NO. 94-069

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

ROBERT L. POTTER, DEBRA LEE

STEINER and JASON W. RIGGS,

Petitioners,

-vDISTRICT COURT OF THE SIXTEENTH

JUDICIAL DISTRICT OF THE STATE

OF MONTANA, IN AND FOR THE

COUNTY OF CUSTER, and THE HONORABLE

JOE I;. HEGEL, Presiding Judge,

Respondents.

SEP I z t994

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Petitioners:

R.L. Stephens, Jr., Billings, Montana: R. Allen

Beck, Billings, Montana; James Graves, Oliver,

Graves & Toennis, Billings, Montana

For Respondents:

Hon. Joseph P. Mazurek, Attorney General; Micheal

Wellenstein, Assistant Attorney General; Gary Bunke,

Deputy Custer County Attorney

Filed:

Submitted: August 9, 1994

Decided: September 12, 1994
Justice James C. Nelson delivered the Opinion of the Court.

This is an original proceeding which arises out of the

issuance of two search warrants on August 18, 1993. The search

warrants were signed by Steven Rice, as "Acting Justice of the

Peace." The execution of the warrants led to the seizure of

marijuana and other drug related items. Defendant Robert Potter

was charged with one count of criminal sale of dangerous drugs, a

felony pursuant to § 45-9-101(l), MCA, and one count of criminal

possession with intent to sell, a felony, pursuant to § 45-g-103,

MCA. Defendant Debra Steiner was charged with criminal possession

with intent to sell, a felony pursuant to § 45-g-103, MCA.

Defendant Jason Riggs was charged with one count of criminal

possession with intent to sell, by accountability, a felony

pursuant to §§ 45-g-103, 45-2-301, and 45-2-302, MCA.

The defendants attack the validity of the search warrants

alleging that they were not issued by an independent magistrate,

thereby rendering the search warrants invalid. Specifically, the

defendants argue that the acting justice of the peace was not

properly qualified to serve as a substitute justice of the peace

under the appropriate statutes and under the Rules for

Certification of Judges of Courts of Limited Jurisdiction

(hereinafter Commission Rules) adopted by this Court on October 24,

1990 and found at Title 3, Ch. 1, part 15, MCA, Annotations (1992),

at 48-51. Therefore, according to the defendants, Mr. Rice had no

jurisdiction to issue the search warrants. We agree.

We conclude that, for the reasons hereafter set forth, this is

2
an appropriate matter over which this Court should exercise its

power of supervisory control and, accordingly, we accept

jurisdiction of this case. We hold that Steven Rice was without

authority or jurisdiction to issue the search warrants, that the

search warrants were void ab initio, and that, as a result, the

District Court must vacate its order denying defendants' motion to

suppress and enter an order consistent with this opinion

suppressing the evidence seized pursuant to the warrants.

BACKGROUND

At all times pertinent to this case, Donald Scho'ct was the

duly elected, qualified and acting Justice of the Peace for Custer

County and the only justice of the peace in that county. On August

11, 1993, Judge Schott's office notified Mr. Rice that it might

call on him to serve as substitute Justice of the Peace during

August 1G through August 20, 1993, as Judge Schott would be on

vacation during that time.

Mr. Rice was and is the pastor of the Lutheran Church in Miles

City. He previously was the elected Justice of the Peace for

Powder River County and was the City Judge for Broadus. Mr. Rice

held these positions for approximately three years, leaving the

bench in March of 1987. During his tenure on the bench in Powder

River County, Mr. Rice passed the certification test required by

the Commission on Courts of Limited Jurisdiction (Commission). He

also regularly attended the training sessions sponsored by the

Commission. Since 1987, and prior to August 18, 1993, when Mr.

Rice signed the search warrants, the Commission approved Mr. Rice

3
to act as substitute judge for two Miles city city judges.

Subsequent to the incident at issue here, Mr. Rice has been

approved to act as a substitute justice of the peace in Powder

River County and Custer County.

On August 18, 1993, Custer County Undersheriff, Don Neese

presented two applications for search warrants to Mr. Rice.

Although City Judge Paul Mottram was available, Undersheriff Neese

presumed, in good faith, that Mr. Rice was an authorized substitute

justice of the peace. Mr. Rice, believing himself to be the acting

substitute Custer County Justice of the Peace, granted the

applications and signed the search warrants. As stated above, the

execution of the warrants resulted in the seizure of marijuana and

other drug related items, and the subsequent felony drug charges

filed against the defendants.

