No. 01-781 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 113 

REBECCA E. MATTSON, et al., 

Plaintiffs and Respondents, 

v. 

MONTANA POWER COMPANY, a Montana 

Corporation, and PPL MONTANA, LLC, a Delaware 

Limited Liability Company, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted O. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Sean M. Morris, Worden, Thane & Haines, P.C., Missoula, Montana 

Thomas R. Meites, Meites, Mulder, Burger & Mollica, Chicago, Illinois 

For Respondents: 

Edward Janecek, III, Christian, Samson & Jones, P.C., Missoula, Montana 

Submitted on Briefs: February 28, 2002 

 Decided: May 30, 2002 

 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 Plaintiffs, Rebecca E. Mattson, et al., filed a complaint 

against the Defendant, Montana Power Company, and subsequently 

joined PPL Montana, LLC, as a Defendant in the District Court for 

the Eleventh Judicial District in Flathead County. The complaint 

and amended complaint alleged, in part, that Defendants’ management 

and operation of the Kerr Dam damaged the Plaintiffs’ real 

property. After it was joined as a Defendant, PPL filed a motion 

to substitute the District Court Judge. The District Court denied 

the motion and PPL appeals. We affirm the order of the District 

Court. 

¶2 We address the following issues on appeal: 

¶3 1. Does § 3-1-804(1)(c), MCA, preclude a joined party from 

substituting a district court judge, without cause, after the time 

period for the original parties to substitute has expired? 

¶4 2. If a subsequently joined defendant does not have the right 

to substitute the district court judge, without cause, does § 3-1-

804(1)(c), MCA, violate that defendant’s right to substantive due 

process? 

FACTUAL BACKGROUND 

¶5 On November 8, 1999, Plaintiffs filed a complaint against 

Montana Power Company (MPC) which alleged that MPC’s management and 

operation of the Kerr Dam, located approximately five miles south 

of the southwestern shore of Flathead Lake, damaged Plaintiffs’ 

lake and riverfront real property. Subsequently, MPC conveyed its 

interest in the Kerr Dam to PPL Montana, LLC. Therefore, on 
3 

November 9, 2000, Plaintiffs filed a motion for leave to join PPL 

as an additional party Defendant. On March 26, 2001, having 

received no objection, the District Court granted Plaintiffs’ 

motion. Thereafter, Plaintiffs filed an amended complaint which 

named PPL as an additional Defendant and on April 3, 2001, served 

PPL with the complaint and summons. 

¶6 On May 3, 2001, PPL filed a motion to substitute the District 

Court Judge pursuant to § 3-1-804, MCA, which permits substitution 

without cause at certain stages in the proceedings. Plaintiffs 

filed an objection to PPL’s motion on May 7, 2001, on the grounds 

that PPL “was joined in this action as a Party Defendant, . . . not 

[as] a Third Party Defendant,” and that pursuant to § 3-1-

804(1)(c), MCA, the time period for an “original party” to request 

a substitution of the District Court Judge had expired long before 

PPL filed its motion. On August 29, 2001, following a hearing, the 

District Court denied PPL’s motion to substitute and certified the 

order as final pursuant to Rule 54, M.R.Civ.P. PPL appeals the 

order of the District Court which denied its motion for 

substitution. 

STANDARD OF REVIEW 

¶7 Whether a motion to substitute a district court judge is 

timely pursuant to § 3-1-804(1)(c), MCA, presents a question of 

law. In re Marriage of Archibald, 1999 MT 258, ¶ 4, 297 Mont. 20, 

¶ 4, 993 P.2d 653, ¶ 4. Whether § 3-1-804(1)(c), MCA, violates 

substantive due process presents a question of constitutional law. 

 We review a district court’s conclusions of law to determine 
4 

whether they are correct. Carbon County v. Union Reserve Coal Co. 

(1995), 271 Mont. 459, 469, 898 P.2d 680, 686. 
5 

DISCUSSION 

ISSUE 1 

¶8 Does § 3-1-804(1)(c), MCA, preclude a joined party from 

substituting a district court judge, without cause, after the time 

period for the original parties to substitute has expired? 

¶9 PPL cites Challinor v. Glacier Nat’l Bank (1994), 266 Mont. 

396, 399, 880 P.2d 1327, 1328, for the proposition that Montana law 

entitles each adverse party in a civil or criminal case to one 

substitution of a district court judge. PPL also argues that § 3-

1-804(1)(c), MCA, allows a party named in a summons to move for 

substitution of the district court judge within thirty days of the 

date on which it is served with that summons. PPL contends that 

the statutory exclusion from the right of substitution pertains 

only to voluntary intervenors. PPL insists that it did not enter 

the litigation voluntarily, it was subsequently named in and served 

with a summons, and it filed a motion to substitute within thirty 

days of receiving such service. Accordingly, PPL requests that we 

reverse the District Court’s order. 

