No. 82-294 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, ex rel., PATRICK McKENDRY, Petitioner,

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF LAI<3:r Xespondent

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ORIGINAL PROCEEDING:

Counselof Record: For Petitioner: K. It{. Bridenstine, Polson, Flontana

For Respondent: RichardP. Heinz, CountyAttorney, Polson, Montana

Submitted: September 9, 1982 Decided: November 15, 1982Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Petitioner McKendry seeks a writ of supervisory control to issue to Judge Douglas Harkin of the Fourth Judicial District directing him to withdraw from all further participation in the above-entitled cause. We deny the petition. Respondent judge had jurisdiction of "Statev. 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: "Theundersigned, 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,respondent 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 respondentto relinquish all further jurisdiction in tne case. Kespondent answered, arguing that respondent could reassume jurisdiction when the reason for disqualification ceased to exist.The issue on appeal is: May the respondent judge reassume 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 Harkin1sJune 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 substitution 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 furtherpower 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: 

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.

# . In view of the general control of 

### a court over its orders and decrees rendered at the same term, most of the cases are consistent with the doctrine that, absent statutory provision to the contrary, the bare-factof there having been a judicial order or determination of a judge's disqualification does not prevent his reassuminq full jurisdiction by 

### ------------- timely order showing that in fact there was no disqualification or that the same has been removed.

# .." (Citationsomitted; 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 amotion 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 rejectingplaintiff'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 testimony taken in connection with the presentment because the basis of the prior disqualification had been removed), and

see generally, 162ALR 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 jurisdiction 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. Petitiondenied. 

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

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We conc 

# HMr. JusticeJohn 

### C. Sheehy,dissenting:



### Idissent to the denial of awrit of supervisory control in this case. 

### Iwould 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. Iwould grant thewrit of supervisory control not because Ihave any fear that the petitioner could not receive a fair trial from the presiding district judge, the Honorable Douglas G. Harkin. Undoubtedly JudgeHarkin assumed, since he had removed himselfvoluntarily from the case,and was not disqualifiedby affidavit ormotion, thathe could reassume jurisdictionat any time. Unfortunately,his action in reassuming jurisdiction runs contra towhatwas, until now, theprevailing rule with respect to the jurisdictionof 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),116Mont. 305, 151 P.2d 1002. In that case the late Judge Hattersley entered the following order in the cause overwhich he was presiding: "'Theundersigned Judge of theNinth Judicial District,hereby requests the HONORABLE DEAN KING, Judge of the Eleventh Judicial District, tohold court for the undersigned Judge, to assume jurisdictionand try and determine all orders to show cause,motions and demurrers, and to hear and finally determine the issues in the above entitled action.'" 116Mont. at 312. In this case, Judge Harkin did exactly the same thing. He entered an order in this cause on June 9, 1982, saying: "Theundersigned, 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 JudgeHattersley in calling in another judge to assume jurisdiction deprived Judge Hattersley of jurisdictionand he was thereafter precluded from handling anymatter in connection with the cause fromwhich he had withdrawn. There itwas contended that JudgeHattersleydid not disqualify himself, but rather had simply called in another judge for aparticular purpose. That is also the argument that isbeingmade here. This Court disposed of that argument inMoser as follows: "Inopposition to thisview it is contended in effectby counsel for Judge Hattersley that his order did not disqualifyhim; that there is a material difference between the judgeof 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 judgeby a litigant filing an affidavitof disqualificationon account of prejudice pursuant to subsection 

### 4of section 8865, Revised Codes. It is ourview that there is no material difference between a voluntary disqualification of a judge and disqualificationby 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 judgepresides. What is jurisdiction? Wehster's New International Dictionary defines jurisdiction as 'legalpower to interpret,and administer law in the premises.' Vol. 

### 14 of Am. Jur., page 363, among other definitions, says it is 'theright to adjudicate concerning the subjectmatter of a given case,' and again the same authority says it is 'thepower to render the particular judgment in theparticular case.'" 116Mont. at 313-314, 151P.2d at 1006. This Court thenwent further and stated in the Moser case: 

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..Where, as in the instantmatter, a trial judge on his ownmotion called in another judge, neither constitutional nor statutory provisions enumerate any powers reservedby the judgewho issues the call, but by analogy and by necessity we think that there could be no more power left in the judgewhomakes the callvoluntarily in the one case than if he were deprived of jurisdictionby the filing of an affidavit of prejudice. We thereforehold that Judge Hattersley had no jurisdictionover the case of Gibbs v. Fuller at the time the alleged contempt occurred



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# .." 116Mont. at 314, 151P.2d at 

### 1007.An analysis of the facts in this case showwhy 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 amotion for substitution. Thereafter, the Honorable Nat Allen of the Fourteenth Judicial Districtwas called in, and thereupon he was disqualifiedby the otherparty upon amotion for substitution. It could not be seriously contended that during the times that JudgeHolter and JudgeAllen were in jurisdiction, that Judge Harkin could return to the case simplyby reassuming jurisdictionof the cause. In the same way, he is precluded from further acting in this case now, except to call in another judge. Themajority purport to distinguish the rule from Moser, claiming different circuinstancesdictated the decision in Moser. There canbe no distinction. InMoser, the district judge voluntarily gave up jurisdiction; here the district judgevoluntarily gave up jurisdiction. Themajority

are akin to the populace that could not see that the emperor had no clothes; a child could speak the obvious. A better jurisprudential stepwould he for themajority candidly to reverseMoser than to skirt the issue. Adherence to the ruleswith respect to disqualification would make for orderly handling of causes and avoid jurisdictionaldisputes. It ismy opinion thatwe should follow the established law in this case because this decision is going to cloud the jurisdictionalrightof the judge called into a casewhen the presiding judgeacts upon avoluntary removal. We should respect the prior decision inMoser.

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### 1.w.- 

### i'& 5, ,,\4 Y-., y I Justice 1 / iXr. Justice Daniel J. Shea,dissenting:

I join in the dissent of Justice Sheehy. Although the wording in the order in this case canbe 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 jurisdictionand that judgedid

assume jurisdiction. The spiritof the Moser decision should control,and thismeans that Judge Harkin lost jurisdiction after the judgehe invited to assume jurisdictiondid in fact

assume jurisdiction. The reason fordoing so should not control the question ofwhether Judge Harkindivested himself of jurisdiction. The precedent started 

### by themajority here is not a healthy

one.

r?