Senate Bill No. 158
Introduced By Estrada, Arnott, Crippen, Halligan
A Bill for an Act entitled: "An Act clarifying the
oath of office requirement for an acting justice LAWS RELATING TO
THE QUALIFICATION OF SUBSTITUTES FOR JUSTICES of the peace; providing for the filing, WITH THE
COUNTY CLERK, of the oath WRITTEN DOCUMENTATION CONCERNING THE QUALIFICATION OF
SUBSTITUTES FOR JUSTICES OF THE PEACE; amending section
3-10-231, MCA; and providing an immediate effective date."
WHEREAS, in Potter v. District Court, 266 Mont. 384 (1994), the Montana Supreme Court
pointed out conflicts in the
oath of office requirement for a substitute Justice of the Peace. ORDERED THE SUPPRESSION OF EVIDENCE
OBTAINED UNDER SEARCH WARRANTS ISSUED BY AN ACTING JUSTICE OF THE PEACE WHO HAD NOT
BEEN PROPERLY QUALIFIED; AND
WHEREAS, THE MONTANA SUPREME COURT FOUND THAT COMPLIANCE WITH THE STATUTORY SCHEME FOR QUALIFYING SUBSTITUTES FOR JUSTICES OF THE PEACE IS MANDATORY AND THAT FAILURE TO FOLLOW THE STATUTORY REQUIREMENTS MAY RESULT IN AN UNQUALIFIED SUBSTITUTE ATTEMPTING TO ACT IN A JUDICIAL CAPACITY WITHOUT AUTHORITY; AND
WHEREAS, THE LEGISLATURE FINDS THAT CLARIFICATION OF THE STATUTORY SCHEME FOR QUALIFYING SUBSTITUTES FOR JUSTICES OF THE PEACE MAY AVOID FUTURE PROBLEMS IN WHICH AN UNQUALIFIED SUBSTITUTE ATTEMPTS TO ACT IN A JUDICIAL CAPACITY AND MAY AVOID THE CONSEQUENCES ASSOCIATED WITH SUCH A SITUATION.
THEREFORE, THE LEGISLATURE OF THE STATE OF MONTANA FINDS IT APPROPRIATE TO CLARIFY THE STATUTORY SCHEME FOR QUALIFYING SUBSTITUTES FOR JUSTICES OF THE PEACE.
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 3-10-231, MCA, is amended to read:
"3-10-231. Circumstances in which
an acting justice called in -- by whom. (1) Whenever a justice of the peace is
disqualified from acting in any action because of the application of the supreme court's rules on disqualification and
substitution of judges, subdivision 1, 2, or 3, he 3-1-803 and 3-1-805, the justice of the peace shall either transfer the action
to another justice's court in the same county or call a justice from a neighboring county to preside in his behalf.
(2) (A) THE FOLLOWING REQUIREMENTS MUST BE MET TO QUALIFY A SUBSTITUTE FOR A JUSTICE OF THE PEACE:
(I) Within 30 days of taking office, a justice of the peace shall provide a list of persons who are qualified to hold court in
his the justice's place during a temporary absence when no other another justice or city judge is not available. The persons
listed must be of good moral character and have community support, a sense of community standards, and a basic
knowledge of court procedure. The county commissioners shall administer the oath of office to each
(II) THE SITTING JUSTICE OF THE PEACE SHALL REQUEST AND OBTAIN FROM THE COMMISSION ON COURTS OF LIMITED JURISDICTION ESTABLISHED BY THE SUPREME COURT A WAIVER OF TRAINING FOR THE SUBSTITUTES.
(III) Each person on
this THE list, PROVIDED FOR IN SUBSECTION (2)(A)(I), shall subscribe to the written oath of
office as soon as possible after the person has received a waiver of training from the supreme court. The oath may be
subscribed before any MEMBER OF THE BOARD OF COUNTY COMMISSIONERS OR BEFORE ANY OTHER
officer authorized to administer oaths.
(B) The list of qualified substitutes, the written oath, and the COMMISSION'S WRITTEN APPROVAL AND waiver of training FOR THOSE SUBSTITUTES, PURSUANT TO SUBSECTION (2)(A)(II), must be filed with the county clerk as provided in 3-10-202.
(C) A county clerk may provide a current list of qualified AND SWORN substitutes to local law enforcement officers
the parties consider necessary.
(3) Whenever a justice is sick, disabled, or absent, the justice may call in another justice, if there is one readily available,
or a city judge or a person from the list provided for in subsection (2) to hold court for the absent
judge justice until his the
absent justice's return. If the justice is unable to call in a substitute, the county commissioners shall call in another justice, a
city judge, or a person from the list provided for in subsection (2).
(4) During the time when a justice of the peace is on vacation or attending a training session, another justice of the peace of
the same county
shall be is authorized to handle matters that otherwise would be handled by the absent justice. When there
is no other justice of the peace in the county, the justice of the peace may designate another person in the same manner as if
the justice were sick or absent.
(5) A justice of the peace of any county may hold the court of any other justice of the peace at
his that justice's request."
NEW SECTION. Section 2. Effective date. [This act] is effective on passage and approval.