                                                  No.    82-294

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

                                                         1982




STATE O F MONTANA, ex r e l . ,
P A T R I C K McKENDRY,

                                    Petitioner,



THE D I S T R I C T COURT O F THE FOURTH
J U D I C I A L D I S T R I C T O F THE S T A T E O F
MONTANA, I N AND FOR THE COUNTY O F LAI<3:r

                                    Xespondent       .


O R I G I N A L PROCEEDING:


C o u n s e l of R e c o r d :

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

                                    K.   It{.   Bridenstine,        P o l s o n , Flontana


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

                                    R i c h a r d P. H e i n z ,   County Attorney,
                                    Polson, Montana




                                                  Submitted:          September 9,       1982

                                                     Decided:         November 15, 1 9 8 2
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
      Petitioner McKendry seeks a writ of supervisory con-
trol to issue to Judge Douglas Harkin of the Fourth Judicial
District directing him to withdraw from all further parti-
cipation in the above-entitled cause.   We deny the petition.
      Respondent judge had jurisdiction of "State v. Patrick
McKendry," a Lake County case, by virtue of respondent's
criminal trial jurisdiction in Lake County in 1982.    Because
of a heavy trial schedule and case load, respondent issued
an order on June 9, 1982, which included the following:
           "The undersigned, because of the press of
           other scheduled trials, hereby invites
           the Honorable Robert M. Holter to assume
           jurisdiction in the above entitled
           cause. "
On June 14, 1982, Judge Holter assumed jurisdiction, but on
June 18, 1982, defendant moved for substitution of another
judge for Judge Holter.   Thereupon, respondent invited Judge

Nat Allen to assume jurisdiction, which Judge Allen did on
June 25, 1982.
     On June 30, 1982, the State moved for a substitution
of another judge for Judge Allen.   On July 29, 1982, respon-
dent issued the following order:

          "The undersigned, no longer experiencing
          scheduling difficulties that were present
          on June 9 , 1982, hereby resumes his
          original jurisdiction in the Cause and
          sets Defendant's Motion for Suppression
          of Evidence for hearing at 1:00 p.m. on
          August 17, 1982.
           "It is further ordered that this case is
           set for trial on September 1, 1982, at
           10:QO a.m. in the Lake County Courthouse,
           Polson, Montana."
      On August 9, 1982, defendant McKendry petitioned this

Court for a writ of supervisory control directing respondent
to relinquish all further jurisdiction in tne case.         Kespon-

dent answered, arguing that respondent could reassume juris-
diction    when   the   reason   for   disqualification   ceased   to
exist.
         The issue on appeal is:       May the respondent judge re-
assume jurisdiction when the cause for which he voluntarily
relinquished jurisdiction is no longer present?

         Petitioner argues that by the June 9 order, respondent
was divested of all jurisdiction in this matter and may not
reenter the case.       Petitioner also contends that by virtue
of section 3-1-802, MCA, only Judge Holter, as the first

judge disqualified,      could   call    in subsequent judges and
respondent was without authority to so act.
         Respondent argues that section 3-1-802, MCA, is not
controlling and tnat petitioner's action is merely a delay

tactic.    Neither counsel have referred us to any dispositive
Montana cases.
     We do not find section 3-1-802, MCA, to be applicable

to Judge Harkin1s June 9 and July 29 orders.          That statute
provides in part:
              "A motion for substitution of a judge
              shall be made by filing a written motion
              for substitution reading as follows:
             "'The undersigned hereby moves for sub-
             stitution of another judge for Judge
                        in this cause.    The clerk of
             court shall immediately qive notice
             thereof to all parties and to the judge
             named in the motion.    Upon filing this
             notice, the judge named in the motion
             shall have no further power to act in
             the cause other than to call in another
             judge, which he shall do forthwith, and
             to set the calendar.
              "The first district judge disqualified
              shall have the duty of calling in all
              subsequent district judges."
        It is clear that this statute speaks to the situation
where one party moves for a substitution of judges.                The
statute also states that upon the filing of the clerk's
notice thereof, the judge named in the motion shall have no
further power to act.        With regard to Judge Harkin, however,
there   was    no   motion   for   substitution   but   simply   Judge
Harkin's order inviting Judge Holter to assume jurisdiction
because Judge Harkin was confronted with the press of other
scheduled trials at that time.           Thus, we find that section

