No. 12483 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973



### THE STATE OF MONTANA ex re1JONWILLIAM PASCHKE and JOHN ARNOLD MASON, Relators,

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA etal, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: Sandall, Moses and Cavan, Billings, Montana. D. Frank Kampfe argued, Billings, Montana. For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. 

### J

# . C

# .Weingartner, AssistantAttorney General, appeared,

Helena, Montana. Harold F. Hanser, County Attorney, argued, Billings,

Montana.

Submitted: March 

### 29, 1973 Decided: 

## 2

## 318- Filed:

## AUG23

## 7973Hon. Jack Shanstrom, districtjudge sitting for Chief Justice James T. Harrison, delivered the Opinion of the Court.
This is an original proceeding seeking a 

### writ of supervisory control over the district court of the thirteenthjudicial district, Yellowstone County, and the Hon. C. B. Sande, presiding judge. Petitionwas filedby relators Jon William Paschke and John Arnold Mason, seeking continuance of a trial date and that District Judge Sande disqualify himself from hearing said case, after an affidavit of disqualificationhad been filedby relators. The fact situation 

### is: On Monday, February 26, 1973 the county attorney of Yellowstone County filed a complaint injustice court charging relatorswith seven counts of possession of dangerous drugs. Prior to the complaint being filed an application for a search warrant had been filedwith the justice court and pursuant thereto a search warrant was issued by thejustice of the peace on February 25, 1973. As a result of the search the charges of possession of dangerous drugs were filed. On February 28, 1973 the county attorney filed an information in the district court of the thirteenthjudicial district, Yellowsone County, charging relators with seven counts of possession of dangerous drugs. On February 28, 1973relators appeared atthe arraignment represented by counsel, D. Frank Kampfe. Bailwas set at $15,000
on each relator. On March 2, 1973relator John Arnold Mason posted bond and was released. On March 12, 1973relator Jon William Paschke was released
on bond, On March 2, 1973 Judge C. B, Sande ordered a setting for trial of criminal causes 8860 and 8861 for March 26, 1973 atthe hour of 9:30 a.m. The order was received by counsel for relators on March 

### 5, 1973. On March 

### 21, 1973 counsel for relators filed two affidavits of disqualificationwhich were duly signed by the relators. On March 

### 21, 1973 Judge Sande refused to disqualifyhimself and so advised counsel for relators by telephone.On the same day, March 21, 1973, counsel forrelators filed

a motion forcontinuance and notice of motion for continuancewhich alleged numerous grounds forcontinuance of the trials, among them were: 1. ~elators' counsel had other previous cases set for trial during theweek of March 26 through March 30. 2. Relators' counsel didnot have adequate time to prepare and investigate the cases prior to the trial setting. 3. That additional burdens were castupon counsel for relators because of hishandling of officematters previously handled by other members of the firmwho were either trying cases out of town orhad left the employment of the firm. On March 22, 1973 counsel forrelators was advisedby Judge Sande through a telephone conversation that themotion forcontinuance
was denied without hearing and the matter would go to trialon March 26, 1973. At that time he further advised counsel for relators that any motions to suppress and/or other hearings would be held on March 23, 1973. Judge Sande filed an affidavitbefore this Court and was 

### represented by Harold F. Hanser, county attorney forYellowstone County, alleging that within the week of setting the cases for 

### trialhe personally advised counsel forrelators that if any motions
were tobe made inregard tothe cases they should be made atan earlydate and disposed of before trial. That he had had no communicationwhatsoever with counsel forrelators from that time forward untilThursday, March 22, 1973, atwhich time the court was advised that
a petition for continuance and affidavits of disqualification had been filedby counsel forrelators. That atthe time he received this petition the county attorney's officewas preparing the cases for trial. That fortyjurors had been summoned toattend the trial
on March 26, 1973. That the court had previously setcriminal cases allthrough the months of April and May, atwhich time the term ended, and ifthese cases were continued itwould not be possible to try them during that term. -3-

