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Kaarma v. Montana Fourth Judicial District Court

Supreme Court of Montana

January 8, 2019

MARKUS HENDRIK KAARMA, Petitioner,
v.
MONTANA FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY, and THE HONORABLE ED MCLEAN, Presiding Judge, Respondent.

          ORDER

         Petitioner 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.

         Supervisory 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).

         On the 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 substitution.

         We 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."

         Kaarma 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.

         Under 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.

         Finally, 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.

         IT IS THEREFORE ORDERED that Kaarma's Petition for a Writ of Supervisory Control is DENIED.

         The 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 ...


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