MONTANA JUDGES' DESKBOOK MUNICIPAL, JUSTICE, AND CITY

MONTANA JUDGES’ DESKBOOK

MUNICIPAL, JUSTICE, AND CITY

COURTS

This DESKBOOK is the property of the STATE OF MONTANA

The DESKBOOK is designed for the official use of those assisting in the administration of justice

in courts of limited jurisdiction and for municipal, justice, and city judges.

This DESKBOOK must be delivered to the successor in office whenever the tenure of any judge is

terminated.

Revised April 2010 by John H. Duehr, City Judge, Retired

─ Table of Contents ─

Title Page........................................................................................................................................0

Table of Contents.........................................................................................................................i-x

SECTION 100 ─ INTRODUCTION ...........................................................................................1

100.100 THE LAW....................................................................................................1

100.101 Constitutional Law...........................................................................1

100.102 Statutory Law...................................................................................1

100.103 Case Law..........................................................................................2

100.104 Annotations......................................................................................2

100.105 Unwritten and Common Law...........................................................2

100.106 Attorney General Opinions..............................................................3

100.107 Substantive and Procedural Law......................................................3

100.200 THE ROLE OF JUDGES OF LIMITED JURISDICTION COURT..........3

100.201 The Judicial Image...........................................................................3

100.202 Dignified Surroundings....................................................................3

100.203 Judge’s Conduct on the Bench.........................................................4

100.204 Judge’s Conduct off the Bench........................................................6

100.205 Immunities of the Judge...................................................................7

100.206 The Judge and the Adversary System..............................................7

SECTION 200 ─ COURT STRUCTURE....................................................................................8

200.100 INTRODUCTION.......................................................................................8

The several courts of this state.................................................................................8

What courts have seals.................................................................................8

Establishment of court.................................................................................8

Number and location of justices’ courts ─ authorization to combine

with city court.........................................................................................9

City court established.................................................................................10

200.101 Disqualification and substitution of judges....................................10

200.102 Interim disqualification..................................................................11

200.200 MUNICIPAL COURT JURISDICTION..................................................12

200.201 Term of office................................................................................12

200.202 Qualifications/Bonds/Restrictions.................................................13

200.203 Election (See 200.201)..................................................................14

200.204 Official Bond.................................................................................14

200.205 Training/Certification....................................................................14

200.206 Salary and Expenses......................................................................15

200.207 Court Facilities and Sessions.........................................................16

Courtroom and supplies....................................................16

Sessions of the court.........................................................16

Days on which courts may be held...................................16

Nonjudicial day.................................................................16

Sitting of court to be made public....................................16

Sitting of court ─ when private........................................16

200.208 Acting Judge.....................................................................17

─ Table of Contents ─

209.209 Forfeiture of a Judicial Position........................................17

200.210 Vacancy/Removal/Resignation..................................................................17

Training sessions for judges...........................................................18

200.300 JUSTICE COURT JURISDICTION........................................................ 19

Civil jurisdiction........................................................................................19

Jurisdiction over forcible entry, unlawful detainer, and

residential landlord/tenant disputes............................................................20

Criminal jurisdiction..................................................................................20

200.301 Term of Office...........................................................................................21

200.302 Qualification/Bonds...................................................................................21

Residence requirements.................................................................21

203.303 Election/Appointment................................................................................21

200.304 Oath of Office............................................................................................22

200.305 Training/Certification................................................................................22

200.306 Salary and Expenses..................................................................................25

200.307 Court Facilities and Sessions.....................................................................26

County to provide facilities............................................................26

Days on which court may be held..................................................26

Nonjudicial day..............................................................................26

Sittings of court to be public..........................................................26

Sittings of court ─ when private....................................................26

200.308 Acting Justice.............................................................................................27

200.309 Forfeiture of Judicial Position....................................................................28

200.310 Vacancy/Removal/Resignation..................................................................28

Vacancies created...........................................................................28

Disqualification..............................................................................29

