NO. 94-069
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ROBERT L. POTTER, DEBRA LEE
STEINER and JASON W. RIGGS,
Petitioners,
-v-
DISTRICT COURT OF THE SIXTEENTH
JUDICIAL DISTRICT OF THE STATE SEP I z t994
OF MONTANA, IN AND FOR THE
COUNTY OF CUSTER, and THE HONORABLE
JOE I;. HEGEL, Presiding Judge,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioners:
R.L. Stephens, Jr., Billings, Montana: R. Allen
Beck, Billings, Montana; James Graves, Oliver,
Graves & Toennis, Billings, Montana
For Respondents:
Hon. Joseph P. Mazurek, Attorney General; Micheal
Wellenstein, Assistant Attorney General; Gary Bunke,
Deputy Custer County Attorney
Submitted: August 9, 1994
Decided: September 12, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an original proceeding which arises out of the
issuance of two search warrants on August 18, 1993. The search
warrants were signed by Steven Rice, as "Acting Justice of the
Peace." The execution of the warrants led to the seizure of
marijuana and other drug related items. Defendant Robert Potter
was charged with one count of criminal sale of dangerous drugs, a
felony pursuant to § 45-9-101(l), MCA, and one count of criminal
possession with intent to sell, a felony, pursuant to § 45-g-103,
MCA. Defendant Debra Steiner was charged with criminal possession
with intent to sell, a felony pursuant to § 45-g-103, MCA.
Defendant Jason Riggs was charged with one count of criminal
possession with intent to sell, by accountability, a felony
pursuant to §§ 45-g-103, 45-2-301, and 45-2-302, MCA.
The defendants attack the validity of the search warrants
alleging that they were not issued by an independent magistrate,
thereby rendering the search warrants invalid. Specifically, the
defendants argue that the acting justice of the peace was not
properly qualified to serve as a substitute justice of the peace
under the appropriate statutes and under the Rules for
Certification of Judges of Courts of Limited Jurisdiction
(hereinafter Commission Rules) adopted by this Court on October 24,
1990 and found at Title 3, Ch. 1, part 15, MCA, Annotations (1992),
at 48-51. Therefore, according to the defendants, Mr. Rice had no
jurisdiction to issue the search warrants. We agree.
We conclude that, for the reasons hereafter set forth, this is
2
an appropriate matter over which this Court should exercise its
power of supervisory control and, accordingly, we accept
jurisdiction of this case. We hold that Steven Rice was without
authority or jurisdiction to issue the search warrants, that the
search warrants were void ab initio, and that, as a result, the
District Court must vacate its order denying defendants' motion to
suppress and enter an order consistent with this opinion
suppressing the evidence seized pursuant to the warrants.
BACKGROUND
At all times pertinent to this case, Donald Scho'ct was the
duly elected, qualified and acting Justice of the Peace for Custer
County and the only justice of the peace in that county. On August
11, 1993, Judge Schott's office notified Mr. Rice that it might
call on him to serve as substitute Justice of the Peace during
August 1G through August 20, 1993, as Judge Schott would be on
vacation during that time.
Mr. Rice was and is the pastor of the Lutheran Church in Miles
City. He previously was the elected Justice of the Peace for
Powder River County and was the City Judge for Broadus. Mr. Rice
held these positions for approximately three years, leaving the
bench in March of 1987. During his tenure on the bench in Powder
River County, Mr. Rice passed the certification test required by
the Commission on Courts of Limited Jurisdiction (Commission). He
also regularly attended the training sessions sponsored by the
Commission. Since 1987, and prior to August 18, 1993, when Mr.
Rice signed the search warrants, the Commission approved Mr. Rice
3
to act as substitute judge for two Miles city city judges.
Subsequent to the incident at issue here, Mr. Rice has been
approved to act as a substitute justice of the peace in Powder
River County and Custer County.
On August 18, 1993, Custer County Undersheriff, Don Neese
presented two applications for search warrants to Mr. Rice.
