No. 01-781
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 113
REBECCA E. MATTSON, et al.,
Plaintiffs and Respondents,
v.
MONTANA POWER COMPANY, a Montana
Corporation, and PPL MONTANA, LLC, a Delaware
Limited Liability Company,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Sean M. Morris, Worden, Thane & Haines, P.C., Missoula, Montana
Thomas R. Meites, Meites, Mulder, Burger & Mollica, Chicago, Illinois
For Respondents:
Edward Janecek, III, Christian, Samson & Jones, P.C., Missoula, Montana
Submitted on Briefs: February 28, 2002
Decided: May 30, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Plaintiffs, Rebecca E. Mattson, et al., filed a complaint
against the Defendant, Montana Power Company, and subsequently
joined PPL Montana, LLC, as a Defendant in the District Court for
the Eleventh Judicial District in Flathead County. The complaint
and amended complaint alleged, in part, that Defendants’ management
and operation of the Kerr Dam damaged the Plaintiffs’ real
property. After it was joined as a Defendant, PPL filed a motion
to substitute the District Court Judge. The District Court denied
the motion and PPL appeals. We affirm the order of the District
Court.
¶2 We address the following issues on appeal:
¶3 1. Does § 3-1-804(1)(c), MCA, preclude a joined party from
substituting a district court judge, without cause, after the time
period for the original parties to substitute has expired?
¶4 2. If a subsequently joined defendant does not have the right
to substitute the district court judge, without cause, does § 3-1-
804(1)(c), MCA, violate that defendant’s right to substantive due
process?
FACTUAL BACKGROUND
¶5 On November 8, 1999, Plaintiffs filed a complaint against
Montana Power Company (MPC) which alleged that MPC’s management and
operation of the Kerr Dam, located approximately five miles south
of the southwestern shore of Flathead Lake, damaged Plaintiffs’
lake and riverfront real property. Subsequently, MPC conveyed its
interest in the Kerr Dam to PPL Montana, LLC. Therefore, on
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November 9, 2000, Plaintiffs filed a motion for leave to join PPL
as an additional party Defendant. On March 26, 2001, having
received no objection, the District Court granted Plaintiffs’
motion. Thereafter, Plaintiffs filed an amended complaint which
named PPL as an additional Defendant and on April 3, 2001, served
PPL with the complaint and summons.
¶6 On May 3, 2001, PPL filed a motion to substitute the District
Court Judge pursuant to § 3-1-804, MCA, which permits substitution
without cause at certain stages in the proceedings. Plaintiffs
filed an objection to PPL’s motion on May 7, 2001, on the grounds
that PPL “was joined in this action as a Party Defendant, . . . not
[as] a Third Party Defendant,” and that pursuant to § 3-1-
804(1)(c), MCA, the time period for an “original party” to request
a substitution of the District Court Judge had expired long before
PPL filed its motion. On August 29, 2001, following a hearing, the
District Court denied PPL’s motion to substitute and certified the
order as final pursuant to Rule 54, M.R.Civ.P. PPL appeals the
order of the District Court which denied its motion for
substitution.
STANDARD OF REVIEW
¶7 Whether a motion to substitute a district court judge is
timely pursuant to § 3-1-804(1)(c), MCA, presents a question of
law. In re Marriage of Archibald, 1999 MT 258, ¶ 4, 297 Mont. 20,
¶ 4, 993 P.2d 653, ¶ 4. Whether § 3-1-804(1)(c), MCA, violates
substantive due process presents a question of constitutional law.
We review a district court’s conclusions of law to determine
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whether they are correct. Carbon County v. Union Reserve Coal Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
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DISCUSSION
ISSUE 1
¶8 Does § 3-1-804(1)(c), MCA, preclude a joined party from
substituting a district court judge, without cause, after the time
period for the original parties to substitute has expired?
¶9 PPL cites Challinor v. Glacier Nat’l Bank (1994), 266 Mont.
396, 399, 880 P.2d 1327, 1328, for the proposition that Montana law
entitles each adverse party in a civil or criminal case to one
substitution of a district court judge. PPL also argues that § 3-
1-804(1)(c), MCA, allows a party named in a summons to move for
substitution of the district court judge within thirty days of the
date on which it is served with that summons. PPL contends that
the statutory exclusion from the right of substitution pertains
only to voluntary intervenors. PPL insists that it did not enter
the litigation voluntarily, it was subsequently named in and served
with a summons, and it filed a motion to substitute within thirty
days of receiving such service. Accordingly, PPL requests that we
reverse the District Court’s order.
