*1 IN RE THE MARRIAGE OF MARKEGARD, RODNEY PIERCE Respondent, Petitioner JANE L. MARKEGARD Respondent Appellant. No. 05-109.
Submitted on Briefs December
2005.
23,May
Decided
MT 111.
Billings. Opinion of the Court. delivered the
CHIEF JUSTICE GRAY (Jane) by the from the order entered appeals Markegard Jane L. ¶1 Court, County, denying her Yellowstone Judicial District Thirteenth in underlying judgment and from the judgment for relief from motion We affirm. proceeding. this dissolution are: appeal issues on The restated ¶2 by denying Jane’s its discretion Court abuse 1. Did the District recusal motion, requested Jane first in which post-trial second pre-petition judge due to of the attorney? as an prior capacity in her meeting with the distributing abuse its discretion Did the District Court marital estate?
BACKGROUND (Rod) August Rodney Markegard Pierce pеtitioned for marriage Judge originally dissolution of his to Jane. Diane G. Barz case, presided over the Ingrid place Gustafson took her January proceeded 10, 2004, of 2004. The case to trial on November and the District Court entered a decree of dissolution on November 2004. The court characterized a premarital business as Rod’s asset and $23,179 traced all but of the proceeds from the sale of the home which Rod and Jane lived to premarital Rod’s assets and Rod’s distributing debts, inheritance. the marital assets and the court awarded Rod the real property located, where the business along with certain associated debts. 59(a) 60(b)(3), M.R.Civ.P., Pursuant to Rules Jane moved to
reopen hearing submit so she could additional evidence aоn relating matter property distribution. The District Court denied 10, 2004, the motion on December and Rod served Jane with notice of entry judgment. January On Jane moved for reconsideration
previously denied reopen or, motion to the hearing alternatively, 60(b)(2) relief from judgment pursuant 60(b)(6), to Rules M.R.Civ.P. argue She did not the District Court improperly denied her motion to reopen hearing, but asked Gustafson *3 to vacate the grant a new trial and recuse herself based on “past representation legal advise given [sic] [Jane]” Judge Gustafson before she judge. became a 60(b) In support motion, of her Rule Jane filed her affidavit
stating she had told her January 21, 2005, that, counsel on before Judge Gustafson bench, assumed the Jane had consulted with her for hours,” “somewhere between one and two obtained “opinion as to expectations,” divorce paid for her services. Jane further averred that she and Gustafson discussed “her marital situation, her marital strategy and other confidential information concerning her relationship [Rod].” with She stated she did not previously tell her counsel about the though [she] consultation-“even recognized the Judge at the time of the hearing on the dissolution proceedings” in November of 2004-because she “was intimidated the proceedings, and did not appropriate know the information to pass on to her counsel.” She stated “third parties” encouraged her to'report the prior contact. She also stated knowledge gleaned she believed the during “may Court, the consultation have influenced the or at a minimum, your affiant’s your confidence has been diminished that [sic] tho fairly past could rule on the marital issues due this
Honor representation.” order, In the Judge The District Court denied Jane’s motion. firm
Gustafson stated she had contacted her former law and learned 28, 2003, she 1.3 Jane had July paid had met for hours with Jane consultation, did and Jane not retain Gustafson or the $108 for that, related to avoid the Judge firm. Gustafson further cases, immediately upon had herself impropriety other she recused prospective litigant learning she had met with addition, attorney. in her as an Gustafson stated capacity records, that, post-judgment than her of the firm’s she other review recollection, whatsoever, [Jane],” consulting of ever she “no subject consultation-although did remember matter of the she presumed likely it was related to dissolution issues-and she had not case during Jane or the circumstances of the recognized The she hesitate to aside proceedings. explained “would not set [she] entered if believed that her encounter with Judgment herein influenced, way any prejudiced [Jane] ... in biased or the Court’s Fact, of Law and Decree of Dissolution. Such Findings of Conclusions that, suggested if decree of is not the case.” Gustafson distribution, adopted Jane proposed property dissolution had have the consultation and “would have been likely reported would not essence, to, The reap prior contact[.]” content the benefit of “mеrely seeking apple,” bite at the opined Jane was another playing” stated expressed “apparent game concern about Jane’s Judiciary denying protect integrity she J ane’s motion “to Court[.]” manipulation ... and to avoid the blatant of this facts in the appeals. We set forth additional discussion below. OF
STANDARD REVIEW 60(b), M.R.Civ.P., a district court’s denial of a Rule We review 8, P.D.L., In re 2004 MT abuse of discretion. See ¶ motion for (citation omitted). We review a 8¶ Mont. marriage dissolution case property distribution of district court’s clearly erroneous; if the findings of fact are whether determine erroneous, unless the district court clearly we affirm findings are not Marriage 2004 MT of Grende, discretion. In re abused its See *4 omitted). (citations Mont.
