State Ex Rel. Dusek v. Eighth Judicial District Court

No. 03-652

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 303
______________

STATE EX REL. SHAWN LEE DUSEK, )
)
Petitioner, ) OPINION
) and
v. ) ORDER
)
EIGHTH JUDICIAL DISTRICT COURT, )
CASCADE COUNTY, )
)
Respondent. )
______________

¶1 Shawn Lee Dusek has applied for issuance of a writ of supervisory control. On

October 7, 2003, we issued an order granting Dusek’s request for leave to proceed in forma

pauperis and granting Respondent District Court, the Attorney General, and the County

Attorney of Cascade County twenty days in which to file and serve written responses to

Dusek’s application. A response from the Attorney General has now been filed.

¶2 Dusek is charged with several offenses which are now pending before the Eighth

Judicial District Court, Cascade County, as Cause No. ADC-03-380-1. During the course

of the proceeding, Dusek filed a request for substitution of judge, which was denied by the

District Court as untimely. Asserting that the District Court is proceeding under a mistake

of law and that the remedy of a direct appeal is inadequate, Dusek has sought review of the

District Court’s denial of his request for substitution of judge. In its response, the State has

conceded that the District Court is proceeding under a mistake of law and that direct appeal

is an inadequate remedy. However, the parties differ in the relief they seek from this Court.

1
¶3 According to the pleadings filed by the parties, on August 22, 2003, Dusek was

charged by Information with three drug-related felonies and one misdemeanor. On August

26, 2003, Vince van der Hagen of the Cascade County Public Defender’s Office filed a

notice of appearance of counsel and the District Court, at the request of the prosecutor,

scheduled Dusek’s arraignment for September 4, 2003. Van der Hagen moved the District

Court to set a bail hearing and on August 27, 2003, the District Court scheduled the same for

September 2, 2003, at which time Dusek and van der Hagen appeared before the District

Court for the bail hearing.

¶4 Dusek indicates that on September 4, 2003, while incarcerated, he was served by the

State with the Information, supporting affidavit, and motion and order for leave to file direct

and was on that same day arraigned in the District Court. On September 9, Dusek filed a

request for substitution of judge. The District Court denied the motion as untimely,

concluding that Dusek and van der Hagen clearly had notice on August 26, 2003 (the date

of the Court’s order setting the arraignment) and August 27, 2003 (the date of the Court’s

order setting the bail hearing) of which district court judge had been assigned to the matter

and that the Defendant’s motion, filed on September 9, 2003, was beyond the ten-day period

allowed for substitution under § 3-1-804(1)(c), MCA (2001). The District Court conducted

no fact-finding on the matter and relied upon a review of the District Court file.

¶5 Dusek argues that the District Court improperly applied § 3-1-804(1)(c), MCA, which

provides, in part, as follows:

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

2
 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. . . .

Citing to the definitions of “party” and “service” in Black’s Law Dictionary, Dusek argues

that as the party defendant in this matter, he was entitled to personal service of the

Information by an authorized agent of the State before the ten-day period set forth in § 3-1-

804(1)(c), MCA, commenced. The State concurs that the District Court erred in computing

the ten-day period from the time Dusek received notice of the assigned judge, as the statute

requires the period to begin when “service” of the Information occurs.

¶6 Supervisory control is an extraordinary remedy that is only appropriate when a district

court is proceeding under a mistake of law which, if uncorrected, would cause insignificant

injustice. Evans v. Montana Eleventh Judicial District Court, 2000 MT 38, ¶ 15, 298 Mont.

279, ¶ 15, 995 P.2d 455, ¶ 15. Our determination of whether supervisory control is

appropriate is a case-by-case decision based on the presence of extraordinary circumstances

and the need to prevent an injustice from occurring. Park v. Sixth Judicial District Court,

1998 MT 164, ¶ 13, 289 Mont. 367, ¶ 3, 961 P.2d 1267, ¶ 13. Writs of supervisory control

are “justified by circumstances of an emergency nature, as when a cause of action or right

has arisen under conditions making due consideration in the trial courts and due appeal to

this Court an inadequate remedy, or when supervision of a trial court other than by appeal

is deemed necessary or proper.” Rule 17(a), M.R.App.P. We have previously exercised

supervisory control to address the proper application of § 3-1-804, MCA, in the civil context.

3
See Goldman Sachs Group, Inc. v. Mont. Second Judicial District, 2002 MT 83, 309 Mont.

289, 46 P.3d 606.

¶7 We concur with the parties that the District Court is proceeding under a mistake of

law in this case and conclude that exercise of supervisory control is appropriate herein. The

District Court’s computation of the ten-day period from the time Dusek received notice of

the assigned judge, rather than from the time he was served with the Information, violates

the plain meaning of § 3-1-804(10)(c), MCA, which provides that a party shall have a right

of substitution for “10 consecutive days after service of an order to show cause, information,

or other initiating document.”

¶8 Dusek next contends that the ten-day period wherein a defendant may elect to

substitute a judge should always commence at the time of the defendant’s arraignment, citing

§ 46-12-201(1), MCA (2001), which states, in relevant part:

Arraignment must be conducted in open court and must consist of reading the
charge to the defendant or stating to the defendant the substance of the charge
and calling on the defendant to plead to the charge. The defendant must be
given a copy of the charging document before being called upon the plead.

Dusek argues that when § 3-1-804 is read in conjunction with § 46-12-201, “it is clear that

in a criminal action, the arraignment is the time set for service of the information upon the

criminal defendant” and urges this Court to declare that the arraignment shall serve as the

exclusive time for service of the Information in all criminal cases.