3-1-802, MCA, does not address the present circumstances and
the statement therein that the judge shall have no further

power to act is inapplicable.
        The rule of law governing this case is found in the
following authority:
              ". . . In view of the general control of
              a court over its orders and decrees ren-
              dered at the same term, most of the cases
              are consistent with the doctrine that,
              absent statutory provision to the con-
              trary, the bare-fact of there having been
              a judicial order or determination of a
              judge's disqualification does not prevent
              his reassuminq
              ------------- full j u r i s d i c t i o n b y
              timely order showing that in fact there
              was no disqualification or that the same
              has been removed.    . .
                                    " (Citations omit-
              ted; emphasis added.)       46 Am.Jur.2d
              Judges, $ 234 at page 256 (1969).
        In Flannery v. Flannery (1969) 203 Kan. 239, 452 P.2d
846, the original district judge disqualified himself from
the plaintiff's divorce case and another judge decided the
case.   Subsequently, plaintiff wife filed a motion to modify
the divorce decree and the original judge determined that he
would hear the motion, since the issues upon which he felt
disqualified had been resolved.          This action was affirmed on
appeal, the court rejecting plaintiff's argument that once a
judge has disqualified himself, his disqualification per-
sists throughout all subsequent proceedings.        See also, In

Re Brevard County Grand Jury (Fla.App. 1968), 206 So.2d 398
(previously disqualified judges on a grand jury presentment
had jurisdiction to hear contempt matters relating to testi-
mony taken in connection with the presentment because the
basis of the prior disqualification had been removed), and
see generally, 162 ALR 641 (1946).
       In view of these authorities we hold that respondent
may reassume jurisdiction of this case.
       The dissent in this case places sole reliance on State
ex rel. Moser v. District Court (1944), 116 Mont. 305, 151
P.2d 1002, where it was held that when a judge relinquished
jurisdiction over a cause he could not later cite Moser for
contemptuous actions allegedly arising out of the same case.
We   distinguish Moser     on   two grounds.   First, the order
requesting another judge to assume jurisdiction there did
not give any reasons for the transfer of the case as was
done here. For reasons of efficient judicial administration,
when the basis for relinquishing jurisdiction of a cause
disappears,     the original judge should be able to resume
hearing   the   case.     Here,   respondent's pressing    workload
dissipated and respondent should be able to reassume juris-
diction of this case.      When the reason for a rule ceases, so
should the rule itself, section 1-3-201, MCA.
       Secondly, here there is no issue of two judges having
jurisdiction over       the same case as there was        in Moser.
There, Judge King had assumed jurisdiction of the case and

Judge Hattersly attempted to hold contempt proceedings and
enter judgment against Moser for conduct allegedly arising
out of the same case.      Here, both judges who were called in
(Holter and   Allen)   were   disqualified,   leaving   respondent

with sole jurisdiction by virtue of the July 29 order.
      Petition denied.


                                              $,$?&.&&@
                                     Chief Justice                   \.



     H
We conc
Mr. Justice John C. Sheehy, dissenting:


     I dissent to the denial of a writ of supervisory control
in this case.     I would accept jurisdiction, grant supervisory
control, and direct the district judge to call in another
district judge for further proceedings in the cause involving
the petitioner.
     I would grant the writ of supervisory control not
because I have any fear that the petitioner could not receive
a fair trial from the presiding district judge, the Honorable
Douglas G. Harkin.    Undoubtedly Judge Harkin assumed, since

he had removed himself voluntarily from the case, and was not
disqualified by affidavit or motion, that he could reassume

jurisdiction at any time.    Unfortunately, his action in

reassuming jurisdiction runs contra to what was, until now,
the prevailing rule with respect to the jurisdiction of a
district judge who voluntarily removes himself from the cause.
     This precise case arose in 1944, in State ex rel. P'loser
v. District Court (1944), 116 Mont. 305, 151 P.2d 1002.     In
that case the late Judge Hattersley entered the following
order in the cause over which he was presiding:
     "'The undersigned Judge of the Ninth Judicial
     District, hereby requests the HONORABLE DEAN
     KING, Judge of the Eleventh Judicial District,
     to hold court for the undersigned Judge, to
     assume jurisdiction and try and determine all
     orders to show cause, motions and demurrers,
     and to hear and finally determine the issues
     in the above entitled action.'" 116 Mont. at
     312.
     In this case, Judge Harkin did exactly the same thing.
He entered an order in this cause on June 9, 1982, saying:
     "The undersigned, because of the press of other
     scheduled trials, hereby invites the Honorable
     Robert M. Holter to assume jurisdiction in the
     above-entitled cause."
     In the Xoser case, supra, this Court held that the
voluntary act of Judge Hattersley in calling in another