On October 12, 1993, defendant Potter filed a Motion to

Suppress Evidence. The motion challenged the validity of the

search warrant on several grounds including the allegation that Mr.

Rice was not qualified as an independent magistrate to issue the

search warrant.

The defendants subsequently filed a consolidated motion to

suppress on December 7, 1993, challenging the search warrants on

the same grounds. The District Court held a hearing on the motion

on December 15, 1993, and issued its written order on December 16,

1993. The court denied the motion relying on § 46-5-103(1)(c),

MCA, which provides in pertinent part:

A search and seizure, whether with or without a warrant,

may not be held to be illegal if:

4
(c) any irregularity in the proceedings has no effect on

the substantial rights of the accused.

The District Court, finding that Mr. Rice was "qualified" in

terms of competence and experience, and that any mistakes were

"innocent errors of omission and not directed by any purpose to

evade the legal requirements," concluded that "although the

procedure used to call in Steven Rice as substitute justice of the

peace was technically flawed, the substantial rights of the

Defendants were not affected..."

The defendants filed an application for Writ of SuperVisory

Control or Other Appropriate Writ on June 1, 1994, stating that the

District Court had found the issue raised at the suppression

hearing could be dispositive of the case, and that the defendants

should take the issue to this Court. The defendants allege that

the specific issue to be determined by this Court is:

Is the failure to have a properly appointed, independent

Magistrate signing search warrants a "mere technicality"

or does this constitute a violation of the substantial

constitutional rights of the defendants?

DISCUSSION

I . SUPERVISORY CONTROL

The exercise of supervisory control by this Court is

authorized by Article VII, Section 2(2) of the Montana Constitution

and by Rule 17(a), M.R.App.P. We are reluctant to exercise

supervisory control as it is an extraordinary remedy. State ex

rel. O'Sullivan v. District Court (1946), 119 Mont. 429, 431-32,

175 P.2d 763, 764. Notwith.standing, supervisory control is

appropriate where the district court is proceeding under a mistake

5
of law, and in so doing is causing a gross injustice, State ex rel.

Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d

1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217

Mont. 106, 114, 703 P.2d 148, 153-54, and where, as here, requiring

a defendant to stand trial would result in unnecessary expenditures

of time and resources. State ex rel. Torres (1994), 51 St. Rep.

599, 600: State ex rel. Fletcher v. District Court (1993), 260

Mont. 410, 414, 859 P.2d 992, 994; State ex rel. First Bank System

v. District Court (1989), 240 Mont. 77, 84, 782 P.2d 1260, 1264.

Here, the State concedes that if the search warrants at issue

are invalid and if the evidence resulting from the execution of

those warrants is suppressed, then it will have no case against the

defendants. No argument has been advanced that the evidence could

have been seized under any exception to the written warrant

requirement. Under such circumstances, because we conclude that

the search warrants are void ab initio, it would be fundamentally

unfair and prejudicial, not to mention a waste of time and the

limited resources of the court and counsel, to require this case to

proceed further. Accordingly, it is appropriate that we assume

jurisdiction of this case and exercise original jurisdiction under

a writ of supervisory control in order to forestall further

needless and expensive litigation.

II. WHO MAY ACT AS SUBSTITUTE JUSTICE OF THE PEACE

At the outset, we stress that nothing in this opinion is meant

to reflect adversely on the training, experience, professional

competence or integrity of either Mr. Rice or Judge Schott. The

6
critical legal question which we address is simply whether, at the

time he issued the search warrants, was Mr. Rice, under the law, a

duly appointed and qualified substitute justice of the peace? We

must answer that question in the negative, and in doing so, begin

our analysis with the Constitution of the State of Montana.

The judicial power of the state derives from Article VII of

Montana's 1972 Constitution. Section 5 of Article VII provides, in

pertinent part:

Justices of the peace. (1) There shall be elected in each

county at least one justice of the peace with

qualifications, training, and monthly compensation

provided by law. . . .

(3) The legislature may provide for additional justices

of the peace in each county.

That Article and Section of our State Constitution make it clear

that the legislature is to establish, by law, the qualifications

and training of justices of the peace and, in its discretion,

provide for additional justices of the peace in each county. __, See

generally, Title 3, Ch. 10, MCA. This Court may make rules

governing the practice and procedure in all courts of this state.

Art. VII, Sec. 2(3), Mont. Const.

