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, INAND FOR THE COUNTY OF RICHLAND, THE HONORABLE R. C. McDONOUGH, Judge presiding. Respondent.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Petitioner: RobertL. Johnson argued, Lewistown, Montana
For Respondent: Hon. MikeGreely, AttorneyGeneral, Helena, Montana KinKradolfer argued, Asst. Atty. General, Helena VictorG. Koch, CountyAttorney, Sidney, Montana

- -- 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 respondentDistrict Court. Respondent Judge has challenged the constitutionality of Section 19-5-103,MCA, upon which relator relied in bringing this application for awrit of mandate. Donald Morrison filed apersonal 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 firmwas elected Judge of respondent District Court and took office the first of January, 1983. Deeming himself disqualified, Judge McDonough requested the Chief Justice of theMontana 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 Sykeswas 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 onApril 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 theparties:

(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 somuch 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 retiredDistrict 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 districtjudge. InWilcox, supra, we held that thejurisdiction of such a judge is defined as follows: "Accordingly, the retiredjudges have the complete jurisdiction of the district court 'in allcriminal casesamounting to felony and allcivilmatters and casesat law or inequity,' Article VII, section 4, Mont.Const., includinq final - dispositions." P.2d at I 41 St.Rep. at403. 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 toanswer thatquestion. Relator also argues that under the provisions of Section 3-5-201, MCA, "Judges of thedistrictcourtmust be elected.

### " Such a provision in our statutes does not
overcome the constitutional power given the Chief Justiceas noted inWilcox. 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 totemporarily assigna judge inhisplace.Thewritof mandate is denied.

We concur: 

# 3r&Js.P/- 

# 4 Chief Justice



# / Justices

### Mr. Justice Frank B. 

### Morrison, Jr. respectfully dissents as 

### follows: Ihave no objection to Judge Sykesbeing 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. JusticeDaniel J. Shea, dissenting:

I a.gredwithJusticeMorrison inhisdissent, and I also wrote a shortdissent inthe case of Stateex rel. Wilcox v. District Court (Mont. 19841, P.2d 

## , 41St.Rep. 397. I adheretothoseviews today. The majorityposition seems even more ludicrouswhen our constitution is interpreted to mean that a judse who is defeated in office can keep on deciding cases as long as an active districtjudge makes a complaint totheChief Justice that hisheavy workload requires thatajudge be called into helphim. I do not believe that the drafters of our Constitution
ever dreamed that a former districtjudge, former because he hasbeen defeated inoffice, would nonetheless stillcontinue to decide cases after his term for which he was elected

### hs expired.