q v r-h r - nmv7 OP THE RULES 3P< . ~ ir i.~i.; &,_r, ; m v v y VtTm**#y7> T.p-,v- i11- ,-aid, i , . L L A '-,7p.S- l id3:4 7.*, 1ii;J~ ~ ? 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 .
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q v r-h r - nmv7 OP THE RULES 3P< . ~ ir i.~i.; &,_r, ; m v v y VtTm**#y7> T.p-,v- i11- ,-aid, i , . L L A '-,7p.S- l id3:4 7.*, 1ii;J~ ~ ? 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,