It follows that Article VII, Section 5 of the Constitution

also empowers the legislature to establish, by law, the

qualifications of and procedures for appointing substitute justices

of the peace in the various counties. The statute authorizing the

appointment of substitute justices of the peace is found at § 3-lo231, MCA. That statute provides:

(1) Whenever a justice of the peace is disqualified from

acting in any action because of the application of the
supreme court ' s rules on disqualification and

substitution of judges, subdivision 1, 2, or 3, he shall

either transfer the action to another justice's court in

the same county or call in a justice from a neighboring

county to preside in his behalf.

(2) Within 30 days of taking office, a justice of the

peace shall provide a list of persons who are qualified

to hold court in his place during a temporary absence

when no other justice or city judge is available. The

persons listed must be of good moral character and have

community support, a sense of community standards, and a

basic knowledge of court procedure. The county

commissioners shall administer the oath of office to each

person on this list as soon as possible after the person

has received a waiver of training from the supreme court.

(3) Whenever a justice is sick, disabled, or absent, the

justice may call in another justice, if there is one

readily available, or a city judge or a person from the

list provided for in subsection (2) to hold court for the

absent judge until his return. If the justice is unable

to call in a substitute, the county commissioners shall

call in another justice, a city judge, or a person from

the list provided for in subsection (2).

(4) During the time when a justice of the peace is on

vacation or attending a training session, another justice

of the peace of the same county shall be authorized to

handle matters that otherwise would be handled by the

absent justice. When there is no other justice of the

peace in the county, the justice of the peace may

designate another person in the same manner as if the

justice were sick or absent.

(5) A justice of the peace of any county may hold the

court of any other justice of the peace at his request.

In terms of training, the legislature has mandated that all

judges serving on courts of limited jurisdiction (justice, city and

municipal courts, § 3-l-1501, MCA) attend annual training sessions

supervised by the Commission. Section 3-10-203, MCA; Rule 4,

Commission Rules.

However, § 3-lo-231(2), MCA, and Rule 5C, of the Commission

Rules provide that substitute judges may receive a waiver of

training from the Commission enabling them to act as substitute

justices on an occasional basis pursuant to § 3-lo-231(2) through

8
(5), MCA. Rule 5C of the Commission Rules requires the sitting

justice of the peace to submit a request for a waiver of training

to the Commission and show that the substitute judge, as mandated

by 5 3-lo-231(2), MCA, is of good moral character, has good

community support, a sense of community standards, and a basic

knowledge of court procedure. After reviewing the request, the

Commission advises the sitting judge of its decision. Rule 5C(3),

Commission Rules.

Therefore, according to the applicable statutes and Commission

Rules, before a person is legally qualified to serve as a

substitute justice of the peace, the following requirements must be

followed: (1) within 30 days of taking office the elected or

appointed justice of the peace must create a list of persons who

are qualified to act in the sitting justice's absence when no other

justice or city court judge is available, 5 3-lo-231(2), MCA; (2)

the sitting justice of the peace must request and obtain from the

Commission a waiver of training for the substitute judge, § 3-10-

231(2), MCA, and Commission Rule 5C; and (3) the substitute judge

must be sworn in by the county commissioners, § 3-lo-231(2), MCA.

Additionally, the defendants maintain that, before calling in

a substitute judge from the list, there must be no other justice of

the peace, or city judge available to act as a substitute judge.

We agree with that conclusion. Reading § 3-lo-231(3) and (4), MCA,

in pari materia, with § 3-lo-231(2), MCA, as we must (5 l-2-101,

MCA) , it is clear that a sitting judge may call in a substitute

judge from the list 'I... when no other justice or city judge is

9
available." Section 3-lo-231(2), MCA. Accordingly, we conclude

that, under the statutory scheme enacted by the legislature, in

addition to the three requirements set forth in the immediately

preceding paragraph of this opinion, a sitting justice of the peace

must first attempt to call in another justice of the peace, if

there is one readily available, (9 3-lo-231(2), MCA), or a city

judge before resorting to calling in a qualified substitute judge

from the list. Sections 3-lo-231(2), (3) and (4), MCA.

In the instant case, there is no question that the above

statutory scheme 'was violated. In fact, the District Court found

that "the procedure used to utilize Steven Rice was flawed in

almost every respect." Moreover, the District Court also concluded

that the language of 5 3-lo-231(2), MCA, and Rule 5C of the

Commission Rules mandated that a person first obtain a waiver of

training from the Commission before he or she is authorized to act

as substitute judge. While Judge Schott testified at the

suppression hearing that he believed Mr. Rice was qualified to

serve as acting justice of the peace for Custer County, it is,

nevertheless, undisputed that the sitting justice did not follow

the procedures set forth above before Mr. Rice was called in as a

substitute judge.