200.400 CITY COURT JURISDICTION...............................................................31

Exclusive jurisdiction.................................................................................31

Jurisdiction and venue................................................................................33

200.401 Term of Office...........................................................................................33

200.402 Qualifications.............................................................................................33

General qualifications for municipal office...................................33

200.403 Election/Appointment................................................................................34

200.404 Official bond..............................................................................................34

200.405 Training and Certification..........................................................................34

200.406 Salary and Expenses..................................................................................34

Justice of the peace or judge of another city as city judge.............35

Expenses........................................................................................36

200.407 Court Facilities/Sessions............................................................................37

City to provide facilities.................................................................37

Days on which court may be held..................................................37

Nonjudicial day..............................................................................37

Sittings of court to be public..........................................................37

Sittings of court ─ when private....................................................38

200.408 Acting Judge..................................................................................38

200.409 Forfeiture of Judicial Position....................................................................38

iii

─ Table of Contents ─

200.410 Vacancy/Removal/Resignation..................................................................38

Removal of appointed officer........................................................39

SECTION 300 ─ COURT PROCEEDINGS.............................................................................41

300.100 INTRODUCTION.....................................................................................41

300.200 CRIMINAL PROCEDURE.......................................................................41

300.201 Jurisdiction.....................................................................................41

Jurisdiction over the subject matter...................................41

Jurisdiction over the person...............................................41

Jurisdiction and Statute of Limitations..............................42

Criminal Jurisdiction..........................................................44

Jurisdiction over Juveniles.................................................45

300.202 Venue/Change of Venue............................................................................47

300.203 Complaint/Initiation of Prosecution...........................................................47

Form of charge...................................................................48

Issuance of arrest warrant upon complaint........................49

300.204 Arrest, Summons, Notice to Appear..........................................................50

Issuance of arrest warrant upon complaint........................50

Arrest Without Warrant.....................................................51

Summons...........................................................................52

Notice to appear.................................................................53

300.205 The Defendant Appears in Court...............................................................54

300.206 Initial Appearance......................................................................................54

300.207 Right to Counsel........................................................................................55

Waiver of counsel..............................................................55

300.208 Bail/Right to Bail/Amount/Conditions......................................................57

Bailable offenses................................................................57

Release on own recognizance............................................57

Determining the amount of bail.........................................58

Issuance of arrest warrant ─ redetermining bail................61

Forms of bail......................................................................63

300.209 Preliminary Hearing...................................................................................65

Presentation of Evidence....................................................66

300.210 Arraignment...............................................................................................66

Advice to defendant..........................................................67

Determining accuracy of plea............................................69

Time allowed to answer.....................................................69

300.211 The Plea/Plea Bargains..............................................................................69

Plea agreement procedure ─ use of two-way electronic

communication...................................................................71

Withdrawal of guilty pleas.................................................72

300.212 Sentences...................................................................................................72

300.213 Dismissal of Complaint..............................................................................73

300.214 Presence of Defendant at Trial...................................................................73

300.300 CIVIL PROCEDURE................................................................................74

300.301 Introduction................................................................................................74

─ Table of Contents ─

Obligation defined.........................................................................74

Injury defined................................................................................74

300.302 Jurisdiction.................................................................................................76

Territorial Extent............................................................................77

CHECKLIST..........................................................................................................77

300.303 Venue.........................................................................................................77

300.304 Change of Venue or Place of Trial............................................................78

300.305 Pleadings....................................................................................................80

300.306 Form of Pleadings......................................................................................81

300.307 Parties.........................................................................................................82

Guardian ad litem...........................................................................83

300.308 Summons...................................................................................................83

300.309 Service of Process......................................................................................84

300.310 Proof of Service.........................................................................................84

300.311 Time for Answer........................................................................................84

300.312 Setting Pretrial and Trial............................................................................85

300.313 Judgment....................................................................................................85

Multiple Defendants.......................................................................86

300.314 Relief from Judgment................................................................................86

300.315 Amendment of Judgment...........................................................................87

300.316 Execution, Supplemental Proceedings, and Exemptions...........................87

Form and content of execution......................................................87

