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In re Rule On Substitution of District Judges

Supreme Court of Montana

February 18, 2014

IN RE RULE ON SUBSTITUTION OF DISTRICT JUDGES

ORDER

The Montana Judges Association (MJA) has filed a request asking this Court to make significant substantive amendments to the rule on substitution of district judges codified at § 3-1-804, MCA, to address what the MJA characterizes as "obvious abuse of the rule." The rule, with the MJA's proposed deletions interlineated and the proposed additions highlighted, is set forth below:

3-1-804. Substitution of district judges.

This section applies to judges presiding in district courts. It does not apply to any judge sitting as a water court judge, to a workers' compensation court judge, or to a judge supervising the distribution of water under 85-2-406, including supervising water commissioners under Title 85, chapter 5, part 1.

(1) Each adverse party is entitled to one substitution of a district judge.

(a) In a civil action other than those noted in subsection (1)(b) (1)(c), a motion for substitution by the party filing the action must be filed within 30 10 calendar days after the first summons is served or an adverse party has appeared the complaint is filed A motion for substitution by the party served must be filed within 30 10 calendar days after service has been completed in compliance with M. R. Civ. P. 4.

(b) In a criminal action; a child abuse and neglect proceeding under Title 41, chapter 3; a youth court action proceeding under Title 11, chapter 5; or a mental health commitment proceeding under Title 53, chapter 21, part 1, a motion for substitution by the prosecution or the state the defendant must be filed within 10 calendar days after the defendant's arraignments district judge is assigned pursuant to subsection (2)(a).-A motion for substitution by the defendant, parent, youth, or respondent must be filed within 10 calendar days after the defendant, parent, youth, or respondent makes an initial appearance in the district court.

A motion for substitution may not be filed in the following cases: a child abuse and neglect proceeding under Title 41, Chapter; youth court action proceeding under Title 41, chapter 5; or a mental health commitment proceeding under Title 53, chapter 21, Part 1.

(2) (a) When an initial pleading is filed, the clerk of court shall stamp the name of the district judge to whom the case is assigned on the face of the original and all copies of that document.

(b) A motion for substitution of district judge must be made by filing a written motion with an acknowledgement, signed by both counsel and client, with the clerk as follows:

The undersigned hereby moves for substitution of District Judge____in this case. The undersigned acknowledges that moving for a substitution of district judge may result in the following:

1. Complicated scheduling and reduced scheduling flexibility:
2. Delayed scheduling of hearings and trial;
3. Increased costs for mailing and telephonic hearings, and ma> result in travel ...

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