-. . , . , 

I *- -, .q 

-N L.f>%T'PPP OF RUT;= FOR 1 FINAI, c.~r?-.n 0% ~rrrzs;.ri,n ~2 

THE DISQUhL,".FICAI"ICiN AN6 I - wISQUz&IF;CATIOI.J - Ap;D:: . ,..,. -5 

‘~UBST~TUTLON OF JUDGES ) SU~ST~~~T~')~~C" JUE&~ "^ 

Ct CS 

- ,!,r an erd:>r date2 ,Tu!'I 2% 1987, we established rules 

. .* for the 6isq~alificatic.n an2. ~:ihsti-lii"i~n ofj~dges io clv;i 

.. . 3rd criminal cases, The ru:.es had an effectl--.7e 8ate of 

September 1, 1987, In o?ur order we provided Fo.r cortml-ients, 

.- :-vi.tinq . - ai-tsrnevs, ir;i",ges and other interestei.: parties to 

submitcomments on the rules h- Decenber 1, 19t?7. 

We he cccsi,dereii the co~ments that have beer1 maze# 

and where justified, have amended the rules as attaches 

The Code Coms/',esi,o~er for 'Montana Code Annotate6 has 

setfort5 tke rules as the- were prcm~Lgilted by us 01: *July 

29, 1387, Zesignatlnq the rules as s"r:-l-803, 3-I-8O4 and 

3--1-g05, ~CA. - RE 7 4ra~ve a2c;p';ed those J ir the final 

form cf the rules, 

Fcr the benefit sf those parties appearing and making 

~. cn~m.erits, we zdd hereto cur reesoes for disposit~.os: 

Fee for Substitutioc of a Judge 

+. The rules 5n their ~xnal form reflect thzt there is a 

::Lln(: Fee oi $109 for a motion to e-uhstitute a 'udqe. This 

is iz acccrci2 with $ .?.5-'-20i.(?) which designates the fees to 

be collected by the clerk oS the district court. The earlier 

fori. of ou:: r-rrles seemcc? to require the payrnert of such a fee . , in cr:mlna: cases, azd in cases where a judge is disc;ua!ifie," 

* 

EOT cause. Si?ce 5 ?5-2.-.201 (pi ?ro-.vi.des a Fee only for 
motions for substitution of judges, we have aeen6ed the rules 

accordingly, 

. 5e~ara.j~ of parties ri,:i;i-.in$: ccm-mene rslti? respec;t to 

the fee objected to its am~unt, that it ha2 an impact upor 

. . - ' poor cilents, constituted a salc of justice, acc *,vroLated the 

separation of powers between the Ieqisiature and the 

judiciarv. - However the fixing 0.5 court fees is a matter for 

the Ifqislature. It is in the Leaislatuse thzt obiectiirs 

mu$& find their remedy. 

We will note other comments by reference to the rule as 

numbered in the !.:ontai-a Code Annotated:: 

2-1-863. Disaualificatinc 3: judges. - *, - ' ime he-se arncnsed this rule to state that if appiles to 

a.il courts in Montana except a court of impeachment in the 

state senate. The earlier version nay have keen construed to . . omit certain mualclpal or city court julges. 

. - We have itirther prox~ioed that a judge is disqualified 

~- 3 Ir ne is rel;l"ced to an attorne:. of record for a party by 

ccnsanpuirity or affinity within the fourth degree of 

kjxdred. The rule formerly prcvided for any reiationship to 

-, a party within the sixth degree, but this court has 

considered that degree too renete. 

r- i?e c3..-&kny L~~~-~~~- ameni?ed subsectior 3 of ti-j~s rule to pro~.ric:.e 

that no fil2g.e may sit on appeal . in a czae where he cr she 

rendered the judgment or order zppealed from. 

3-1-809, Substitution of district judges. 