Renewal..........................................................................................88

Supplemental proceedings.............................................................88

300.317 Costs...........................................................................................................88

300.318 Interpleader Actions...................................................................................90

300.400 SMALL CLAIMS ACTIONS...................................................................90

300.401 Small Claims Division...............................................................................90

Purpose...........................................................................................91

Creation..........................................................................................91

Location ─ hours............................................................................91

Jurisdiction ─ removal from district court.....................................91

Venue.............................................................................................91

300.402 Parties ─ Representation............................................................................91

300.403 Procedure...................................................................................................92

300.404 Interpleader Actions...................................................................................94

300.500 OTHER PROCEEDINGS.........................................................................95

300.501 Appeals/Appeal Procedure ─ Criminal ─ Civil ─ Small Claims..............95

Criminal Actions............................................................................95

Contents of Record........................................................................97

Civil Actions..................................................................................98

Time for appeal..................................................................98

Undertaking when prevailing party appeals...................100

Defective undertaking.....................................................100

Small Claims Action...................................................................100

Appeal to district court ─ commencement and scope.....100

─ Table of Contents ─

Record on appeal..............................................................100

300.502 Contempt of Court/Handling Contempt Matters.....................................101

Powers of judicial officers as to conduct of proceedings........................102

Power to punish for contempt..................................................................102

Contempts for which justice of the peace may punish............................102

Contempts city judge may punish for ─ procedure.................................102

Proceedings..............................................................................................103

What acts or omissions are contempts ─ civil and criminal contempt....103

Procedure ─ contempt committed in presence of court...........................104

Procedure ─ contempt not in presence of court.......................................104

Warrant ─ statement of charge................................................................106

Endorsement allowing bail on warrant....................................................106

Arrest and detention by sheriff................................................................106

Bail bond ─ form and conditions of........................................................106

Return of warrant and undertaking..........................................................106

Hearing on contempt not committed in immediate view and

presence of court or judge at chambers........................................106

Penalty to compel performance...............................................................107

Proceedings when party fails to appear...................................................107

Illness sufficient excuse ─ confinement under arrest..............................107

Judgment and orders in contempt cases final ─ family law exception....107

Criminal contempt of court ─ a misdemeanor.........................................108

Contempt by Juveniles.............................................................................108

300.503 Search and Seizure...................................................................................109

Search and seizures ─ when authorized...................................................109

When search and seizure not illegal.........................................................109

Authority to issue search warrant............................................................109

Grounds for search warrant......................................................................110

To whom search warrant directed............................................................110

Service of search warrant.........................................................................110

What may be seized with search warrant.................................................111

When warrant may be served...................................................................111

Filing of return.........................................................................................111

Return.......................................................................................................112

Return of property seized ─ right to possess...........................................112

Disposition of unclaimed property...........................................................113

When search and seizure not illegal.........................................................113

300.504 Temporary Restraining Orders, Preliminary Injunctions, and

Orders of Protection.....................................................................113

Judge’s checklist......................................................................................115

Granting a temporary restraining order (TOR) or temporary

order of protection (TOP)............................................................115

Hearing.....................................................................................................115

Review or removal ─ district court..........................................................116

Jurisdiction and venue..............................................................................116

─ Table of Contents ─

Temporary order for maintenance or support, temporary injunction, or

temporary restraining order..........................................................116

Forms ─ distribution ─ filing..................................................................119

Jurisdiction and venue.............................................................................119

Review or removal ─ district court..........................................................119

Registration of orders...............................................................................120

Purpose.....................................................................................................120

Eligibility for order of protection.............................................................120

Notice of rights when partner or family member assault is suspected....121

Temporary order of protection.................................................................122

Order of protection ─ hearing ─ evidence...............................................123

Attorney general to provide forms...........................................................124

Written orders of protection.....................................................................124

Jurisdiction and venue..............................................................................125

Appeal to district court ─ order to remain in effect.................................126