¶10 A court’s function, when construing a statute, is to ascertain
what it provides, “not to insert what has been omitted or to omit
what has been inserted.” Section 1-2-101, MCA. Further, statutory
language must be construed according to its plain meaning and, if
the language is clear and unambiguous, no further interpretation is
required. Infinity Ins. Co. v. Dodson, 2000 MT 287, ¶ 46, 302
Mont. 209, ¶ 46, 14 P.3d 487, ¶ 46. Finally, we must endeavor to
avoid any statutory construction that renders any sections of the
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statute superfluous and does not give effect to all of the words
used. State v. Berger (1993), 259 Mont. 364, 367, 856 P.2d 552,
554.
¶11 Section 3-1-804, MCA, pertaining to the substitution of
district court judges, provides as follows:
1. A motion for substitution of a district judge
may be made by any party to a proceeding only in the
manner set forth herein. In a civil or criminal case,
each adverse party, including the state, is entitled to
one substitution of a district judge.
. . . .
(c) When a judge is assigned to a cause for 30
consecutive days after service of a summons, or 10
consecutive days after service of an order to show cause,
information or other initiating document, and no motion
for substitution of judge has been filed within said time
period, the plaintiff or the party filing the order,
information or other initiating document, and the party
upon whom service has been made shall no longer have a
right of substitution. Any party named in a summons who
is subsequently served shall have 30 consecutive days
after such service in which to move for a substitution of
judge. . . . After the time period shall have run as to
the original parties to the proceeding, no party who is
joined or intervenes thereafter shall have any right of
substitution, except that one third party defendant who
is not an original party in any pending case may have a
right of one substitution within 30 consecutive days
after the service upon the third party defendant of a
third party complaint.
¶12 Each party relies on a different provision in § 3-1-804(1)(c),
MCA. PPL relies on the provision that “[a]ny party named in a
summons who is subsequently served shall have 30 consecutive days
after such service in which to move for a substitution of judge.”
Conversely, Plaintiffs contend that PPL did not file a timely
motion because “[a]fter the time period shall have run as to the
original parties to the proceeding, no party who is joined or
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intervenes thereafter shall have any right of substitution . . . .”
It is undisputed that PPL was not an original party and that the
time had run for the original parties by the time PPL moved to
substitute.
¶13 If read separately, the provisions are arguably inconsistent.
However, when read together their meaning is clear. We cannot
apply them separately but must arrive at a statutory construction
which “gives effect to all of the words used.” When considered in
its entirety, § 3-1-804(1)(c), MCA, clearly provides that parties
originally named in a summons have thirty days, following service,
within which to file a motion for substitution, but that after the
time has expired for the original parties to do so, no parties who
were not originally named in the summons may move to substitute.
Although this issue was not presented by either case, to the extent
that language in Challinor and Taylor v. Matejovsky (1993), 261
Mont. 514, 863 P.2d 1022, infers that “each” adverse party in a
civil case is entitled to one substitution of a district court
judge, without cause, we hereby clarify and limit those statements
by our holding in this case.
¶14 Accordingly, § 3-1-804(1)(c), MCA, effectively affords an
original party thirty days, from the service of summons, to move
for substitution of the district judge. Once the time expires for
the original parties to move for substitution, subsequently joined
parties may not do so. Section 3-1-804(1)(c), MCA, does reserve
the right of third party defendants to file a motion for
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substitution following expiration of the original parties’ time.
However, that provision is not before us.
¶15 Because PPL is a subsequently joined party to the action and
the time for the original parties to file a motion for
substitution, without cause, had expired, we hold that § 3-1-
804(1)(c), MCA, precluded PPL from moving to substitute the
District Court Judge and, therefore, affirm the court's denial of
its motion to do so.
ISSUE 2
¶16 If a subsequently joined defendant does not have the right to
substitute the district court judge, without cause, does § 3-1-
804(1)(c), MCA, violate that defendant’s right to substantive due
process?
¶17 PPL contends that if § 3-1-804(1)(c), MCA, precludes it from
filing a motion to substitute, then § 3-1-804(1)(c), MCA,
unreasonably and arbitrarily “creates two classes of parties, those
that have the right to substitute the District Court Judge and
those that do not.” For that reason, PPL maintains that
§ 3-1-804(1)(c), MCA, violates its right to substantive due
process.
