No. 83-400 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel., DAVID 

GARY WELCH, 

Petitioner, 

DISTRICT COURT OF THE SEVENTH JUDICIAL 

DISTRICT, IN AND FOR THE COUNTY OF 

RICHLAND, THE HONORABLE R. C. 

McDONOUGH, Judge presiding. 

Respondent. 

ORIGINAL PROCEEDING : 

COUNSEL OF RECORD: 

For Petitioner: 

Robert L. Johnson argued, Lewistown, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kin Kradolfer argued, Asst. Atty. General, Helena 

Victor G. Koch, County Attorney, Sidney, Montana 

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Submitted: November 28, 1983 

Decided: May 1, 1984 

Filed: "384 

- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an original proceeding brought by the 

defendant seeking an order disqualifying the respondent 

Judge from sitting on the case in respondent District Court. 

Respondent Judge has challenged the constitutionality of 

Section 19-5-103, MCA, upon which relator relied in bringing 

this application for a writ of mandate. 

Donald Morrison filed a personal injury action against 

relator Welch in the respondent District Court on August 12, 

1980. At that time Morrison was represented by McDonough, 

Cox and Simonton, of Glendive, Montana, and is still 

represented by that firm. In 1982, Russell McDonough of 

that firm was elected Judge of respondent District Court and 

took office the first of January, 1983. Deeming himself 

disqualified, Judge McDonough requested the Chief Justice of 

the Montana Supreme Court to appoint retired Judge Robert C. 

Sykes to hear the case, pursuant to Article VIII, Section 

6(3), Constitution of the State of Montana. On January 25, 

1983, the Chief Justice issued an order by which the 

Judge Sykes was assigned to hear relator's and several other 

cases in the respondent District Court. Judge Sykes is a 

retired Judge, having been defeated in the primary election 

for District Judge of the Eleventh Judicial District in the 

Spring of 1982. Judge Sykes accepted jurisdicition on April 

28, 1983. 

Relator objected to this action and requested Judge 

McDonough disqualify himself and call in another active duly 

elected and sitting District Court Judge to replace him. 

Relator's motion was based on Section 19-5-103, MCA, which 
allows retired District Court Judges to assist sitting 

District Court Judges, but allows them only to, 'I [Plerform 

any and all duties preliminary to the final desposition of 

cases insofar as not inconsistent with the constitution of 

the state." Relator thus theorized that since the retired 

judge could only handle preliminary matters, the sitting 

District Court Judge retained jurisdiction over the case and 

the power to make any final determination, which Judge 

McDonough could not do because of the conflict of interest. 

Judge McDonough refused the request reasoning that 

Judge Sykes had assumed full jurisdiction including the 

power to make any final determination, thus it was 

unnecessary to disqualify himself. Thereafter relator 

brought this application for a writ of mandate directing 

Judge McDonough to disqualify himself and call in another 

duly elected and sitting District Court Judge to assume 

jurisdiction. 

Two issues are raised by the parties: 

(1) Does a retired District Court Judge assigned by 

the Chief Justice to sit for a duly elected District Court 

Judge have full jurisdiction over a case tried before him, 

or are his actions subject to review by the elected District 

Court Judge under Section 19-5-103, MCA. 

(2) Is so much of Section 19-5-103, MCA as purports to 

limit the power of retired District Court Judges to decide 

cases unconstitutional? 

We hold that an opinion released by this Court 

on March 9, 1984, State ex re1 Wilcox v. The District Court 

of the Thirteenth Judicial District (Mont. 1984), P.2d 

, 41 St.Rep. 397, establishes the powers of a retired 
District Court Judge called to service, and answers both 

issues. 

In this case, as previously noted, Judge Sykes was 

assigned by the Chief Justice for temporary service on a 

request initiated by the district judge. In Wilcox, supra, 

we held that the jurisdiction of such a judge is defined as 

follows : 

"Accordingly, the retired judges have the 

complete jurisdiction of the district 

court 'in all criminal cases amounting to 

felony and all civil matters and cases at 

law or in equity,' Article VII, section 

4, Mont.Const., includinq - final 

dispositions." P.2d at I 41 

St.Rep. at 403. 

As pointed out in Wilcox, Section 19-5-103, MCA, 

applies only where a retired district judge is called 

pursuant to the procedures set forth in that section. 

Because 19-5-103. MCA, was not used in the present case, it 

is not applicable. Not being involved here we are not 

called upon to answer that question. 

Relator also argues that under the provisions of 

Section 3-5-201, MCA, "Judges of the district court must be 

elected. " Such a provision in our statutes does not 

overcome the constitutional power given the Chief Justice as 

noted in Wilcox. 

We find that under Wilcox, supra, Judge Sykes is a 

member of the "pool" of retired judges and can be called in 

to preside by the Chief Justice under the provisions of 

Article VIII, Section 6. 

Judge Sykes has jurisdiction in this matter. Judge 

McDonough because of the acknowledged conflict of interest, 

properly relinquished jurisdiction and requested the Chief 

Justice to temporarily assign a judge in his place. 
The writ of mandate is denied. 

We concur: 

3r&Js.P/- 4 

Chief Justice 

/ 

Justices 
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as 

follows: 

I have no objection to Judge Sykes being treated in the 

same manner as other retired district judges. My only 

dissent is on the basis I articulated in the dissent to 

majority opinion styled State ex rel. Wilcox v. District 

!nt is reado~ted here. 
Mr. Justice Daniel J. Shea, dissenting: 

I a.gredwith Justice Morrison in his dissent, and I also 

wrote a short dissent in the case of State ex rel. Wilcox v. 

District Court (Mont. 19841, P.2d , 41 St.Rep. 397. 

I adhere to those views today. 

The majority position seems even more ludicrous when our 

constitution is interpreted to mean that a judse who is 

defeated in office can keep on deciding cases as long as an 

active district judge makes a complaint to the Chief Justice 

that his heavy workload requires that a judge be called in to 

help him. 

I do not believe that the drafters of our Constitution 

ever dreamed that a former district judge, former because he 

has been defeated in office, would nonetheless still continue 

to decide cases after his term for which he was elected hs 

expired.