DISCUSSION by denying 1. Did the District Court abuse its discretion Jane’s motion, sеcond in which or post-trial requested Jane recusal first presiding judge pre-petition due to Jane’s meeting prior capacity in her as an ? appeal, barely acknowledges On Jane that the procedural posture of this appeal challenge involves to the District Court’s denial of 60(b), M.R.Civ.P., her Rule judgment. motion for relief from Jane’s argument is that disqualified Gustafson was under or was to recuse after judgment herself avoid “the impropriety.” regard, mistakenly In this sets forth the review-generally “correctness” standard of applicable to conclusions of discretion” law-rather than the “abuse of standard applicable to the denial of her judgment. motion for relief from We 60(b), begin M.R.Civ.P., with Rule because Jane submitted her post- judgment motion-and the District Court decided it-under that rule. 60(b), M.R.Civ.P., Rule provides, pertinent part, upon
[o]n motion and just, may such terms as are the court relieve party’s or a legal representative from a final order, (2) or proceeding following for the newly reasons: ... discovered evidence which due diligence could not have been discovered in time 59(b);... to move for a new trial under Rule or (6) any other reason justifying relief from the operation of the judgment.
The only possible reference in appellate briefs to the “newly discovered evidence” requirement 60(b)(2), M.R.Civ.P., of Rule is the statement that her upon motion “was based the discovery that the trial Court had prior taking [Jane] the bench.” She does not argue that pre-petition “evidence,” consultation was nor does she light assert-in of her affidavit stating she was aware of the consultation the time of trial-the “newly consultation was discovered” or could not have been discovered diligence.” her “due Therefore, we conclude Jane has not established the basis relief from judgment 60(b)(2), set forth in Rule M.R.Civ.P. 60(b)(6), M.R.Civ.P., With to the Rule “any other reason
justifying basis, relief’ MCA, Jane first advances provides, in part,
[a]ny justice, judge, justice of the peace, municipal court city court proceeding: must not sit or act in action or
3. When he has been or counsel in the action or any party[.] *5 in the 3-1-803(3), MCA, Court Rule codified Supreme is a Section 2, 1, Sec. Ch. L. for the benefit of code users. Montana Code Annotated “law,” Jane entitled a of her District Court brief 1979. In section analysis, 3-1-803, MCA, entirety provided no in its but quoted § of the rule. The authorities, relating any to subsection application or 3-1-803(3), MCA, in order. its did not address § District Court expressly refer Moreover, although the District Court did not M.R.Civ.P., 60(b), its just” portion are of Rule “upon such terms as above-clearly indicates the order-including the statements set forth Jane relief from just grant to did not believe it would be court judgment. M.R.Civ.P., showing a that 60(b)(6), requires motion A Rule
“ the cause or an accurate presentation a full of ‘something prevented equity and and that for reasons on the merits determination offairness ” 24, 35, Schoenthal, MT Marriage 2005 justified.’ ¶ is In re redress omitted) (citation 1162, (emphasis 15, 35, 35 106 P.3d ¶ ¶ added). that, at the time of the November before us is clear The record with having consulted 10, hearing, Jane was aware Moreover, Jane does not was not. Judge Gustafson Gustafson pre Jane knew of the statement challenge the District Court’s or the court for not advise her counsel consultation and did petition pursuant requested § recusal year of 2004. Jane could have entire aware that she any time after she became post- until her second judge, waited presiding but consulted with properly District Court conclude the trial motion to do so. We the case and did not abuse factors of equity the fairness and considered 60(b), M.R.Civ.P., motion on those denying Jane’s Rule its discretion grounds. 3-1- appeal arguments § to Jane’s We turn next 3-1-803(3), MCA, mandatory, is
