### No. 80-191 IN 

### THE SUPREME COURT OF THE STATEOF 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,Judgepresiding. Counsel of Record: ForAppellant: Larry

### W. Moran, Bozeman,Montana Marchiondo & 

### Berry, Albuquerque,New Mexico Charles Berry argued, Albuquerque,NewMexico For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Mark Murphy argued,Assistant Attorney General,

Helena,Montana Donald White, CountyAttorney, argued, Bozeman, Montana

Submitted: January 16, 1981 Decided: 

## FEB

## 111981Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant Norman Duncan appeals a denial of postconviction relief by a GallatinCounty DistrictCourt. 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 thisCourt on April 19, 1979, inStatev. 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 tosection46-21-101, MCA. On June 18, 1979, Duncan petitioned for a new judge on the stated ground that the "interest of justice with respect topost-conviction matters, and procedural due processwould 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 fairhearing on his post-conviction relief petition from Judge Shanstrom. On September 28, 1979, Judge Lessley requested that the Honorable Gordon Bennett assume limited jurisdiction tohear the disqualification issue. Judge Bennett held
a hearing on the question and determined that there existed
no actual prejudice on thepart of Judge Shanstrom. In his memorandum, Judge Bennett determined that, contrarytoJudge 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 Shanstromdenied 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 inapplicable part: "Any judge, or justice of the peace must not sit or act inany actionor proceeding:

"6. When he has been disqualified for cause ashereinafter described: "Whenever a party toany proceeding in any court makes and filesa timely and sufficient affidavit that ajudge or justice of thepeace, before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverseparty, suchjudge orjustice of thepeace shallproceedno further therein, but another

p- 

### -- ------- judge

### -- or3ustice 

### ------- of thepeace shallbe assigned tohear such 

### disqualification~roceedin~ 

### --- ----- 

### - by --

the chief justice of theSupreme 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 thatbias or prejudice exists, and shall be filed not less than 20 days before the original date of tria.1, or good cause shallbe shown for failuretofileitwithin such time. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." We strictlyinterpretthisrule and find 

### itsprovisions to be plain and unambiguous. Judge Lessley was completely without authority toplace this cause under Judge Bennett's jurisdiction. The power to assign a districtjudge tohear
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 thepart of Judge Shanstromwas filed. Atthat point, the case came under the singular authority and jurisdiction of thisCourt. Weremand totheDistrictCourt for proceedings consistentwith thisopinion.

### We 

### concur: 

### 34-4

# $,a&~ Chief Justice