Although City Judge Paul Mottram was available, Undersheriff Neese
presumed, in good faith, that Mr. Rice was an authorized substitute
justice of the peace. Mr. Rice, believing himself to be the acting
substitute Custer County Justice of the Peace, granted the
applications and signed the search warrants. As stated above, the
execution of the warrants resulted in the seizure of marijuana and
other drug related items, and the subsequent felony drug charges
filed against the defendants.
On October 12, 1993, defendant Potter filed a Motion to
Suppress Evidence. The motion challenged the validity of the
search warrant on several grounds including the allegation that Mr.
Rice was not qualified as an independent magistrate to issue the
search warrant.
The defendants subsequently filed a consolidated motion to
suppress on December 7, 1993, challenging the search warrants on
the same grounds. The District Court held a hearing on the motion
on December 15, 1993, and issued its written order on December 16,
1993. The court denied the motion relying on § 46-5-103(1)(c),
MCA, which provides in pertinent part:
A search and seizure, whether with or without a warrant,
may not be held to be illegal if:
4
(c) any irregularity in the proceedings has no effect on
the substantial rights of the accused.
The District Court, finding that Mr. Rice was "qualified" in
terms of competence and experience, and that any mistakes were
"innocent errors of omission and not directed by any purpose to
evade the legal requirements," concluded that "although the
procedure used to call in Steven Rice as substitute justice of the
peace was technically flawed, the substantial rights of the
Defendants were not affected..."
The defendants filed an application for Writ of SuperVisory
Control or Other Appropriate Writ on June 1, 1994, stating that the
District Court had found the issue raised at the suppression
hearing could be dispositive of the case, and that the defendants
should take the issue to this Court. The defendants allege that
the specific issue to be determined by this Court is:
Is the failure to have a properly appointed, independent
Magistrate signing search warrants a "mere technicality"
or does this constitute a violation of the substantial
constitutional rights of the defendants?
DISCUSSION
I. SUPERVISORY CONTROL
The exercise of supervisory control by this Court is
authorized by Article VII, Section 2(2) of the Montana Constitution
and by Rule 17(a), M.R.App.P. We are reluctant to exercise
supervisory control as it is an extraordinary remedy. State ex
rel. O'Sullivan v. District Court (1946), 119 Mont. 429, 431-32,
175 P.2d 763, 764. Notwith.standing, supervisory control is
appropriate where the district court is proceeding under a mistake
5
of law, and in so doing is causing a gross injustice, State ex rel.
Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d
1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217
Mont. 106, 114, 703 P.2d 148, 153-54, and where, as here, requiring
a defendant to stand trial would result in unnecessary expenditures
of time and resources. State ex rel. Torres (1994), 51 St. Rep.
599, 600: State ex rel. Fletcher v. District Court (1993), 260
Mont. 410, 414, 859 P.2d 992, 994; State ex rel. First Bank System
v. District Court (1989), 240 Mont. 77, 84, 782 P.2d 1260, 1264.
Here, the State concedes that if the search warrants at issue
are invalid and if the evidence resulting from the execution of
those warrants is suppressed, then it will have no case against the
defendants. No argument has been advanced that the evidence could
have been seized under any exception to the written warrant
requirement. Under such circumstances, because we conclude that
the search warrants are void ab initio, it would be fundamentally
unfair and prejudicial, not to mention a waste of time and the
limited resources of the court and counsel, to require this case to
proceed further. Accordingly, it is appropriate that we assume
jurisdiction of this case and exercise original jurisdiction under
a writ of supervisory control in order to forestall further
needless and expensive litigation.
II. WHO MAY ACT AS SUBSTITUTE JUSTICE OF THE PEACE
At the outset, we stress that nothing in this opinion is meant
to reflect adversely on the training, experience, professional
competence or integrity of either Mr. Rice or Judge Schott. The
6
critical legal question which we address is simply whether, at the
time he issued the search warrants, was Mr. Rice, under the law, a
duly appointed and qualified substitute justice of the peace? We
must answer that question in the negative, and in doing so, begin
our analysis with the Constitution of the State of Montana.
