                                No. 12483

          I N THE SUPREME C U T O THE STATE O MONTANA
                           OR    F           F

                                   1973



THE STATE O M N A A ex r e 1 J O N WILLIAM
           F OTN
PASCHKE and JOHN A N L MASON,
                  R OD

                          Relators,



THE DISTRICT COURT O THE THIRTEENTH
                    F
JUDICIAL DISTRICT OF THE STATE OF
M NA A e t a l ,
 OTN

                          Respondents.




ORIGINAL PROCEEDING:

Counsel o f Record:

    For R e l a t o r :

            S a n d a l l , Moses and Cavan, B i l l i n g s , Montana.
            D. Frank Kampfe argued, B i l l i n g s , Montana.

    For Respondents :

            Hon. Robert L. Woodahl, Attorney General, Helena,
             Montana.
              . .
            J C Weingartner, A s s i s t a n t Attorney General, appeared,
             Helena, Montana.
            Harold F. Hanser, County A t t o r n e y , argued, B i l l i n g s ,
             Montana.



                                             Submitted:      March 29, 1973

                                                Decided:        2 3 18-
Filed :   AUG 2 3 7973
Hon. Jack Shanstrom, d i s t r i c t judge s i t t i n g f o r Chief J u s t i c e
James T. Harrison, d e l i v e r e d t h e Opinion of t h e Court.

        This i s an o r i g i n a l proceeding seeking a w r i t of supervisory
c o n t r o l over t h e d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t ,
Yellowstone County, and t h e Hon. C. B. Sande, presiding judge.
        P e t i t i o n was f i l e d by r e l a t o r s Jon William Paschke and John
Arnold Mason, seeking continuance of a t r i a l d a t e and t h a t D i s t r i c t
Judge Sande d i s q u a l i f y himself from hearing s a i d c a s e , a f t e r an
a f f i d a v i t of d i s q u a l i f i c a t i o n had been f i l e d by r e l a t o r s .
        The f a c t s i t u a t i o n    is:      O Monday, February 26, 1973 t h e
                                                   n
county a t t o r n e y of Yellowstone County f i l e d a complaint i n j u s t i c e
c o u r t charging r e l a t o r s with seven counts of possession of dangerous
drugs.       P r i o r t o t h e complaint being f i l e d an a p p l i c a t i o n f o r a
search warrant had been f i l e d with t h e j u s t i c e c o u r t and pursuant
t h e r e t o a search warrant was issued by t h e j u s t i c e of t h e peace on
February 25, 1973.               A s a r e s u l t of t h e search t h e charges of posses-
s i o n of dangerous drugs were f i l e d .
        On February 28, 1973 t h e county a t t o r n e y f i l e d an information

i n t h e d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t , Yellow-
sone County, charging r e l a t o r s with seven counts of possession of
dangerous drugs.
        O February 28, 1973 r e l a t o r s appeared a t t h e arraignment
         n
represented by counsel, D. Frank Kampfe.                             B a i l was s e t a t $15,000
on each r e l a t o r .
        O March 2 , 1973 r e l a t o r John Arnold Mason posted bond and was
         n
released.         O March 12, 1973 r e l a t o r Jon William Paschke was r e l e a s e d
                   n
on bond,
        On March 2 , 1973 Judge C. B , Sande ordered a s e t t i n g f o r t r i a l