Registration of orders...............................................................................126

300.600 THE JUVENILE DEFENDANT............................................................127

300.601 Jurisdiction of court.................................................................................127

Custody ─ hearing for probable cause.....................................................128

300.602 Issuing a warrant of arrest........................................................................129

300.603 Basic legal rights......................................................................................129

300.604 Sentencing................................................................................................130

Traffic..........................................................................................130

Offenses committed by persons under 18 years of age....130

Fish, Wildlife, and Parks..............................................................130

Penalties ─ violation of state law.....................................130

Alcoholic beverage violations......................................................131

Unlawful attempt to purchase or possession of

intoxicating substance ─ interference with sentence or

court order........................................................................131

Youth matters cited in justice’s court ─ public record............................134

Tobacco violations

Tobacco possession or consumption by persons under

18 years of age prohibited ─ unlawful attempt to

purchase ─ penalties........................................................135

Gambling prohibited for minors..................................................135

Minors not to participate ─ penalty ─ exception.............135

Criminal liabilities ─ misdemeanor.................................136

300.605 Contempt of court....................................................................................136

300.700 OATHS, CERTIFICATES, AND AFFIDAVITS...................................136

300.701 Oath..........................................................................................................136

300.702 Form of oath.............................................................................................136

300.703 Certificates...............................................................................................137

300.704 Form of certificate....................................................................................137

300.705 Affidavits.................................................................................................137

Permissible uses for affidavits.....................................................138

vii

─ Table of Contents ─

300.800 MARRIAGE PROCEDURE AND REQUIREMENTS..........................138

300.801 License.....................................................................................................138

300.802 Solemnization..........................................................................................138

300.803 Registration of Marriage..........................................................................139

300.804 Sample Ceremony....................................................................................140

SECTION 400 ─ TRIAL: BENCH AND JURY....................................................................142

400.100 INTRODUCTION...................................................................................142

400.101 Jury Waivers................................................................................143

Jury waiver, criminal.......................................................143

Jury waiver, civil..............................................................144

400.102 Pretrial Motions and Notices.......................................................144

400.103 Trial and Hearing Defined...........................................................146

400.104 Issues Defined..............................................................................147

400.105 Issues of Law...............................................................................147

400.106 Issues of Fact................................................................................147

400.107 Presence of Defendant.................................................................147

400.108 Trial after Nonappearance of a Party...........................................148

400.200 PROCEDURES.......................................................................................149

400.201 Setting the Trial............................................................................149

Who given precedence on calendar.................................149

Time to prepare for trial...................................................150

Trial to be timely..............................................................150

Notice of trial...................................................................150

Dismissal at instance of court or prosecution..................150

400.202 The Jury Panel..............................................................................151

Formation of trial jury for justices’, municipal, and

city courts.............................................................151

Failure of juror to attend..................................................151

Duty of jury commissioner ─ jury box or

computer database................................................152

Term of service of jurors..................................................153

400.203 Calling the Jurors to Report.........................................................153

When and by whom jurors summoned............................153

How to be summoned......................................................153

400.204 Forming the Jury..........................................................................154

400.205 Motions........................................................................................155

Introduction......................................................................155

Ruling on motions............................................................156

Procedural requirements..................................................156

Setting a motion for hearing............................................156

A typical list of motions...................................................157

400.206 Continuance for Trial...................................................................159

Motions for continuance..................................................159

400.300 BENCH TRIAL.......................................................................................160

400.301 Introduction..................................................................................160

viii

─ Table of Contents ─

400.302 Bench trial outline........................................................................160

400.400 JURY TRIAL...........................................................................................161

400.401 Introduction..................................................................................161

400.402 Court Bailiff.................................................................................161

400.403 Jury Trial Outline.........................................................................161

400.404 Oaths and Admonition.................................................................163

Jury panel.........................................................................163

Trial panel........................................................................163

Trial jurors.......................................................................163

Witness.............................................................................163

Jury...................................................................................164

Interpreter.........................................................................164

