No. 84-02 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

ROBERT F. DOWNS, 

Plaintiff and Respondent, 

BERNARD SMYK, a/k/a BERNARD L. 

SPYK, and LOIS A. SMYK, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Jackson Law Firm, Helena, Montana 

For Respondent : 

Calton and Harnman, Billings, Montana 

Submitted on Briefs: March 23, 1984 

Decided: July 26, 1984 

Filed: JL, 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant, Bernard L. Smyk, appeals a.n order of the 

Yellowstone County District Court djsmissing his petition to 

disqualify Judge Charles Luedke for cause. We affirm and 

remand this cause to the jurisdiction of Judge Luedke. 

The sole issue is whether there is substantial evidence 

to support the findings and conclusions of the trial court 

that Judge Luedke is not biased or prejudiced against Smyk, 

t-herefore making it proper to dismiss Smyk's pet.ition for 

disqualification. 

Plaintiff, Robert Downs, sued Smyk for specific 

performance of an agreement between the parties concerning a 

parcel of real property. Pursuant to the agreement, Downs 

made the downpayment of $60,000 and was to "control any 

contractual negotiations until [Smyk] has contributed1' an 

equal investment. Downs later received an offer to buy the 

property at a price well above what he and Smyk had paid, but 

Smyk refused to sell. The dispute centers on the 

interpretation of the above-quoted contractual 

language--e.g., whether it gives Downs the right to sell. 

The case was assigned to Judge Luedke. 

One year later, Judge Luedke partially granted Downs' 

motion for summary judgment, giving Downs an undivided 

one-half interest in the real property in question, and 

accounting of all rents and profits. Smyk appealed. from that 

judgment and it was affirmed and remanded in Downs v. Smyk 

(1979), 185 Mont. 16, 604 P.2d 307. After remand and further 

discovery, Judge Luedke granted Downs ' second motion for 

summary judgment to allow Downs the right to sell the real 
property in question, and also ruled that Smyk had n.o right 

to a jury trial. Smyk appealed a.ga.in. 

While his second appeal was pending, Smyk filed an 

action against Judge Luedke and Downs in federal court, 

claiming he had been denied his constitutional right to a 

jury trial when Judge Luedke entered summary judgment against 

him. The defendants moved for dismissal or summary judgment 

based on - res judicata. Smyk later moved for voluntary 

dismissal., but Downs contested it because he felt the suit 

had been filed in bad faith, and he demanded attorney fees. 

The federal district court granted the defendants' motion to 

dismiss and granted attorney fees to Downs as he was the only 

defendant to make an a.ppearance and request a-ttorney fees. 

Smyk's appeal to the Ninth Circuit was dismissed. 

On Smyk's second sta.te court appeal, this Court held 

that the trial court acted properly in denying the jury trialand in givinq Downs control over con-tract negotiations for 

one year, but reversed the summary judgment, holding that 

there existed a question of fact whether the contract gave 

Downs a right to sell the parcel. Downs v. Smyk (Mont. 

1982), 651 P.2d 1238. The case was sent back to Judge 

Luedke's court for trial on that issue. 

Downs then petitioned this Court for a rehearing, and 

while the petition was pending, Smyk moved for substitution 

of judge in the District Court under section 3-1-802, MCA. 

Downs objected and petitioned this Court for a writ of 

supervisory control. This Court found Smyk's substitution to 

be improper, because a sitting judge cannot be removed while 

the Supreme Court still has before it a petition for 

rehearing. State ex rel. Downs v. District Court (Cause No. 

82-482), Montana Supreme Court Order dated December 28, 1982. 
Smyk subsequently moved by affidavit to disqu.a.lify Judge 

Luedke for cause pursuant to section 3-1-802, MCA. The 

disqual-ification hearing was held on August 2, 1983, before 

Judge Roy C. Rodeghiero. Judge Rodeghiero entered findings 

and conclusions that Judge Luedke was not biased or 

prejudiced for purposes of section 3-1-802, MCA, and 

dismissed Smyk's petition. 

Smyk presents three factual bases for his contention 

that Judge Luedke is biased and prejudiced, none of which 

have any merit. First, that Judge Luedke is biased and 

prejudiced as evidenced by his rulings against Smyk. But, 

the jury trial ruling was legally correct, as was the first 

ruling for summary judgment. Even though the second summary 

judgment ruling was partially reversed, that in no way shows 

that Judge Luedke was biased against Smyk. Second, Smyk 

contends that because he campaigned overtly against Judge 

Luedke, the judge must be prejudiced against him. However, 

Judge Luedke testified that he did not even know Smyk had 

campaigned against him until Smyk said so in court. Third, 

Smyk maintains that because he and Judge Luedke were 

adversaries in the federal court action, and because Downs 

and Judge Luedke "were represented by the same attorney" in 

that action, that is clear bias and a conflict of interest. 

In the federal action, however, Judge Luedke was only a 

nominal defendant, and never made an appearance. At no time 

was he represented by Downs' attorney, he simply joined Downs 

in his motion for dismissal of that action. It should be 

noted tha.t attorney fees were awarded to Downs alone. 

Smyk also relies on two statutes to support his 

position, but the statutes do not apply to this case. He 

first argues that under section 3-1-802, a judge may not sit 
on a ca.se ". . . when he rendered or made the jud-gment, 

order, or decision appealed." However, section 3-1-802 

applies to trial court judges substituting for appellate 

justices. It has no appl.ication here. Second, Smyk argues 

by analogy that Judge Luedke could not sit as a juror (under 

section 46-16-304 (2) (c) , MCA, because he was an "adversary" 

in the federal case, and he therefore cannot sit as a judge. 

Judge Luedke's nominal. participation in that case has been 

d.iscussed and, further, disqualification of judges for cause 

is controlled by section 3-1-802, MCA, and not by other code 

sections by analogy. 

Section 3-1-802, MCA, was not intended to reach 

situations where, a.s here, a party litigant seeks to 

disqua.1.ify a trial judge on the basis of the party's own 

unilateral actions. Smyk's "overt" campaigning against Judge 

Luedke and Smyk's subsequent federal action fall far short of 

establishing bias or prejudice on the part of Judge Luedke. 

Smyk's other contentions are equally without merit. 

The order of the trial court dismissing Smyk's petition 

for disqualification is affirmed, and this cause is remanded 

for trial to the jurisdiction of Jud. 

:. - 

We Concur: 

fl Justices