State Ex Rel. Welch v. Dist. Court

No. 83-400
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
S T A T E O F MONTANA, ex r e l . , DAVID
GARY WELCH,
Petitioner,
D I S T R I C T COURT O F THE SEVENTH J U D I C I A L
D I S T R I C T , I N AND F O R THE COUNTY O F
RICHLAND, T H E HONORABLE R. C .
McDONOUGH, Judge p r e s i d i n g .
Respondent.
O R I G I N A L PROCEEDING :
COUNSEL O F RECORD:
For P e t i t i o n e r :
R o b e r t L. Johnson argued, L e w i s t o w n , M o n t a n a
For R e s p o n d e n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
K i n K r a d o l f e r argued, A s s t . A t t y . G e n e r a l , H e l e n a
V i c t o r G. K o c h , C o u n t y A t t o r n e y , S i d n e y , M o n t a n a
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Submitted: November 2 8 , 1983
Decided: M a y 1, 1 9 8 4
Filed: "384
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an original proceeding brought by the
defendant seeking an order disqualifying the respondent
Judge from sitting on the case in respondent District Court.
Respondent Judge has challenged the constitutionality of
Section 19-5-103, MCA, upon which relator relied in bringing
this application for a writ of mandate.
Donald Morrison filed a personal injury action against
relator Welch in the respondent District Court on August 12,
1980. At that time Morrison was represented by McDonough,
Cox and Simonton, of Glendive, Montana, and is still
represented by that firm. In 1982, Russell McDonough of
that firm was elected Judge of respondent District Court and
took office the first of January, 1983. Deeming himself
disqualified, Judge McDonough requested the Chief Justice of
the Montana Supreme Court to appoint retired Judge Robert C.
Sykes to hear the case, pursuant to Article VIII, Section
6(3), Constitution of the State of Montana. On January 25,
1983, the Chief Justice issued an order by which the
Judge Sykes was assigned to hear relator's and several other
cases in the respondent District Court. Judge Sykes is a
retired Judge, having been defeated in the primary election
for District Judge of the Eleventh Judicial District in the
Spring of 1982. Judge Sykes accepted jurisdicition on April
28, 1983.
Relator objected to this action and requested Judge
McDonough disqualify himself and call in another active duly
elected and sitting District Court Judge to replace him.
Relator's motion was based on Section 19-5-103, MCA, which
allows retired District Court Judges to assist sitting
District Court Judges, but allows them only to, 'I [Plerform
any and all duties preliminary to the final desposition of
cases insofar as not inconsistent with the constitution of
the state." Relator thus theorized that since the retired
judge could only handle preliminary matters, the sitting
District Court Judge retained jurisdiction over the case and
the power to make any final determination, which Judge
McDonough could not do because of the conflict of interest.
Judge McDonough refused the request reasoning that
Judge Sykes had assumed full jurisdiction including the
power to make any final determination, thus it was
unnecessary to disqualify himself. Thereafter relator
brought this application for a writ of mandate directing
Judge McDonough to disqualify himself and call in another
duly elected and sitting District Court Judge to assume
jurisdiction.
Two issues are raised by the parties:
(1) Does a retired District Court Judge assigned by
the Chief Justice to sit for a duly elected District Court
Judge have full jurisdiction over a case tried before him,
or are his actions subject to review by the elected District
Court Judge under Section 19-5-103, MCA.
(2) Is so much of Section 19-5-103, MCA as purports to
limit the power of retired District Court Judges to decide
cases unconstitutional?
We hold that an opinion released by this Court
on March 9 , 1984, State ex re1 Wilcox v. The District Court
of the Thirteenth Judicial District (Mont. 1984), P.2d
, 41 St.Rep. 397, establishes the powers of a retired
District Court Judge called to service, and answers both
issues.
In this case, as previously noted, Judge S y k e s was
assigned by the Chief Justice for temporary s e r v i c e on a
r e q u e s t i n i t i a t e d by t h e d i s t r i c t judge. I n Wilcox, supra,
we held t h a t t h e j u r i s d i c t i o n of such a judge is defined a s
follows:
"Accordingly, t h e r e t i r e d judges have t h e
complete j u r i s d i c t i o n of t h e d i s t r i c t
c o u r t ' i n a l l c r i m i n a l c a s e s amounting t o
f e l o n y and a l l c i v i l m a t t e r s and c a s e s a t
law o r i n e q u i t y , ' Article V I I , s e c t i o n
4, Mont.Const., includinq - final
dispositions." P.2d a t I 41
St.Rep. a t 403.
As pointed out in Wilcox, Section 19-5-103, MCA,
applies only where a retired district judge is called
pursuant to the procedures set forth in that section.
B e c a u s e 19-5-103. MCA, was n o t u s e d i n t h e p r e s e n t c a s e , it
is not applicable. Not being involved here we are not
c a l l e d upon t o answer t h a t q u e s t i o n .
Relator also argues that under the provisions of
S e c t i o n 3-5-201, MCA, " J u d g e s o f t h e d i s t r i c t c o u r t m u s t b e
elected. " Such a provision in our statutes does not
o v e r c o m e t h e c o n s t i t u t i o n a l power g i v e n t h e C h i e f J u s t i c e a s
n o t e d i n Wilcox.
We find that under Wilcox, supra, Judge Sykes is a
member o f t h e " p o o l " o f r e t i r e d j u d g e s a n d c a n b e c a l l e d i n
to preside by the Chief Justice under the provisions of
Article V I I I , Section 6 .
Judge Sykes h a s j u r i s d i c t i o n in t h i s matter. Judge
McDonough b e c a u s e o f t h e acknowledged c o n f l i c t of i n t e r e s t ,
properly relinquished jurisdiction and requested t h e Chief
J u s t i c e t o temporarily a s s i g n a judge i n h i s place.
The w r i t o f m a n d a t e is d e n i e d .
We concur:
3r&Js.P/-
Chief J u s t i c e
4
/
Justices
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as
follows:
I have no objection to Judge Sykes being treated in the
same manner as other retired district judges. My only
dissent is on the basis I articulated in the dissent to
majority opinion styled State ex rel. Wilcox v. District
!nt is reado~tedhere.
Mr. J u s t i c e D a n i e l J . Shea, d i s s e n t i n g :
I a . g r e d w i t h J u s t i c e Morrison i n h i s d i s s e n t , and I a l s o
w r o t e a s h o r t d i s s e n t i n t h e c a s e o f S t a t e e x r e l . Wilcox v .
D i s t r i c t C o u r t (Mont. 19841, P.2d , 4 1 St.Rep. 397.
I a d h e r e t o t h o s e views t o d a y .
The m a j o r i t y p o s i t i o n seems even more l u d i c r o u s when o u r
constitution is interpreted t o mean that a judse who is
d e f e a t e d i n o f f i c e can keep on d e c i d i n g c a s e s a s l o n g a s an
a c t i v e d i s t r i c t judge makes a c o m p l a i n t t o t h e Chief J u s t i c e
t h a t h i s heavy workload r e q u i r e s t h a t a judge be c a l l e d i n t o
h e l p him.
I do n o t b e l i e v e t h a t t h e d r a f t e r s o f o u r C o n s t i t u t i o n
e v e r dreamed t h a t a former d i s t r i c t judge, former b e c a u s e he
h a s been d e f e a t e d i n o f f i c e , would n o n e t h e l e s s s t i l l c o n t i n u e
t o d e c i d e c a s e s a f t e r h i s term f o r which h e was e l e c t e d h s
expired.