View of the premises.......................................................164

Bailiff...............................................................................164

400.405 Submission of Case to Jury..........................................................165

Exhibits to Jury Room.....................................................165

Conduct of jury after retirement ─ advice from court.....165

Return of verdict ─ polling jury.......................................166

Discharge of Jury.............................................................167

400.406 Sample ─ Jury List Form.............................................................168

400.500 JURY INSTRUCTIONS.........................................................................169

400.501 Introduction..................................................................................169

400.502 Jury Instructions ─ Criminal........................................................169

400.503 DUI Instruction............................................................................171

400.504 Jury Instructions ─ Civil..............................................................172

400.600 WITNESSES............................................................................................174

400.601 Producing the Witness.................................................................174

400.602 Subpoenas....................................................................................174

400.603 Service of Subpoenas...................................................................175

400.604 Problems in Service of Subpoenas...............................................175

400.605 Duties of Witnesses......................................................................176

400.606 Rights of Witnesses......................................................................176

400.700 THE WEIGHT OF EVIDENCE..............................................................178

400.701 Introduction..................................................................................178

400.702 How to Evaluate Evidence...........................................................178

400.703 Burden of Proof............................................................................178

Civil.................................................................................178

Criminal...........................................................................179

400.704 Proof Required.............................................................................179

400.705 Rules of Evidence, Criminal........................................................179

400.800 EXTRAORDINARY REMEDIES..........................................................180

400.801 Motion for new trial....................................................................180

400.802 Motion for Judgment Notwithstanding the Verdict.....................180

400.803 Motion for Directed Verdict........................................................180

400.804 Motion to Withdraw Plea.............................................................180

400.805 Motion for Mistrial......................................................................181

─ Table of Contents ─

400.900 JUDGMENT AND SENTENCE.............................................................181

400.901 Judgment Defined........................................................................181

400.902 Policy of the Law.........................................................................181

400.903 Procedure.....................................................................................182

400.904 Sentence Defined.........................................................................183

400.905 Sentences that may be Imposed...................................................183

400.906 Presentence Investigation.............................................................186

400.907 Sentencing Indigents....................................................................187

400.908 Sentence When Code Silent on Punishment................................187

400.909 Dismissal After Deferred Imposition...........................................188

400.910 Revocation...................................................................................188

400.911 Credit for Incarceration................................................................190

400.912 Execution of Judgment................................................................190

400.913 Execution of a Fine......................................................................191

400.914 Jail Work Release Programs........................................................191

County jail work program................................................192

Operation of county jail work program...........................192

400.915 The Surcharges.............................................................................193

400.916 Consecutive Sentences.................................................................194

SECTION 500 ─ DOCKET, RECORDS, AND REPORTS..................................................195

500.100 INTRODUCTION...................................................................................195

500.200 DOCKET.................................................................................................195

500.201 Small Claims Docket...................................................................196

500.202 Criminal Docket...........................................................................196

500.203 Docket Entries..............................................................................196

500.204 Docket Index................................................................................197

500.205 Dockets to Successor....................................................................197

500.300 COURT RECORD...................................................................................197

Municipal Court...........................................................................198

500.400 REPORTS................................................................................................198

500.401 Report to the County Attorney....................................................198

500.402 Report to the Highway Patrol......................................................198

500.403 Report to the Clerk of Court........................................................200

500.404 Report to the County Treasurer....................................................200

500.405 (Repealed)....................................................................................200

500.406 Report to the Department of Justice.............................................201

SECTION 600 ─ FEES, FINES, AND FORFEITURES........................................................202

600.100 INTRODUCTION...................................................................................202

600.200 FEES........................................................................................................202

Collection and disposition of fines, penalties, forfeitures,

and fees............................................................................202

Collection and disposal of fees....................................................203