# . County Attorney Hanser also filed a memorandum before this Court stating that the Yellowstone county attorney's office filed inexcess of 300 felony cases in district court during the year 1972, and that on March 23, 1973, approximately 40 cases were set inJudge Sande's department during the months of April and May. That even though counsel for relators pointed out his own busy schedule and reasons for continuance, Mr, Kampfe on March 1, 1973

spent considerable time negotiating with the Yellowstone county attorney's office for the return of two $1,000 checks seized in evidence pursuant to the search warrants, That, in addition, he had sufficient time to filein federal district court an action pertaining to these checks. Thus, factually, itwould appear that counselwould have had sufficient time for motions for substitution of judge and continuance of trial and could have made them more timely had he so desired. It 

### is from the trialcourt's denial of the motions tocontinue the trials and refusal to disqualifyhimself that relators seek relief by way of a 

### writ of supervisory control from this Court. The issues: 

### Did the trialcourt abuse itsdiscretion in

### its denial tocontinue the trials, and was the attempted disqualification timely made? The principal Montana statutewith respect to disqualification 

### is section 95-1709, R.C.M. 1947: "Substitution of judge. (a) The defendant or the prosecution may move the court inwriting for a substitution of judge on the ground that he cannot have a fair and impartial hearing or trialbefore saidjudge. The motion shallbe made at least fifteen (15) days prior to the trialof the case, or any retrial thereof after appeal, except for good cause shown. Upon the filingof such a motion thejudge against whom the motion 

### is filed shallbe without authority to act further in the criminal action, motion or proceeding but the provisions of this section do not apply to the arrangement of the calendar, the regulation of the order of business, the power of transferring the criminal action or proceeding to some other court, nor to the power of calling in anotherjudge to sitand act in such criminal action or proceeding, providing that no judge shall so arrange the calendar as to defeat the purposes of this section. Not more than one (1) judge can be disqualified inthe criminal action or proceeding, atthe instance of the prosecution and not more than one 

### (1)judge at the instance of the defendant or defendants.11

### If either party in any matter above-mentioned shall file the motion as herein provided such party may not complaint ofany reasonabledelay as the result thereof.

11

### The provision of this section shallbe inapplicable to any person in any cause involving a direct contempt of court. "(b) In addition to the provision of subsection (a) any defendant may move at any time for substitution of judge for cause, supportedby affidavit. Upon the filing of suchmotion the court shall conduct a hearing and determine the merits of the motion. II 

### This Court has previously discussed this matter at great length in State ex rel. Wilson v. District Court, 143 Mont. 543, 393 P.2d 39, inwhich the Court held the language of section 95-1709,R.C.M. 1947, to be clear and concise: 

### h he motion shall be made at least fifteen (15) days prior to the trial of the
case

# * *.I1 

### Unless, of course, a deliberate attempt ismade to arrange a calendar to defeat the purposes of this section. Here, from the affidavits and memorandums submitted to this Court,we find the affidavit of disqualificationwas filed approximately four days prior to the trial date, and that therehad been
no communication whatsoever between Judge Sande and counsel for relators from the time

... 

### the caseswere set on March 

### 2, 1973,and 'I p-pjijll

### LC' additionally, that wi4hi-n-aweek thereafter Judge Sande personally notified counsel for relators that any motions should be made at
an early date to be disposed ofbefore the trial. There isnothing in the petition of relators to show that there should be a variance or a justification for failure to file the affidavits of disqualificationwithin the 15 days provided by the statute. We hold the motions for disqualificationwere not timely made and therefore Judge Sandersdenial of the affidavits of disqualificationwas proper. The remaining issue for review relating to the district court's denial of petitioners' motion for continuanceneed not be determined
as such issue has become moot. This original proceeding is ac~qdingly dismissed.

/'~istrictJudge, sitting for Hon. P' >/ '
, 

### James T. Harrison.

J,We Concur:



### \,~ssociate Justices

## 1 i \INTHE SUPREME COURT OF THE STATE OF MONTANA

No. 12483
STATE EX REL. JON WILLIAM PASCHKE etal., Relators,
VS. THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT etal., Respondents.

ORDER

PER CURIAM: IT IS ORDERED that the word "within" in line2% page 5, ofthe above-entitled opinion be changed to "prior to". DATED this 17th day of September, 1973.