¶18 In Newville v. State, Dept. of Family Services (1994), 267
Mont. 237, 249, 883 P.2d 793, 800, this Court stated:
The theory underlying substantive due process
reaffirms the fundamental concept that the due process
clause contains a substantive component which bars
arbitrary governmental actions regardless of the
procedures used to implement them, and serves as a check
on oppressive governmental action. Even though a
plaintiff may have no property or liberty interest
grounded in state law which is protected from arbitrary
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government action, such action still may be subject to
review under substantive due process. Substantive due
process primarily examines the underlying substantive
rights and remedies to determine whether restrictions . .
. are unreasonable or arbitrary when balanced against the
purpose of the legislature in enacting the statute.
¶19 Since the State cannot use its power to take unreasonable,
arbitrary or capricious action against an individual, a statute
enacted by the Legislature (or in this case, by this Court) must be
reasonably related to a permissible governmental objective in order
to satisfy guarantees of substantive due process. Powell v. State
Compensation Ins. Fund, 2000 MT 321, ¶ 29, 302 Mont. 518, ¶ 29, 15
P.3d 877, ¶ 29.
¶20 Pursuant to the power conferred on this Court by Article VII,
Section 2, of the Montana Constitution, this Court adopted § 3-1-
804(1)(c), MCA, in its current form, with a declared effective date
of June 1, 1995. The rule seeks to promote judicial economy and
expediency by demanding the prompt substitution of a district court
judge when a party requests such removal, without cause. See
Challinor, 266 Mont. at 402, 880 P.2d at 1331 (Weber, J.,
dissenting). Certainly, it is within this Court’s supervisory
responsibility to fashion such a rule. Further, as Article II,
Section 16, of the Montana Constitution affords every Montanan a
“speedy remedy . . . for every injury of person, property, or
character,” the rule is designed to implement a permissible
judicial objective. We must determine whether the rule is
reasonably related to its objective.
¶21 Section 3-1-804(1)(c), MCA, does distinguish between three
classes of parties– original parties, subsequently joined parties
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and intervenors, and third party defendants. PPL argues that there
exists no rational basis for treating the three classes of parties
differently for purposes of substituting a district court judge,
without cause. We conclude that there not only is a rational basis
for doing so but that responsible judicial administration requires
doing so.
¶22 Consideration of the reasons for distinguishing among various
parties’ right to substitute must begin with consideration of the
stage at which they join the proceedings. During the time period
afforded the original parties, the judge has presided over the case
for very little time and, in all likelihood, has not issued a
ruling on any substantial matter in the case. Therefore, the
probability of duplicating judicial efforts is slight when
substituting the district court judge within the time period
prescribed for original parties.
¶23 Conversely, subsequently joined parties and intervenors often
appear at a much later stage in the proceedings. To allow a joined
or substituted defendant to remove the presiding judge, without
cause, after the judge has presided over the case for what could be
a substantial period would disrupt the continuity of the
litigation, precipitate delay, cause duplication of effort, and
waste time and expense. Further, extending the disqualification
process would provide little corresponding benefit. In theory, a
subsequently joined or substituted party shares a commonality of
interest with at least one of the original parties. See generally
Goldman Sachs Group, Inc., v. Montana Second Judicial Dist., 2002
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MT 83, 309 Mont. 287, ___ P.3d ___. For example, in this case, MPC
presumably had the same interest in substitution as PPL and was
provided with that opportunity. If, on the other hand, PPL or a
subsequently joined party alleges specific prejudice, it may move
for substitution, for cause, pursuant to § 3-1-805, MCA.
¶24 While third party defendants likewise enter the litigation at
a later time, they lack the commonality of interest associated with
substituted or joined parties. Third party defendants often enter
the litigation in a position adverse to all of the other parties
involved. There is less reason to assume that their interests in
substitution have been previously considered. Consequently, § 3-1-
804(1)(c), MCA, allows a third party defendant thirty days
following service of a third party complaint to move for
substitution of a district court judge without cause.
¶25 Given all of the foregoing considerations, it was necessary
for this Court to fashion a rule to conserve resources and expedite
the litigation process, while simultaneously preserving a potential
litigant’s interest in removing a judge without cause. Fashioning
such a rule while balancing all potential interests is not an easy
task, and while § 3-1-804(1)(c), MCA, may from time to time be less
than perfect in its application, we conclude that it is not
arbitrary or capricious and is “reasonably related to a permissible
[judicial] objective.” Accordingly, we conclude that the District
Court did not err when it denied PPL’s motion to substitute without
cause.
¶26 The order of the District Court is affirmed.
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/S/ TERRY N. TRIEWEILER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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