Group seeks to make it harder to substitute judges

HELENA — The Montana Judges Association wants to make it more difficult for people with cases before district courts to substitute one judge for another simply by filing a statement that they believe the judge would not be fair or impartial.

The Copper King-era rule was enacted in 1903 to guard against judicial corruption but it has led to abuse in modern times, with 1,188 judicial substitutions from 2011 to 2012, the association's petition to the Montana Supreme Court said.

Some attorneys have used the rule in an attempt to circumvent certain judges or remove others from a particular line of cases, members of the judges' association said.

"The association thinks that attorneys are substituting judges for no real good reasons. We also believe their clients often don't even know their judges are being substituted," said District Judge Russell Fagg, the association's president.

The result of all those substitutions is additional cost to taxpayers and a slowdown in the entire judicial system, with some substitute judges required to travel hundreds of miles to replace a judge in a rural district, he said.

The proposed changes include increasing the fee for a substitution request from $100 to $500, requiring requests to be signed by both the attorney and the client and shortening the time a request can be made from 30 days to 10. In addition, no substitutions would be allowed in youth court proceedings, child abuse and neglect cases and mental health commitments.

The Supreme Court sent the proposal out for a 60-day public-comment period Tuesday. After that, the justices will decide whether to enact all or part of the proposed changes.

The current rule was enacted in 1903 after two Butte-Silver Bow judges repeatedly ruled for a surveyor named F. Augustus Heinze in mining claims cases, according to a history written by Chief Justice Mike McGrath in a 2011 Supreme Court ruling.

There is no agreement among historians over whether the judges were "corrupt, inept or merely fiercely loyal to Heinze," McGrath wrote. But the rulings for Heinze prompted the Amalgamated Copper Company to first attempt to bribe one of the judges, then to push the Legislature to pass the "Fair Trial Bill" that allowed litigants to automatically substitute a judge.

Since that time, there have been no documented allegations of corruption among Montana district judges, the association's petition said.

Previous attempts to change the rule through legislative action and a Montana Supreme Court petition failed to pass.

The issue flared up again last fall in Missoula after public defenders who requested substitutions complained that cases originally assigned to District Judge John Larson were being sent to courts outside the county, creating a hardship for poorer clients.

District Judge Robert Deschamps II said at the time that certain public defenders routinely filed substitution motions for Larson's cases.

The dispute in Missoula factored into the decision to file a new petition, but the problem is statewide and all district judges are in agreement that a change needs to be made, Fagg said.

"Certainly, the association was aware of the difficulties occurring in Missoula and that was a part of the thinking that went into, 'Let's go ahead and ask the Supreme Court to address this,'" he said.

Larson, who was one of eight judges to sign the petition for the rule change, said he would have backed it even without the issue in his courtroom.

Public Defender Commission Chairman Richard "Fritz" Gillespie said the commission has not taken a position on the rule change, but acknowledged this is a subject of concern for district judges for some time.

He said he doesn't agree with everything that is being proposed — particularly, the bar on substitutions in juvenile proceedings and other cases — and has not seen evidence in the petition abuse exists.

Attorneys have an obligation to do the best they can to ensure a fair trial in front of an impartial judge, Gillespie said.

"I would say probably 99 percent of the time, the judges act fairly and impartially and there isn't a reason that comes up for suing the rule. It's just that in some situations, the perception is that the judge isn't being fair and impartial," he said.