No. 82-294 

IN THE 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, IN AND FOR THE COUNTY OF LAI<3:r 

Xespondent . 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

K. It{. Bridenstine, Polson, Flontana 

For Respondent : 

Richard P. Heinz, County Attorney, 

Polson, Montana 

Submitted: September 9, 1982 

Decided: November 15, 1982 
Mr. 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 "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, 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 respondent 
to 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 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 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 

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 rendered at the same term, most of the cases 

are consistent with the doctrine that, 

absent statutory provision to the contrary, the bare-fact of 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. . . " (Citations omitted; 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 testimony 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 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. 

Petition denied. 

$,$?&.&&@ 

Chief Justice \. 

We conc H 
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 8865, 

Revised Codes. It is our view that there is no 

material difference between a voluntary disqualification 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 jurisdiction 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 jurisdictional 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. 

,-- 

i \ 1 

\ . c 1.w.- i'& 5, ,,\4 Y-., 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. r?