Matter of Rules on Disqualification ( 1987 )

IN TWB MATTER OF THE RULES ON THE EISQUALIP1CP;TION AP?D O R D E R SUBSTITCT1ON JCDGES The Honorable Robert M. Holter, President of the Ecntana Judges Association, petitioned t k i s C o u r t to revise our rules on the disqualification and suhstituticn of judges. Pursuant to the power placed in this Court by Article VII, Section 2, of the 1972 Montana Constitution, this Court aiopts the "1lo.i.ing r u l e e f f e c t i v e as of September l i 1987, with a cowment period to be in e f f e c t until December 1 , 1987: D I S W A L I F I C A T I O X CF JUDGES A n y justice, judge, or justice of the peace must n a t sit or act in any action or proceeding: 3 , To which he is a party, or in which he is interested; 2. When he is related to either party %I- consanguinity or affinity within the sixth degree, computed according to the rules of law; 3, When he has been attorney or counsel in the action or proceezing f o r any party or when he rendered or made the judgment, order or decision appealed from, . - ~ucgc 1 A noti.csn for substitution o f a eLstrict may be ma2e by any party to a proceeding o n l y a in the rcanaer set forth herein. in a civeii or crini~~ai case, each aciverse partyt in.cluding the state, is entitied 0r.e substimu"iofi of a dis- trict judge. (a) A r - o t i o n for substitutior of a district 2udge shall be made by filing a written motion with the clerk, as fnllcws: FILED The ~ndersigred hereby saves f o r substitution of District Judge in this cause, A copy or' the motion shall be served upon a l l parties to the proceeding and the clerk shall - imrcediately notify the judqe. After a t r e . i inl$ motion has been filed, the substituted judge shall have no p o w e r to act ox the merits of the cause and shall call in another judge, However, a resident district judge who has previously been substituted from the case may agree to set the calendar, draw a jury, conduct all routine matters including ar- raignments, omnibus hearings in criminal cases, preiiniaary pre-trial cor:ferences and other matters which do not go to the merits of the case, if the sitting judge authorizes the same. (b) The firs* district judge ivhc has been substituted or disqualified for cause s h a l l have the duty of calling in all s h e i e " d s r c usg;n,itit judges. It shall be the d u t y of the clerk of court to stamp the name o f the judge to which the case is assigned on the face of the initial pleading, complaint, order to show cause, or infornation and ail zcpies thereof, (c) When a judge is assigned to a cause far twenty (20) consecutive days after service of surmons, or ten (10) days after service of an order to show cause, information or other initiating document, and no motion for substitution of judge hes been filed within said time periad, the right to move f o r substitutior of a judge shall be deemed waived. IF the presiding judge removes himself, the right to move f o r substitution of a judge is reinstated, unless having been previously used, and the time geriods shall m ? anew. a After the tiice period shall have run as to the original parties to the proceeding, no party who is joined or iater- venes thereafter shall have any right of substitution, (dl The m t i n n for substitution shall not be effective for a n y purpose unless a filing fee is paid to t h e clerk of the district court in the amount set by haw, This filing fee is waived in criminal cases where the sofendant has receive2 a court-appointed co~nsel or in civil cases where there has heec an affidavit ane. o r d e r waiving filing fees, le) Any motion for substitution which is not ,xmeiy filed is void for all purposes. The judge & I having jurisdiction shall. nake an order declaring the motion void, I f ) W : ^ e l 2 r.-w judge b a s acce~ted iurisdic- t i o r ? , the clerk of court shali mail a ' cop]- of the assumption of jurisdiction to the a - . . ~uaqe . and to each attorney or party of record. The certificate cf service s h a l l be attached to the assumption of jurisdiction form in the court file. (g) Khen a new trial is orciered ir?. any case, whether by order of the district court o r the supreme court, each adverse party shall be entitled to one additional motion for substitution of judge in the manner provided herein. Such notion must be filed, with the requiring filisq fee, within twenty (26) days after a new trial has been ordered by the district court or after the remittitur has Seen flied with the district court clerk. .7? No right of further substitution shall arise in cases remanded by the supreme court w h i c h c a l l for edditional hearicgs, hut not a new trial. 2, Whenever a party to any proceeding in any court shall file an affidavit alleging facts show- ing persopal bias or prejudice of the presiding judge# such judge shali proceed no further in the cause. Sf the affidavit is filed aqainst a dis- trict judge, t h e matter shall be referred to the Kontana Supreme Court, whereupon the Chief Justice shall assigc a district judge to bear the matter. i+= A the affidavit is file6 against a judge of a nucicipal or justice court, any district judge may appoint another justice of the peace, or municipal judge, to hear any such proceeding, (a) The affidavit for disqualification must be filed more thac thirty 1301 days before the date set f o r hearing or trial. The pasty f i g the affidavit for disqualification shall pay a filing fee as s e t b y law. Failure to pay srrch filing fee at the time of filing the affieavit will reader the a-ffidavit null and v i ! and ineffective for any oc purpose, The filing fee is waisred in criminal cases where the defendar~t has received court-appointed counsel, cr in civil cases where there has been an affidavit and order waiving the filing fees, (b) The affidavit shall be accompanied by a certificate of counsel of record that the affidavit has been made in qcnd faith. An affidavit will be deemed not to have been made in good fa-ith if kt is based solely on r u i i ~ g s in the case ma6e by the ckaLLenge~d judge ar,d frcrrr. which an appeal c o u l d have Seen taken, (GI &y a f f i d a v i t w h i c h is n o t in proper form a . ~ d which does riot allege facts showing personal ~' alas or prejudice mzv be set aside as void, i d ) The judge appointed to preside at a disqualification proceeding may assess attorneys fees, costs and damages against a.ny party or his attorney who files scch disquaLificatioi? without reasonable eaiise and thereby Binclers, delays or takes unconscionabie adventage of any other party, or the court, ORGER SUPERSEDES SECTION 3-1-891 and 802, K C A : By the authority of Article VlI, Secticn 2, of the 1952 Montana Constitutioc, this rule supersedes and is to be used to the exclusion of the rule on disqualification and substi- tution of judges azoptec! by Supreme Court Crder dated June 30, 1981, and publishes a s section 3-1-801 and e 0 2 , I1CA. EFFECTIVE BATE: rnhis rube shall take effect on September 1, 1.987 The Porirara Supreme Court i r r v i t e s cements by attorneys, judges, and other interested parties to he submitted to the Clerk of this Court by December 1, 1987. Following the receipt of scch coments, this Court wiLi consiser the same and make such changes as it finds to he appropriate XOTICE: The Clerk or' this Court is directed to mail copies of these rules to the following: D i s t r i c t Court Juiiges of the State of Montana; Clerks of the District Ccurts of the State of Montana; iTritedi States District Court Judges of the Stzte sf Moritana: Clerks of the United S t z . t e s District Courts o f the Sta~te of Montana; President arid Secretary o f the State r of Mofitana; presieent and Secret2r.i cf the lilnnra-a Trial X,aw;.ers Assseiaticn; K - ~ ~ + p a ,.-A 4 Company, wi"" ,,r a request rhat it be published in the P a c i f i c Reporter: State Reporter, w i t h a request that it be published in State R c n o r t e-. the - - r DATZD t h i s /7 day of June; 1987,