803(3), MCA. She contends § are that Gustafson clear, concise, “the clear facts Judiciary has a matters. The Markegard in divorce represented statutory and case comply itself higher duty disqualify much MCA, not 3-1-803(3), does lay She asserts public.” [sic] § then law recall failure to limit, judge’s for a exception contain a time provision a litigant, or counseling party prospective a or apple. at the seeking another bite a considering whether in an MCA, from 3-1-803(3), a prohibits Section in the counsel or he has been “[w]hen proceeding action or 3-1-803(3), MCA, is Although any party[.]” proceeding action or statute, legislatively-initiated rule rather than a codified Court language plain construing intent is to examine step in first and, may writing language unambiguous, if the is clear and we not See, e.g., In re interpretation. other means of proceed apply Lewis, MT ¶ (citation omittеd). “attorney did act or undisputed It is Gustafson not as proceeding” in the action or not
counsel at issue here. Jane does challenge Judge Gustafson’s statement that the consultation occurred July petition August before Rod filed his dissolution sponte sua Judges routinely-and properly-recuse themselves involving they having from cases or recall parties persons time; previous present at some the record in the case reflects that conclude, however, Judge Gustafson follows this that the practice. We plain language MCA, prohibit does presiding in an action unless occurred *6 course, 3-1-803(3), in the proceeding. may action or Of we amend § MCA, time, 3-1-803(2), MCA, recently at as we amended § judges by to the of on relationships based Seе Montana Supreme Court Order dated consanguinity affinity. 5, 2000, Dec. entitled “In re Modification of the Rule on however, Disqualification Judges.” Currently, of we are bound the language we have chosen. jurisprudence judicial Our on disqualification, under current rules
or their predecessors, is not extensive. We have decided a number of 3-1-805, MCA, cases involving predecessors, and its which relate to § party’s disqualify allegation motion to a on an based of See, Champion Dambrowski v. Intl. personal prejudice. e.g., bias or Corp., 149, 76, 617, 48-51, 48-51, 2000 MT 300 Mont. 3 P.3d ¶¶ ¶¶ ¶¶ State v. Duncan 48-51; (1981), 253, 255, 191 Mont. 954. 3-1-805, MCA, rely requires filing Jane does not on which the of an § alleging judicial days affidavit than bias more 30 before the date set and, hearing timely or trial. Jane did not file such an affidavit as a result, 3-1-805, MCA, addressing predecessors our decisions and its § inapplicable. are of Shultz v. (1994), Hooks exception With the 867 addressing our cases and its §
predecessors
years
appropriate
are over one hundred
old. It is
to
address Shultz
here,
it,
though
even
neither
has raised
because
Shultz,
authority
it is our
recent
MCA. In
most
judgment against
legal
district court awarded default
malpractice
attorney’s representation
case
centered on the
of a
against
client
in an action
the client’s father
the father’s
management
personal
injury
client and
of a
guardianship
the
plaintiff compensatory
the
settlement. The court also awarded
Shultz,
damages and costs.
damages, punitive
execution on the default
P.2d at 1111. After three writs of
60(b),
to Rule
judgment pursuant
moved for relief from
M.R.Civ.P.,
that the
had once
presiding
based on an assertion
Shultz,
235-36,
Mont. at
A
is
another
clients if the action involves
prior
his or her
involve
technically
separate
a
action is
Although
malpractice
matter.
this
[the client’s] father
underlying
against
the
suit
action from
legal
from the
it arises
relating
guardianship,
by [the
lawsuit,
representation
in that
albeit the
judge].
[the
not that of
attorney] at
Shultz,
at
867 P.2d
263 Mont.
and remanded.