judge to assume jurisdiction deprived Judge Hattersley of
jurisdiction and he was thereafter precluded from handling
any matter in connection with the cause from which he had
withdrawn.    There it was contended that Judge Hattersley did
not disqualify himself, but rather had simply called in another
judge for a particular purpose.    That is also the argument
that is being made here.    This Court disposed of that argument
in Moser as follows:
     "In opposition to this view it is contended in
     effect by counsel for Judge Hattersley that his
     order did not disqualify him; that there is a
     material difference between the judge of a district
     calling in a judge from another district pursuant
     to the provisions of section 9008, Revised Codes,
     to try a case for the judge making the call, and
     disqualification of a judge by a litigant filing
     an affidavit of disqualification on account of
     prejudice pursuant to subsection 4 of section 8 8 6 5 ,
     Revised Codes. It is our view that there is no
     material difference between a voluntary disqualifi-
     cation of a judge and disqualification by the
     affidavit of prejudice.. . . Jurisdiction of a
     cause cannot be in two judges at the same time
     when the cause is in a court over which a single
     judge presides. What is jurisdiction? Wehster's
     New International Dictionary defines jurisdiction
     as 'legal power to interpret, and administer law
     in the premises.' Vol. 14 of Am. Jur., page 363,
     among other definitions, says it is 'the right
     to adjudicate concerning the subject matter of
     a given case,' and again the same authority says
     it is 'the power to render the particular judgment
     in the particular case.'" 116 Mont. at 313-314,
     151 P.2d at 1006.
This Court then went further and stated in the Moser case:
     ". . . Where, as in the instant matter, a trial
     judge on his own motion called in another judge,
     neither constitutional nor statutory provisions
     enumerate any powers reserved by the judge who
     issues the call, but by analogy and by necessity
     we think that there could be no more power left
     in the judge who makes the call voluntarily in
     the one case than if he were deprived of juris-
     diction by the filing of an affidavit of
     prejudice. We therefore hold that Judge Hattersley
     had no jurisdiction over the case of Gibbs v.
     Fuller at the time the alleged contempt occurred
     . . ."  116 Mont. at 314, 151 P.2d at 1007.
     An analysis of the facts in this case show why it

is important to preserve the idea of a single judge having
jurisdiction of a cause at any one time in the circumstances
presented here.    When Judge Holter assumed jurisdiction,
one of the parties disqualified him by filing a motion for
substitution.     Thereafter, the Honorable Nat Allen of the
Fourteenth Judicial District was called in, and thereupon
he was disqualified by the other party upon a motion for
substitution.     It could not be seriously contended that
during the times that Judge Holter and Judge Allen were in
jurisdiction, that Judge Harkin could return to the case
simply by reassuming jurisdiction of the cause.               In the same
way, he is precluded from further acting in this case now,
except to call in another judge.
     The majority purport to distinguish the rule from

Moser, claiming different circuinstances dictated the decision

in Moser.    There can be no distinction.      In Moser, the
district judge voluntarily gave up jurisdiction; here the
district judge voluntarily gave up jurisdiction.              The majority
are akin to the populace that could not see that the emperor
had no clothes; a child could speak the obvious.              A better
jurisprudential step would he for the majority candidly
to reverse Moser than to skirt the issue.
     Adherence to the rules with respect to disqualification
would make for orderly handling of causes and avoid juris-
dictional disputes.     It is my opinion that we should follow
the established law in this case because this decision is
going to cloud the jurisdictional right of the judge called
into a case when the presiding judge acts upon a voluntary
removal.    We should respect the prior decision in Moser.
                                 , -
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                                                            ,, 4    y
                                       I            Justice          1
                                   /   i
Xr. Justice Daniel J. Shea, dissenting:

       I join in the dissent of Justice Sheehy.   Although the
wording in the order in this case can be distinguished from
that in State ex rel. Moser v. District Court, supra (cited
and quoted by Justice Sheehy), the simple fact is that Judge
Harkin, in calling in a judge from outside the district, did
invite that judge to assume jurisdiction and that judge did

assume jurisdiction.   The spirit of the Moser decision should
control, and this means that Judge Harkin lost jurisdiction
after the judge he invited to assume jurisdiction did in fact
assume jurisdiction.   The reason for doing so should not control
the question of whether Judge Harkin divested himself of
jurisdiction.
       The precedent started by the majority here is not a healthy
one.
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