600.201 Criminal Fees...................................................................204

600.202 Civil Fees.........................................................................204

─ Table of Contents ─

600.203 Small Claims Fees........................................................................205

600.204 Jurors’ Fees..................................................................................205

600.205 Witnesses’ Fees............................................................................205

600.300 FINES, FORFEITURES, AND FEES.........................................205

600.301 Introduction......................................................................205

Definitions............................................................205

600.302 Fines and Forfeitures........................................................206

Disposition of fines and forfeitures......................206

Disposition of fines and forfeited bonds..............206

Deposit of fines ─ collection...............................206

600.303 Surcharges....................................................................................207

User surcharge for court information technology ─

exception..........................................................................210

SECTION 700 ─ JUDICIAL RESOURCES...............................................................................1

700.100 CANONS OF JUDICIAL ETHICS.................................................1

700.200 NEW JUDGES.................................................................................1

Section 100 ─ Introduction

SECTION 100 – INTRODUCTION

100.100 The Law. The law comes from several sources;

constitutional law, statutory law and case law. The judge will

also encounter references to annotations, unwritten and common

laws and attorney general opinions. Attorneys will cite these

various sources. Judicial decisions must be based on one or

more of these laws.

100.101 Constitutional Law. The most binding of our body of

laws are the provisions of the United States and Montana

Constitutions. These constitutions spell out the most basic

rights and duties of an American citizen. Neither congress nor

the state legislature can enact a statute in violation of any

principle of either constitution. When a judge of a court of

limited jurisdiction is asked to declare any legislation or

statute unconstitutional, the judge should be hesitant and very

careful. This duty is generally performed by a district court

or the Montana Supreme Court in our state. There is no

constitutional or statutory prohibition for limited court judges

to perform that function, however, it should be done with

extreme discretion.

100.102 Statutory Law. The next source of the law a judge must

follow is the “statutes” or the enactments of the legislature.

New laws are adopted each legislative session and amendments are

made to existing statutes. Enactments, each legislative year,

are compiled into a temporary set of books entitled “Legislative

Review” with the legislative session number and the year of the

session also indicated.

These newly enacted laws, together with all existing laws,

are then put into a permanent set of books, named the “Montana

Code Annotated” or “MCA” for citation purposes.

The code is divided into titles, chapters, parts, and

sections. A person wishing to “cite” a code section will do so

by using the full notation: For example, 1-1-107 MCA. This

means the provision is in Title 1, Chapter 1, Part 1 of the

chapter and the 7

section in that part.

The MCA will be the law most often referred to in any

Montana court. City courts and municipal courts will also have

“ordinances” but even in city or municipal courts, the MCA

provision will govern most, if not all, of the procedures.

History notes shown below each section of law will tell

when the section was initially enacted and the dates of

amendments. The last reference is the date of the most recent

amendment to that particular section.

Section 100 ─ Introduction

100.103 Case Law. In spite of the great number of statutes,

much of our law is founded in the reported decisions of the

Montana Supreme Court or the Supreme Court of the United States.

These decisions establish precedents to be followed. The policy

of following precedent is called “stare decisis,” meaning “to

stand with the decision.” This body of law is known as “case

law.” The importance of case law is that when a particular

provision of the constitution or of the statutes has been

interpreted by the Supreme Court, all judges must thereafter

apply that interpretation to a clearly comparable set of facts

until a new statute is enacted or a new decision is made.

In recent years the “Miranda” case has become one of the

most important examples of case law emerging from the United

States Supreme Court. One important example of the Montana case

law is State vs. Braden, 154 Mont. 90. This case applies to

search and seizure. The cite means that in volume number 154 of

the published reports of the Montana Supreme Court decisions you

will find on page 90 the case of State vs. Braden. The full

record of the written decision will appear. If a lawyer calls

attention to a decision of the Montana Supreme Court, it will be

cited as above. Each courthouse has one set of the Montana

Reports and every judge should know where they are and how to

use them. You can also obtain decisions of the Montana Supreme

Court at website http://www.lawlibrary.state.mt.us/dscgi/ds.py/View/Collection-36.