of c r i m i n a l causes 8860 and 8861 f o r March 26, 1973 a t t h e hour of
9:30 a.m.         The order was received by counsel f o r r e l a t o r s on March
5 , 1973.
        O March 21, 1973 counsel f o r r e l a t o r s f i l e d two a f f i d a v i t s
         n
of d i s q u a l i f i c a t i o n which were duly signed by t h e r e l a t o r s .
        O March 2 1 , 1973 Judge Sande refused t o d i s q u a l i f y himself and
         n
so advised counsel f o r r e l a t o r s by telephone.
        O t h e same day, March 21, 1973, c o u n s e l f o r r e l a t o r s f i l e d
         n
a motion f o r continuance and n o t i c e of motion f o r continuance which
a l l e g e d numerous grounds f o r continuance of t h e t r i a l s , among
them were :
        1.    ~ e l a t o r s 'counsel had o t h e r previous c a s e s set f o r t r i a l
d u r i n g t h e week o f March 26 through March 30.
        2.    R e l a t o r s ' c o u n s e l d i d n o t have adequate time t o prepare
and i n v e s t i g a t e t h e c a s e s p r i o r t o t h e t r i a l s e t t i n g .
        3.    That a d d i t i o n a l burdens were c a s t upon c o u n s e l f o r
r e l a t o r s because o f h i s handling of o f f i c e m a t t e r s p r e v i o u s l y
handled by o t h e r members of t h e f i r m who were e i t h e r t r y i n g c a s e s
o u t of town o r had l e f t t h e employment of t h e firm.
        O March 22, 1973 c o u n s e l f o r r e l a t o r s was a d v i s e d by Judge
         n
Sande through a telephone c o n v e r s a t i o n t h a t t h e motion f o r continuance
was denied w i t h o u t h e a r i n g and t h e m a t t e r would go t o t r i a l on March
26, 1973.         A t t h a t time he f u r t h e r advised counsel f o r r e l a t o r s t h a t
any motions t o suppress a n d / o r o t h e r h e a r i n g s would b e h e l d on
March 23, 1973.
        Judge Sande f i l e d an a f f i d a v i t b e f o r e t h i s Court and was re-
p r e s e n t e d by Harold F. Hanser, county a t t o r n e y f o r Yellowstone
County, a l l e g i n g t h a t w i t h i n t h e week of s e t t i n g t h e c a s e s f o r
t r i a l he p e r s o n a l l y advised counsel f o r r e l a t o r s t h a t i f any motions
were t o b e made i n r e g a r d t o t h e c a s e s they should be made a t an
e a r l y d a t e and disposed of b e f o r e t r i a l .            That he had had no communi-
c a t i o n whatsoever w i t h c o u n s e l f o r r e l a t o r s from t h a t time forward
u n t i l Thursday, March 22, 1973, a t which time t h e c o u r t was advised t h a t
a p e t i t i o n f o r continuance and a f f i d a v i t s of d i s q u a l i f i c a t i o n had
been f i l e d by counsel f o r r e l a t o r s .           That a t t h e time he r e c e i v e d
t h i s p e t i t i o n t h e county a t t o r n e y ' s o f f i c e was p r e p a r i n g t h e c a s e s
for trial.         That f o r t y j u r o r s had been summoned t o a t t e n d t h e t r i a l
on March 26, 1973.              That t h e c o u r t had p r e v i o u s l y s e t c r i m i n a l c a s e s
a l l through t h e months of A p r i l and May, a t which time t h e term ended,
and i f t h e s e c a s e s were continued i t would n o t be p o s s i b l e t o t r y them
d u r i n g t h a t term.
                                            - 3 -
.          County Attorney Hanser a l s o f i l e d a memorandum before t h i s

