specially concurring:
I concur in the majority opinion. While the statutory procedure set forth in § 3-10-231, MCA, was not even minimally followed in this case, I also suggest that portions of the statute make it difficult for a substitute judge to qualify and for local law enforcement and the public to determine whether a substitute judge is properly qualified to perform judicial functions.
Section 3-10-231(2), MCA, provides that “[t]he county commissioners shall administer the oath of office to each person on [the substitute judge] list.” In addition to being unwieldy, it is not likely that all three county commissioners are going to administer the oath of office to the substitute judges on the list; yet, that is what the statute seemingly requires. Moreover, that requirement is in conflict with § 7-5-2121, MCA, which provides that any member of the board of county com*395missioners may administer oaths. Additionally, § 2-16-211, MCA, provides that the oath of judicial officers may be taken before any officer authorized to administer oaths. See, § 1-6-101, MCA. Accordingly, the statute should be amended to simply require that the oath of office for substitute judges be taken before any member of the board of county commissioners or before any officer authorized to administer oaths.
Finally, there is nothing in the statutory scheme enacted by the legislature that requires any “paper trail” at the local level when the sitting judge calls in a substitute. That necessitates, as here, the local law enforcement authorities and perhaps court personnel or other interested persons either presuming that the person who is called in is a qualified substitute judge, or, alternatively, having to seek verification from the Office of the Court Administrator of the Supreme Court in Helena. Neither approach is satisfactory, especially when a search warrant is being sought over a weekend, on a holiday, after business hours or under exigent circumstances.
Section 3-10-231, MCA, should be amended to require that the substitute judges subscribe a written oath of office in conformity with the provisions of Article III, Section 3, of the Montana Constitution and § 2-16-211, MCA, and that the written oath be then filed in the office of the county clerk in accordance with § 3-10-202, MCA, along with the sitting judge’s list of qualified substitute judges and the Commission’s written approval and waiver of training for those substitutes. I also submit that the statute be amended to require updated and current copies of the list of qualified and sworn substitute judges be provided from time to time to local law enforcement by the county clerk.
Given the extreme consequences of an unqualified substitute judge attempting to act in a judicial capacity, as our opinion here clearly indicates, I urge the next session of the legislature to give serious consideration to the above proposed statutory amendments. The next unlawful search warrant might be issued for the crucial evidence in a homicide case.
JUSTICE NELSON, author of the majority opinion, also joins in the special concurring opinion.