The judicial power of the state derives from Article VII of
Montana's 1972 Constitution. Section 5 of Article VII provides, in
pertinent part:
Justices of the peace. (1) There shall be elected in each
county at least one justice of the peace with
qualifications, training, and monthly compensation
provided by law. . . .
(3) The legislature may provide for additional justices
of the peace in each county.
That Article and Section of our State Constitution make it clear
that the legislature is to establish, by law, the qualifications
and training of justices of the peace and, in its discretion,
provide for additional justices of the peace in each county. __,
See
generally, Title 3, Ch. 10, MCA. This Court may make rules
governing the practice and procedure in all courts of this state.
Art. VII, Sec. 2(3), Mont. Const.
It follows that Article VII, Section 5 of the Constitution
also empowers the legislature to establish, by law, the
qualifications of and procedures for appointing substitute justices
of the peace in the various counties. The statute authorizing the
appointment of substitute justices of the peace is found at § 3-lo-
231, MCA. That statute provides:
(1) Whenever a justice of the peace is disqualified from
acting in any action because of the application of the
supreme court ' s rules on disqualification and
substitution of judges, subdivision 1, 2, or 3, he shall
either transfer the action to another justice's court in
the same county or call in a justice from a neighboring
county to preside in his behalf.
(2) Within 30 days of taking office, a justice of the
peace shall provide a list of persons who are qualified
to hold court in his place during a temporary absence
when no other justice or city judge is available. The
persons listed must be of good moral character and have
community support, a sense of community standards, and a
basic knowledge of court procedure. The county
commissioners shall administer the oath of office to each
person on this list as soon as possible after the person
has received a waiver of training from the supreme court.
(3) Whenever a justice is sick, disabled, or absent, the
justice may call in another justice, if there is one
readily available, or a city judge or a person from the
list provided for in subsection (2) to hold court for the
absent judge until his return. If the justice is unable
to call in a substitute, the county commissioners shall
call in another justice, a city judge, or a person from
the list provided for in subsection (2).
(4) During the time when a justice of the peace is on
vacation or attending a training session, another justice
of the peace of the same county shall be authorized to
handle matters that otherwise would be handled by the
absent justice. When there is no other justice of the
peace in the county, the justice of the peace may
designate another person in the same manner as if the
justice were sick or absent.
(5) A justice of the peace of any county may hold the
court of any other justice of the peace at his request.
In terms of training, the legislature has mandated that all
judges serving on courts of limited jurisdiction (justice, city and
municipal courts, § 3-l-1501, MCA) attend annual training sessions
supervised by the Commission. Section 3-10-203, MCA; Rule 4,
Commission Rules.
However, § 3-lo-231(2), MCA, and Rule 5C, of the Commission
Rules provide that substitute judges may receive a waiver of
training from the Commission enabling them to act as substitute
justices on an occasional basis pursuant to § 3-lo-231(2) through
8
(5), MCA. Rule 5C of the Commission Rules requires the sitting
justice of the peace to submit a request for a waiver of training
to the Commission and show that the substitute judge, as mandated
by 5 3-lo-231(2), MCA, is of good moral character, has good
community support, a sense of community standards, and a basic
knowledge of court procedure. After reviewing the request, the
Commission advises the sitting judge of its decision. Rule 5C(3),
Commission Rules.
Therefore, according to the applicable statutes and Commission
Rules, before a person is legally qualified to serve as a
substitute justice of the peace, the following requirements must be
followed: (1) within 30 days of taking office the elected or
appointed justice of the peace must create a list of persons who
are qualified to act in the sitting justice's absence when no other
justice or city court judge is available, 5 3-lo-231(2), MCA; (2)
the sitting justice of the peace must request and obtain from the
Commission a waiver of training for the substitute judge, § 3-10-
231(2), MCA, and Commission Rule 5C; and (3) the substitute judge
must be sworn in by the county commissioners, § 3-lo-231(2), MCA.
Additionally, the defendants maintain that, before calling in
a substitute judge from the list, there must be no other justice of
the peace, or city judge available to act as a substitute judge.