    Court s t a t i n g t h a t t h e Yellowstone county a t t o r n e y ' s o f f i c e f i l e d
    i n excess of 300 felony c a s e s i n d i s t r i c t c o u r t during t h e year
    1972, and t h a t on March 23, 1973, approximately 40 cases were s e t
    i n Judge Sande's department during t h e months of A p r i l and May.
    That even though counsel f o r r e l a t o r s pointed out h i s own busy
    schedule and reasons f o r continuance, M r , Kampfe on March 1, 1973
    spent considerable time n e g o t i a t i n g with t h e Yellowstone county
    a t t o r n e y ' s o f f i c e f o r t h e r e t u r n of two $1,000 checks seized i n
    evidence pursuant t o t h e search warrants,                       That, i n a d d i t i o n , he
    had s u f f i c i e n t time t o f i l e i n f e d e r a l d i s t r i c t c o u r t an a c t i o n
    p e r t a i n i n g t o t h e s e checks.    Thus, f a c t u a l l y , i t would appear t h a t
    counsel would have had s u f f i c i e n t time f o r motions f o r s u b s t i t u t i o n
    of judge and continuance of t r i a l and could have made them more timely
    had he so d e s i r e d .
           I t i s from t h e t r i a l c o u r t ' s d e n i a l of t h e motions t o continue
    t h e t r i a l s and r e f u s a l t o d i s q u a l i f y himself t h a t r e l a t o r s seek
    r e l i e f by way of a w r i t of supervisory c o n t r o l from t h i s Court.
           The i s s u e s :    Did t h e t r i a l c o u r t abuse i t s d i s c r e t i o n i n i t s
    d e n i a l t o continue t h e t r i a l s , and was t h e attempted d i s q u a l i f i c a -
    t i o n timely made?
           The p r i n c i p a l Montana s t a t u t e with r e s p e c t t o d i s q u a l i f i c a t i o n
    i s s e c t i o n 95-1709, R.C.M.           1947:
           " S u b s t i t u t i o n of judge.         (a) The defendant o r t h e
           prosecution may move t h e c o u r t i n w r i t i n g f o r a sub-
           s t i t u t i o n of judge on t h e ground t h a t he cannot have a
           f a i r and i m p a r t i a l hearing o r t r i a l before s a i d judge.
           The motion s h a l l be made a t l e a s t f i f t e e n (15) days
           p r i o r t o t h e t r i a l of t h e c a s e , o r any r e t r i a l thereof
           a f t e r appeal, except f o r good cause shown. Upon t h e
           f i l i n g of such a motion t h e judge a g a i n s t whom t h e motion
           i s f i l e d s h a l l be without a u t h o r i t y t o a c t f u r t h e r i n t h e
           c r i m i n a l a c t i o n , motion o r proceeding b u t t h e provisions
           of t h i s s e c t i o n do n o t apply t o t h e arrangement of t h e
           c a l e n d a r , t h e r e g u l a t i o n of t h e order of business, t h e
           power of t r a n s f e r r i n g t h e criminal a c t i o n o r proceeding
           t o some o t h e r c o u r t , nor t o t h e power of c a l l i n g i n an-
           o t h e r judge t o s i t and a c t i n such criminal a c t i o n o r
           proceeding, providing t h a t no judge s h a l l so arrange t h e
           calendar a s t o d e f e a t t h e purposes of t h i s s e c t i o n . Not
           more than one (1) judge can be d i s q u a l i f i e d i n t h e c r i m i n a l
           a c t i o n o r proceeding, a t t h e i n s t a n c e of t h e prosecution
           and n o t more than one (1) judge a t t h e i n s t a n c e of t h e
           defendant o r defendants.
       11
        If either party in any matter above-mentioned shall
       file the motion as herein provided such party may not
       complaint of any reasonable delay as the result thereof.
       11
        The provision of this section shall be inapplicable
       to any person in any cause involving a direct contempt
       of court.
       "b
        ()   In addition to the provision of subsection (a)
       any defendant may move at any time for substitution of
       judge for cause, supported by affidavit. Upon the filing
       of such motion the court shall conduct a hearing and de-
       termine the merits of the motion. II
       This Court has previously discussed this matter at great
length in State ex rel. Wilson v. District Court, 143 Mont. 543,
393 P.2d 39, in which the Court held the language of section
95-1709, R.C.M. 1947, to be clear and concise:                    h he motion shall
be made at least fifteen (15) days prior to the trial of the
case   *    *.I1   Unless, of course, a deliberate attempt is made to
arrange a calendar to defeat the purposes of this section.
       Here, from the affidavits and memorandums submitted to this
Court, we find the affidavit of disqualification was filed approxi-
mately four days prior to the trial date, and that there had been
no communication whatsoever between Judge Sande and counsel for
relators from the time the cases were set on March 2, 1973, and
                   ..
                       'I
                      p-pjijll   LC'
additionally, that wi4hi-n-a week thereafter Judge Sande personally
notified counsel for relators that any motions should be made at
an early date to be disposed of before the trial.
       There is nothing in the petition of relators to show that
there should be a variance or a justification for failure to file
the affidavits of disqualification within the 15 days provided by
the statute. We hold the motions for disqualification were not
timely made and therefore Judge Sanders denial of the affidavits of
disqualification was proper.
       The remaining issue for review relating to the district court's
denial of petitioners' motion for continuance need not be determined
as such issue has become moot.
       This original proceeding is ac~qdinglydismissed.



                                               P
                                               '
                                                   /'~istrict Judge, sitting for Hon.
                                                     >/
                                           '       ,    James T. Harrison.
                                       J           ,
We Concur:




            Justices 1
  \,~ssociate
  i
  \
               I N THE SUPREME COURT OF THE STATE OF MONTANA



                                         No.     12483


STATE EX REL. JON W I L L I A M PASCHKE e t a l . ,

                      Relators,

              VS.

THE D I S T R I C T COURT OF THE THIRTEENTH
JUDICIAL DISTRICT e t a l . ,

                      Respondents.




                                          O R D E R



PER CURIAM:

              I T I S ORDERED t h a t t h e w o r d " w i t h i n " i n l i n e 2% p a g e 5 ,

o f t h e a b o v e - e n t i t l e d o p i n i o n be changed t o " p r i o r t o " .

              DATED t h i s 1 7 t h d a y o f S e p t e m b e r ,   1973.
