r -
 :e
venes          thereafter        shall have            any     rLght       0
                                                                           :
substitution,
          i d ) The motion for substiteiti.on shall nct be
                                                          +.
effective for any purpose u n l e s s a rliing fee is
      . - to
- ...,c
D3'                   c l e r k sf the ciistrict court i i l the
                                    3
amount set by law,            -1-
                                         f i l i n g f e e i s v a x e . i in
                                                                ;i?ic
criminal cases .&here the defendant has received a
court-appointed counsel or in civil cases where
there h a s been an affilzvit and order waiving
filing fees,
          (e) &y motion for substitution which                            not
timely filed is void for all purposes. The judge
having jurisdiction shall, make an order decl,a~ri,n~
the motion void,
          i f ) :i)len E; n e w ?.iiSge has accepted jurisdic-
tion, the clerk, of court shall mail a copy o"he
assumptiun of iurisdiction to the original judge
          .
an6 t o each attorney or party of record.                                 The
certiftcate of service shali be attached to the
assumption of jurisdictien form in the cocrt file.
           ( g ) When a n e w trial is or(iere6 in any case,
whether by order of the district court or the
 supreme court, each adverse party shall be entitled
to cre aclditie~almotion for strbstituirion o f judge
 in the manner provided herein. Such metier must be
 filed, with the required filing fee, w i t h i n twenty
 (2C) days after a new trial has been ordered by the
 district court or after the remittitur has been
 filed with the district c o c r t clerk* No right o f
 further substitution shall arise in ceses remanded
by the supreme court w h i c h call far additional
 hearicgs, but not a new trial.




     This section i s limited in its application to
- ,
iudaes presiding in Eistrict courts, justice of the
peace courts, m.unicipal courts and small claims
courts.
     1   Whene7;er a p a r p l to afiy proceeding in zny
court shall file an affidavit alleging facts show-
ing personal bias or prejiidice of "_he presiding
judge, such judge shall proceed no further in the
cause,    If the affidavit is filed against a
      district judge, the matter shall be referred to the
      M ~ r , " _ a r aSupreme Court, wfieteu~onShe Chief L,: ~ ~ t i , ~ e
                                                                  -

       . .
      s r ~ z i ?assign a
                            - i l l s " r < c t judae to tear the m a t t e r ,
      I." the aifilavit is file6 against a judge o f a
                                                 -.
      m u n l c'l p a l or justice court, any d~strkctjudge may
          ~



      appoint another justice of the peace, or municipal
      judge, to hear any such proceeding.
                (a) The affidavit for disqualification nust
      be filed more th~znthirty (31-1 Says b e f a r e tke date
      set far hearing or trial*               The p r :
                                                    at? i      t the
                         i t , , a ,i ,6r c .
                                 -
      + f f i ~ . ~ ~for dkp.; ,ri ~ a : n
                                   ~  i         shall pay a filing
      -ee as set by law. Failure to pay such filing Fee
      it

      at the time of filing the affidavit will render the
      a f f i d a v i t null a . void a n ineffective fez any
      purpose,           The Siring fee is waived in criminal
      cases           where      the   defendant     has    received
      court-appointed counsel, or in cj:ril              cases where
      there has been an affidavit and order waiving the
       -.
      r l l,~ a gfees.        -,-. -
                (b) The aerzaavit shall be accornpacied by a
          ,,_,,LcLe
      ce-,-ic   F;--      of counsel of record that the affi.da-rit
      has heen made in good faith. An affidavit will be
      deemed not to have been made in good faith if it i s
      based solely on rulings i,n the case made by the
      challenged judge ane. from which an appeal could
      h q i r been taken.
      LiG.e
                (c) Any affidavit which is not in proper farm
      an2 which does rot allege facts showing; personal
      bias or prejudice nay be set aside as void,
                id) The judge appointed to preside at a
      disqualification proceeding zay assess attorneys
      fees, costs and 8~amaiges aqainst any pqrty or his
      attorney who f i l e s s~j.ch disqlraLification without
                                              .
      reasonable cause and thereby hinders, delays or
      takes unconscionabLe advantage of any other party,
      or the court.
ORDER ;:SUPERSEDES S E C T T C I ~ 3-1-801 and 8 6 2 , MCA:
                                   ~
     By t h e authority o f Article V I L , Section 2, of the 1972
Eontsna ~onstitution,this rule sunersedes anE i s to be s s e d
to the exclusion o f the rude or disqualification and substi-
tution of judges adopted b = Suprene Court Order d a t e 2 Jure
                           ;
29, SS81* arid published as sectior ?-?-SO1                   an6 802, ~ C A ,
EFFECTIVE GATE :
      This
                    . -
              rule snail take effect oc September 1, 1987,
C@@IEN'_' 2Ep.IOD :
      T h e ptontana Supreme Court invites comnerts by attOcrneys,
judges, and other interested parties to be submitted to the
Clerk  this Court by December 1, 1987,
               of                            Foilowing the
receipt such ccmqe--,s, this Cclurr will consider the same
and make such changes as it f i n & to be appropriate,
L.-    -
x7" t u T * -, * s
          ~L:
                     clerk e f
                           "_his C o u r t is directed to r . a i i copies of
t h e s e rules to the following:
         The Code C c ~ ~ ~ i s s i a nof the State of Montana;
                                       er
         District C o n r t Ju$ges of t h e State of Montana;
         Clerks of the District Courts 0 5 the State of Montana;
         cr_itez States District Court Judqes of tho State OE
Msrrtana;
            Cl.erks of t h e i ' n i t e d States District C o i l r t s of the State
~fldzostana;
     president and Executive Director of the State 9 a r o f
Montana;
     president a n s Executive 3irecter of t h e Montana T r i a l
Lawyers A s s o c i a t i o n ;
           ?ubLishing Company, w i t h a request that it be
            West
                             -
publiskee in t h e P a c i f i c
     State R e p o r t e r , w i t h a request that it he published in
4-L,
,e,       Reporter.
                           - -
              GAT113 this I:,>.
                                 .
                                 ?   > ?k..
                                     :        d y of Jul;-,   1987,
