NO. 93-181
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
JOHN E. (JACK) TAYLOR,
Contestant and Appellant,
v.
NOVl6 '19%
ELYSE "LEE" MATEJOVSKY,
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appe llant:
A m ie A. Hove, Attorney at Law,
.
Circle, Montana
For Respondent:
Laura Christoffersen, Christoffersen & Knierim,
Wolf Point, Montana
Submitted on Briefs: August 12, 1993
Decided: November 16, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
John E. Taylor filed a petition in the District Court for the
Fifteenth Judicial District in Roosevelt County pursuant to
$7 13-36-101(2), MCA, to contest the election of Elyse Matejovsky to
the County Commission from District 2 in Roosevelt County. The
District Court dismissed his petition. Taylor appeals the order of
the District Court.
We reverse and remand with instructions.
The following issues are raised on appeal:
1. Did the District Court err when it denied Taylor's motion
for substitution of the District Court Judge?
2. Did the District Court err when it refused to allow
Taylor to present evidence through the testimony of witnesses,
other than the contestant and contestee, at the hearing on Taylor's
petition?
3. Did the District Court err when it dismissed Taylor's
petition contesting the election of the District 2 Roosevelt County
Commissioner?
Elyse Matejovsky was elected to the County Commission from
District 2 in Roosevelt County in November 1992. On January 29,
1993, Taylor, Matejovsky's opponent in the Commission race, filed
a petition contesting her election pursuant to § 13-36-101(2), MCA.
The petition alleged that Matejovsky was not qualified to file for
the office of County Commissioner in District 2 because she was not
a resident of that district at the time she filed for the primary
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election. Matejovsky was served with notice on February 2, 1993,
and was summoned to appear at a hearing scheduled for February 5.
On February 2, Taylor moved for a substitution of the District
Court Judge pursuant to § 3-l-804, MCA. At the February 5 hearing,
Taylor's motion for substitution of judge was denied for the reason
that it had not been timely filed. The court offered the following
rationale for its determination that the motion was untimely:
okay, I will take judicial notice of the statute that
says that an affidavit of disqualification is - if it's
not filed timely, is - has no effect, and I'm relying on
this not being filed timely. This matter, I believe, the
record reflects that the petition in this matter was
drafted - or filed - drafted the 10th of November of '92
- filed the 29th of January of '93, served the 5th of
February, '93, and the substitution was filed the 2nd and
served the 3rd, so I find that that's not timely, and you
can proceed.
During the hearing, it was established that Matejovsky filed
for the primary election on March 12, 1992. It was undisputed that
§ 7-4-2104(2), MCA, and the certificate establishing the existing
plan of government for Roosevelt County, require a candidate, at
the time of filing for the primary election, to be a resident of
the district from which he or she seeks election.
Matejovsky admitted that, at the time of her entry into the
commissioner race, she was "sleeping and eating" at a location
outside of Commissioner District 2. However, Matejovsky claimed
that her permanent residence was the family farm, which was located
within District 2, and that her move from the farm had only been a
temporary arrangement after her husband's death. It was her
assertion that she never intended to change her permanent residence
3
from the family farm despite the fact that she had not been living
at the farm since the fall of 1990.
Only Matejovsky and Taylor were allowed to offer testimony at
the hearing. The court did not allow Taylor to offer testimony
from additional witnesses based on its determination that
5 13-36-207, MCA, permitted testimony from only the parties to the
action, unless otherwise ordered by the court.
On March 11, 1993, the court issued its findings of fact,
conclusions of law, and order dismissing Taylor's petition
contesting the election. The court found that the purposes for
which Matejovsky left her residence in Commissioner District 2 were
"temporary or special" and concluded, based on the evidence
presented by the parties, that there had been no union of act and
intent as required for a change of residence under 5 l-1-215(6),
MCA. Therefore, it concluded that Matejovsky was a proper
candidate for election as commissioner to District 2 and dismissed
Taylor's petition for ouster. Pursuant to 5 13-36-205, MCA, Taylor
was ordered to reimburse Matejovsky, as the prevailing party, for
costs, disbursements, and reasonable attorney fees incurred in
defense of this action. From this order, Taylor appeals.
Did the District Court err when it denied Taylor's motion
for substitution of the District Court Judge?
Montana law entitles each adverse party in a civil or
criminal case to one substitution of a district court judge.
Section 3-l-804, MCA. Once a timely motion has been filed, the
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substituted judge is without jurisdiction to act on the merits of
the cause or to decide legal issues therein. Section
3-1-804(1)(a), MCA. Section 3-1-804(1)(c), MCA, clarifies that
when a judge is assigned to a cause for 20 consecutive days after
service of summons and no motion for substitution has been filed,
the right to move for substitution is deemed waived. The judge for
whom substitution is sought has jurisdiction to determine
timeliness, and any motion for substitution which is not timely
filed is void. Section 3-1-804(1)(e), MCA.
In this instance, the court's rationale in denying the motion
for substitution offers little explanation of its determination of
untimeliness. The reference to an "affidavit of disqualification*'
suggests the court considered § 3-l-805, MCA, which provides for
disqualification for cause, and requires an affidavit be filed at
least 30 days prior to the date set for hearing. However, Taylor's
motion was not filed pursuant to this statute. Taylor's motion was
an exercise of the right to substitution of judge as provided for
under 5 3-l-804, MCA. The record demonstrates that Matejovsky was
served with notice of Taylor's petition on February 2, and the
motion for substitution was made on that same date. Clearly, the
motion for substitution of judge was made prior to the expiration
of 20 days after service of the summons. Thus, Taylor's motion was
filed within the only time period provided by statute.
