Markus Kaarma seeks a writ of supervisory control over the
Fourth Judicial District Court in Missoula County Cause No.
DV 18-1294, Kaarma v. State of Montana. In that
case, Kaarma filed a petition for postconviction relief from
his 2014 conviction of deliberate homicide. Because the Hon.
Ed McLean, who had presided over Kaarma's trial and
sentencing, had retired, Judge Leslie Halligan assumed
jurisdiction of the postconviction proceeding. Invoking
Patrick v. State, 2011 MT 169, ¶ 25, 361 Mont.
204, 257 P.3d 365, the State moved to substitute Judge
Halligan. Judge Halligan invited Judge McLean to assume
jurisdiction, and Chief Justice Mike McGrath ordered that
Judge McLean be called into active service to preside in the
postconviction proceeding. Kaarma then moved to substitute
Judge McLean. Relying on Harris v. State, 2003 MT
258, ¶ 18, 317 Mont. 406, 77 P.3d 272, Judge McLean
denied the motion. He later denied Kaarma's motion to
reconsider, and this petition followed.
control is an extraordinary remedy that may be invoked when
the case involves purely legal questions and urgent or
emergency factors make the normal appeal process'
inadequate. M. R. App. P. 14(3). The case must meet one of
three additional criteria: (a) the other court is proceeding
under a mistake of law and is causing a gross injustice; (b)
constitutional issues of state-wide importance are involved;
or (c) the other court has granted or denied a motion for
substitution of a judge in a criminal case. M. R. App. P.
l4(3)(a)-(c). Kaarma asserts that supervisory control is the
appropriate vehicle to address denial of a motion for
substitution. Kaarma argues on one hand that supervisory
control is appropriate under this rule because the Court has
invoked it to review the grant or denial of motions to
substitute the presiding judge. On the other hand, he argues
throughout his petition that a postconviction proceeding is a
separate civil case. Rule l4(3)(c) authorizes
supervisory control on substitution orders only when the
underlying matter is a criminal case. In contrast,
Montana's Rules of Appellate Procedure expressly
authorize an appeal of such orders in civil cases. M. R. App.
P. 6(3)(k); see Schwanke v. Mont. Ninth Judicial Dist.
Court, No. OP 11-0300, 361 Mont. 536, 264 P.3d 518
(table) (May 31, 2011).
merits, Kaarma argues that, although Harris states
the general rule that the right to substitute a judge is
unavailable in post-conviction proceedings, Harris
does not apply where the presiding district judge has either
retired or died. Kaarma relies on Beach v. Fifteenth
Judicial District Court, No. OP 10-0056, Or. (Mont.
March 24, 2010), in which this Court held that when the
presiding judge had died and no longer was available to
consider the petition for postconviction relief, §
46-21-101(1), MCA, did not prevent Beach from seeking
addressed in Patrick the application of the judicial
substitution rule in a postconviction proceeding. We
reaffirmed that "the interplay between postconviction
relief statutes and Title 3, Chapter 1, section 8, results in
a denial of the right to judicial substitution in
postconviction proceedings." Patrick, ¶ 16
(citing Coleman v. State, 194 Mont. 428, 433-34, 633
P.2d 624, 627-28 (1981), and Harris, ¶¶
17-18). We emphasized that "§ 46-21-101(1), MCA,
takes precedence over § 3-1-804, MCA, because the
specific policies that favor having the sentencing judge
preside over postconviction proceedings conflict with the
general statutory right of judicial substitution."
Patrick, ¶ 24. But we accepted the State's
argument that when a sentencing judge recuses herself from
postconviction proceedings, the parties may seek judicial
substitution pursuant to § 3-1-804(8), MCA.
Patrick, ¶¶ 24-25. Under subsection (8),
"[i]f 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."
obtained a substitution in the underlying criminal case after
he moved to substitute Judge John Larson the same day the
Information was filed. The State did not obtain a
substitution in the underlying criminal case. Kaarma argues
that his exercise of the substitution right in the criminal
case does not affect his ability to seek substitution in this
separate postconviction proceeding. We disagree. We held in
Coleman, 194 Mont, at 433, 633 P.2d at 627, that a
post-conviction proceeding "is not intended to be
another form of appeal from a criminal case, but a separate
civil action aimed at vacating, setting aside[, ] or
correcting a sentence." We pointed out nonetheless the
"fundamental principle ... that the sentencing court is
the proper court for the post-conviction petition."
Coleman, 194 Mont. at 433, 633 P.2d at 627. We
acknowledged in particular the substitution rule, which at
the time allowed a party to a civil action to seek two
substitutions of presiding judges. We stated,
However, because an applicant for post-conviction relief is
directed by the more specific provisions of the
post-conviction statute to bring the petition in this court
or in the court that sentenced him, we find that the two
judge disqualification grant of § 3-1-801, subd. 4, MCA,
is unavailable to the postconviction petitioner.
Coleman, 194 Mont, at 433, 633 P.2d at 627. We held
further that "unless some specific and compelling
evidence is sought to be adduced from the testimony of the
sentencing judge and such evidence can be found nowhere
else," the sentencing judge should not be recused from
presiding over a petition for postconviction relief.
Coleman, 194 Mont, at 435, 633 P.2d at 628.
the rationale of Coleman and Patrick,
§ 46-21-101, MCA, takes precedence over the general
substitution rules in § 3-1-804, MCA, to maintain the
sentencing judge's jurisdiction in the case. We allowed
substitution in Beach because the sentencing judge
"ha[d] long passed and no longer [was] available to
consider [the] petition for postconviction relief."
Beach is consistent with our reasoning in
Coleman and Patrick and does not give
Kaarma a new right of substitution. But for Judge
McLean's retirement, he would have continued as the
presiding judge, notwithstanding the filing of the
postconviction case under a new civil cause number. By
operation of § 46-21-101, MCA, and this Court's
construction of the substitution rule, neither party would
have had a right to substitute Judge McLean. Except for the
exception when the sentencing judge retires or resigns from
office, recuses, or dies, § 3-1-804, MCA, has no
application to postconviction cases. The retirement of Judge
McLean did not begin the substitution process anew.
we are not persuaded by Kaarma's additional argument that
§ 3-1-804(6), MCA, required Judge Halligan to call in
another active Fourth Judicial District Judge before inviting
Judge McLean to assume jurisdiction. "We have held that
'when retired district judges are called in to
"exercise the powers of a district judge on a
temporary basis," they are "judges presiding in
district courts" as contemplated by the introductory
clause of §3-1-804, MCA.'" Labair v.
Carey, 2017 MT 286, ¶ 14, 389 Mont. 366, 405 P.3d
1284 (quoting Cushman v. Mont. Twentieth Judicial Dist.
Court, 2015 MT 311, ¶ 8, 381 Mont. 324, 360 P.3d
492). Having been called to active service, Judge McLean is a
judge "presiding in" the Fourth Judicial District.
THEREFORE ORDERED that Kaarma's Petition for a Writ of
Supervisory Control is DENIED.
Clerk is directed to send a copy of this Order to the Hon. Ed
McLean, Fourth Judicial District Court; to the Missoula
County Clerk of ...