February 18, 2014
IN RE RULE ON SUBSTITUTION OF DISTRICT JUDGES
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 unde r Title 4 1, chapter 3; a youth court action proceeding under Title 11, chapter 5; or a me ntal 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 subs ection (2)(a).- A motion for substitution by the defe ndant, pare nt, youth, or respondent must be filed within 10 calendar days after the defendant, parent, youth, or res ponde nt makes an initial appe arance 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 expense for the litigants;
4. Hearings and other proceedings may be conducted by telephone or video-conference:
5. Delayed rulings if the case is moved to another district he-cause the substitute court does not have ready access to the entire court file: and.
6. Possible disruption of scheduled hearings because of weather, travel, or electronic glitches.
The moving party shall serve copies of the motion for substitution upon all other parties to the proceeding. The clerk shall immediately notify the district judge of the motion and, if there has already been a substitution, the first district judge to whom the case was assigned.
In civil cases, The motion for substitution is not effective for any purpose unless the filing fee of $500 for a motion for substitution required by 25 -1 - 201 is paid to the clerk of the district court. No filing fee is required in criminal cases or by parties who have qualified for repre se ntation at public e xpense .
(4) Any motion for substitution that is not timely filed is void. The district judge for whom substitution is sought has jurisdiction to determine timeliness, and if the motion for substitution is untimely, shall enter an order denying the motion.
(5) After a timely motion has been filed, the substituted district judge does not have the power to act on the merits of the case or to decide legal issues in the case, except as provided in subsection (10).
(6) The first district judge who has been substituted or disqualified for cause has the duty of calling in all subsequent district judges. In a multijudge district, all other district judges in that district must be called before a district judge from another district is called.
(7) When a new district judge has accepted jurisdiction, the clerk of court shall provide a copy of the assumption of jurisdiction to the first district judge to whom the case was assigned and to each attorney or party of record. A certificate of service must be attached to the assumption of jurisdiction form in the court file.
(8) If the presiding judge in any action recuses himself or herself or if a new district judge assumes jurisdiction in any action, the right to move for substitution of a district judge is reinstated, except as to parties who have previously obtained a substitution. The time periods run anew from the date of service of notice or other document identifying the new district-judge.
(9) No party who is joined or intervenes has any right of substitution after the time has run as to the original parties to proceed.
(10) A district judge who has previously been substituted from the case may agree to set the calendar, draw a jury, and conduct all routine matters including arraignments, preliminary pretrial conferences in civil cases, and other matters that do not address the merits of the case, if authorized by the presiding district judge.
(11) When a new trial is ordered by the district court, each adverse party shall be entitled to one motion for substitution of district judge. The motion must be filed, with the required filing fee, within 30 10 calendar days after the district court has ordered a new trial.
(12) When a judgment or order is reversed or modified on appeal and the cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party is entitled to one motion for substitution of district judge. The motion must be filed, with the required filing fee, within 30 10 calendar days after the remittitur from the supreme court has been filed with the district court. There is no other right of substitution in cases remanded by the supreme court.
In criminal cases, there is no right of substitution when the cause is remanded for sentencing.
IT IS ORDERED that the Court will accept written comments on the above proposed changes to the rule on substitution of district judges codified at § 3-1-804, MCA, for a period of 60 days following the date of this Order. All comments shall be filed in writing with the Clerk of this Court.
This Order shall be posted on the Court's website. In addition, the State Bar of Montana is asked to post a link to this Order on its website, and the Clerk is directed to provide a copy of this Order to the State Bar of Montana.