We reversed
distinguished
Shultz could be
precedent,
true with
As is often
in Shultz
attorney’s assertion
Unlike the
present
from the
case.
opposing party,
Jane
of an
judge’s prior representation
the
Moreover, we
raised her own interaction with
Judge Gustafson.
has
in Shultz whether
attorney
defendant
or the
the
did not address
immediately
before or
judge
prior representation
knew of the
record here is clear and
default
while the
after
Judge Gustafson did not know-about
that Jane knew-and
undisputed
addition,
in
we note our remand
consultation.
pre-petition
their
to rule on the merits of
Shultz
judge
for substitution
of another
very issue we had
attorney’s
judgment-the
for relief from
motion
Shultz,
See
already
attorney’s
inappropriate.
decided in the
favor-was
Instead,
concluded the
having
at
MCA, Shultz beyond plain language in went of the rule. Section 3- 1-803(3), MCA, judge a he or she “has been disqualified states when or counsel in the action or any Having attorney party.” Shultz separate suit was a action recognized malpractice guardianship-related from the matter and the had not acted as obligated proceeding, or counsel action or we were require disqualification. conclude that did not We 3-1-803(3), MCA, precludes did not do so. To the extent Shultz states § has rendered sitting a on a case which he or she services party’s an action is filed or has acted as a person before case, related it. We conclude separate we overrule MCA, Gustafson due to the require disqualification does not pre-petition consultation with Jane. Min. (1990), relying Washington Properties v. Montana Next, Marriage (1989), and In. re Miller Gustafson should have
Mont.
contends
disagree.
We
appearance
impropriety.
recused herself to avoid the
Washington,
supervisory
Court
a writ of
control to
this
issued
There,
at a
judge’s
from a case.
social interaction
remove
attorneys
party’s
during
from a
law firm
game
football
motion and his son’s
party’s pending
opposing
themselves,
not,
require
law firm did
internship
However,
judge’s
those facts-combined with
disqualification.
attorneys
at an
testimony from one of the law firm’s
admission of
3.7(a) of the Montana Rules of
hearing,
in violation of Rule
injunction
the case and the
Conduct,
newspaper
and a
article about
Professional
to create an
game interaction-had
“snowballed
football
*8
Washington,
¶28 Miller, bearing argument that case has no on Jane’s she is Miller, Further, post-judgment disqualification entitled to here. unlike assignment we need not determine here whether of a different proceedings appropriate pursuant “appearance for future because, below, standard as discussed we are not impropriety” remanding this case for error. reversing and Washington and Miller are the only authorities Jane advances for judgment to relief from based on an position that she is entitled to not “appearance impropriety.” supporting addition an establishing “аppearance impropriety,” position in the inquiry those cases do not address additional fairness, 60(b), M.R.Civ.P., as to the or present equity case Rule a motion for relief from “just” deciding considerations involved judgment, as discussed above. establishing error. McDermott The bears the burden of appellant Carie, LLC,
v. 2005 MT ¶ omitted). (citation Jane has established impropriety judgment pursuant Rule to relief from or entitlement 60(b), M.R.Civ.P. Court did not abuse its discretion We hold the District motion, requested in which she first
denying post-trial Jane’s second pre-petition due to recusal consultation. distributing the Court abuse its discretion in 2. Did the District
marital estate? (1) found, among things, except The District other Court
$23,179,
*9
proceeds
premarital
the home sale
were traceable to Rоd’s
(2)
asset;
funds;
premarital
and
was Rod’s
assets
inherited
business
(3)
located,
the
property
and
the real
where the business was
which
$125,000,
court valued at
was a marital asset and certain debts on the
real
the marital assets
property
distributing
were marital debts.
debts,
property,
and
the court awarded the real
as well as certain
debts,
related marital
After
the
and
tallying
to Rod.
assets
debts
party,
required
allocated
to each
the court
Rod to make
an
$36,583
“Equalization Payment”
containing
an
from account
proceeds from the sale of the home where Jane and Rod had lived. The
$42,583.
total value
to each party
awarded
that,
estate,
Jane asserts
in distributing the marital
the District
40-4-202,
Court failed to consider the factors set forth in
MCA. She
however,
makes
argument,
regarding
no
factors the court
allegedly
impact
alleged
failed to consider or the
of those
The
failures.
error,
appellant
establishing
23(a)(4),
bears the burden of
and Rule
M.R.App.P., requires
appellant
arguments
to support
with citations
Deaconess,
to relevant authorities. Rolison v.