Judge Schott did not draw up a list of persons qualified to

hold court in his temporary absence within 30 days of taking

office, nor did he request and obtain a waiver of training from the

Commission for Mr. Rice as required by § 3-lo-231(2), MCA, and

Commission Rule 5C. The evidence at the suppression hearing showed

10
that Judge Schott had a copy of a "Request for Waiver of Training"

dated May 6, 1991, in his files which asked the Commission to waive

the training requirements for Mr. Rice from "now until December 31,

1994. " However, Judge Schott did not have any evidence that he

actually mailed th,e request to the Commission. Moreover, according

to the testimony of Harlan P. Goan, Assistant Supreme Court

Administrator, the Commission did not have any evidence that the

request was received or approved prior to the issuance of the

search warrants. Therefore, it is clear from the record that the

Commission had not approved Mr. Rice to serve as substitute justice

of the peace for Custer County on August 18, 1993, the date he

signed the search warrants.

Furthermore, Mr. Rice was not sworn by the county

commissioners as required by § 3-lo-231(2), MCA, and, although city

judge Mottram was available to serve as a substitute, he was not

asked to do so as mandated by 5 3-lo-231(2), (3) and (4), MCA.

While finding that "the procedure used to utilize Steven Rice

was flawed in almost every respect, " the District Court, relying on

5 46-5-103(1)(c), MCA, denied the defendants' motion to suppress

concluding that the technical errors did not affect the substantial

rights of the defendants. We disagree with the court's legal

conclusion in that respect.

We conclude that the basic inquiry in this case should not be

whether the substantial rights of the defendants were affected as

a result of a "technical error, " but whether Mr. Rice had authority

or jurisdiction in the first instance to issue the search warrants

1 1
at all. It is axiomatic that, if Mr. Rice had no authority to

issue the search warrants, the warrants were void ab initio, and

that evidence seized from the defendants in the absence of a valid

search warrant or a recognized exception from the warrant

requirement, did violate their substantial rights to be free from

unreasonable searches and seizures under Article II, Section 11 of

Montana's Constitution.

This Court has defined judicial power as "the authority not

only to decide, but to make binding orders or judgments." State

ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 425, 214 P.2d 747,

753. In Montana the power or authority to issue search warrants is

reposed exclusively in city or municipal court judges and justices

of the peace within the judge's geographical jurisdiction, and in

district court judges within this State. Sections 46-5-220(2)(a)

and (b), MCA. Montana law grants to no other person the authority

or power to issue search warrants. The term "judge" (which

includes municipal and city court judges and justices of the peace,

§ 3-l-1501(2), MCA), means a person who is "vested by law" with the

power to perform judicial functions, § 46-l-202(10), MCA (1991).

The legislature, pursuant to the power granted it by Article

VII, Section 5 of Montana's Constitution, has enacted a statutory

scheme by which persons might lawfully exercise the powers and

authority of a judge as a substitute for a duly elected or

appointed sitting justice of the peace. Section 3-10-231, MCA.

This Court, pursuant to Article VII, Section 2(3), of the

Constitution of Montana and 9 3-lo-231(2), MCA, has adopted the

12
Commission Rules which implement, in certain respects, that

legislative scheme.

Unless the procedures required by those statutes and the

Commission Rules are followed, then no substitute justice is

appointed, and the person seeking to exercise the powers of a judge

as his substitute has no authority or jurisdiction to do so. That

person is, quite simply, not a judge as he has not been vested by

law with the power to perform the functions of a judge. Since he

was not a lawfully appointed and sworn substitute judge, Mr. Rice

had no more authority to issue a search warrant than did any other

member of the general public. Regardless that Mr. Rice was

qualified by training and experience to a judge, he was not, in

fact, a judge at the time he issued the search warrants, because

the statutory procedures to make him a judge and to vest him with

the power to perform judicial functions had not been followed.

Since the search warrants at issue here were not issued by a

judge, they were void ab initio, of no force or effect, and

provided no authority under which the authorities could search the

defendants' property and seize evidence.

