NO. 93-181

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

JOHN E. (JACK) TAYLOR,

Contestant and Appellant,

v.

NOVl6 '19%

ELYSE "LEE" MATEJOVSKY,

APPEAL FROM: District Court of the Fifteenth Judicial District,

In and for the County of Roosevelt,

The Honorable M. James Sorte, Judge presiding.

COUNSEL OF RECORD:

For Appe llant:

ie A. Hove, Attorney at Law,

Circle, Montana

A m .

For Respondent:

Laura Christoffersen,

Wolf Point, Montana

Christoffersen & Knierim,

Filed:

Submitted on Briefs: August 12, 1993

Decided: November 16, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.

John E. Taylor filed a petition in the District Court for the

Fifteenth Judicial District in Roosevelt County pursuant to

$7 13-36-101(2), MCA, to contest the election of Elyse Matejovsky to

the County Commission from District 2 in Roosevelt County. The

District Court dismissed his petition. Taylor appeals the order of

the District Court.

We reverse and remand with instructions.

The following issues are raised on appeal:

1 . Did the District Court err when it denied Taylor's motion

for substitution of the District Court Judge?

2 . Did the District Court err when it refused to allow

Taylor to present evidence through the testimony of witnesses,

other than the contestant and contestee, at the hearing on Taylor's

petition?

3 . Did the District Court err when it dismissed Taylor's

petition contesting the election of the District 2 Roosevelt County

Commissioner?

Elyse Matejovsky was elected to the County Commission from

District 2 in Roosevelt County in November 1992. On January 29,

1993, Taylor, Matejovsky's opponent in the Commission race, filed

a petition contesting her election pursuant to § 13-36-101(2), MCA.

The petition alleged that Matejovsky was not qualified to file for

the office of County Commissioner in District 2 because she was not

a resident of that district at the time she filed for the primary

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election. Matejovsky was served with notice on February 2, 1993,

and was summoned to appear at a hearing scheduled for February 5.

On February 2, Taylor moved for a substitution of the District

Court Judge pursuant to § 3-l-804, MCA. At the February 5 hearing,

Taylor's motion for substitution of judge was denied for the reason

that it had not been timely filed. The court offered the following

rationale for its determination that the motion was untimely:

okay, I will take judicial notice of the statute that

says that an affidavit of disqualification is - if it's

not filed timely, is - has no effect, and I'm relying on

this not being filed timely. This matter, I believe, the

record reflects that the petition in this matter was

drafted - or filed - drafted the 10th of November of '92

- filed the 29th of January of '93, served the 5th of

February, '93, and the substitution was filed the 2nd and

served the 3rd, so I find that that's not timely, and you

can proceed.

During the hearing, it was established that Matejovsky filed

for the primary election on March 12, 1992. It was undisputed that

§ 7-4-2104(2), MCA, and the certificate establishing the existing

plan of government for Roosevelt County, require a candidate, at

the time of filing for the primary election, to be a resident of

the district from which he or she seeks election.

Matejovsky admitted that, at the time of her entry into the

commissioner race, she was "sleeping and eating" at a location

outside of Commissioner District 2. However, Matejovsky claimed

that her permanent residence was the family farm, which was located

within District 2, and that her move from the farm had only been a

temporary arrangement after her husband's death. It was her

assertion that she never intended to change her permanent residence

3
from the family farm despite the fact that she had not been living

at the farm since the fall of 1990.

Only Matejovsky and Taylor were allowed to offer testimony at

the hearing. The court did not allow Taylor to offer testimony

from additional witnesses based on its determination that

5 13-36-207, MCA, permitted testimony from only the parties to the

action, unless otherwise ordered by the court.

On March 11, 1993, the court issued its findings of fact,

conclusions of law, and order dismissing Taylor's petition

contesting the election. The court found that the purposes for

which Matejovsky left her residence in Commissioner District 2 were

"temporary or special" and concluded, based on the evidence

presented by the parties, that there had been no union of act and

intent as required for a change of residence under 5 l-1-215(6),

MCA. Therefore, it concluded that Matejovsky was a proper

candidate for election as commissioner to District 2 and dismissed

Taylor's petition for ouster. Pursuant to 5 13-36-205, MCA, Taylor

was ordered to reimburse Matejovsky, as the prevailing party, for

costs, disbursements, and reasonable attorney fees incurred in

defense of this action. From this order, Taylor appeals.

Did the District Court err when it denied Taylor's motion

for substitution of the District Court Judge?

Montana law entitles each adverse party in a civil or

criminal case to one substitution of a district court judge.

Section 3-l-804, MCA. Once a timely motion has been filed, the

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substituted judge is without jurisdiction to act on the merits of

the cause or to decide legal issues therein. Section

3-1-804(1)(a), MCA. Section 3-1-804(1)(c), MCA, clarifies that

when a judge is assigned to a cause for 20 consecutive days after

service of summons and no motion for substitution has been filed,

the right to move for substitution is deemed waived. The judge for

whom substitution is sought has jurisdiction to determine

timeliness, and any motion for substitution which is not timely

filed is void. Section 3-1-804(1)(e), MCA.

In this instance, the court's rationale in denying the motion

for substitution offers little explanation of its determination of

untimeliness. The reference to an "affidavit of disqualification*'

suggests the court considered § 3-l-805, MCA, which provides for

disqualification for cause, and requires an affidavit be filed at

least 30 days prior to the date set for hearing. However, Taylor's

motion was not filed pursuant to this statute. Taylor's motion was

an exercise of the right to substitution of judge as provided for

under 5 3-l-804, MCA. The record demonstrates that Matejovsky was

served with notice of Taylor's petition on February 2, and the

motion for substitution was made on that same date. Clearly, the

motion for substitution of judge was made prior to the expiration

of 20 days after service of the summons. Thus, Taylor's motion was

filed within the only time period provided by statute.

