Matter of Rules on Disqualification

IN THE SUPREME COURT OF THE STATE OF MONTANA RE: RULES OF THE SUPREME COURT: O R D E R CLERK OF SUFRfWIC CC>uRr PER CURIAM: STATE 4 C MONTANA Pursuant to the power placed in this Court by Article VII, Section 2, of the Constitution of the State of Montana, the Court has undertaken a study with reference to the disqualification and substitution of judges. The Court now adopts the following rule: DISQUALIFICATION AND SUBSTITUTION OF JUDGES Any judge, or justice of the peace must not sit or act in any action or proceeding: 1. To which he is a party, or in which he is interested; 2. When he is related to either party by con- sanguinity or affinity within the sixth degree, computed according to the rules of law; 3. When he has been attorney or counsel for either party in the action or proceeding, or when he rendered or made the judgment, order or decision appealed from; 4. In a district. court, when a motion for a substitution of a judge had been filed. In a civil case, each adverse party is entitled to two substitutions of a judge. In a criminal case, the state and each defendant is entitled to one substitution of a judge. A motion for substitution of a judge shall be made by fili-ng a written motion for substitution reading as follows: "The undersigned hereby moves for substitution of another judge for Judge in this sXlaLI be sl:dpl.eil to tile acceptance of j i x r i s d i c t i o n , so served, in said file, 5. In a justice'ss,police or municipal court, wihen aitilor party makc..; arid f i l e s ax affridavii- that he cannot have a fair and inipart;ial trizil. before such jus.i-ice, pol.ice or municipal. court judge by reason o f the interest, prejudice or bia:; o f the t i , puliicc or' r u i i i a . nti:pl court judge, Each adverse party i s entitled to f i l e one such disqualification in a civil ar criminal case,, Ci(J?en such a i.li.syua1if~~i.1!g i c i a ~ i . i k ,is :fj.ic:d, afE against a ji~:;ti.ee of the peace, the jus,Li.ce s; named shall. c have nc; Furt:Lher power to act in tlse case, ol.hc:r tlraii 1: u c a l l in ailother justice from the same county, or fr~:~i-i an a ( 3 , j o i n i n g county if there i ; mu otlrcr jusl-i.ceavaC.1~ii:iSe i in the same county, t o hear the ease, When suclr a di.sqi.~a:LiEying affidavit i s filc,ti a q a i n s t a pol.ic:c~. juiitjc:: he siiali have no further power to act in the case except to call in a justice of the peace or qua:li:fiedresident- to act in his stead as prnscri.bed in s e c t i o n L1-""1604 RCM 1947, When such a di.sqi,~a$, i.fy.ing cif fidovi.t is fil.ed against a judge of a inurxiei.pal. court, i~csl-raLT have no f u r t h e r power to a c t in the case except tc call in an a t t o r n e y to act irz hjs stead as prr?seri.l?ed i n seet.i.cin .lL-.L'713 RCM 1947, 6, When le hiis been disc~ual,ifi.ed i for cause as hereinafter described : Whenever a party to any proceedinq in any Court makes and files a .ti.mel.yrid sufficient affidavit a that a j1.1dge or justice o f tkici pciaee, before c?lion the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, suc:h j u d g e or justice of the peace shall proceed no further therein, but another judge or justice of the peace shall be assigned to hear such disqualification proceeding 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 twenty days before the oriqinal date of trial, 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. 7. When a new trial is ordered in any case, whether by order of the district court or the Supreme Court, each adverse party shall be entitled to file one motion for sub- stitution of a judge in the manner provided in paragraph 4, whether or not that party has previously filed notions for substitution of a judge. Such motions must be filed: a. If the new trial has been ordered by the district court, within 10 days after the time for appealing the order has elapsed. b. If the new trial has been ordered by the Supreme Court, within 10 days after notice of receipt of the remittitur has been received by the respective parties from the clerk of the district court. 8. The provisions of this rule shall not apply to any person in any cause involving a contempt of court. 9. This rule supersedes and is to be used to the ex- clusion of sections 93-901, 93-2906(4), 93-2907, 93-6602(2), 95-1709, and 95-2010, R.C.M. 1947. This rule shall be effective on March 1, 1977, it to appiy to all actrons filed on or after that date. In order that members of the hench and bar may have an o p p o r t t i n i t y to familiarize tiien1se2ves w i t h tile rule I T IS 0IIDERI:D th%t a copy of t h i s order be fr>rwirrdc:d by mail to al.1 inenrbers o f the bench and bar DATED t h i s w7 "-A"- day o f l>c?cember, 1976,