This rule was amecde? to make it clear that it does not 

incl~ze water court fudges, nor workers' compensation 

judge * 
In subsection I(&) we clarified ?)-;at i; subs:itcte2~ 

judge has power to decide Legal issues in the case after 

hj-s substitl;"_ton and tbut he a ztterd 01, to r~--+:~*- %A LA,a= 

matters thereafter in e cause, We eliminated any 

participation by a substituted judge in amnlhus hearings in 

criminal cases. 

In cornectkoa with subsection i(c) WE- "-*a A:=-. v-~ei~*p~J A <*- - . -.A 

ccrnents that we shni*id make pro-~isioos ?or subsiitution if a 

new judge assumes jurisdiction because of t5e internal 

opezating rules of a wiilti-judge court. That problem hae 

been taken care of in the a~~erdment hereto. 

Fcrther with respect to sizbseetior I ic) at the 

suggestion of one district judge, an2 same other observers, 

we crcwided a right of one s~xbstituti~on to one third-part:? . . defendant who is not a.3 orlqlnal pzrt:; in an;[ perding cace. 

The former rule nade no such provision, . -. Subsection Ild) was amended to make it speclrzc that nc 

fir fee is re by i8.w ir criminal cases for the 

substitution cf jndges. , - In subsection lie? ve provii';ed that the -13dai. , ~ .. for whiii* 

'' subs.titution is sought has ?urrsdicticn to determine the 

L. -1rne1,iness of a motion for substitution, 

Several coininments brcugh-to our attnnticn that though -" 

we had eariler pro-zided for a mnticn for s7xbstitution after a 

new ",rial had been crdered by tie dlLsitri.ct court or on 

appeal, we ha.d not re for those cases where aitrr 

appeai. a surrmary judgment cr 133smissal is reversed nmodified aid the cause remanded to district court fcr further 

proceedings in the same cailsi-1. Siibsecticn lig) has heen 

.- - amended to take care of that problem, We ha~re also prociced 

that ip criminal czses, nc substitution arises when the cause 

is remanded for resentenci-9. 
*. 3-1-805. Disqualir;cation for cause. 

The first paragraph of this section was amended to show 

C aLt -P-ecticn --, 1 (a) was amended to eliminate any 

require~ent for tb.e payment of a fillcg fee for a motion to 

disqualify a judge for caase. 

Appreciation 

The Supreme Court hereblr expresses its appreciation to 

those persons ?i!ing comeilts in respect to these ru.lss, The 

comments gave us further reason for close s+zuc",y an2 intense 

consideration. Even though not aLI of t?~e suguesticns or 

objections raised in the comments were acceded to 5.; us they 

ne~,*estheless gave us reason to consider the Sirection znd 

force thatssliouid be actsoreed to these important rules arid 

their practical application in the practice of Law. 

ACCORDINGLY, IT IS HEREBY ORDERED: 

1, m final form of the rurles promulgakend by this 

court for the disqurLificatio;; and substitution of jiidgec 

shall he as attached hereto and set forth therein, 

2. The effective date of said rules shall continue to 

be September I, 1987, 

3, The Cierk of L-l_s Courtis directed to mail copies 

of these rules to the following: 

Cm ihe Cede Corm.issioner of the State of Montaaaa; 

r)ist-iet Court Judces of the take of Fcntaoa; 

Clerks of the District Courts of the State of Pflontana; 

United States District Court Judges of: the State of 

CSontaca; 

president Executi-.re Eirector 05 the State Ear of 

Montana: 
P-~cjd-nt -A 5,nd E~eeutF~re Director cf i.l--taria Trial 

Lawers . Association; 

West Publisi:ing Cnmp;lr,y, it' a request "ha: it hi 

- ~ pxbiished in the Pacit~c Reporter; 

r. axate Reporter, with a request that it be published in 

the State Repcrter. -. 