20,
2005 MT
326
¶
(citation omitted).
Mont.
20
This Court has
obligation
behalf;
thus,
no
to formulate arguments
party’s
on a
we
Marriage
further. See In re
40-4-202, MCA,
decline
to address
(citation omitted).
Grende,
31¶
primary
contention
the
District Court’s division
the
property
equitable.
points
testimony
martial
was not
She
parties
marriage
“commingled”
the
viewed the
as “traditional”
on Zell v. Zell
Relying
(1977),
216, 220,
their assets.
Biegalke Biegalke
v.
33, 35,
(1977),
311, 316,
P.2d
987, 990,
argues
she
she is entitled to one-half of the value of
home,
property
business and business real
based on her work for the
and, further,
business and her contributions
as a homemaker
she is
not
to trace her contributions
to the marital estate.
In this
respect,
appeal
we note Jane’s observations on
that she received a
salary for her
at the business and that she testified both she and
work
Rod
to the
of the home.
upkeep
contributed
Biegalke
Zell distribution
of marital assets-that
involved
is,
acquired
appreciated
during
assets that were
in value
Zell,
Biegalke,
See
33;
marriage.
contributed “acknowledged [Jane] argues She Rod marriage. into the $50,000.00 family but had contributed over contended that she $26,000.00.” acknowledgment Rod’s acknowledged only payment one However, the record reflects is irrelevant. of Jane’s contention the amount Jane and Jane conflicting testimony from Rod During home. cross-examination premarital the sale of her received for objection-a Jane, into evidenee-without Rod’s counsel entered reflecting home premarital for the sale of Jane’s settlement statement a second $23,179. insisted she had received Jane payment any documentation provide but admitted she could payment, In had not truthful. to demonstrate Rod been testimony support Court’s from the District appeal Jane does not regard, this we note motion, requested in which she post-trial her first denial of alleged evidence of the hearing to receive additional reopen court payment. second by substantial supported if it is not clearly erroneous finding A
¶38 of the the effect evidence, misapprehended court the district credible record, this Court is convinced or, reviewing the after evidence MT Marriage of Crilly, In re a mistake. See district сourt made omitted). (citation 1151, 479, 10, 124 10, ¶ ¶ ¶ Credibility province determinations are within the of the finder of Gerhart, here, Marriage 2003 MT the District Court. See re fact— (citations omitted). ¶ conclude, trial, testimony statement and We based on settlement $23,179 that Jane that the District Court’s determination contributed by the home credible evidence and was supported was substantial clearly not otherwise erroneous. finding conclude the District Court did not err in We home, premarital proceeds
business was Rod’s asset and the net of the $23,179, except premarital were traceable to Rod’s assets and his addition, inheritance. we do not discern abuse of discretion in regards. those located, to the real property With where the business was
Jane asserts the District Court should have “subtracted” two debts purchasing associated with the property and then divided the remaining equity equally because all payments made on the real property parties during were made the marriage. The District Court found property acquired during and, the real the marriage therefore, $125,000. was a marital asset it valued at The court $65,000 found Rod and Jane purchased property and debts related to the purchase-$20,000 $39,314.25 owed to Rod’s father and owed to a bank-were marital debts. The court allocated the real property and specified marital part debts to Rod as of the marital and, above, estate as mentioned ordered Rod to make an “Equalization $36,583 Payment” of to Jane from the account containing the home sale proceeds. authority, 23(a)(4), offers no as Rule
M.R.App.P., for the proposition that a court must equitably divide each marital asset after “subtracting” debts, related marital rather than equitably distributing the entire marital estate. We conclude the District Court did determining not err in the real property where the business marital, was located-and certain related debts-were and did not abuse its discretion in distributing part them to Rod as marital estate. We hold the District Court did not abuse its discretion in
distributing the marital estate. Affirmed. *11 LEAPHART,
JUSTICES RICE and MORRIS concur.
