No. 80-191 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

NORMAN B. DUNCAN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Larry W. Moran, Bozeman, Montana 

Marchiondo & Berry, Albuquerque, New Mexico 

Charles Berry argued, Albuquerque, New Mexico 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy argued, Assistant Attorney General, 

Helena, Montana 

Donald White, County Attorney, argued, Bozeman, Montana 

Submitted: January 16, 1981 

Decided: FEB 11 1981 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Defendant Norman Duncan appeals a denial of postconviction relief by a Gallatin County District Court. 

Norman Duncan was convicted of deceptive practices and 

the sale of unregistered securities in Gallatin County 

District Court, for which he received sentences of five 

years and three years respectively. His conviction was 

affirmed by this Court on April 19, 1979, in State v. Duncan 

(1979) I Mont . , 593 P.2d 1026, 36 St.Rep. 748. On 

May 23, 1979, Duncan moved for continuance of bail and the 

matter was set for hearing on May 29, 1979, before the 

Honorable Jack D. Shanstrom. At that hearing, defendant 

submitted his written petition for post-conviction relief 

pursuant to section 46-21-101, MCA. 

On June 18, 1979, Duncan petitioned for a new judge on 

the stated ground that the "interest of justice with respect 

to post-conviction matters, and procedural due process would 

indicate appointment of a judge to hear such matters other 

than the trial judge whose decision is involved." No 

affidavit was offered by defendant representing that Judge 

Shanstrom, or the Honorable W. W. Lessley, also challenged, 

had any personal bias or prejudice against defendant. In 

August, the Honorable Nat Allen assumed jurisdiction of the 

case but withdrew his acceptance one week later on the 

ground that the "cause was filed in 1976 and that Section 6 

of the new Disqualification Rules does not apply in causes 

filed prior to March 1, 1977." Judge Shanstrom reassumed 

jurisdiction. 

On August 31, 1979, defendant filed an affidavit 

concluding that he did not feel he could receive a fair 
hearing on his post-conviction relief petition from Judge 

Shanstrom. On September 28, 1979, Judge Lessley requested 

that the Honorable Gordon Bennett assume limited jurisdiction to hear the disqualification issue. Judge Bennett held 

a hearing on the question and determined that there existed 

no actual prejudice on the part of Judge Shanstrom. In his 

memorandum, Judge Bennett determined that, contrary to Judge 

Allen's position, a petition for post-conviction relief was 

a new civil action, independent of the original criminal 

cause. 

On February 13, 1980, Judge Shanstrom, who had reasserted jurisdiction, ordered that defendant's petition be 

set for hearing in his court. On February 26, Duncan filed 

a motion to set aside Judge Shanstrom's order and submitted 

a motion for substitution of a new judge pursuant to this 

Court's newly adopted rule on disqualification of judges. 

34 St.Rep. 26. Judge Shanstrom ruled against the defendant 

on both motions and heard the petition. After hearing, 

Judge Shanstrom denied Duncan's petition for post-conviction 

relief, and this appeal followed. 

Duncan raises nine issues for our review, only one of 

which will be discussed in this opinion. Defendant argues 

that it was error for Judge Shanstrom to hear his postconviction relief petition under our rules of disqua.lification and substitution of judges. We agree. 

Section 3-1-801, MCA, adopted by this Court under our 

rule-making authority, recites in applicable part: 

"Any judge, or justice of the peace must not sit 

or act in any action or proceeding: 

"6. When he has been disqualified for cause as 
hereinafter described: 

"Whenever a party to any proceeding in any court 

makes and files a timely and sufficient affidavit 

that a judge or justice of the peace, before whom 

the matter is pending has a personal bias or 

prejudice either against him or in favor of any 

adverse party, such judge or justice of the peace 

pshallproceed - no -- further therein, but another ------- 

judge -- or3ustice ------- of the peace shall be assigned 

to hear such disqualification~roceedin~ --- ----- - by -- the 

chief justice of the Supreme Court, or by a district judge, if the affidavit is against a justice of the peace, police or municipal court 

judge. The affidavit shall state the facts and 

the reasons for the belief that bias or prejudice 

exists, and shall be filed not less than 20 days 

before the original date of tria.1, or good cause 

shall be shown for failure to file it within such 

time. It shall be accompanied by a certificate 

of counsel of record stating that it is made in 

good faith." 

We strictly interpret this rule and find its provisions 

to be plain and unambiguous. Judge Lessley was completely 

without authority to place this cause under Judge Bennett's 

jurisdiction. The power to assign a district judge to hear 

a motion for disqualification is one solely granted to the 

Chief Justice of this Court. It is our opinion that no 

judge involved in this case had proper jurisdiction to 

proceed in this action once the affidavit alleging actual 

prejudice on the part of Judge Shanstrom was filed. At that 

point, the case came under the singular authority and 

jurisdiction of this Court. 

We remand to the District Court for proceedings consistent with this opinion. 
We concur: 

Chief 

34-4 

Justice $,a&~