No. 12168 IN THE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA ex rel. OB-GYN GROUP OF BILLINGS, MONTANA, and ST. VINCENT'S HOSPITAL, Relators,

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA in and for the County of Yellowstone and the Honorable NatAllen, Presiding Judge, Respondents.

ORIGINAL PROCEEDING :
Counsel of Record For Relators: Sandall, Moses and Cavan, Billings, Montana. Charles F. Moses argued, Billings, Montana. Crowley, Kilbourne, Haughey, Hanson and Gallagher, Billings, Montana. Bruce R. Toole argued, Billings, Montana. For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena, Montana. Michael G. Alterowitz, Billings, Montana.
Submitted: December 6, 1971 Decided: 

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## $GFT Filedtt,Mr. John Conway Harrison delivered the Opinion of the Court.
This is an original proceeding seeking a writof supervisory control, or other appropriate writ. Relators, The State of Montana, ex rel. Ob-Gyn Group of Billings, Montana, and St. Vincent's Hospital, allege that Hon. Nat Allenf presiding judge in the district court of the thirteenth judicial district, county of Yellowstone, inthe case entitledMichael J. Crowley and Michele M. Crowley, Husband and Wife, Husband-Coached Lamaze Childbirth Association and Bob E. Hulit, M.D. v. St. Vincent's Hospital and Ob-Gyn Group of Billings, Montana, refused todisqualify himself upon the filingof an affidavit of disqualification more than fifteen days prior tothe time setfor trial. Relators contend thatJudge Allen's order of denial was incorrect and there is no appeal from such order, except by an original proceeding in this Court where the legality of the order could be reviewed. This Court heard counsel forthe relators ex parte and
on November 11, 1971, issued an alternative order to show cause, returnable December 6, 1971. Judge NatAllen filed a brief but on the return date did not appear orhave counsel appear toargue the matter. Counsel forrelators appeared on the return date and argued. The facts set forth inJudge Allen's return brief are of import for they set forth his reasons fordenying the disqualification. We set them forth in some detail for they point up a procedural problem of which this Court has long been aware, and
one we feelmust be worked outunder the powers given this Courtby Chapter 16of the Laws of Montana, 1963. Judge Allen alleges he was called into the thirteenth judicial district toassume jurisdiction by the Hon. Robert H. Wilson on October 8, 1971; thatthe matter was set fornonjury trialon November 22, 1971; that atthe request of all counsel he set allmotions and the case for a pretrial hearing on October 27, 1971; and, that allparties appeared. The courtheard and ruled on allmotions made by plaintiffs, aswell as 

### a motion to dismiss and a motion to quash the temporary restraining order filedby the intervening defendants. Atthe close of the pretrial hearing, he denied the motions todismiss and toquash the temporary restraining order. Thereafter on November 5, 1971, Charles F. Moses, Esq., on behalf of the intervening defendants filed
an affidavit todisqualify him. Judge Allen further states he issued an order directing that the affidavit be stricken from the fileand on November 10, 1971, he amended his order by stating inmore particularity the basis for the order striking the affidavit of disqualification. Judge Allen statesthe issuebefore this Court tobe: Whether disqualification is valid after the parties consent 

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a determination of themajor issues. Counsel for relators states the issue tobe: When does the trialbegin, atthe pretrial stage or can 

### a disqualification be-filedwithin the time allowed by statute

# -- fifteen days? We think the latter issue is controlling. We are not
unaware of the meritinthe trial judge's argument that the purpose of statutorydisqualification is to insure a fair

### trial;and touse it to "feel out" a judge at a pretrial hearing is an abuse of the rightby counsel. Here, we arenot called upon 

### to decide that issue for the filingwas within the statutoryperiod. Heretofore this Court has followed the statute, Section 93-901(4), R.C.M. 1947, which reads as follows: "Cases inwhich judge may be disqualified

# -- callinginanother judge. Any justice, judge, orjustice of the peace must not sitoract as such in any action orproceeding:

"4. When eitherparty makes and files an affidavit as hereinafter provided, thathe has reason tobelieve, and does believe, he cannot have a fair and impartial hearing ortrial before a district judge. Such affidavitmay be made by any party toan action, motion, or proceeding, personally, 

### or by his attorney or agent, and shallbe filedwith the clerk of the district court inwhich the same may be pending. 

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## * * * In allother cases the affidavitmust be filed atleast fifteen (15) days before the day appointed 

### or fixed for the hearing or trial of any such action, motion, orproceeding (provided such party shallhave had notice of the hearing of such action, motion, orproceeding for 

### at least the period of fifteen (15) days and in case he shallnot have had notice for such length of time, he shall file such affidavit immediately upon receiving such notice). 

## * * *" The case law inMontana has long recognized the right of disqualification. The reasons underlying the enactment of 

### section 93-901, R.C.M. 1947, are fully set forth in In re WoodsideFlorence Irr. Dist., 121Mont. 346, 194 P.2d 241 and Stateex rel. Peery v. Dist. Ct., 145Mont. 287, 400 P.2d 648. See also Annotation, 73 ALR2d 1238. Aswe have noted heretofore, Chapter 16 of the Laws of Montana, 1963 (Section 93-2801-1 

# - 2801-8, R.C.M. 1947) gave this Court the power tomake rules governing civilprocedure; and,by processes set forth by our rules we intend to reexamine this procedural problem. The writ of supervisory control is therefore issued directing the trial court to reinstate the affidavit of disqualification, and that a new judge be selected to proceed with the trial of the cause. 

# / \ Associate Justice

We concur: 

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Mr. Chief Justice James T. Harrison, deeming himself disqualified, took no part in this Opinion.