100.104 Annotations. Montana statutes are annotated. This

means that every case, decided by the Supreme Court where a

specific statute is quoted or followed, will appear in the

annotations following the code section number. Annotations are

in a separate set of loose-leaf books. These annotations are

updated after each legislative session, as are the Montana Codes

Annotated.

100.105 Unwritten and Common Laws. Three sections of the

Montana Code Annotated state the Montana policy:

MCA 1-1-107. Unwritten law defined. Unwritten law is the law that is not

promulgated and recorded, as mentioned in 1-1-104, but that is, nevertheless,

observed and administered in the courts of the country. It has no certain

repository but is collected from the reports of the decisions of the courts and

treatises of learned people.

Section 100 ─ Introduction

MCA 1-1-108. Common law – applicability of In this state there is no common

law in any case where the law is declared by statute. But where not so declared,

if the same is applicable and of a general nature and not in conflict with the

statutes, the common law shall be the law and rule of decision.

MCA 1-1-109. Common law of England – when rule of decision. The common

law of England, so far as it is not repugnant to or inconsistent with the

constitution of the United States or laws of this state, is the rule of decision in all

the courts of this state.

100.106 Attorney General Opinions. Frequently the attorney

general is called upon to give an opinion on a question of law.

Pursuant to MCA 2-15-501(7), any opinion given by the attorney

general is considered as the law (much like case law) until and

unless a district court or the Supreme Court of Montana rules

otherwise.

100.107 Substantive and Procedural Law. There are two general

categories of law that apply in the operation of the Court –

substantive law and procedural law. Black’s Law Dictionary 7

Ed. Defines substantive law as “The part of the law that

creates, defines, and regulates the rights, duties, and powers

of parties.” (contract law, criminal law, tort law, law of

wills, etc.) as opposed to procedural law (law of pleading, law

of evidence, law of jurisdiction, etc.). Black’s defines

procedural law as “The rules that prescribe the steps for having

a right or duty judicially enforced, as opposed to the law that

defines the specific rights or duties themselves.”

100.200 THE ROLE OF JUDGES OF LIMITED JURISDICTION COURTS

100.201 The Judicial Image. The great majority of citizens

receive their first exposure to our judicial system in the

courts of limited jurisdiction. It is in these courts that the

public’s impression of justice and its administration is

instilled. For this reason it is important that we, as judges,

continually examine our courtroom procedures and strive to

improve the public’s view of the judicial process.

100.202 Dignified Surroundings. The 1972 constitution and the

1973 legislature began the process of improving the physical

facilities for courts of limited jurisdiction. The following

section was first enacted at that time:

Section 100 ─ Introduction

MCA 3-10-103. County to provide facilities. The board of county

commissioners of the county in which the justice of the peace has been elected or

appointed:

(1) shall provide for the justice’s court:

(a) the office, courtroom, and clerical assistance necessary to enable the

justice of the peace and the clerk of justice’s court, if any, to conduct

business in dignified surroundings;

(b) the books, records, forms, papers, stationery, postage, office

equipment, and supplies necessary in the proper keeping of the records

and files of the court and the transaction of the business; and

supplements; and

(2) may provide a clerk of justice’s court.

The dignified surroundings contemplated by the statute

require that the judge have an elevated bench with an American

flag on a floor standard on the right. Our system of justice

derives its authority from the government and the constitution;

the flag represents these concepts. Together, the elevated

bench and the flag indicate that the judge is in a position of

authority and is deserving of respect. With a raised bench, the

judge will be at eye level, or above, anyone appearing before

the court and this creates an appropriate setting for the court.

Where possible, courtroom facilities should be comparable to

those provided in the district court courtrooms, with a raised

witness chair and a rail between spectators and counsel.

Another judicial symbol is the robe. Although there is no

statutory requirement for a judge to wear one, the robe is a

symbol of respect and authority. (See Title 25, chapter 24,

Montana Uniform Rules for the Justice and City Courts, Rule

13(b).