I)P.TED this &? day of September, 1999. 
3-3-RO'31 Disqualification - -- - 

of - Judoes -- z.II courts. --- - DZS(?!JAI,IFICATIOQ)? OF JUDGE 

n?' &n?~s , sectior, shall, in its a~pl.ication, apply to a?.?; 

courts listed ir, section 3-1-101 except a ccurt of 

impeachment in the state senate. , . Any justice, judqe, justice of the Dsace, mnnlclpal 

court judge or city court judge must not sit or act in any 

action or pr~ceedip-g: 

2. To which he is a party, or in which he is 

interested. 

? 

. When he is related to e?lther party or any attor:'ey 

or member of a firm of attorneys of record For a party b:~ 

according to the rules of law; 

- 2, When he hzs been attorney or counsel in the a.ctic;n 

or oroceedfng for any party or when sitting ir a case on 

appeal he as a judge in the Lower ccart rendered or made the 

indgment, order, or decision appealed from, 

. , 2-1-BF4. Substitution - of district S, - SUBSTTTIJTLON OF DISTRICT JCCGES 

rn* 4, elrijn is lirnkted in izs aaplication 6.0 ;?isstrict - - 

. . co-jrts an6 >udyss presi.iiinq therein: i,t 6oes rat rnciude 

d-istrict court judges or other Llu6ges sitting is a water 

cccrt judqe, ., rnr a \*?orkersZ Cnmpensatioc Court judge, 

1, A notion for substitution of a district 5udge may be 

xade by awJv party to a proceeciinq only in the manrer set 

-< ~ .- frth herein. in s CIVIL or criminal case, e-lch edverse 
 part'^, . inc.I~~(?J_rrg thestate, is -3t.lfll-d kc: r;pe 

of a district +uda~. ~~ A - 

(a) A aotion for substit3.1tion of a district judge aha1.L 

be made by Filin~~ 2 written motion wi" the clerk, as 

foL1.?wc: 

"The urdersigced hereby moves for substitution of 

District Judge - I- iil ili~s cause* '" 

A copy of the motion shall be served upon all parties to 

the proceeding and the clerk shall irmediate1)- notify the 

judge. After a timely motion has Seen filed, the substituted 

judge shall have no power to act on the merits of the cause 

or to decide legal issues therein, and shall call in another 

judge. However, a resident district judge who has previous? -Y 

been substftuted from the case may agree to set the calendar, 

draw a jury, cor.i?cct aLI routine matters includinq . ~ arraignments, preliminarv pretrial conferences in cxv11 

cases, and ether Ratters which do not go to the merits of the 

case, if the judge La jurisdiction authorizes the same. 

(hi The first district judge who has been substituted 

-* ~ or disq~alifieii for cause shall have the duty of alirng in 

ail subsequent district judges. It shall be the duty of the 

clerk of court to stamp the name of the judge to which the 

case is assigned on the face of the initial pleading, 

camplaint, order to show cause, or information and all copies 

thereof. 

(c) When 2 j~dge is assiped to a cause =or (20) 

cc3secuti-o days after service of summons, or te? (10) days 

after service of an order to show cause, information or other 

initiating docnnent, and no notion for substitution of judge 

has heea filed with said time Fer-od, the riqht - to move fcr 

s&stitl;i--on 04- a judge shall be deemed wzived. If the 

presiding judge removes himself or herself, or a new judge 

ass~mcs jurisdiction of the cause by virt~e of the ir!terxal 
operating rules of a multi-juege csurt, the r-Jght to nave for 

~cbstitutiorr of a judge is reinstated, unless i-avli,ng heen 

previously used in the cause by the moving party, arid the 

- . me ~ periods shall run a~e-w. After the time period sh;ll 

. , -. have run as t.c: the origr,nai parties to the proceedlrg, no 

party who is ioined or intervenes thereafter shall ha-ve any - '~ rlgnt of substitutioc, except that one third party defendant . ' who is not an or;glnal party in any pending cese may have a 

right of one substitiition igithin twenty (20) days a%ee tk!e 

service upon the ti party defenclart of a third party 

complaint. 