¶10 A court’s function, when construing a statute, is to ascertain 

what it provides, “not to insert what has been omitted or to omit 

what has been inserted.” Section 1-2-101, MCA. Further, statutory 

language must be construed according to its plain meaning and, if 

the language is clear and unambiguous, no further interpretation is 

required. Infinity Ins. Co. v. Dodson, 2000 MT 287, ¶ 46, 302 

Mont. 209, ¶ 46, 14 P.3d 487, ¶ 46. Finally, we must endeavor to 

avoid any statutory construction that renders any sections of the 
6 

statute superfluous and does not give effect to all of the words 

used. State v. Berger (1993), 259 Mont. 364, 367, 856 P.2d 552, 

554. 

¶11 Section 3-1-804, MCA, pertaining to the substitution of 

district court judges, provides as follows: 

1. A motion for substitution of a district judge 

may be made by any party to a proceeding only in the 

manner set forth herein. In a civil or criminal case, 

each adverse party, including the state, is entitled to 

one substitution of a district judge. 

. . . . 

(c) When a judge is assigned to a cause for 30 

consecutive days after service of a summons, or 10 

consecutive days after service of an order to show cause, 

information or other initiating document, and no motion 

for substitution of judge has been filed within said time 

period, the plaintiff or the party filing the order, 

information or other initiating document, and the party 

upon whom service has been made shall no longer have a 

right of substitution. Any party named in a summons who 

is subsequently served shall have 30 consecutive days 

after such service in which to move for a substitution of 

judge. . . . After the time period shall have run as to 

the original parties to the proceeding, no party who is 

joined or intervenes thereafter shall have any right of 

substitution, except that one third party defendant who 

is not an original party in any pending case may have a 

right of one substitution within 30 consecutive days 

after the service upon the third party defendant of a 

third party complaint. 

¶12 Each party relies on a different provision in § 3-1-804(1)(c), 

MCA. PPL relies on the provision that “[a]ny party named in a 

summons who is subsequently served shall have 30 consecutive days 

after such service in which to move for a substitution of judge.” 

Conversely, Plaintiffs contend that PPL did not file a timely 

motion because “[a]fter the time period shall have run as to the 

original parties to the proceeding, no party who is joined or 
7 

intervenes thereafter shall have any right of substitution . . . .” 

 It is undisputed that PPL was not an original party and that the 

time had run for the original parties by the time PPL moved to 

substitute. 

¶13 If read separately, the provisions are arguably inconsistent. 

 However, when read together their meaning is clear. We cannot 

apply them separately but must arrive at a statutory construction 

which “gives effect to all of the words used.” When considered in 

its entirety, § 3-1-804(1)(c), MCA, clearly provides that parties 

originally named in a summons have thirty days, following service, 

within which to file a motion for substitution, but that after the 

time has expired for the original parties to do so, no parties who 

were not originally named in the summons may move to substitute. 

Although this issue was not presented by either case, to the extent 

that language in Challinor and Taylor v. Matejovsky (1993), 261 

Mont. 514, 863 P.2d 1022, infers that “each” adverse party in a 

civil case is entitled to one substitution of a district court 

judge, without cause, we hereby clarify and limit those statements 

by our holding in this case. 

¶14 Accordingly, § 3-1-804(1)(c), MCA, effectively affords an 

original party thirty days, from the service of summons, to move 

for substitution of the district judge. Once the time expires for 

the original parties to move for substitution, subsequently joined 

parties may not do so. Section 3-1-804(1)(c), MCA, does reserve 

the right of third party defendants to file a motion for 
8 

substitution following expiration of the original parties’ time. 

However, that provision is not before us. 

¶15 Because PPL is a subsequently joined party to the action and 

the time for the original parties to file a motion for 

substitution, without cause, had expired, we hold that § 3-1-

804(1)(c), MCA, precluded PPL from moving to substitute the 

District Court Judge and, therefore, affirm the court's denial of 

its motion to do so. 

ISSUE 2 

¶16 If a subsequently joined defendant does not have the right to 

substitute the district court judge, without cause, does § 3-1-

804(1)(c), MCA, violate that defendant’s right to substantive due 

process? 

¶17 PPL contends that if § 3-1-804(1)(c), MCA, precludes it from 

filing a motion to substitute, then § 3-1-804(1)(c), MCA, 

unreasonably and arbitrarily “creates two classes of parties, those 

that have the right to substitute the District Court Judge and 

those that do not.” For that reason, PPL maintains that 

§ 3-1-804(1)(c), MCA, violates its right to substantive due 

process. 