JUSTICE WARNER dissents. 60(b)(6) I would reverse the denial of Rule motion for relief judgment from the vacate the and remand this matter for pay I also order her to the judge. a new trial before a different would date. costs of this action to commenced, one month before this divorce action Approximately time, At the Gustafson was a
Judge
Judge
met with Jane.
Gustafson
her inevitable
attorney. She consulted with
practicing
facts,
Jane confided in Gustafson confidential
proceedings.
divorce
undoubtedly
fall under
proceedings,
to these divorce
pertinent
Further,
attorney-client
privilege.
the
protection
the
a fee.
legal opinion
charged
her
provided
Gustafson
Jane with
Gustafson never
Consequently,
the Court’s determination
nothing
is
short of
acted as an
or counsel
this
Indeed,
overruling the
go
the Court must
as far as
astounding.
(1994),
Mont.
of Shultz v. Hooks
longstanding precedent
conclusion.
to arrive at its erroneous
3-1-803(3), MCA,
Shultz,
clearly held that
this Court
§
a matter
in which she
over
disqualifies
Shultz,
litigants
of the
at some timе
that matter.
one
Shultz,
prior
1112. Under
the
at
867 P.2d at
filing
action[.]”
progress
point
need “not
representation
there is no
Shultz,
my
disqualified from 3-1-803(3), therefore had no discretion MCA. She language of § is of the abuse of discretion standard application The Court’s abuse. equity” irrelevant, as its discussion of a “fairness thus as well 60(b)(6), provided The standard under Rule M.R.Civ.P. requirement M.R.Civ.P., 60(b)(6), objective one and Rule is an operation relief from the mechanism for рrocedural judgment. language misconstruing plain In addition to correctly precedent
MCA, longstanding Montana overruling states of sister such, disregards precedent the Court interpreting e.g., See Estate correctly provisions. similar applied that have of Risovi (Tex. 1882), *3 58 Tex. (1988), 404; v. Wheeler N.W.2d Slaven (the judge “may exist with disqualify relationship required prior paid or suit, though no fee was and even to a matter not (Tex. App. Ct. advice.”), v. Kirven Williams charged for the followed
201
1976),
Risovi,
In
the
Court of North Dakota
Supreme
Generally, prior legal advice
a party disqualifies
judge
to
a
from
in
acting
controversy.
disqualify
the same
“It is sufficient
a
judge
given legal
that he had
advice to a
in
connection with
subject
the
matter
litigation began;
necessary
before
it is not
that
he was connected
the particular
pending
matter as a
suit.”
185).
Risovi,
on his own recollection of the facts.... when facts, knowledge evidentiary his own possesses personal likely weigh heavily any testimony far more than recollection is As a of his may given open hearings. consequence be moreover, may even have personal knowledge, very controversy. an on the matter in expressed opinion Flamm, 11.2.2; Leubsdorf, Judging and see also John Theories (1987) Judge Disqualification, 62 N.Y.U.L.Rev. 282 n.225 (sufficient grounds disqualification may exist because the “representation gives vindicating positions an interest likely [is] commitment formerly [or] she advocated emotional judge.”). lead her to slant her behavior as a of this case. clearly applies This rationale facts *13 that, she did not proceedings, Gustafson claims at the time of the However, the having prior counseled Jane on a occasion. remember analysis. irrelevant in this The subjective awareness of the is any appearance impartiality. case is the of underlying consideration Abramson, under Cannon 3 Disqualificatiоn See Leslie W. Judicial (2d 1992); Conduct, Liljeberg ed. see also v. the Code Judicial 847, 864, 108 (1988), U.S. S.Ct. Acquisition Corp. Health Services (“We 2194, 2205, 100 855, 875 continuously in mind L.Ed.2d must bear way satisfy must high justice its function in the best perform to (internal omitted). Thus, justice.”) quotation appearance prior recollection of the regardless judge’s of the extent of place, took and that the fact that the representation, alone, disqualification. for requirement fact satisfies the specific decision with the facts attempts justify The Court to its ¶52 case, motion contending by granting “equities” and of this trial, system to or permitted she would be abuse for new stated, such apple.” previously “another bite at the As improperly have 3-1-803, MCA, is to be irrelevant. Section plainly considerations are 253, 255, 623 (1981), Mont. See State v. Duncan strictly construed. or Therefore, of “who knew what” question this is not her prior representation, As a result of “who remembered who.” acting or in this case. She never sitting prohibited Gustafson was this matter. authority preside had the to over that she here. She did remember Jane is not blameless Of course ¶53 Gustafson, yet said and she with previously counseled had been process the entire district court waited until nothing. She I complain. made did she only after a decision was completed, and and vexatious. conduct was unreasonable conclude that such would 37-61-421, MCA, Jane is thus in direct violation provides: who, attorney any
