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Linn v. Sielinsky Construction Co.

Supreme Court of Montana

January 22, 2014

JANICE LINN, Plaintiff,
v.
SIELINSKY CONSTRUCTION CO., D & E CONSTRUCTION, INC. and DOES 1-100, Defendants. Sielinsky Construction Co., Third Party Plaintiff,
v.
Warnock Construction, D & E Construction, Inc., Yellowstone Log Homes, LLC, Quick Draw, Third Party Defendants.

ORDER

Janice Linn seeks to disqualify the Honorable Gregory R. Todd from presiding in Yellowstone County Cause No. DV 12-0629, pursuant to § 3-1-805, MCA. Linn has submitted an affidavit in support of her request to disqualify Judge Todd and a certification by her attorney that her affidavit is made in good faith.

Section 3-1-805(1), MCA, provides that the Chief Justice of this Court will assign a district judge to hear a request for disqualification for cause if the affidavit in support of the request is in compliance with § 3-l-805(l)(a), (b), and (c), MCA. Subsection (b) provides that an affidavit will be deemed not to have been made in good faith if it is based solely on rulings in the case that can be addressed in an appeal from the final judgment. Subsection (c) provides that an affidavit that does not allege fact showing personal bias or prejudice may be set aside as void. The affidavit that has been provided in this case is based entirely on Judge Todd's rulings and comments in Yellowstone Cascade County Cause No. DV 12-0629, which, at best, can be addressed in an appeal from the final judgment, and otherwise do not allege facts establishing personal bias or prejudice. As a result, it is unnecessary to appoint a district judge to hear this matter.

IT IS THEREFORE ORDERED that the request to disqualify District Judge Todd from Yellowstone County Cause No. DV 12-0629 is DENIED.

The Clerk is directed to provide copies of this Order to the Clerk of the District Court of Yellowstone County for notification to all counsel of record in Cause No. DV-12-0629, and to the Honorable Gregory R. Todd, presiding District Judge.


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