Cushman v. Montana Twentieth Judicial District Court
2015 MT 311
Mont.2015Background
- Cushman petitions for supervisory control to overturn an August 28, 2015 Order Returning Jurisdiction in Lake County DV 14-205 and to deny a substitution motion by Terry Trieweiler.
- Cause No. DV 14-205 was initially assigned to Judge Manley; Judge Christopher later assumed, and Chief Justice McGrath enlisted retired Judge Douglas Harkin to preside.
- Trieweiler sought substitution under § 3-1-804, MCA, prompting the entry of an order returning jurisdiction to Judge Manley or to Chief Justice McGrath.
- Cushman contends § 3-1-804 does not apply to a retired judge assigned under § 19-5-103, MCA; Trieweiler argues the retired judge can be substituted under § 3-1-804.
- The Court holds that retired judges assigned under § 19-5-103 are “judges presiding in district courts” within § 3-1-804, and substitution rights extend; the writ is granted and the August 28 order remains in effect.
- The exhibits to Cushman’s petition for supervisory control are to be unsealed; public-record status of cases is affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3-1-804 permits substitution of a retired judge assigned under §19-5-103. | Cushman: retired judge is not a district judge; §3-1-804 does not apply. | Trieweiler: retired judge may be substituted under §3-1-804. | Yes; §3-1-804 applies to retired judges assigned under §19-5-103; substitution rights exist. |
| Whether the August 28, 2015 Order Returning Jurisdiction should be upheld. | Cushman seeks reversal of the order. | N/A (focus on substitution issue). | GRANTED; the writ is granted and the August 28 order remains in effect. |
| Whether the Wilcox framework and 2015 amendments harmonize in allowing Chief Justice-assigned retirees to be substituted under §3-1-804. | N/A | N/A | Holds that the amendments align with Wilcox; retired judges fall within substitution rights. |
Key Cases Cited
- State ex rel. Wilcox v. Dist. Ct., 208 Mont. 351 (1984) (retired judge constitutes ‘other judge,’ not a district judge; constitutional grant governs assignment of retired judges)
- In re the Rules on the Disqualification and Substitution of Judges, 227 Mont. 31 (1987) (statutory substitution right origin; precedential framework)
- Swan v. State, 130 P.3d 606 (2006 MT 39) (§3-1-804 right to automatic substitution is statutory, not constitutional)
- City of Missoula v. Cox, 346 Mont. 422, 196 P.3d 452 (2008 MT 364) (constitutional construction; harmonization of statutes with constitutional grant)
- SJL Assocs. Ltd. P’ship v. City of Billings, 867 P.2d 1084 (1993) (principles of statutory interpretation overrule conflicting readings)