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 Nat Allen, 

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: FEB 8 8 4972 

a.2 - $GFT 

Filed t t, 
Mr. John Conway Harrison delivered the Opinion of the Court. 

This is an original proceeding seeking a writ of 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, in the case entitled Michael 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 to disqualify himself upon the filing of an affidavit of disqualification more than fifteen days prior to the time set for trial. Relators contend that Judge 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 for the relators ex parte and 

on November 11, 1971, issued an alternative order to show cause, 

returnable December 6, 1971. 

Judge Nat Allen filed a brief but on the return date did 

not appear or have counsel appear to argue the matter. Counsel 

for relators appeared on the return date and argued. 

The facts set forth in Judge Allen's return brief are of 

import for they set forth his reasons for denying 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 feel must be worked out under the powers given this Court 
by Chapter 16 of the Laws of Montana, 1963. 

Judge Allen alleges he was called into the thirteenth 

judicial district to assume jurisdiction by the Hon. Robert H. 

Wilson on October 8, 1971; that the matter was set for nonjury 

trial on November 22, 1971; that at the request of all counsel 

he set all motions and the case for a pretrial hearing on October 27, 1971; and, that all parties appeared. The court heard 

and ruled on all motions made by plaintiffs, as well as a motion 

to dismiss and a motion to quash the temporary restraining order 

filed by the intervening defendants. At the close of the pretrial 

hearing, he denied the motions to dismiss and to quash the temporary restraining order. Thereafter on November 5, 1971, Charles 

F. Moses, Esq., on behalf of the intervening defendants filed 

an affidavit to disqualify him. Judge Allen further states he 

issued an order directing that the affidavit be stricken from 

the file and on November 10, 1971, he amended his order by stating in more particularity the basis for the order striking the 

affidavit of disqualification. 

Judge Allen states the issue before this Court to be: 

Whether disqualification is valid after the parties consent to 

a determination of the major issues. 

Counsel for relators states the issue to be: When does 

the trial begin, at the pretrial stage or can a disqualification 

be-filed within the time allowed by statute -- fifteen days? 

We think the latter issue is controlling. We are not 

unaware of the merit in the trial judge's argument that the purpose of statutory disqualification is to insure a fair trial; 
and to use it to "feel out" a judge at a pretrial hearing is an 

abuse of the right by counsel. Here, we are not called upon to 

decide that issue for the filing was within the statutory period. 

Heretofore this Court has followed the statute, Section 

93-901(4), R.C.M. 1947, which reads as follows: 

"Cases in which judge may be disqualified -- 

calling in another judge. Any justice, judge, 

or justice of the peace must not sit or act as 

such in any action or proceeding: 

"4. When either party makes and files an 

affidavit as hereinafter provided, that he has 

reason to believe, and does believe, he cannot 

have a fair and impartial hearing or trial 

before a district judge. Such affidavit may 

be made by any party to an action, motion, or 

proceeding, personally, or by his attorney or 

agent, and shall be filed with the clerk of the 

district court in which the same may be pending. 

" * * * In all other cases the affidavit must be 

filed at least fifteen (15) days before the day 

appointed or fixed for the hearing or trial of 

any such action, motion, or proceeding (provided 

such party shall have had notice of the hearing 

of such action, motion, or proceeding for at 

least the period of fifteen (15) days and in 

case he shall not have had notice for such length 

of time, he shall file such affidavit immediately 

upon receiving such notice). * * *" 

The case law in Montana 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., 121 Mont. 346, 194 P.2d 241 and State ex 

rel. Peery v. Dist. Ct., 145 Mont. 287, 400 P.2d 648. See also 

Annotation, 73 ALR2d 1238. 

As we 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 to make rules governing civil procedure; 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: i I 

Mr. Chief Justice James T. Harrison, deeming himself disqualified, 

took no part in this Opinion.