                                              No.    83-400

                     I N THE SUPREME COURT O F T H E S T A T E O F MONTANA




S T A T E O F MONTANA, ex r e l . , DAVID
GARY WELCH,

                                 Petitioner,



D I S T R I C T COURT O F THE SEVENTH J U D I C I A L
D I S T R I C T , I N AND F O R THE COUNTY O F
RICHLAND, T H E HONORABLE R. C .
McDONOUGH, Judge p r e s i d i n g .

                                 Respondent.




O R I G I N A L PROCEEDING :



COUNSEL O F RECORD:


         For P e t i t i o n e r :

                   R o b e r t L.    Johnson argued, L e w i s t o w n , M o n t a n a


         For R e s p o n d e n t :

                   Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                   K i n K r a d o l f e r argued, A s s t . A t t y . G e n e r a l , H e l e n a
                   V i c t o r G. K o c h , C o u n t y A t t o r n e y , S i d n e y , M o n t a n a



                                                        -   --




                                              Submitted:            November 2 8 ,        1983

                                                 Decided:           M a y 1, 1 9 8 4



Filed:                   "384



                                                                                -
                                             Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
        This    is   an    original      proceeding      brought    by   the
defendant      seeking     an   order    disqualifying     the   respondent
Judge from sitting on the case in respondent District Court.
Respondent Judge has challenged the constitutionality of
Section 19-5-103, MCA, upon which relator relied in bringing
this application for a writ of mandate.
        Donald Morrison filed a personal injury action against
relator Welch in the respondent District Court on August 12,
1980.    At that time Morrison was represented by McDonough,
Cox   and   Simonton, of Glendive, Montana, and                    is still
represented by that firm.               In 1982, Russell McDonough of
that firm was elected Judge of respondent District Court and
took office the first of January, 1983.                    Deeming himself
disqualified, Judge McDonough requested the Chief Justice of
the Montana Supreme Court to appoint retired Judge Robert C.
Sykes to hear the case, pursuant to Article VIII, Section
6(3), Constitution of the State of Montana.                 On January 25,
1983,    the   Chief      Justice   issued    an   order    by   which   the
Judge Sykes was assigned to hear relator's and several other
cases in the respondent District Court.               Judge Sykes is a
retired Judge, having been defeated in the primary election
for District Judge of the Eleventh Judicial District in the
Spring of 1982.        Judge Sykes accepted jurisdicition on April
28, 1983.
        Relator objected to this action and requested Judge
McDonough disqualify himself and call in another active duly
elected and sitting District Court Judge to replace him.
Relator's motion was based on Section 19-5-103, MCA, which
allows       retired    District        Court    Judges    to   assist        sitting
District Court Judges, but allows them only to,                         'I   [Plerform
any and all duties preliminary to the final desposition of
cases insofar as not inconsistent with the constitution of
the state."       Relator thus theorized that since the retired
judge could only handle preliminary matters, the sitting
District Court Judge retained jurisdiction over the case and
the power       to make           any   final determination, which              Judge
McDonough could not do because of the conflict of interest.
        Judge McDonough             refused     the request reasoning            that
Judge Sykes had             assumed     full jurisdiction        including the
power     to    make        any    final   determination,            thus     it was
unnecessary to disqualify himself.                        Thereafter relator
brought this application for a writ of mandate directing
Judge McDonough to disqualify himself and call in another
duly elected          and    sitting District Court Judge to assume
jurisdiction.
        Two issues are raised by the parties:
         (1) Does a retired District Court Judge assigned by
the Chief Justice to sit for a duly elected District Court
Judge have full jurisdiction over a case tried before him,
or are his actions subject to review by the elected District
Court Judge under Section 19-5-103, MCA.
         (2) Is so much of Section 19-5-103, MCA as purports to
limit the power of retired District Court Judges to decide
cases unconstitutional?
        We     hold    that an opinion released                 by    this Court
on March 9 , 1984, State ex re1 Wilcox v. The District Court
of the Thirteenth Judicial District (Mont. 1984),                                P.2d

    ,    41 St.Rep.         397, establishes the powers of a retired
District           Court        Judge          called    to     service,        and    answers          both

issues.

