No. 12579 

IN THE 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 Judicial District, 

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 : bEC 2 7 1973 

Filed : DEC 2 1 1973 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by the State from an order of the 

district court of the thirteenth judicial district, the Honorable 

Robert H. Wilson, presiding, which order granted a writ denominated 

 andam am us", later corrected to Supervisory Control, ordering a 

justice of the peace to honor 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 in justice court, Billings Township, Yellowstone 

County, before W. E. Dowlin, Jr.; pleaded "not guilty" on March 

6, 1973; and requested a jury trial. Trial was set for April 

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

was filed. Justice of the Peace Dowlin refused to honor the 

disqualification affidavit. The trial date was reset for May 

18, 1973. 

On April 19, 1973, a petition for a writ of mandate was 

filed in the district court seeking an alternative writ to compel 

Justice of the Peace Dowlin to either honor the disqualification 

or appear to show cause why he should not. On May 11, a hearing 

was held and the district court granted a writ of mandamus which 

writ ordered Judge Dowlin to honor the affidavit of disqualification. 

On June 5, notice of appeal was filed by the county attorney 

on behalf of Judge Dowlin. On June 22, the district court, Judge 

Wilson, denied ~ailey's motion to tax costs including attorney 

fees. In that order, Judge Wilson stated that the writ was one 

of supervisory control, rather than technically mandamus, and 

therefore denied attorney fees. The defendant Bailey in the 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 trial ander sections 95-2009 and 95-2003, 

R.C.M. 1947. 

(2) Mandamus is an inappropriate remedy if a justice 

of the peace refuses to disqualify himself or refuses to change 

the place of trial. 

As to the second issue, we have stated heretofore that 

in the order denying costs and attorney fees, the district judge 

stated the writ was one of supervisory control in the aid of its 

appellate jurisdiction over justice courts under section 95-2009, 

R.C.M. 1947. This would be correct because the writ of mandamus 

is available only where there is no 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) All cases on appeal from justices' 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 

or jury box No. 3. 

"(b) The defendant may appeal to the district 

court by giving written notice of his intention 

to appeal within ten days (10) days after judgment. 

"(c) Within thirty (30) days the entire record 

of the justice or police court proceedings shall 

be transferred to the district court or the appeal 

shall be dismissed. It shall be the duty of the 

defendant to perfect the appeal." 

Thus a plain, speedy and adequate remedy at law is specifically 

provided and mandamus will not lie. 

As to issue (I), keeping in mind 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 trial de 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 in part: 

 h his Chapter includes only those sections which 

are peculiar or apply exclusively to justice 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 trial on the 

ground that there exists in the township in which 

the charge is pending such prejudice that a fair 

trial cannot be had in such township. 

"(b) The motion shall be in writing and supported 

by affidavit which shall state the facts showing 

the nature of the prejudice alleged. The defendant 

or the state may file counteraffidavits. 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 is pending such 

prejudice that a fair trial cannot be had it shall 

transfer the cause to any other court of competent 

jurisdiction in any township where a fair trial may 

be had." 

Also included in Chapter 20 is section 95-2009 --Appeal-- 

previously quoted, which gives a right of trial de novo in the 

district court. Significantly no 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 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 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 action. Not more than one 

judge can be disqualified in the criminal action 

or proceeding, at the instance of the prosecution 

and not more than one judge at the instance of the 

defendant or defendants. 

11 If either party in any matter above-mentioned 

shall file the affidavit as herein provided such party 

may not complain of any reasonable delay as the result thereof. 

"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 

"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 in the county in which the charge is pending 

such prejudice that a fair trial cannot be had in 

such county. The motion shall be made at least fifteen 

days prior to trial, unless, for good cause shown, it 

may be made thereafter. 

It (b) The motion shall be in writing and supported 

by affidavit which shall state facts showing the 

nature of the prejudice alleged. The defendant or 

the state may file counter-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 fair trial cannot be had it shall transfer the cause to any other court of competent jurisdiction in any county where a fair trial may be had." 

From the context of these two sections it is clear that 

both sections refer to district court 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 court judge", 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 to perform judicial 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 think not. 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. 

As we have heretofore shown, an adequate, speedy remedy 

at law is provided by the right to a trial de novo under section 

95-2009, R.C.M. 1947. Thus a new judge is had in any event. Also, 

significantly the legislature has not provided for other justices 

of the peace to be called in. Many counties and townships have 

only one justice of the peace. No provision anywhere in the 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" to include justice of the peace. Rather, 

it requires that it not be included since other adequate and 

prompt methods for protecting the right of a defendant to justice 

at.eprovided, as heretofore 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 for remand to the justice court of Billings 

Township for trial of the complaint therein pending.