IN THE SUPREME COURT OF THE STATE OF MONTANA

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IN RE REVISED RULES ON )

) O R D E R

SUBSTITUTION OF DISTRICT JUDGES )

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Pursuant to the power placed in this Court by Article VII, Section 2 of the

Montana Constitution, the Court has established rules for the substitution of district

judges, which are now codified at § 3-1-804, MCA. The Court last revised the rules in

1995.

The Court has now prepared proposed revised rules for substitution of district

judges. The primary purpose of the revised rules is to make the rules easier to read and

understand. In addition, the revised rules restate the times within which a motion for

substitution must be filed in both civil and criminal cases. The Court also is considering

eliminating the right to substitute a district judge when a new trial has been ordered by

the district court. That provision is set forth as subsection (11) of the attached proposed

revised rules.

IT IS NOW ORDERED that this Court will accept written public comments on the

attached proposed revised rules for substitution of district judges. Each person

submitting comments shall file an original and 7 copies of his or her comments with the

Clerk of this Court on or before 5:00 p.m. on June 22, 2009.

IT IS FURTHER ORDERED that copies of this Order with the attached proposed

revised rules be electronically published on the State Bar of Montana website,

http://www.montanabar.org, and on the website for the Judicial Branch,

http://www.courts.mt.gov.

IT IS FURTHER ORDERED that the Clerk shall serve this Order with the

attached proposed revised rules on each district judge of the State of Montana, the

Montana Trial Lawyers Association, the Montana Association of Criminal Defense

Lawyers, the Office of Public Defender, the Montana County Attorneys’ Association, the

May 22 2009
Montana Association of Criminal Defense Lawyers, the Code Commissioner and

Director of Legal Services for the Montana Legislative Services Division, and the

President of the State Bar of Montana.

DATED this 22nd day of May, 2009.

For the Court,

By /S/ MIKE McGRATH
3-1-804. Substitution of district judges.

SUBSTITUTION OF DISTRICT JUDGES

This section applies to judges presiding in district courts. It does not apply to any

judge sitting as a water court judge or to a workers' compensation court judge.

(1) Each adverse party is entitled to one substitution of a district judge.

(a) In a civil action, a motion for substitution by the party filing the action must be

filed within 30 calendar days after the district judge is assigned. A motion for

substitution by the party served must be filed within 30 calendar days after service has

been made.

(b) In a criminal action, a motion for substitution by the prosecution must be filed

within 10 calendar days after the district judge is assigned. A motion for substitution by

the defendant must be filed within 10 calendar days after the defendant makes an initial

appearance in the district court.

(2) (a) When an initial pleading is filed, the clerk of court shall stamp the name of

the district judge to whom the case is assigned on the face of the original and all copies of

that document.

(b) A motion for substitution of a district judge shall be made by filing a written

motion with the clerk, as follows:

The undersigned hereby moves for substitution of District Judge _______

in this case.

The moving party shall serve copies of the motion for substitution upon all other parties

to the proceeding. The clerk shall immediately notify the district judge of the motion

and, if there has already been a substitution, the first district judge to whom the case was

assigned.

(3) In civil cases, the motion for substitution shall not be effective for any purpose

unless the filing fee for a motion for substitution required by 25-1-201 is paid to the clerk

of the district court. No filing fee is required in criminal cases.
(4) Any motion for substitution which is not timely filed is void. The district

judge for whom substitution is sought shall have jurisdiction to determine timeliness, and

if the motion for substitution is untimely, shall make an order declaring the motion void.

(5) After a timely motion has been filed, the substituted district judge shall have

no power to act on the merits of the case or to decide legal issues in the case, except as

provided in subsection (10) below.

(6) The first district judge who has been substituted or disqualified for cause shall

have the duty of calling in all subsequent district judges. In a multi-judge district, all

other district judges in that district shall be called before a district judge from another

district is called.

(7) When a new district judge has accepted jurisdiction, the clerk of court shall

provide a copy of the assumption of jurisdiction to the first district judge to whom the

case was assigned and to each attorney or party of record. A certificate of service shall be

attached to the assumption of jurisdiction form in the court file.

(8) If the presiding judge in any action removes himself or herself, or if a new

district judge assumes jurisdiction in any action, the right to move for substitution of a

district judge is reinstated, except as to parties who have previously obtained a

substitution. The time periods shall run anew from the date of service of notice or other

document identifying the new district judge.

(9) After the time has run as to the original parties to the proceeding, no party

who is joined or intervenes shall have any right of substitution, except as provided herein.

A third party defendant, who is not an original party in the case, may have a right of one

substitution. That motion must be filed within 30 calendar days after the service upon the

third party defendant of a third party complaint.

(10) A district judge who has previously been substituted from the case may agree

to set the calendar, draw a jury, conduct all routine matters including arraignments,

preliminary pretrial conferences in civil cases, and other matters which do not go to the

merits of the case, if the district judge in jurisdiction authorizes the same.
(11) When a new trial is ordered by the district court, each adverse party shall be

entitled to one motion for substitution of district judge. Such motion must be filed, with

the required filing fee, within 20 calendar days after the district court has ordered a new

trial.

(12) When a judgment or order is reversed or modified on appeal and the cause

is remanded to the district court for a new trial, or when a summary judgment or

judgment of dismissal is reversed and the cause remanded, each adverse party shall be

entitled to one motion for substitution of district judge. Such motion must be filed, with

the required filing fee, within 20 calendar days after the remittitur from the supreme court

has been filed with the district court. No other right of substitution shall arise in cases

remanded by the supreme court.

In criminal cases, no right of substitution shall arise when the cause is remanded

for resentencing.