Matejovsky contends, however, that the court properly denied
Taylor's motion because of the requirements set forth in the
statute addressing election contests. She claims that the court is
5
given unlimited discretion in determining when a motion for
substitution of judge is untimely, and in this instance, Taylor's
motion was unreasonable because it requested a substitution three
days before a hearing which, by statute, had to be held on or
before February 5, 1993. Matejovsky asserts that a substitution of
judge would have necessarily delayed the hearing date past the time
required in § 13-36-206, MCA.
The statute governing contests of elections provides for a
prompt resolution of the dispute and requires a court to give a
contest petition precedence over other pending cases. Section
13-36-206, MCA. Specifically, the statute sets forth the following
procedural requirements:
Notice of filing - prompt hearing. On the filing of any
such petition, the clerk shall immediately notify the
judge of the court and issue a citation to the person
whose nomination or office is contested, citing him to
appear and answer not less than 3 or more than 7 days
after the date of filing the petition. The court shall
hear said cause, and every such contest shall take
precedence over all other business on the court docket
and shall be tried and disposed of with all convenient
dispatch.
Section 13-36-206, MCA. Matejovsky argues that this section
imposes a mandatory requirement that a court conduct a hearing no
later than seven days after a contest petition is filed. In this
instance, that date was February 5, 1993.
However, a court's function, when construing a statute, is to
ascertain what it contains, "not to insert what has been omitted or
to omit what has been inserted." Section l-2-101, MCA; Gaub v.
Milbank Ins Co. (1986), 220 Mont. 424, 715 P.2d 443. The statute
6
states that the person whose nomination is contested must "appear
and answer" within the specified time frame. We construe this to
mean that the contestee must make an appearance and answer the
petition, but not that the court must necessarily conduct a hearing
within this time period. As specified in the next sentence, the
court is to conduct a hearing on a priority basis, but there is no
stated requirement that the hearing be held prior to the expiration
of seven days. This Court will not insert such a requirement where
it has been omitted by the Legislature.
Furthermore, 5 13-36-208, MCA, offers additional insight
regarding the procedure involved in election contests. This
section clarifies that "[plroceedings under this title shall be
advanced on the docket upon request of either party for speedy
trial, but the court may postpone or continue the trial if
necessary . . . .,I' It is clear from this section that, although
these disputes are to be resolved as promptly as possible, there is
some discretion regarding postponements or continuances where
necessary.
We believe that this construction of the statute in question
operates to give effect to the election contest statute in its
entirety, and harmonizes this statute with the provisions providing
for a substitution of judge. An interpretation which mandates a
prompt hearing, but not necessarily within seven days, will not
deprive a party of the statutory right to a substitution of a judge
even in matters such as this which are to receive expedited
attention.
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Based on this interpretation, we conclude that Taylor's motion
for substitution of judge was made within the time allowed and the
granting of the motion would not have had the effect of causing a
violation of the election contest statute. Therefore, we hold that
the motion was timely and that the court erred by not allowing
Taylor to exercise this statutory right to substitution of the
District Court Judge.
Pursuant to 5 3-1-804(1)(a), MCA, once the motion for
substitution of judge was timely filed, Judge Sorte was without
jurisdiction to act on the merits of Taylor's petition.
Accordingly, the order dismissing the petition contesting the
election is vacated and this matter remanded for a new hearing
after a substitution of judge.
Because the court's order is vacated, we do not need to
address the question of whether the court erred when it dismissed
the petition on its merits. However, for the guidance of the
District Court on remand, we will address the question of whether
it was proper to exclude the testimony of other witnesses during
the hearing on Taylor's petition.
II.
Did the District Court err when it refused to allow Taylor to
present evidence through the testimony of witnesses, other than the
contestant and contestee, at the hearing on Taylor's petition?
The court based its decision to allow testimony only from
Taylor and Matejovsky on § 13-36-207, MCA, which provides in
relevant part:
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The petitioner (contestant) and the contestee may appear
and produce evidence at the hearing, but no person other
than the petitioner and contestee may be made a party to
the proceedings . . . and no person other than the
parties and their attorneys may be heard thereon except
by order of the court.
Matejovsky asserts that this section clearly states that no person
other than the parties may appear and present testimony or evidence
unless the court so orders. Therefore, she believes it was within
the court's discretion to permit only the parties to testify.
However, Taylor contends that the court, when it disallowed
his offer of testimony from other witnesses, ignored the general
definition of evidence as stated in 5 26-l-101(2), MCA:
t'Evidence" is the means of ascertaining in a
judicial proceeding the truth respecting a question of
fact, including but not limited to witness testimonv,
writings, physical objects, or other things presented to
the senses. [Emphasis added].
A statute must be construed in a way that gives effect to all
of its provisions. Section l-2-101, MCA. After considering the
statute as a whole, we agree with Taylor's interpretation of the
statute. The statute clearly allows the contestant and contestee
to produce evidence at the hearing, and we conclude this
encompasses witness testimony in addition to tangible forms of
evidence, such as writings, so long as it is proffered by one of
the parties. Such a construction gives effect to the statute as a
whole and harmonizes this statute with the general rules of
evidence. It is within the court's discretion to determine the
admissibility of such testimony under the general rules of
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evidence, but it is not to be rejected on the basis that the
statute permits only the parties to the action to testify.
The order of the District Court is vacated and we remand for
a new hearing on the merits of the petition after a substitution of
judge.
We concur:
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