¶18 In Newville v. State, Dept. of Family Services (1994), 267 

Mont. 237, 249, 883 P.2d 793, 800, this Court stated: 

The theory underlying substantive due process 

reaffirms the fundamental concept that the due process 

clause contains a substantive component which bars 

arbitrary governmental actions regardless of the 

procedures used to implement them, and serves as a check 

on oppressive governmental action. Even though a 

plaintiff may have no property or liberty interest 

grounded in state law which is protected from arbitrary 
9 

government action, such action still may be subject to 

review under substantive due process. Substantive due 

process primarily examines the underlying substantive 

rights and remedies to determine whether restrictions . . 

. are unreasonable or arbitrary when balanced against the 

purpose of the legislature in enacting the statute. 

¶19 Since the State cannot use its power to take unreasonable, 

arbitrary or capricious action against an individual, a statute 

enacted by the Legislature (or in this case, by this Court) must be 

reasonably related to a permissible governmental objective in order 

to satisfy guarantees of substantive due process. Powell v. State 

Compensation Ins. Fund, 2000 MT 321, ¶ 29, 302 Mont. 518, ¶ 29, 15 

P.3d 877, ¶ 29. 

¶20 Pursuant to the power conferred on this Court by Article VII, 

Section 2, of the Montana Constitution, this Court adopted § 3-1-

804(1)(c), MCA, in its current form, with a declared effective date 

of June 1, 1995. The rule seeks to promote judicial economy and 

expediency by demanding the prompt substitution of a district court 

judge when a party requests such removal, without cause. See 

Challinor, 266 Mont. at 402, 880 P.2d at 1331 (Weber, J., 

dissenting). Certainly, it is within this Court’s supervisory 

responsibility to fashion such a rule. Further, as Article II, 

Section 16, of the Montana Constitution affords every Montanan a 

“speedy remedy . . . for every injury of person, property, or 

character,” the rule is designed to implement a permissible 

judicial objective. We must determine whether the rule is 

reasonably related to its objective. 

¶21 Section 3-1-804(1)(c), MCA, does distinguish between three 

classes of parties– original parties, subsequently joined parties 
10 

and intervenors, and third party defendants. PPL argues that there 

exists no rational basis for treating the three classes of parties 

differently for purposes of substituting a district court judge, 

without cause. We conclude that there not only is a rational basis 

for doing so but that responsible judicial administration requires 

doing so. 

¶22 Consideration of the reasons for distinguishing among various 

parties’ right to substitute must begin with consideration of the 

stage at which they join the proceedings. During the time period 

afforded the original parties, the judge has presided over the case 

for very little time and, in all likelihood, has not issued a 

ruling on any substantial matter in the case. Therefore, the 

probability of duplicating judicial efforts is slight when 

substituting the district court judge within the time period 

prescribed for original parties. 

¶23 Conversely, subsequently joined parties and intervenors often 

appear at a much later stage in the proceedings. To allow a joined 

or substituted defendant to remove the presiding judge, without 

cause, after the judge has presided over the case for what could be 

a substantial period would disrupt the continuity of the 

litigation, precipitate delay, cause duplication of effort, and 

waste time and expense. Further, extending the disqualification 

process would provide little corresponding benefit. In theory, a 

subsequently joined or substituted party shares a commonality of 

interest with at least one of the original parties. See generally 

Goldman Sachs Group, Inc., v. Montana Second Judicial Dist., 2002 
11 

MT 83, 309 Mont. 287, ___ P.3d ___. For example, in this case, MPC 

presumably had the same interest in substitution as PPL and was 

provided with that opportunity. If, on the other hand, PPL or a 

subsequently joined party alleges specific prejudice, it may move 

for substitution, for cause, pursuant to § 3-1-805, MCA. 

¶24 While third party defendants likewise enter the litigation at 

a later time, they lack the commonality of interest associated with 

substituted or joined parties. Third party defendants often enter 

the litigation in a position adverse to all of the other parties 

involved. There is less reason to assume that their interests in 

substitution have been previously considered. Consequently, § 3-1-

804(1)(c), MCA, allows a third party defendant thirty days 

following service of a third party complaint to move for 

substitution of a district court judge without cause. 

¶25 Given all of the foregoing considerations, it was necessary 

for this Court to fashion a rule to conserve resources and expedite 

the litigation process, while simultaneously preserving a potential 

litigant’s interest in removing a judge without cause. Fashioning 

such a rule while balancing all potential interests is not an easy 

task, and while § 3-1-804(1)(c), MCA, may from time to time be less 

than perfect in its application, we conclude that it is not 

arbitrary or capricious and is “reasonably related to a permissible 

[judicial] objective.” Accordingly, we conclude that the District 

Court did not err when it denied PPL’s motion to substitute without 

cause. 

¶26 The order of the District Court is affirmed. 
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/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ W. WILLIAM LEAPHART 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE