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~ ? J B S T I ; C C T l ' ~ Q"~ JTJDGES
~
order dated June? 17, 1987, +chis C o u r t a d o p t e d 3et.j
Bg
rU L-s on the disquaLification a r ~ d substitt~cior,
I Fi of judges to
become effective September ! I j.987, w i t h a corm.entperiod to
be in effect until December 1, 1987, After further review of
t h e adopted rules, we Ceem it necessary to make certain
cltrifying amendments,
The Fnnorable Robert p4- t.:ol."-er, President of the bfontar~a
Judges kssockation, petitioned this Court to r e v i s e our rules
on the disqualification and substitution of judges. Pursuant
to the power placed in this Court b y Article VZI, Section 2,
of the I972 Mcntara Constitution, this C o u r t adopts the
followi~g rule effective as ofSeptember 1, 1487, with a
cnr?ne:li period to b e in effect ~ ~ r t i l
December 1., 1987,
IT I S THEREFORE ORDERED that the said order dated June
-i:, 1987, is hereby arne;.i?ed and by such amendment the full
-9
text of 'rho r u l e s on cJis~quaiificatcri and substiiruticr: o f
juEges is hereby adopted an6 reads as fallows:
~3-1-8g3. ~isquaiificatienof judges--all courts,]
This section shall, i n its application, apply
to ail courts.
m-;i justice, judge, or justice of he peace
must r o t sit rr act in any actioc or proceeSinq:
,
.
I To w h i c h he is a party, or i n which he is
I
,,terested;
i^
2. When he is rela.ted to either party by
consanguinity or affinity within the sixth degre
computed according to the rules of Law;
CLERK OF d$lPRWE t3m
B1
68
STATE OF WONTAHA
. ,
3 Wher k-e has been, attorney or c c u n s e ~ in
the action or proceeding fcr ar;- party or when he
rendered or made t h e judymert, order or 6~ ' '
;CISLG~
appealed from.
(3-1-804, Substitution of district judges.]
CUBSTITUT~ON
u
DISTRICT JUDGES
This section i s Pimite? in its application to
district courts and judges presiding therein.
I, A motion for substitution o f a district
judge nay he nade by any party to a proceeding only
i n the ~ a n ~ eset f o r t herein*
r In a civil or
criminal case, each adverse party, including the
state, is entitled to one sul?stitutior o f a cis-
trict judge.
(a) A motion f o r substitution c f a Zistri-t
judge shall be made by filing a written rnntfor with
the clerk, as follows:
The undersigned hereby moves far substitution
of District Judge in t h i s cause.
A copy of the notion shall be served upc- all
parties to the proceeding and the clerk shall
immediately notify the judge.
' -
After a t l m e i y
motion has been filed, the substituted judge shall
have ne power to act on the merits of the cause - and
shall call in another judge. However, a resiaent
district judge who has previously been substituted
from the case may agree to set the ca.lendar, draw a
jury, condiuct a l l routine matters including ar-
raignments, omnibus hearings in criminal casesi
preliminary pretrial conferences and other oatters
which dc not go to the merits of t h e case, if the
sitting jurge authorizes the same,
(b) The first district judge who has been
substit~ited or 2isqualified for cause shall h a v e
the d u t y of calling in all subsequent district
judges. It shail be the duty of the c l e r k of court
to stamp the name of the ;udge to which the case is
assigned on the face of the initial ?leading,
ccmplaint, crder to show cause, or i n f o r m a t h e and
ail copies thereof.
i i When a j d g e is assigned to a cause f o r
c
twenty (20) c o n s e c ~ ~ t k - : edays after s e r v i c e o f
sursSons,or ter; (10) days after service of an order
to show cause, infornation or other initiating
docuaent, and no motion for substitution of j u d g e
bas been filed within said time period, the riqht
to move f o r s u b s t i t u t i o n of a judge shall be Seemed
wa~ve2. ~f the presiding judge remcves . . nrmself,
"_e erin?ii: r;o mc1-e for substitution of a judge is
reinstated, unless having been previous* used, and -
the rime r;rri&s shall r u n anew. $.Eter the t i i c e
period shali have run as to the original parties to
?h proceeding, no party who i s 30in~iS or i ~ t e r -
:e
venes thereafter shall have any rLght 0
:
substitution,
i d ) The motion for substiteiti.on shall nct be
+.
effective for any purpose u n l e s s a rliing fee is
. - to
- ...,c
D3' c l e r k sf the ciistrict court i i l the
3
amount set by law, -1-
f i l i n g f e e i s v a x e . i in
;i?ic
criminal cases .&here the defendant has received a
court-appointed counsel or in civil cases where
there h a s been an affilzvit and order waiving
filing fees,
(e) &y motion for substitution which not
timely filed is void for all purposes. The judge
having jurisdiction shall, make an order decl,a~ri,n~
the motion void,
i f ) :i)len E; n e w ?.iiSge has accepted jurisdic-
tion, the clerk, of court shall mail a copy o"he
assumptiun of iurisdiction to the original judge
.
an6 t o each attorney or party of record. The
certiftcate of service shali be attached to the
assumption of jurisdictien form in the cocrt file.