An court in the court, multiplies proceedings determination of the case unreasonably vexatiously may required by be the court costs, satisfy expenses, the excess fees personally reasonably incurred because of such conduct. my view, the law is clear. This Court has no choice but denying judgment
reverse the order of the District Court relief from 60(b)(6), M.R.Civ.P., under Rule and order that vacate assigned a different the case further proceedings. be for Such further proceedings hearing would first include a to set the amount costs, Jane is pay expenses, fees incurred Rod, Court, in both the District Court and up including this to and the disposition appeal. of this I dissent. join
JUSTICES COTTER and NELSON in the foregoing dissent. JUSTICE NELSON dissents. join I Justice dissenting opinion. Warner’s well-reasoned In its (which punish
rush to condemn1), Jane for her conduct we all majority enormously have set an precedent-indeed, bad onе which a laughingstock makes of Canon 4 of the Judicial Canons of Ethics. provides This Canon judge’s “[a] official conduct should free be from ... the impropriety ....” terms, In bald majority permits Attorney what now is this: Smith, fee, gives legal his usual advice to XYZ Company about its ABC, Inc., dispute parties’ widget over the dealership contract. A (or elected) later, month Smith is appointed of the local trial *14 weeks, court. Within a XYZ Company, represented by counsel, few new ABC, Inc., sues for breach widget dealership Judge of the contract. presides ABC, Inc., Smith over the case and the trial. unaware of Judge prior Smith’s XYZ relationship Company, with does not exercise right its to substitute him out of the case. According majority, perfectly proper Judge
¶59 it is Smith ABC, Inc., Company to sit оn XYZ v. and, presumably, render client, judgment in favor of his former “the plain language because 3-1-803(3), MCA, does not prohibit judge an occurred in the action proceeding action or unless added). proceeding.” or See (emphasis 19 herein Smith is which, out, points punished. And as Justice Warner can be otherwise counsel statutory loophole because he was never the perceived within ABC, just gave Inc. He against in its suit Company for XYZ of record prompted or facilitated may advice that well have Company XYZ interest. suit-advice, coincidentally, in he has a vested which 1-3-219, MCA. Section exalts form over substance. majority The ¶60 sit or act in that a “must not provides Section attorney or counsel [w]hen ... he has been proceeding actiоn or fixating portion ....” In on a any party the action or the obvious majority completely discounts statutory language, sitting on being judges from preclude the statue-that intendment of relationship with one attorney-client had an they in which have cases judge. eventually comes before dispute to a parties of the difference can sit on Smith It is a distinction without a (and the ABC, Inc., described above v. in the scenario Company XYZ he, for XYZ bar), if as counsel preside at but he cannot one in the case ABC, Inc., he four weeks before against the suit Company, had filed by the The evil addressed elected to the bench. appointed was attorney- case the the same-in either precisely statute is dispute and particular to a relаtionship parties with one of the client at which dispute. point The the merits of the same judging now will be substantively actual lawsuit matured into an dispute meaningless. states, subjective Judge Gustafson’s Moreover, as Justice Warner with Jane is beside attorney-client relationship prior of her
awareness that she did not recall at her word Taking Judge Gustafson point. (and I do take her relationship with Jane attorney-client prior her her brought having been word), relationship under the vexatiously-she belatedly and attention-albeit preside over appoint another herself disqualify statute to in the case. proceedings further However, doing, we in so her conduct. punished for Jane should be mockery that makes a precedent not set a
should independent of an supports foundational propriety fairness and —the judiciary. by this decision bench, be shocked public bar and should The Justice Warner. dissenting join I