We agree with that conclusion. Reading § 3-lo-231(3) and (4), MCA,
in pari materia, with § 3-lo-231(2), MCA, as we must (5 l-2-101,
MCA) , it is clear that a sitting judge may call in a substitute
judge from the list 'I... when no other justice or city judge is
9
available." Section 3-lo-231(2), MCA. Accordingly, we conclude
that, under the statutory scheme enacted by the legislature, in
addition to the three requirements set forth in the immediately
preceding paragraph of this opinion, a sitting justice of the peace
must first attempt to call in another justice of the peace, if
there is one readily available, (9 3-lo-231(2), MCA), or a city
judge before resorting to calling in a qualified substitute judge
from the list. Sections 3-lo-231(2), (3) and (4), MCA.
In the instant case, there is no question that the above
statutory scheme 'was violated. In fact, the District Court found
that "the procedure used to utilize Steven Rice was flawed in
almost every respect." Moreover, the District Court also concluded
that the language of 5 3-lo-231(2), MCA, and Rule 5C of the
Commission Rules mandated that a person first obtain a waiver of
training from the Commission before he or she is authorized to act
as substitute judge. While Judge Schott testified at the
suppression hearing that he believed Mr. Rice was qualified to
serve as acting justice of the peace for Custer County, it is,
nevertheless, undisputed that the sitting justice did not follow
the procedures set forth above before Mr. Rice was called in as a
substitute judge.
Judge Schott did not draw up a list of persons qualified to
hold court in his temporary absence within 30 days of taking
office, nor did he request and obtain a waiver of training from the
Commission for Mr. Rice as required by § 3-lo-231(2), MCA, and
Commission Rule 5C. The evidence at the suppression hearing showed
10
that Judge Schott had a copy of a "Request for Waiver of Training"
dated May 6, 1991, in his files which asked the Commission to waive
the training requirements for Mr. Rice from "now until December 31,
1994. " However, Judge Schott did not have any evidence that he
actually mailed th,e request to the Commission. Moreover, according
to the testimony of Harlan P. Goan, Assistant Supreme Court
Administrator, the Commission did not have any evidence that the
request was received or approved prior to the issuance of the
search warrants. Therefore, it is clear from the record that the
Commission had not approved Mr. Rice to serve as substitute justice
of the peace for Custer County on August 18, 1993, the date he
signed the search warrants.
Furthermore, Mr. Rice was not sworn by the county
commissioners as required by § 3-lo-231(2), MCA, and, although city
judge Mottram was available to serve as a substitute, he was not
asked to do so as mandated by 5 3-lo-231(2), (3) and (4), MCA.
While finding that "the procedure used to utilize Steven Rice
was flawed in almost every respect, " the District Court, relying on
5 46-5-103(1)(c), MCA, denied the defendants' motion to suppress
concluding that the technical errors did not affect the substantial
rights of the defendants. We disagree with the court's legal
conclusion in that respect.
We conclude that the basic inquiry in this case should not be
whether the substantial rights of the defendants were affected as
a result of a "technical error, " but whether Mr. Rice had authority
or jurisdiction in the first instance to issue the search warrants
11
at all. It is axiomatic that, if Mr. Rice had no authority to
issue the search warrants, the warrants were void ab initio, and
that evidence seized from the defendants in the absence of a valid
search warrant or a recognized exception from the warrant
requirement, did violate their substantial rights to be free from
unreasonable searches and seizures under Article II, Section 11 of
Montana's Constitution.
This Court has defined judicial power as "the authority not
only to decide, but to make binding orders or judgments." State
ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 425, 214 P.2d 747,
753. In Montana the power or authority to issue search warrants is
reposed exclusively in city or municipal court judges and justices
of the peace within the judge's geographical jurisdiction, and in
district court judges within this State. Sections 46-5-220(2)(a)
and (b), MCA. Montana law grants to no other person the authority
or power to issue search warrants. The term "judge" (which
includes municipal and city court judges and justices of the peace,
§ 3-l-1501(2), MCA), means a person who is "vested by law" with the
power to perform judicial functions, § 46-l-202(10), MCA (1991).