id) The motion for substitutior shall not be effective 

.= Lor any purpose unless a filing lee is paid tc the clerk of 

the *.istrier court in the amount set by law, No filing fee 

is rewired by law in criminal cases. 

ief A?:? motion .for substitution which is not timely 

file2 is voiz for ail purposes. The jadge for whoin 

e~bstitution is eouglit shii?,l. have junisdictien ts determine 

tiaeliness, and if the motion for substitutioc is nrAtime:y, 

shall make an order declaring the motion void, 

(5) he a new jjdg4n has accepted juris&iction, the 

clerk of cour.t shi;lT mail a copy of the asslrmption of 

jurisdiction 40 the original judge and to each attorney or 

party of record. ~h~ C~~.C.: a c: - of sersvice sb a 7 7 be 

attached to the assunptir of gurisdicticjn form i.n the court 

file. 

(0) When a new trial is orderes. kb;r the dLstrict oourC - I 

each adverse partq shall therev~pon be entitled to one xotion 

for substitu"-,on of judge in the manner pee herein. 

When on appeal the judgm~ect or -rder "A appealed froa is ". reversed or modified and the cause is re?&a?aea to the 

district court for a ilea; trial, or when a summary judqrner~i: or 

*. jciigment of ersnics~l. is reversed an6. the cause remanded, 
each adverse part11 shall thereu~oc he entitled to one motion 

for substitutian of 7udge in the manner provided hcrein~ . . S;<:h aotion rr,-;st be filc?d, with the recr.;jred d fiilng fee in 

~, civai chsesr within twenty (20) days after a new trial has 

beeE ordered by the district court or after the remik_dtitur 

-. from the S~lprcjme Court has been filed with the -?.strict 

court, Mo other right of "rther substitutio:~ shall arise ir 

T cases renansed by the supreme court. ~r crimfral cases, no 

further rig3t of substitution sha.11 arise when the cause is 

remanded for resen-tencing . 

3-1-805. - Disqualification -- for cause. 

~~SQrj~~,;~lCATZli? FOR CAUSE 

7. This section is limit& in its ap~~ication tc j~dges 

presicjirrg i district courts, justice of the peace courts, 

- - municipal courts, smar~ claims ccurts, and city courts. - ~ 1. W'tene:wrer a party to any proceeding in any ool~rt -. sha.1l r1l.e ar; affiearrit al?-egirg facts showing personal bias 

. * 

or prejudice of the presiding judge, such :uage shall proceed 

no further in the cause, Lf the affida-:it is filed egainst a 

district ju&ge, the matter shall be referred to the Montana 

Supreme Court:, whereupon the Chief Justice shall assigr. a 

district judge to hear "he matter. If the affidavit is filed 

against a judge of a r.unicipa1 court, justice ccurt, or city 

court, any district judge presiding in the district OF the 

court involved may appoint either a fust-ce of the pss~ce, a . - municipal jrldq-e or a city court ~uage, to hear any such 

pr~ceeding , 

(a) ?.he affic'lavif for diqualificition must be filed 

nore tknn thirty (30) days before the date set for hearing or 

&.*: -- iL &el. 

(b) The ~Pfidavit shall be accompanied by a certificate 

.- -. of counsel of recard +-hat the azrrdavit has been made in good 
- ' faith. Ac ;:fzdsvit will be deernod not to have been mdde 

qosd faith if it is bzsed soiely on rulizgs in the case made ' - by the cha.l-ienged juage and frcn which an appeal could have 

Seen taken. 

[c) Any affidavit which 45 not in proper form and Which 

dces not allege showing personal bias or prejudice nay be set 

aside as void. 

id1 The j u6ge appointee? to preside at a 

*. ' aisquailfication proceeding may assess attorneys fees, costs 

and damages against any party or his attorney who files such 

disyualj.fica"_ion without rejgorlabie cause and thereby 

hinders, delays or takes urconscionzble ad-vantage of any 

other party, or the court.