No. 84-02 IN THE SUPREME COURTOF THE STATE OF MONTANA 1984

ROBERT F. DOWNS, Plaintiffand Respondent,

BERNARD SMYK, a/k/a BERNARD L. SPYK, and LOISA. SMYK, Defendantsand Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The HonorableRoy Rodeghiero, Judgepresiding.

COUNSELOF RECORD:
ForAppellants: Jackson Law Firm,Helena,Montana For Respondent: Calton and Harnman, Billings, Montana

Submitted onBriefs: 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 JudgeLuedke. The sole issue iswhether 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-hereforemaking 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 apricewell above what he and Smykhad 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 casewas assigned to JudgeLuedke. 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 rentsand profits. Smyk appealed.from that judgment and it was affirmed and remanded in Downs v. Smyk (1979),185Mont. 16, 604P.2d 307. After remand and further discovery, Judge Luedke granted Downs

### ' second motion for summary judgment to allow Downs the right to sell the realproperty in question, and also ruled that Smyk had n.oright 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 JudgeLuedke 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 ashewas the only defendant to make an a.ppearanceand request a-ttorneyfees. Smyk's appeal to theNinth Circuitwas dismissed. On Smyk's second sta.te court appeal, this Court held that the trial court acted properly indenying the jury trialand in givinq Downs control over con-tractnegotiations 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 substitutionto be improper,because a sitting judge cannotbe removed while the Supreme Court still has before it a petition for rehearing. State ex rel. Downs v. DistrictCourt (CauseNo. 82-482),Montana SupremeCourtOrderdated December 28, 1982.Smyk subsequently moved by affidavit todisqu.a.lifyJudge Luedke for cause pursuant to section 3-1-802, MCA. The disqual-ificationhearing 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 rulingwas 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 representedby Downs' attorney,he simply joined Downs in his motion for dismissal of that action. It should be noted tha.tattorney feeswere awarded toDowns 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 judgemay not siton 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.icationhere. Second, Smyk argues by analogy that JudgeLuedke 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.iscussedand, further,disqualification of judges for cause is controlled by section 3-1-802,MCA, and not by other code sectionsby analogy. Section 3-1-802, MCA, was not intended to reach situations where, a.s here, a party litigant seeks to disqua.1.ifya trial judge on the basis of the party's own unilateral actions. Smyk's "overt"campaigning againstJudge Luedke and Smyk'ssubsequent federal action fall far short of establishing bias or prejudice on the part of Judge Luedke. Smyk's other contentions are equallywithoutmerit. The order of the trial court dismissing Smyk's petition for disqualification is affirmed, and this cause is remanded for trial to the jurisdiction ofJud.

:.- We Concur:

Justices 

# fl