Supreme Court Seeks to Limit Judge Substitutions

Montana Judges Association had sought several changes to reduce such requests

By Molly Priddy

BOZEMAN — The Montana Supreme Court has revised the rules on District Court judge substitutions, eliminating the option in some time-sensitive cases after the Montana Judges Association said some attorneys were abusing it.

Starting in July, attorneys may not file motions to swap judges in child abuse or neglect cases, youth court cases or mental health commitment proceedings. The change would avoid delays in those proceedings, the state Supreme Court ruled.

Substitution requests are still possible in other criminal and civil cases, but a $100 filing fee will also apply to criminal cases. If a public defender files a motion for a new judge, the office would pay the fee.

The Supreme Court recommended the Legislature double the filing fee to $200 in 2017.

The rule that allows either side in a District Court case to file for a substitute judge with no questions asked was created in 1903 to guard against judicial corruption.

The Montana Judges Association sought to change the rule in February 2014, arguing there had been no documented allegations of corruption among any District Court judges in Montana since that time. “Yet the rule lives on and has created its own set of problems for the judiciary because of overt abuse of the rule,” the judges’ petition said.

The judges also wanted to shorten the timeline to file a motion for a substitute judge and to charge a $500 filing fee.

Attorneys statewide had urged the state Supreme Court to maintain the rules as they stood.

The Supreme Court decided in March to leave the substitution rule mostly intact, and deadlines for filing remain at 10 days in criminal cases and 30 days in civil cases.

“I think the Supreme Court did the best it could do to close some of the gaps in the rule that might invite abuses,” District Judge Mike Salvagni told the Bozeman Daily Chronicle. Salvagni is president of the judges association.

A dispute in Missoula was part of the reason the judges sought the changes.

In the fall of 2013, public defenders in Missoula complained to the Montana Supreme that if they requested a substitute for District Judge John Larson, the other judges in the county would refuse to take their cases, prompting them to be sent to a judge outside the county. They sought a ruling to prevent the practice.

The judges responded that a heavy workload and crowded docket limited their ability to take on new cases and they noted the public defenders’ office sought a different judge in all 61 cases assigned to Larson in 2013. The judges argued the public defenders’ habit of substituting judges created an unequal distribution of cases.

In November 2013, the state Supreme Court denied the petition by the public defenders, saying less than 20 percent of the requests for a Larson substitute ended with the cases being sent out of county.

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