          In       this       case,        as    previously           noted,        Judge     S y k e s was

assigned           by     the    Chief          Justice        for     temporary       s e r v i c e on       a

r e q u e s t i n i t i a t e d by t h e d i s t r i c t judge.                I n Wilcox,          supra,

we held t h a t t h e j u r i s d i c t i o n of such a judge is defined a s

follows:

                     "Accordingly, t h e r e t i r e d judges have t h e
                     complete j u r i s d i c t i o n of t h e d i s t r i c t
                     c o u r t ' i n a l l c r i m i n a l c a s e s amounting t o
                     f e l o n y and a l l c i v i l m a t t e r s and c a s e s a t
                     law o r i n e q u i t y , '       Article V I I , s e c t i o n
                     4,         Mont.Const.,               includinq   -    final
                     dispositions."                         P.2d a t          I  41
                     St.Rep. a t 403.

         As        pointed           out        in   Wilcox,          Section        19-5-103,          MCA,

applies            only       where        a     retired        district        judge        is     called

pursuant            to    the       procedures           set         forth     in     that        section.

B e c a u s e 19-5-103.             MCA,       was n o t u s e d i n t h e p r e s e n t c a s e ,           it

is   not       applicable.                 Not       being      involved        here     we       are    not

c a l l e d upon t o answer t h a t q u e s t i o n .

         Relator              also      argues          that        under     the     provisions             of

S e c t i o n 3-5-201,           MCA, " J u d g e s o f t h e d i s t r i c t c o u r t m u s t b e
elected.       "         Such       a    provision             in     our     statutes        does       not

o v e r c o m e t h e c o n s t i t u t i o n a l power g i v e n t h e C h i e f J u s t i c e a s

n o t e d i n Wilcox.

         We        find       that      under        Wilcox,         supra,    Judge        Sykes       is    a

member o f t h e " p o o l " o f r e t i r e d j u d g e s a n d c a n b e c a l l e d i n

to   preside             by   the       Chief        Justice         under    the     provisions             of

Article V I I I , Section 6 .

         Judge Sykes h a s j u r i s d i c t i o n                    in    t h i s matter.          Judge

McDonough b e c a u s e o f              t h e acknowledged c o n f l i c t of i n t e r e s t ,

properly relinquished                          jurisdiction          and     requested        t h e Chief

J u s t i c e t o temporarily a s s i g n a judge i n h i s place.
        The w r i t o f m a n d a t e is d e n i e d .




We concur:



  3r&Js.P/-
Chief J u s t i c e
                            4




      /
Justices
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as
follows:
    I have no objection to Judge Sykes being treated in the
same manner   as other retired district judges.    My   only
dissent is on the basis I articulated in the dissent to
majority opinion styled State ex rel. Wilcox v. District
                                !nt is reado~tedhere.
Mr.   J u s t i c e D a n i e l J . Shea, d i s s e n t i n g :


        I a . g r e d w i t h J u s t i c e Morrison i n h i s d i s s e n t , and I a l s o

w r o t e a s h o r t d i s s e n t i n t h e c a s e o f S t a t e e x r e l . Wilcox v .
D i s t r i c t C o u r t (Mont. 19841,                 P.2d             ,   4 1 St.Rep.   397.

I a d h e r e t o t h o s e views t o d a y .

        The m a j o r i t y p o s i t i o n seems even more l u d i c r o u s when o u r
constitution          is    interpreted          t o mean         that    a    judse   who     is

d e f e a t e d i n o f f i c e can keep on d e c i d i n g c a s e s a s l o n g a s an
a c t i v e d i s t r i c t judge makes a c o m p l a i n t t o t h e Chief J u s t i c e
t h a t h i s heavy workload r e q u i r e s t h a t a judge be c a l l e d i n t o
h e l p him.
        I do n o t b e l i e v e t h a t t h e d r a f t e r s o f o u r C o n s t i t u t i o n

e v e r dreamed t h a t a former d i s t r i c t judge,                  former b e c a u s e he
h a s been d e f e a t e d i n o f f i c e , would n o n e t h e l e s s s t i l l c o n t i n u e
t o d e c i d e c a s e s a f t e r h i s term f o r which h e was e l e c t e d h s
expired.
