STATE EX REL WELCH v DIST COURT

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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 - -- Submitted: Decided: Filed: November 2 8 , M a y 1, 1 9 8 4 "384 - Clerk 1983 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This defendant is an seeking original proceeding an disqualifying order brought the by 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. Cox At that time Morrison was represented by McDonough, and Simonton, of Glendive, Montana, and represented by that firm. is still 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. 1983, the Chief Justice issued an On January 25, 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 District Court Judges, but allows them only to, 'I sitting [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 Judge Sykes had power to make refused assumed any the request reasoning full jurisdiction final including the determination, unnecessary to disqualify himself. that thus it was 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), , 41 St.Rep. P.2d 397, establishes the powers of a retired District Court Judge called to service, and answers both issues. In this assigned by case, the as Chief previously Justice noted, for Judge temporary 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. S y k e s was s e r v i c e on I n Wilcox, a 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 Article V I I , s e c t i o n law o r i n e q u i t y , ' 4, Mont.Const., includinq final dispositions." P.2d a t I 41 St.Rep. a t 403. pointed As applies only pursuant to out where the not a Wilcox, retired MCA, applicable. Section district set procedures B e c a u s e 19-5-103. is in forth 19-5-103, is judge in that MCA, called section. was n o t u s e d i n t h e p r e s e n t c a s e , Not being involved here we are it 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 S e c t i o n 3-5-201, elected. " argues that under the provisions of 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 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. W e 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 McDonough b e c a u s e o f properly relinquished in t h i s matter. Judge t h e acknowledged c o n f l i c t of i n t e r e s t , jurisdiction and requested J u s t i c e t o temporarily a s s i g n a judge i n h i s place. t h e Chief 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 / Justices 4 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.

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