No. 12579 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

ELLWOOD CARL BAILEY, Plaintiff and Respondent,

STATE OF MONTANA, and W. E. DOWLIN, JR.

## , JUSTICE OF THE PEACE OF THE BILLINGS TOWNSHIP, Defendant and Appellant.

Appeal from: District Court of the Thirteenth JudicialDistrict, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas Beers, Assistant Attorney General, argued,

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Doris M. Poppler, Deputy County Attorney, argued,

Billings, Montana For Respondent: Robert C. Brogan argued, Billings, Montana

Submitted: November 29, 1973 Decided:

# bEC2

## 71973 Filed:

# DEC2 1

## 1973

### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### isan appeal by the State from an order of the district court of the thirteenthjudicial district, the Honorable Robert H. Wilson, presiding, which order granted a

### writdenominated 

### andam am us", later corrected to Supervisory Control, ordering a justice of the peace tohonor an affidavit of disqualification and call in another justice of the peace. A defendant, one Ellwood Carl Bailey, was charged with "driving while under the influence of intoxicating liquor". He appeared injustice court, Billings Township, Yellowstone County, before W. E. Dowlin, Jr.; pleaded "not guilty" on March 

### 6, 1973; and requested ajury trial. Trialwas 

### set forApril 

### 17, 1973. On March 13, 1973, an affidavit of disqualification

was filed. Justice of the Peace Dowlin refused tohonor the disqualification affidavit. The trialdatewas reset forMay 18, 1973. On April 19, 1973, a petition for a

### writof mandate was filed in the district court seeking an alternative

### writ tocompel Justice of the Peace Dowlin to eitherhonor the disqualification

or appear to show cause why he should not. On May 

### 11, a hearing

was held and the districtcourt granted a writ of mandamus which writordered Judge Dowlin tohonor the affidavit of disqualification. On June 

### 5, notice of appealwas filedby the county attorney

on behalf of Judge Dowlin. On June 22, the districtcourt, Judge Wilson, denied ~ailey's motion totaxcosts including attorney fees. In that order, Judge Wilson stated that the

### writwas one of supervisory control, rather than technically mandamus, and therefore denied attorney fees. The defendant Bailey inthe criminal charge was denominated a "plaintiff" in the action seeking

a

### writ. He "cross appeals" here, seeking attorney fees and costs against Justice of the Peace Dowlin, denominated a "defendant".The issues on appeal are that the district court erred in granting a 

### writ of mandamus because: (1) A justice of the peace cannot be disqualified for prejudice, but rather the remedies are limited to appeal and change of the place of trialander sections 95-2009 and 95-2003, R.C.M. 1947. (2) Mandamus 

### is an inappropriate remedy if a justice of the peace refuses to disqualifyhimself or refuses to change the place of trial.



### As to the second issue, we have stated heretofore that inthe order denying costs and attorney fees, the districtjudge stated the 

### writwas one of supervisory control in the aid of 

### its appellatejurisdiction over justice courts under section 95-2009, R.C.M. 1947. This would be correct because the

### writ of mandamus 

### isavailable only where there 

### isno plain, speedy and adequate remedy in the ordinary course of law. Section 93-9103, R.C.M. 1947. Section 95-2009, R.C.M. 1947, provides: "(a) Allcases on appeal fromjustices' or police courts must be tried anew in the district court and may be tried before a jury of six 

### (6) which may be drawn from either the regular panel orjury box No. 3. "(b) The defendant may appeal tothe district court by givingwritten notice of his intention to appeal within ten days (10) days afterjudgment. "(c) Within thirty (30) days the entirerecord of thejustice or police court proceedings shall be transferred to the district court or the appeal shallbe dismissed. It shallbe the duty of the defendant to perfect the appeal." Thus a plain, speedy and adequate remedy atlaw 

### is specifically provided and mandamus 

### willnot lie. As to issue (I), keeping inmind section 95-2009, R.C.M. 1947, quoted above, a "prejudiced" judge, as distinguished from a "prejudiced" township or community, may be allevia'ted or corrected by an appeal and a trialde novo.Chapter 20, Title 95, 

### R.C.M. 1947, 

### is entitled "Justice and Police Court Proceedings". The Criminal Law Commission comment accompanying the chapter reads inpart: 

### h his Chapter includes only those sectionswhich are peculiar or apply exclusively tojustice and police courts. 

# * *

# *' Included in Chapter 20 

### is section 95-2003, R.C.M. 1947, which provides: "(a) The defendant or prosecution, before trial, may move for a change of place of trialon the ground that there exists in the township inwhich the charge 