Matejovsky contends, however, that the court properly denied

Taylor's motion because of the requirements set forth in the

statute addressing election contests. She claims that the court is

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given unlimited discretion in determining when a motion for

substitution of judge is untimely, and in this instance, Taylor's

motion was unreasonable because it requested a substitution three

days before a hearing which, by statute, had to be held on or

before February 5, 1993. Matejovsky asserts that a substitution of

judge would have necessarily delayed the hearing date past the time

required in § 13-36-206, MCA.

The statute governing contests of elections provides for a

prompt resolution of the dispute and requires a court to give a

contest petition precedence over other pending cases. Section

13-36-206, MCA. Specifically, the statute sets forth the following

procedural requirements:

Notice of filing - prompt hearing. On the filing of any

such petition, the clerk shall immediately notify the

judge of the court and issue a citation to the person

whose nomination or office is contested, citing him to

appear and answer not less than 3 or more than 7 days

after the date of filing the petition. The court shall

hear said cause, and every such contest shall take

precedence over all other business on the court docket

and shall be tried and disposed of with all convenient

dispatch.

Section 13-36-206, MCA. Matejovsky argues that this section

imposes a mandatory requirement that a court conduct a hearing no

later than seven days after a contest petition is filed. In this

instance, that date was February 5, 1993.

However, a court's function, when construing a statute, is to

ascertain what it contains, "not to insert what has been omitted or

to omit what has been inserted." Section l-2-101, MCA; Gaub v.

Milbank Ins Co. (1986), 220 Mont. 424, 715 P.2d 443. The statute

6
states that the person whose nomination is contested must "appear

and answer" within the specified time frame. We construe this to

mean that the contestee must make an appearance and answer the

petition, but not that the court must necessarily conduct a hearing

within this time period. As specified in the next sentence, the

court is to conduct a hearing on a priority basis, but there is no

stated requirement that the hearing be held prior to the expiration

of seven days. This Court will not insert such a requirement where

it has been omitted by the Legislature.

Furthermore, 5 13-36-208, MCA, offers additional insight

regarding the procedure involved in election contests. This

section clarifies that "[plroceedings under this title shall be

advanced on the docket upon request of either party for speedy

trial, but the court may postpone or continue the trial if

necessary . . . .,I' It is clear from this section that, although

these disputes are to be resolved as promptly as possible, there is

some discretion regarding postponements or continuances where

necessary.

We believe that this construction of the statute in question

operates to give effect to the election contest statute in its

entirety, and harmonizes this statute with the provisions providing

for a substitution of judge. An interpretation which mandates a

prompt hearing, but not necessarily within seven days, will not

deprive a party of the statutory right to a substitution of a judge

even in matters such as this which are to receive expedited

attention.

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Based on this interpretation, we conclude that Taylor's motion

for substitution of judge was made within the time allowed and the

granting of the motion would not have had the effect of causing a

violation of the election contest statute. Therefore, we hold that

the motion was timely and that the court erred by not allowing

Taylor to exercise this statutory right to substitution of the

District Court Judge.

Pursuant to 5 3-1-804(1)(a), MCA, once the motion for

substitution of judge was timely filed, Judge Sorte was without

jurisdiction to act on the merits of Taylor's petition.

Accordingly, the order dismissing the petition contesting the

election is vacated and this matter remanded for a new hearing

after a substitution of judge.

Because the court's order is vacated, we do not need to

address the question of whether the court erred when it dismissed

the petition on its merits. However, for the guidance of the

District Court on remand, we will address the question of whether

it was proper to exclude the testimony of other witnesses during

the hearing on Taylor's petition.

II.

Did the District Court err when it refused to allow Taylor to

present evidence through the testimony of witnesses, other than the

contestant and contestee, at the hearing on Taylor's petition?

The court based its decision to allow testimony only from

Taylor and Matejovsky on § 13-36-207, MCA, which provides in

relevant part:

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The petitioner (contestant) and the contestee may appear

and produce evidence at the hearing, but no person other

than the petitioner and contestee may be made a party to

the proceedings . . . and no person other than the

parties and their attorneys may be heard thereon except

by order of the court.

Matejovsky asserts that this section clearly states that no person

other than the parties may appear and present testimony or evidence

unless the court so orders. Therefore, she believes it was within

the court's discretion to permit only the parties to testify.

However, Taylor contends that the court, when it disallowed

his offer of testimony from other witnesses, ignored the general

definition of evidence as stated in 5 26-l-101(2), MCA:

t'Evidence" is the means of ascertaining in a

judicial proceeding the truth respecting a question of

fact, including but not limited to witness testimonv,

writings, physical objects, or other things presented to

the senses. [Emphasis added].

A statute must be construed in a way that gives effect to all

of its provisions. Section l-2-101, MCA. After considering the

statute as a whole, we agree with Taylor's interpretation of the

statute. The statute clearly allows the contestant and contestee

to produce evidence at the hearing, and we conclude this

encompasses witness testimony in addition to tangible forms of

evidence, such as writings, so long as it is proffered by one of

the parties. Such a construction gives effect to the statute as a

whole and harmonizes this statute with the general rules of

evidence. It is within the court's discretion to determine the

admissibility of such testimony under the general rules of

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evidence, but it is not to be rejected on the basis that the

statute permits only the parties to the action to testify.

The order of the District Court is vacated and we remand for

a new hearing on the merits of the petition after a substitution of

judge.

We concur:

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