No. 14478 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, UPON THE RELATION 

OF MIKE GREELY, ATTORNEY GENERAL OF THE 

STATE OF MONTANA, AND ROBERT L. DESCHAMPS 

111, COUNTY ATTORNEY OF MISSOULA COUNTY, 

Relators, 

-vsTHE DISTRICT COURT OF THE FOURTH JUDICIAL 

DISTRICT, THE HONORABLES E. GARDNER BROWNLEE, 

AND JACK L. GREEN, DISTRICT JUDGES: THE 

DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, 

THE HONORABLES TRUMAN BRADFORD, JOEL ROTH AND 

WILLIAM CODER, DISTRICT JUDGES: AND THE DISTRICT 

COURT OF THE THIRTEENTH JUDICIAL DISTRICT, THE 

HONORABLES C. B. SANDE, ROBERT WILSON AND CHARLES 

LUEDKE, DISTRICT JUDGES, 

Respondents. 

ORIGINAL PROCEEDING : 

For Appellants: 

Hon. Mike Greely argued, Attorney General, Helena, Montana 

Mike McCarter argued, Assistant Attorney General, Helena, 

Montana 

For Respondents: 

Hon. E. Gardner Brownlee, Missoula, Montana 

Hon. James B. Wheelis argued, Missoula, Montana 

Hon. Jack L. Green argued, Missoula, Montana 

Dexter Delaney argued, Missoula, Montana 

Hon. H. William Coder argued, Great Falls, Montana 

Hon. Joel G. Roth, Great Falls, Montana 

Hon. Charles Luedke argued, Billings, Montana 

Hon. Robert Wilson, Billings, Montana 

Hon. C. B. Sande, Billings, Montana 

Hon. Nat Allen, Roundup, Montana 

For Amicus Curiae: 

Hon. M. James Sorte argued, Wolf Point, Montana 

Ed Cumrnings argued, Missoula, Montana 

Howard Strause argued, Great Falls, Montana 

C. W. Leaphart, Jr. argued, Helena, Montana 

Gustafson and Keil, Conrad, Montana 

Shelton C. Williams argued, Missoula, Montana 

Submitted: November 28, 1978 

Decided: JAN I ; i979 

Filed: EAbl <m 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This is an amended application for supervisory control 

filed in this Court by the Attorney General and County Attorney 

of Missoula County seeking generally to insure prompt and speedy 

trials of criminal cases and more particularly seeking specific 

remedial action in various particulars relating thereto. 

Following the filing of the amended application, this 

Court ordered notice to be given to the 56 county attorneys in 

this state, to the 29 district judges then serving this state, 

to the President and Executive Director of the State Bar of 

Montana, to the President of the Montana Trial Lawyers Association, to all public defenders of this state, to the presidents 

of all statewide organized Defense Attorneys Associations, and 

to the President of the Montana Judges Association. Answers, 

statements, memoranda of authorities and briefs were filed by the 

individual respondents and by numerous amici curiae. 

On December 7, 1978, a hearing was held before this Court 

and oral arguments were presented in favor of and in opposition 

to said application for supervisory control at which time all 

parties and arnici were given the opportunity for oral argument. 

Following the-hearing, the application was taken under advisement 

by the Court. This opinion constitutes the decision of this Court 

on said application. 

This Court's authority to entertain this application is 

found in the Judicial Article of the 1972 Montana Constitution. 

This Court is granted "general supervisory control over all other 

courts". Art. VII, section 2(2), 1972 Montana Constitution. 

The Supreme Court is empowered "to make rules governing . . . 

practice and procedure for all other courts . . ." subject to 

disapproval by the legislature of procedural rules so promulgated 

in either of the two sessions following promulgation. Art. VII, 

Section 2(3), 1972 Montana Constitution. 
~t the outset we note that the application for supervisory control is limited to criminal cases and court rules, 

practices and procedures of prosecutors, defense attorneys and 

judges relating thereto. However, many of the remedies sought 

directly affect the operation of the district courts in all 

areas of their operation including civil cases and administrative functions as well. 