### ispending such prejudice that a fair trialcannot be had in such township. "(b) The motion shallbe inwriting and supported by affidavit which shall statethe facts showing the nature of the prejudice alleged. The defendant or the statemay filecounteraffidavits. The court shall conduct a hearing and determine the 

### merits of the motion. "&) If the court determines that there exists in the township where the prosecution 

### ispending such prejudice that a fairtrialcannot be had it shall transfer the cause to any other court of competent jurisdiction in any township where a fairtrialmay be had." Also included inChapter 20 

### is section 95-2009 --Appeal-- previously quoted, which gives a right of trialde novo in the district court. Significantlyno section providing for substitution of judges appears in Chapter 20. In Chapter 17, Title 95, R.C.M. 1947, entitled "Pretrial ~otions", appears section 95-1709 --Substitution of judge--; and section 95-1710 --Change of place of trial. Those two sections read: "95-1709. 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 ortrialbefore saidjudge. The motion shall be made at least fifteendays prior to the trialof the case, or any retrial thereof afterappeal, except for good cause shown. Upon the filingof such a motion thejudge against whom the motion is filed shall be without authority toact further inthe 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 

### sit and act in suchcriminal action orproceeding, providing that no judge shall so arrange the calendar as to defeat the purposes of this action. Not more than one judge can be disqualified in the criminal action or proceeding, atthe instance of the prosecution and not more than one judge atthe instance of the defendant or defendants.

11

If either party inany matter above-mentioned shall filethe affidavit asherein provided such party may not complain of any reasonable delay as the 

### result thereof. "The provision of this section shallbe inapplicable toany person inany cause involving a direct contempt of court. "(b) 

### In addition to the provision of subsection (a) any defendant may move atany time for substitution of judge for cause, supported by affidavit. Upon the filingof such motion the court shall conduct a hearing and determine the merits of the motion. II "95-1710. Change of Place of Trial. "(a) The defendant or the prosecution may move for a change of place of trial on the ground that there exists inthe county inwhich the charge 

### ispending such prejudice that a fair trial cannot be had in such county. The motion shallbe made atleast fifteen days prior to trial, unless, for good cause shown, it may be made thereafter.

It(b) The motion shallbe inwriting and supported by affidavit which shall statefacts showing the nature of the prejudice alleged. The defendant or the statemay filecounter-affidavits. The court shall conduct a hearing and determine the 

### merits of the motion. "(c) If the court determines that there exists in the county where the prosecution 

### is pending such prejudice that a fairtrialcannot be had it shall transferthe cause to any other court of competent jurisdiction inany county where a fairtrialmay be had." From the context of these two sections it 

### is clear that both sections refer to districtcourt actions. However, the defendant Bailey argues that since section 95-206, 

### R.C.M. 1947, the chapter on definitions, defines the term "judge" to include justice of the peace, then section 95-1709 using the word "judge" rather than "district courtjudge", must include the right to substitution of justice of the peace. Section 95-206, 

### R.C.M. 1947, reads: "'.Judge1 means a person who 

### is invested by law with the power toperformjudicial functions and includes court, justice of the peace or police magistrate when a particular context so requires. 

## - " (Emphasis added).Does the particular context of section 95-1709, R.C.M. 1947, requirre it? We thinknot. Rather, 

### we find that the overall context of the Code of Criminal Procedure requires that sections 95-1709 and 95-1710 apply to district courts. Aswe have heretofore shown, an adequate, speedy remedy atlaw 

### is provided by the right toa trial de novo under section 95-2009, R.C.M. 1947. Thus a new judge ishad in any event. Also, significantlythe legislaturehas not provided for other justices of the peace tobe called in. Many counties and townships have only one justice of the peace. No provision anywhere inthe Code 

### is provided for procedures, expenses, record keeping or otherwise for substitution of justices of the peace. This alone strengthens the view that the particular context of section 95-1709 does not require the word "judge" toincludejustice of the peace. Rather, itrequires that itnot be included since other adequate and prompt methods for protecting the right of a defendant tojustice at.eprovided, asheretofore explained. Accordingly, we hold that a justice of the peace 

### may not be disqualified on a simple affidavit for substitution of judge under section 95-1709, R.C.M. 1947, but rather the provisions of Chapter 20, Title 95, R.C.M. 1947, must be followed. We reverse the order of the district court appealed from and remand the cause to the district court for dismissal of the complaint of Bailey and forremand to thejustice court of Billings Township for trial of the complaint therein pending.