No. 86-145 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY LATTIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Attorney General, Helena 

Patrick L. Paul, Cascade County Attorney, Great Falls, 

Montana; Antonia P. Marra, Deputy 

Submitted on Briefs: May 30, 1986 

Decided: July 29, 1986 

Filed: JUL291986 

@ -.. 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Mr. Lattin appeals his criminal sentencing by 

Cascade County District Judge Thomas McKittrick, whom he had 

moved to disqualify. We affirm. 

The issue is whether Judge McKittrick erred in assuming 

initial jurisdiction over the motion to disqualify and in 

denying that motion. 

Mr. Lattin was charged with sexual assault upon his 

minor stepdaughter. On the date originally set for trial, he 

entered a guilty plea. Judge McKittrick ordered a 

pre-sentence investigation, revoked Mr. Lattin's bail, and 

set a sentencing date for the following month. 

At his sentencing hearing, Mr. Lattin filed a motion to 

disqualify Judge McKittrick. The affidavit in support of the 

motion alleged bias or prejudice against Mr. Lattin, demonstrated in a discussion prior to the sentencing hearing, in 

which Judge McKittrick allegedly told Channing Hartelius, an 

attorney, that Mr. Lattin would receive a jail sentence. 

Although it was not required to do so, the court allowed 

evidence in support of the motion. Mr. Hartelius testified 

that about a month previously he had approached Judge 

McKittrick, at Mr. Lattin's request, about releasing Mr. 

Lattin on bail pending sentencing. He testified that Judge 

McKittrick had stated that "under the circumstances of this 

situation, that there would probably be some jail time." 

The motion for disqualification was denied. Judge 

McKittrick found it was not timely filed, no cause was shown 

for failure to timely file, and the supporting affidavit did 

not allege a personal bias or prejudice. Mr. Lattin argues 
that Judge McKittrick erred in proceeding with the sentencing 

after the filing of the motion for disqualification. 

Section 3-1-802, MCA, provides in pertinent part: 

Whenever a party to any proceeding in any court 

makes and files a timely and sufficient affidavit 

that a judge before whom the matter is pending has 

a personal bias or prejudice either against him or 

in favor of any adverse party, such judge shall 

proceed no further therein. 

In the case of a district judge, another district 

judge shall be assigned by the chief justice of the 

Supreme Court to hear such disqualification proceedings. . . The affidavit shall state the facts 

and the reasons for the belief that bias or prejudice exists, and shall be filed not less than 

twenty days before the original date of trial, or 

good cause shall be shown for failure to file it 

within such time. It shall be accompanied by a 

certificate of counsel of record stating that it 

has been made in good faith. 

Mr. Lattin argues that once his motion for disqualification 

and supporting affidavit were filed, Judge McKittrick had no 

further jurisdiction over this case. He cites State v. 

Duncan (Mont. 1981), 623 P.2d 953, 954, 38 St.Rep. 202, 204, 

in which this Court held that once a motion for disqualification of a district judge is made, the case comes "under the 

singular authority and jurisdiction this Court. " That 

case was decided under former $ 3-1-801, MCA, (1981), which 

was substantially the same as the current law. Mr. Lattin 

also cites the holding from In re Marriage of Gahr (Mont. 

In all judicial proceedings, a judge may be disqualified for actual bias on the filing of an 

affidavit supporting that allegation. Upon receipt 

of such an affidavit, the presiding judge may do no 

more than to refer the matter to the Chief Justice, 

who, if the affidavit warrants an inquiry, will 

appoint another judge to hear the matter. 

However, this Court has affirmed a district court's 

denial of an untimely motion for disqualification of a judge 
for cause. State v. Harvey (Mont. 1986), 713 ~.2d 517, 43 

St.Rep. 46. The statute, by its terms, provides that a 

district court shall proceed no further wherever a timely and 

sufficient affidavit of bias or prejudice is filed. The 

timeliness of the affidavit is an initial matter for the 

district court to determine. 

Mr. Lattin's January 22, 1986 motion to disqualify Judge 

McKittrick was filed later than the statutory 20 days before 

the December 9, 1985 original date of trial. He must show 

good cause for failure to timely file. The affidavit in 

support of the motion for disqualification does not give any 

reason for Mr. Lattin's failure to timely file the motion and 

affidavit. When the court allowed Mr. Lattin to present 

evidence in support of the motion, Mr. Hartelius testified 

that his conversation with Judge McKittrick had occurred 

"probably a month" before the sentencing hearing. The 

month-long delay in filing the motion and affidavit was not 

explained. We hold that Judge McKittrick properly found that 

the motion was not timely filed and good cause was not shown 

for failure to timely file the motion and affidavit. 

We affirm.