The first remedial action requested by relators is that 

this Court require employment of a court administrator in each 

of the Fourth, Eighth and Thirteenth Judicial Districts of this 

state and in any other judicial district where appropriate, granting such administrator authority to assign cases and control 

court business, trials and hearings. Relators complain that in 

these three judicial districts illnesses of district judges, current court rules, procedures and practices, and practices of defendants and their attorneys are causing significant delays in 

criminal cases; that many of the speedy trial problems are beyond 

the control of the individual judges; and that one of the district 

judges in each district is overburdened with disproportionate 

criminal and civil caseloads. Relators further contend that in 

the Eighth Judicial District there are approximately 24 cases which 

have not been or will not be tried within six months of arrest or 

filing; in the Thirteenth Judicial District, 10 such cases; in 

the Fourth Judicial District, Missoula County, 17 such cases. Relators identify and attribute these delays to independent control 

of trial schedules by district judges and resulting scheduling 

conflicts, including the scheduling of several different criminal 

trials on the same day; lack of summer trials in the Fourth and 

Eighth Judicial Districts and in Yellowstone County of the Thirteenth Judicial District; peremptory disqualification of district 

judges by defense attorneys; preselection of particular district 

judges by prosecutors creating disproportionate distribution of 
criminal and civil caseloads among district judges; illness 

of district judges; granting continuances in criminal cases 

ex parte, without advance notice, and without date by many 

district judges throughout the state; and the inclusion of 

rural counties in districts having large Montana cities, specifically the Fourth, Eighth and Thirteenth Judicial Districts, 

resulting in speedy trial problems in the rural counties. 

Many of these allegations and complaints are denied by 

respondents and amici. 

We identify the problem areas in this manner: (1) an 

imbalance in caseloads among individual judges in multiple judge 

judicial districts, (2) independent and uncoordinated operation 

of their own courts by individual district judges in some multiple judge judicial districts, (3) archaic and unrealistic district court rules, practices and procedures in some district 

courts throughout the state, (4) illnesses of district judges, 

(5) peremptory disqualifications of district judges by prosecutors and defense attorneys, (6) preselection of district judges 

by prosecutors, (7) scheduling conflicts, (8) ex parte continuances 

without date in criminal cases, and (9) difficulties in furnishing satisfactory services in rural counties in some judicial 

districts. 

In our view district judges in multiple judge judicial 

districts should first be given the opportunity to address and 

correct such of these problems as exist in their own districts 

under direction of this Court before resorting to the more drastic 

and expensive remedy of employment of local court administrators. 

This method has several advantages as we see it: (1) it enables 

elected judges to discharge their duties by putting their own 

houses in order, (2) it is considerably cheaper for the taxpayers, 

(3) it places authority, responsibility and accountability in those 

individuals elected to operate the system, and (4) it minimizes 
the resistance of district judges to an appointed functionary 

controlling their operations and affairs. 

Accordingly, we direct the appointment of a chief district judge in each multiple judge judicial district in this 

state. The purpose of this order is to centralize authority, 

responsibility and accountability in one individual. The duties 

of such chief district judge are as follows: 

(1) In cooperation with the other district judges, to 

prepare and submit budgets for operation of the district court 

to the appropriate public officials. 

(2) To equalize the workload of all district judges within the judicial district. 

(3) To establish appropriate schedules and administrative 

rules to insure prompt and efficient servicing of all judicial 

business in the district. 

(4) To employ and assign staff and secretarial personnel 

where appropriate. 

(5) To perform such miscellaneous administrative duties 

as may be necessary or advisable in his discretion to insure a 

unitary and functioning district court operation in the judicial 

district. 

(6) To submit an annual report to this Court on or before 

March 1 of each year commencing in 1980 covering the status and 

condition of the district court in the judicial district, its 

needs, and problem areas. Cf. Standard 9.2, pages 121-123, Courts 

Task Force, Montana Justice Project. 

The chief district judge shall be selected by the district 

judges within each multiple judge judicial district of this state 

from among themselves by unanimous vote on or before April 1, 1979. 

The selection shall be certified in writing to the Clerk of the 

Montana Supreme Court by a written order signed by all district 

judges in each multiple judge judicial district on or before said 
date. Whenever the district judges fail to make a selection 

on or before said date or certify such selection to the Clerk 

of the Supreme Court as provided herein, the Chief Justice of 

the Montana Supreme Court shall appoint one of the district 

judges as chief district judge and shall certify such appointment 

by written order filed with the clerk of this Court and of the 

district court in each county within the judicial district. 

The district judge selected or appointed as chief district judge shall serve in that capacity until he resigns, ceases 

to be a district judge in the judicial district, or is terminated, 

whichever occurs first. In judicial districts served by three 

or more district judges, such termination shall occur when the 

other district judges unanimously agree to such termination in 

writing and notify the Chief Justice; in judicial districts containing two district judges such termination shall occur where 

both district judges agree to such termination in writing and 

notify the Chief Justice. 

