No. 12483 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

THE STATE OF MONTANA ex re1 JON WILLIAM 

PASCHKE and JOHN ARNOLD MASON, 

Relators, 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA et al, 

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, Assistant Attorney General, appeared, 

Helena, Montana. 

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

Montana. 

Submitted: March 29, 1973 

Decided: 2 3 18- 

Filed : AUG 2 3 7973 
Hon. Jack Shanstrom, district judge 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 thirteenth judicial district, 

Yellowstone County, and the Hon. C. B. Sande, presiding judge. 

Petition was filed by 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 disqualification had been filed by relators. 

The fact situation is: On Monday, February 26, 1973 the 

county attorney of Yellowstone County filed a complaint in justice 

court charging relators with seven counts of possession of dangerous 

drugs. Prior to the complaint being filed an application for a 

search warrant had been filed with the justice court and pursuant 

thereto a search warrant was issued by the justice 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 thirteenth judicial district, Yellowsone County, charging relators with seven counts of possession of 

dangerous drugs. 

On February 28, 1973 relators appeared at the arraignment 

represented by counsel, D. Frank Kampfe. Bail was set at $15,000 

on each relator. 

On March 2, 1973 relator John Arnold Mason posted bond and was 

released. On March 12, 1973 relator 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 at the 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 disqualification which were duly signed by the relators. 

On March 21, 1973 Judge Sande refused to disqualify himself and 

so advised counsel for relators by telephone. 
On the same day, March 21, 1973, counsel for relators filed 

a motion for continuance and notice of motion for continuance which 

alleged numerous grounds for continuance of the trials, among 

them were : 

1. ~elators' counsel had other previous cases set for trial 

during the week of March 26 through March 30. 

2. Relators' counsel did not have adequate time to prepare 

and investigate the cases prior to the trial setting. 

3. That additional burdens were cast upon counsel for 

relators because of his handling of office matters previously 

handled by other members of the firm who were either trying cases 

out of town or had left the employment of the firm. 

On March 22, 1973 counsel for relators was advised by Judge 

Sande through a telephone conversation that the motion for continuance 

was denied without hearing and the matter would go to trial on 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 affidavit before this Court and was represented by Harold F. Hanser, county attorney for Yellowstone 

County, alleging that within the week of setting the cases for 

trial he personally advised counsel for relators that if any motions 

were to be made in regard to the cases they should be made at an 

early date and disposed of before trial. That he had had no communication whatsoever with counsel for relators from that time forward 

until Thursday, March 22, 1973, at which time the court was advised that 

a petition for continuance and affidavits of disqualification had 

been filed by counsel for relators. That at the time he received 

this petition the county attorney's office was preparing the cases 

for trial. That forty jurors had been summoned to attend the trial 

on March 26, 1973. That the court had previously set criminal cases 

all through the months of April and May, at which time the term ended, 

and if these cases were continued it would 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 

in excess of 300 felony cases in district court during the year 

1972, and that on March 23, 1973, approximately 40 cases were set 

in Judge 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 file in federal district court an action 

pertaining to these checks. Thus, factually, it would appear that 

counsel would 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 trial court's denial of the motions to continue 

the trials and refusal to disqualify himself that relators seek 

relief by way of a writ of supervisory control from this Court. 

The issues: Did the trial court abuse its discretion in its 

denial to continue the trials, and was the attempted disqualification timely made? 

The principal Montana statute with respect to disqualification 

is section 95-1709, R.C.M. 1947: 

"Substitution of judge. (a) The defendant or the 

prosecution may move the court in writing for a substitution of judge on the ground that he cannot have a 

fair and impartial hearing or trial before said judge. 

The motion shall be made at least fifteen (15) days 

prior to the trial of the case, or any retrial thereof 

after appeal, except for good cause shown. Upon the 

filing of such a motion the judge against whom the motion 

is filed shall be 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 another judge to sit and 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 in the criminal 

action or proceeding, at the 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 of any reasonable delay as the result thereof. 

11 The provision of this section shall be 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, supported by affidavit. Upon the filing 

of such motion the court shall conduct a hearing and determine the merits of the motion. I I 

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, in which 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 is made 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 disqualification was filed approximately four days prior to the trial date, and that there had been 

no communication whatsoever between Judge Sande and counsel for 

relators from the time ... the cases were set on March 2, 1973, and 

'I p-pjijll LC' 

additionally, that wi4hi-n-a week thereafter Judge Sande personally 

notified counsel for relators that any motions should be made at 

an early date to be disposed of before the trial. 

There is nothing in the petition of relators to show that 

there should be a variance or a justification for failure to file 

the affidavits of disqualification within the 15 days provided by 

the statute. We hold the motions for disqualification were not 

timely made and therefore Judge Sanders denial of the affidavits of 

disqualification was proper. 

The remaining issue for review relating to the district court's 

denial of petitioners' motion for continuance need not be determined 

as such issue has become moot. 

This original proceeding is ac~qdingly dismissed. 

P' 

/'~istrict >/ Judge, sitting for Hon. 

' , James T. Harrison. J, 
We Concur: 

\,~ssociate Justices 1 

i 

\ 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 12483 

STATE EX REL. JON WILLIAM PASCHKE et al., 

Relators, 

VS. 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT et al., 

Respondents. 

ORDER 

PER CURIAM: 

IT IS ORDERED that the word "within" in line 2% page 5, 

of the above-entitled opinion be changed to "prior to". 

DATED this 17th day of September, 1973.