( g ) When a n e w trial is or(iere6 in any case,
whether by order of the district court or the
supreme court, each adverse party shall be entitled
to cre aclditie~almotion for strbstituirion o f judge
in the manner provided herein. Such metier must be
filed, with the required filing fee, w i t h i n twenty
(2C) days after a new trial has been ordered by the
district court or after the remittitur has been
filed with the district c o c r t clerk* No right o f
further substitution shall arise in ceses remanded
by the supreme court w h i c h call far additional
hearicgs, but not a new trial.
This section i s limited in its application to
- ,
iudaes presiding in Eistrict courts, justice of the
peace courts, m.unicipal courts and small claims
courts.
1 Whene7;er a p a r p l to afiy proceeding in zny
court shall file an affidavit alleging facts show-
ing personal bias or prejiidice of "_he presiding
judge, such judge shall proceed no further in the
cause, If the affidavit is filed against a
district judge, the matter shall be referred to the
M ~ r , " _ a r aSupreme Court, wfieteu~onShe Chief L,: ~ ~ t i , ~ e
-
. .
s r ~ z i ?assign a
- i l l s " r < c t judae to tear the m a t t e r ,
I." the aifilavit is file6 against a judge o f a
-.
m u n l c'l p a l or justice court, any d~strkctjudge may
~
appoint another justice of the peace, or municipal
judge, to hear any such proceeding.
(a) The affidavit for disqualification nust
be filed more th~znthirty (31-1 Says b e f a r e tke date
set far hearing or trial* The p r :
at? i t the
i t , , a ,i ,6r c .
-
+ f f i ~ . ~ ~for dkp.; ,ri ~ a : n
~ i shall pay a filing
-ee as set by law. Failure to pay such filing Fee
it
at the time of filing the affidavit will render the
a f f i d a v i t null a . void a n ineffective fez any
purpose, The Siring fee is waived in criminal
cases where the defendant has received
court-appointed counsel, or in cj:ril cases where
there has been an affidavit and order waiving the
-.
r l l,~ a gfees. -,-. -
(b) The aerzaavit shall be accornpacied by a
,,_,,LcLe
ce-,-ic F;-- of counsel of record that the affi.da-rit
has heen made in good faith. An affidavit will be
deemed not to have been made in good faith if it i s
based solely on rulings i,n the case made by the
challenged judge ane. from which an appeal could
h q i r been taken.
LiG.e
(c) Any affidavit which is not in proper farm
an2 which does rot allege facts showing; personal
bias or prejudice nay be set aside as void,
id) The judge appointed to preside at a
disqualification proceeding zay assess attorneys
fees, costs and 8~amaiges aqainst any pqrty or his
attorney who f i l e s s~j.ch disqlraLification without
.
reasonable cause and thereby hinders, delays or
takes unconscionabLe advantage of any other party,
or the court.
ORDER ;:SUPERSEDES S E C T T C I ~ 3-1-801 and 8 6 2 , MCA:
~
By t h e authority o f Article V I L , Section 2, of the 1972
Eontsna ~onstitution,this rule sunersedes anE i s to be s s e d
to the exclusion o f the rude or disqualification and substi-
tution of judges adopted b = Suprene Court Order d a t e 2 Jure
;
29, SS81* arid published as sectior ?-?-SO1 an6 802, ~ C A ,
EFFECTIVE GATE :
This
. -
rule snail take effect oc September 1, 1987,
C@@IEN'_' 2Ep.IOD :
T h e ptontana Supreme Court invites comnerts by attOcrneys,
judges, and other interested parties to be submitted to the
Clerk this Court by December 1, 1987,
of Foilowing the
receipt such ccmqe--,s, this Cclurr will consider the same
and make such changes as it f i n & to be appropriate,
L.- -
x7" t u T * -, * s
~L:
clerk e f
"_his C o u r t is directed to r . a i i copies of
t h e s e rules to the following:
The Code C c ~ ~ ~ i s s i a nof the State of Montana;
er
District C o n r t Ju$ges of t h e State of Montana;
Clerks of the District Courts 0 5 the State of Montana;
cr_itez States District Court Judqes of tho State OE
Msrrtana;
Cl.erks of t h e i ' n i t e d States District C o i l r t s of the State
~fldzostana;
president and Executive Director of the State 9 a r o f
Montana;
president a n s Executive 3irecter of t h e Montana T r i a l
Lawyers A s s o c i a t i o n ;
?ubLishing Company, w i t h a request that it be
West
-
publiskee in t h e P a c i f i c
State R e p o r t e r , w i t h a request that it he published in
4-L,
,e, Reporter.
- -
GAT113 this I:,>.
.
? > ?k..
: d y of Jul;-, 1987,