Whenever a vacancy occurs from any cause, the district 

judges in each multiple judge judicial district shall select one 

of their number to be chief district judge within 30 days of the 

occurrence of the vacancy. If they fail to make such selection 

within 30 days, the Chief Justice of the Montana Supreme Court 

shall appoint a chief district judge. The provisions on certification and filing applicable to the initial selection of a chief 

district judge shall apply to any subsequent vacancy. 

The second remedy sought by relators is the elimination 

of peremptory disqualification of district judges, the limiting 

of disqualifications of district judges for cause, and the prevention of preselection of district judges by prosecutors. 

We decline to eliminate peremptory disqualification of 

district judges or to limit disqualification of district judges 

for cause at this time. The present Montana Court Rule on dis- 
qualification and substitution of district judges was promulgated by the Montana Supreme Court and became effective on March 

1, 1978. This rule amended and superseded section 93-901, R.C.M. 

1947, the former procedure. It provides for one peremptory disqualification or substitution of judge by the prosecution and 

one by the defendant in a criminal case with an unlimited right 

of disqualification for cause. For text of rule, see 34 St.Rep. 

26. The purpose of the rule is to guarantee both the prosecution 

and the defendant a fair trial before an impartial district judge. 

The rule also covers disqualifications in civil cases. See the 

following cases for the purpose, history and development of the 

disqualification rule in Montana: State ex rel. Anaconda Copper 

Mining Co. v. Clancy (1904), 30 Mont. 529, 77 P. 312; In re Woodside-Florence Irr. Dist. (1948), 121 Mont. 346, 194 P.2d 241; 

State ex rel. Peery v. Dist. Ct. (1965), 145 Mont. 287, 400 P.2d 

648; State ex rel. OB-GYN Group v. Dist. Ct. (1972), 159 Mont. 1, 

494 P.2d 931; State ex rel. Lane v. Dist. Ct. (1975), 167 Mont. 

53, 535 P.2d 174. 

We recognize that the right of peremptory disqualification 

of district judges creates delays in the trial of both criminal 

and civil cases in Montana. It causes calendaring and scheduling 

problems for district judges, the parties and their attorneys. 

It interferes with the normal and routine operation of the district 

courts. Nonetheless we hold that the paramount and overriding 

consideration is the right to a fair trial before an impartial 

district judge. We consider that improvements in the present 

system lie in the area of correction of abuses in the exercise of 

peremptory disqualifications rather than elimination of the right. 

A principal area of abuse in the exercise of the right of 

peremptory disqualifications concerns mass disqualifications of 

an individual district judge in every criminal case by an individual 
attorney, law firm or staff. Such practice is not confined to 

defense attorneys but encompasses some county attorneys and 

their staffs as well. We are aware of instances where this 

has occurred, but we are unclear concerning how widespread the 

practice is and its impact on the operation of the district 

courts. Accordingly, we direct the Attorney General to document 

the extent of this practice in criminal cases by both county 

attorneys and defense attorneys in every district court in 

Montana over the last five years, 1974 through 1978, and certify 

the results of this documentation to this Court, together with 

his recommendations on appropriate remedial action. 

We find no basis whatever to limit or restrict the right 

of either the prosecution or defense to disqualify a district 

judge for cause in any case. The right to a fair trial before 

an impartial judge is the cornerstone of the American and Montana 

court systems. Its values transcend operational problems in the 

court system. 

Prosecutors' preselection of district judges in multiple 

judge judicial districts is as old as the hills both in Montana 

and nationwide. Any rotation system for case filings in such 

district courts can easily be circumvented to enable filing before a particular judge. The prosecutor controls the time of 

filing a criminal charge and thus controls selection of the district judge before whom the criminal case is filed. Disqualification rights, both peremptory and for cause, constitute an adequate remedy whereby defendant can insure himself a fair trial 

before an impartial judge. 

Relators request this Court to establish a uniform rule 

for all district courts in Montana providing that no hearing or 

trial date in a criminal case be vacated or continued without 

notice to the county attorney and without providing a new date 

for hearing or trial. This matter is under study at the present 
time but no determination has yet been made due to limitations 

of time and resources of this Court. In the meantime we recommend that district judges decline to grant continuances in 

criminal cases to either defense attorneys or prosecutors ex 

parte and without notice to opposing counsel in the absence of 

exigent and compelling circumstances. 