The defendants argue that our holding in State v. Tropf

(1975)) 166 Mont. 79, 530 P.2d 1158, is persuasive authority. We

agree that our decision in that case supports our opinion here. In

Tropf, the county attorney's office prepared a complaint and

affidavit for a search warrant which contained a district court

heading and signature line. On the day of the search in question,

there were no district judges present in the courthouse, so the

13
police detective submitted the complaint and affidavit to the Great

Falls city police judge. The police judge signed the search

warrant with the district court heading and signature line. Tropf,

530 P.2d at 1159. This Court upheld the district court's

suppression of the evidence obtained under the search warrant,

concluding that police courts are courts of limited jurisdiction

and have only such authority as is expressly conferred upon them.

Tropf, 530 P.2d a.t 1160. Under the statutory scheme in place at

the time we decided Troaf, police judges did not have authority to

issue search warrants, were not "judges" for purposes of issuing

search warrants and therefore, the search warrant issued by the

city police judge was void. Tropf, 530 P.2d at 1161.

Similarly, in the instant case, we hold that the search

warrants issued by Mr. Rice on August 18, 1993, were not issued by

a judge, that those search warrants were void ab initio and that

any evidence seized pursuant to those warrants must be suppressed.

Accordingly, we remand this case to the Sixteenth Judicial District

Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH

THIS OPINION.

We Concur:

Chief Justice

.7b=, +h+M-bL

u 14
Justices

15
Chief Justice J. A. Turnage, specially COnCUrring:

I concur in the majority opinion. While the statutory

procedure set forth in 5 3-10-231, MCA, was not even minimally

followed in this case, I also suggest that portions of the statute

make it difficult for a substitute judge to qualify and for local

law enforcement and the public to determine whether a substitute

judge is properly qualified to perform judicial functions.

Section 3-l&231(2), MCA, provides that l'[t]he county

commissioners shall administer the oath of office to each person on

[the substitute judge] list." In addition to being unwieldy, it is

not likely that all three county commissioners are going to

administer the oath of office to the substitute judges on the list:

yet, that is what the statute seemingly requires. Moreover, that

requirement is in conflict with § 7-5-2121, MCA, which provides

that- member of the board of county commissioners may administer

oaths. Additionally, 5 2-16-211, MCA, provides that the oath of

judicial officers may be taken before any officer authorized to

administer oaths. See, 5 l-6-101, MCA. Accordingly, the statute

should be amended to simply require that the oath of office for

substitute judges be taken before any member of the board of county

commissioners or before any officer authorized to administer

oaths.

Finally, there is nothing in the statutory scheme enacted by

the legislature that requires any "paper trail" at the local level

when the sitting judge calls in a substitute. That necessitates,

as here, the local law enforcement authorities and perhaps court

16
personnel or other interested persons either presuming that the

person who is called in is a qualified substitute judge, or,

alternatively, having to seek verification from the Office of the

Court Administrator of the Supreme Court in Helena. Neither

approach is satisfactory, especially when a search warrant is being

sought over a weekend, on a holiday, after business hours or under

exigent circumstances.

Section 3-lo-,231, MCA, should be amended to require that the

substitute judges subscribe a written oath of office in conformity

with the provisions of Article III, Section 3, of the Montana

Constitution and 5 2-16-211, MCA, and that the written oath be then

filed in the office of the county clerk in accordance with 5 3-10-

202, MCA, along with the sitting judge's list of qualified

substitute judges and the Commission's written approval and waiver

of training for those substitutes. I also submit that the statute

be amended to require updated and current copies of the list of

qualified and sworn substitute judges be provided from time to time

to local law enforcement by the county clerk.

Given the extreme consequences of an unqualified substitute

judge attempting to act in a judicial capacity, as our opinion here

clearly indicates, I urge the next session of the legislature to

give serious consideration to the above proposed statutory

amendments. The next unlawful search warrant might be issued for

the crucial evidence in a homicide case.

Chief Justice

Justice James C. Nelson, autho

joins in the special concu
September 12, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

following named:

R. L. Stephens, P.C.

316 No. 25th St.

P.O. Box 1438

Billings, MT 59103-14Y38

R. Allen Beck, P.C.

724 Grand Ave.

Billings, MT 59101

James Graves. Eso. ----~--z ---x.

Oliver, Graves & Toennls, P.I

P.O. Box 7227

Billings, MT 59103-7227

David L. Irving

Attorney at Law

110 Fifth St. So.

Glasgow, MT 59230

Hon. Joseph P. Mazurek, Attorney General

MicheaI Wellenstein, Assistant

Justice Bldg.

Helena, MT 59620

Gary Bunke

Custer County Attorney

1010 Main St.

Miles City, MT 59301

ERR OF THE SUPREME

STATE OF MONTANA

prepaid, to the

COURT