¶9 It is appealing to adopt Dusek’s argument and thereby create a bright-line rule which

would simplify the calculation of the ten-day period for substitution of a judge in criminal

proceedings under § 3-1-804, MCA. Unfortunately, however, the law affords no such

4
luxury. Section 46-12-201(1), MCA, merely requires that a defendant be given a copy of the

Information prior to entering his plea. It does not prohibit service of the Information prior

to the arraignment. Section 3-1-804, MCA, contemplates a ten-day period which commences

whenever the Information is served, without regard to the timing of the arraignment. As the

State notes, there are instances where the defendant is served a copy of the Information prior

to the arraignment, thereby commencing the running of the ten-day period under § 3-1-804,

MCA, before the arraignment is held. In this case, the District Court took no evidence and

entered no finding regarding the date on which Dusek was served with the Information, and

thus, that factual question will need to be resolved upon remand.

¶10 Our statutes provide little guidance in regard to the meaning of “service” in the

criminal context. Unlike federal law, where rules for service of a criminal summons have

been adopted which are substantially similar to service in civil cases, see Wright, Federal

Practice and Procedure: Criminal 3d, Section 55, Montana has not adopted rules defining

criminal service.

¶11 We must guard against the inclination to view service in the criminal context in the

same manner as service in the civil context. Different objectives are sought by each, as ably

described by Judge Michael Stallman, Criminal Court of the City of New York, Kings

County:

In a criminal action, unlike a civil action, the court’s exercise of
jurisdiction does not depend on proper service of process. All that is required
is that the defendant come, or be brought, before the court for arraignment. . . .

Proper service is vital to a civil action. It not only gives a defendant
constitutionally adequate notice (see, Mullane v. Central Hanover Bank &

5
 Trust Co., 339 U.S. 306), it is a symbolic exercise of State power. . . . It
conveys that a private party is invoking the sovereign’s power to redress what
is essentially a private wrong. If the defendant fails to appear, proof of proper
service can be used, inter alia, to enter a default judgment. Actual notice
alone is insufficient. Unless service is made in the statutorily required manner,
the court cannot subject the defendant to its jurisdiction without his consent.

Such ritual is not required in a criminal case. A criminal defendant is
accused of perpetrating a public wrong and can be brought summarily before
the court, without prior notice, by arrest. Since default judgments are
ordinarily unavailable in criminal cases . . . a defendant’s physical presence
is required by the court to exercise personal jurisdiction. How that presence
is obtained is immaterial.

People v. Gross (N.Y. 1990), 560 N.Y.S.2d 227, 239 (citations omitted). Understanding

then, that the exercise of criminal jurisdiction over a defendant is not dependent upon service

of the Information, we look to the plain meaning of § 3-1-804(1)(c), MCA (2001), to

determine what the provision requires in the criminal context.

¶12 We concur with Dusek’s argument that the term “party,” upon whom the statute

requires service of the Information to be made, refers to the defendant personally and,

therefore, reject the State’s argument that the statute can be satisfied by service of the

Information upon defense counsel. Personal service upon the defendant is required, and if

that does not occur until the arraignment, then the ten-day time period under § 3-1-804,

MCA, does not begin to run until the arraignment. Further, “service” requires personal

service upon the defendant at the instigation of the State, and cannot be satisfied, contrary

to the State’s suggestion, by a defendant obtaining a copy of the Information through other

means, such as discovery.

6
¶13 Having concluded that the exercise of supervisory control is warranted herein and that

the District Court improperly applied § 3-1-804(1)(c), MCA, to Dusek’s request for

substitution of judge in this matter,

¶14 IT IS HEREBY ORDERED that the application of Shawn Lee Dusek for a writ of

supervisory control is hereby GRANTED. The District Court’s order denying Dusek’s

request for a substitution of judge is set aside and this matter is remanded for further

proceedings consistent herewith.

¶15 The Clerk is directed to mail a true copy of this order to all counsel of record and to

the Honorable Thomas M. McKittrick, District Court.

DATED this 4TH day of November, 2003.

/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER

7
Justice James C. Nelson concurring.

¶16 I concur in the result of our order. Furthermore, based on the present state of the law

and the language of § 3-1-804(10)(c), MCA, I agree that the Court's order is legally correct.

¶17 That said, I believe that we should amend the rule to provide a "bright line" for

summary disqualification of judges in criminal cases. In the first place, the interpretation we

have articulated--though correct--is complicated in its application and will likely be a trap

for unwary defendants and criminal defense attorneys. Additionally, while there is no

"service" of the information as in the civil context, nevertheless in that context, there is a

return of service which leaves no question as to when and by whom the summons and

complaint was served. There is no similar record document in criminal cases leaving the

fact, time and method of service amenable to dispute. Also, persons accused of crimes

sitting in jail and awaiting the appointment of counsel probably do not know that they have

the right to substitute a judge--even assuming they had access to the paper, copier, computer,

etc. to prepare and file such a motion. Finally, the 10 days allowed for substitution is

extremely short and may be eaten up by delay in the public defender actually seeing his or

her client and determining the client's wishes.

¶18 Criminal defendants should have no less right to substitute a judge than do civil

litigants, and the present process puts the accused at a serious disability. For these reasons

I would amend the rule to provide a bright line for determining when the accused's time to

file a summary disqualification motion starts to run.

/S/ JAMES C. NELSON

8
9