Relators further request this Court to provide for the 

adoption of pretrial omnibus procedures similar to those used by 

the federal courts in the state district courts of Montana. We 

observe that there are substantial differences in the structure, 

organization, operation, types of cases, personnel, and resources 

of federal district courts vis-a-vis Montana district courts. 

We likewise observe a need in Montana district courts for a 

formalized rule detailing a practice and procedure for an omnibus 

hearing or hearings to schedule, resolve and determine pretrial 

motions, applications and requests, including the calendaring 

and scheduling of the trial. 

Accordingly, we order and direct each district court in 

each judicial district to establish by court rule an omnibus 

hearing in all criminal cases and provide a formalized practice 

and procedure relating thereto as indicated above. Such court 

rule shall provide for omnibus hearings in all counties within 

each judicial district. Such omnibus hearing rule shall be 

promulgated and established by the district court in each of 

Montana's 19 judicial districts on or before April 1, 1979, and 

a copy of the same filed with the Clerk of the Supreme Court. 

We request the Montana Judges Association at their next meeting 

to address the advisability or nonadvisability of establishing a 

uniform rule of statewide application on this subject, their 

reasons therefor, and their recommendations. 

Relators further request the assistance of this Court in 

recommending and supporting legislation rearranging and realign- 
ing the Fourth, Eighth and Thirteenth Judicial Districts. his 

Court has already recommended and will support legislation treating a joint legislative committee to study the number and composition of Montana's judicial districts and the number of district 

judges required and necessary to service the judicial needs of 

the State of Montana. This is a legislative prerogative under 

the Constitution and statutes of this state. We stand ready to 

assist the legislature in this task, if and when called upon. 

Relators next request this Court to establish rules and 

procedures for interim assignment of district judges to deal with 

heavy caseloads in individual judicial districts. We consider 

present statutes, procedures and practices sufficient in this area 

without further revision except in one area. 

Present statutes empower the Chief Justice, upon request 

of the district judge or judges involved, to call a consenting 

retired judge to active service but make no provision for compensation for his services. This Court has recommended to the 46th 

Legislative Session an amendment providing for the payment to a 

retired judge called to active service in the amount of the difference between his retirement benefits and the salary of an active 

district judge for the period of such retired judge's active 

service. 

Relators also request this Court to establish Sentencing 

Panels in multiple judge judicial districts to eliminate disparity 

of sentences imposed on convicted defendants. We consider this 

request impractical and unworkable; that it holds no promise of 

significant improvement in the sentencing of convicted criminals; 

and that it invades the independence and statutory prerogatives 

of the sentencing judge. 

At the outset we observe that Montana statutes provide 

for criminal sentencing by a single district judge. Section 95- 

2212, R.C.M. 1947, now section 46-18-103, MCA. Prior to pronounc- 
ing sentence, the sentencing judge studies the presentence 

report compiled by a probation officer. Section 95-2203, R.C.M. 

1947, now section 46-18-111, MCA. The sentencing judge usually 

conducts a presentence hearing. The sentencing judge cannot 

sentence on the basis of private out-of-court information, communications, or investigation. State v. Kuhl (1961), 139 Mont. 

536, 366 P.2d 347; State v. Simtob (1969), 154 Mont. 286, 462 

P.2d 873; State v. Stewart (1977), Mont . , 573 P.2d 1138, 

34 St.Rep. 1475. 

The defendant has the right to have his sentence reviewed 

for equity, disparity or considerations of justice by the Sentence 

Review Board. Sections 95-2501 to 95-2504, R.C.M. 1947, now sections 46-18-901 to 46-18-905, MCA; State v. Simtob, supra. He 

has the right to appeal his sentence to the Montana Supreme Court 

to determine its legality. State v. Simtob, supra. 

We consider this system sufficient to provide a reasonable 

approach to any problem of disparity in criminal sentences. We 

observe that criminal sentences depend as much on considerations 

relating to the criminal being sentenced as to the crime of which 

he was convicted. Each individual's background, attitude, past 

criminal record and many other factors must be weighed and 

assessed. To require a Sentencing Panel of two or more district 

judges to do this, in or out of court, appears to us to require 

much more than is needed; to unreasonably trespass on the operation of the district courts and the district judges; and to raise 

manifold constitutional and statutory issues that might well take 

years to resolve at the expense of the taxpayers. We decline the 

requested relief. 

Finally, relators request such other and further relief 

as this Court may deem advisable. None is suggested. Until such 

time as the statewide information system of this Court is fully 

perfected or other situations come to this Court's attention 
that require immediate remedial action, no further relief will 

be granted. 

Chief Justice