The legislature, pursuant to the power granted it by Article
VII, Section 5 of Montana's Constitution, has enacted a statutory
scheme by which persons might lawfully exercise the powers and
authority of a judge as a substitute for a duly elected or
appointed sitting justice of the peace. Section 3-10-231, MCA.
This Court, pursuant to Article VII, Section 2(3), of the
Constitution of Montana and 9 3-lo-231(2), MCA, has adopted the
12
Commission Rules which implement, in certain respects, that
legislative scheme.
Unless the procedures required by those statutes and the
Commission Rules are followed, then no substitute justice is
appointed, and the person seeking to exercise the powers of a judge
as his substitute has no authority or jurisdiction to do so. That
person is, quite simply, not a judge as he has not been vested by
law with the power to perform the functions of a judge. Since he
was not a lawfully appointed and sworn substitute judge, Mr. Rice
had no more authority to issue a search warrant than did any other
member of the general public. Regardless that Mr. Rice was
qualified by training and experience to a judge, he was not, in
fact, a judge at the time he issued the search warrants, because
the statutory procedures to make him a judge and to vest him with
the power to perform judicial functions had not been followed.
Since the search warrants at issue here were not issued by a
judge, they were void ab initio, of no force or effect, and
provided no authority under which the authorities could search the
defendants' property and seize evidence.
The defendants argue that our holding in State v. Tropf
(1975)) 166 Mont. 79, 530 P.2d 1158, is persuasive authority. We
agree that our decision in that case supports our opinion here. In
Tropf, the county attorney's office prepared a complaint and
affidavit for a search warrant which contained a district court
heading and signature line. On the day of the search in question,
there were no district judges present in the courthouse, so the
13
police detective submitted the complaint and affidavit to the Great
Falls city police judge. The police judge signed the search
warrant with the district court heading and signature line. Tropf,
530 P.2d at 1159. This Court upheld the district court's
suppression of the evidence obtained under the search warrant,
concluding that police courts are courts of limited jurisdiction
and have only such authority as is expressly conferred upon them.
Tropf, 530 P.2d a.t 1160. Under the statutory scheme in place at
the time we decided Troaf, police judges did not have authority to
issue search warrants, were not "judges" for purposes of issuing
search warrants and therefore, the search warrant issued by the
city police judge was void. Tropf, 530 P.2d at 1161.
Similarly, in the instant case, we hold that the search
warrants issued by Mr. Rice on August 18, 1993, were not issued by
a judge, that those search warrants were void ab initio and that
any evidence seized pursuant to those warrants must be suppressed.
Accordingly, we remand this case to the Sixteenth Judicial District
Court for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
We Concur:
Chief Justice
.7b=, +h+M-bL
u 14
Justices
15
Chief Justice J. A. Turnage, specially COnCUrring:
I concur in the majority opinion. While the statutory
procedure set forth in 5 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-l&231(2), MCA, provides that l'[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- member of the board of county commissioners may administer
oaths. Additionally, 5 2-16-211, MCA, provides that the oath of
judicial officers may be taken before any officer authorized to
administer oaths. See, 5 l-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
16
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-lo-,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 5 2-16-211, MCA, and that the written oath be then
filed in the office of the county clerk in accordance with 5 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.
Chief Justice
Justice James C. Nelson, autho
joins in the special concu
September 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail,prepaid, to the
following named:
R. L. Stephens, P.C.
316 No. 25th St.
P.O. Box 1438
Billings, MT 59103-14Y38
R. Allen Beck, P.C.
724 Grand Ave.
Billings, MT 59101
James Graves. Eso.
----~--z ---x.
Oliver, Graves & Toennls, P.I
P.O. Box 7227
Billings, MT 59103-7227
David L. Irving
Attorney at Law
110 Fifth St. So.
Glasgow, MT 59230
Hon. Joseph P. Mazurek, Attorney General
MicheaI Wellenstein, Assistant
Justice Bldg.
Helena, MT 59620
Gary Bunke
Custer County Attorney
1010 Main St.
Miles City, MT 59301
ERR OF THE SUPREME COURT
STATE OF MONTANA