100.203 Judge’s Conduct on the Bench. No matter how beautiful

or dignified the courtroom facilities are, the impression of

justice will be negative if the conduct of the presiding judge

does not conform to accepted judicial standards. The judge must

be courteous, patient, attentive, possessed of a sense of humor,

and most importantly, must have good common sense. Legal

ability need not include admission to the Bar as a practicing

attorney, but certainly it must include a good understanding of

the basic rules of legal rights and duties. In 1985, with the

support of the Montana Magistrates Association, the legislature

enacted 3-1-1501 MCA through 3-1-1508 MCA. These sections

require the training and certification of all judges in courts

of limited jurisdiction.

Section 100 ─ Introduction

This legislation is an important step in upgrading the judicial

system and sets requirements of competency to assure judicial

equality in our state. The judge must be ever aware that the

eye of the public is focused on the court, including the judge

and staff members of the court. It is extremely important that

the action and attitude of all court personnel is one of

professional courtesy and conduct.

Without a doubt, the multitude of matters that come before

your court makes it very difficult to avoid impatience or

boredom. No matter how tempting it may be, you must never

forget that each litigant before you is having their day in

court, and it may well be one of the most important things that

has happened in their life. If you are not courteous, or if you

fail to give your full attention to the problems presented, the

litigant may walk out of the courtroom with a bad taste in his

or her mouth, believing that courts are unsympathetic and

unresponsive.

Another important duty of any judge is to control the

courtroom. Don’t let disruptions get started. This must be

done with a minimum use of the voice or gavel. Each case must

be given the full attention of the judge and that includes being

in control of the litigants and witnesses who appear. It is

difficult to fully “hear” a case if the presentation of the case

is not done in an orderly fashion.

One important factor in preserving respect for the court is

to start on time. If your court is supposed to convene at 9:30

– start on time – not at 10:00. If you expect litigants and

lawyers to be on time, then you should demand no less from

yourself. Showing courtesy and timeliness to staff, litigants,

and attorneys should be a basic trait of a judge.

While conducting any hearing, avoid actions that might

indicate that your role is that of prosecutor, defense counsel,

law enforcement officer, or counselor. The role of the judge,

during an appearance or a trial, is extremely important. The

judge should remember that each action is essentially a search

for the truth and you must be independent and neutral at all

times.

One area that can be difficult is in the examination of

witnesses, especially in a pro se situation. For a judge to

question a witness actively can create problems for it is

difficult to avoid giving the impression that you are cross-

examining for one side or the other.

Section 100 ─ Introduction

On the other hand, it is difficult to sit silently as a referee

and wonder about unanswered questions. The best policy is to

ask as few questions as possible, but never hesitate when it is

necessary for you as the fact finder to ask a question for

clarification of testimony.

The city, justice, or municipal court judge has the power

of contempt to control the conduct of the parties, lawyers, and

spectators during a hearing. This power should always be

carefully and properly exercised. To indiscriminately use or

threaten to use contempt is the quickest way to lose the respect

of those attending your court. Contempt powers are given to a

court for a specific purpose and should be used reasonably and

judiciously.

It is the duty of the judge to disqualify oneself whenever

a legal cause for disqualification exists. There are also

situations where a legal cause may not exist but in fairness to

the litigants, another judge should be called to preside. The

court should never be open to the criticism that the judge was

influenced by such things as personal associations and former

business or professional associations. Sometimes the appearance

of unfairness is more disastrous to the public image of the

judiciary than a mistaken interpretation of the law or the

facts. The “Canons of Judicial Ethics” are available to you and

you should become familiar with them.

100.204 Judge’s Conduct off the Bench. One of the truths we

all must face is that when we become a judge, we cannot expect

to lead the same carefree, uninhibited social existence of

former times. People expect a judge to live by a standard above

that of the average citizen. It is essential that as a judge,

you should avoid presence at questionable places and affairs;

that you strictly observe all general public rules such as

traffic laws; and above all, that you not seek or expect any

special treatment because of your position.

It is imperative that a judge maintains the proper

relationships with peace officers, defendants, prosecutors and

defense counsel. As a judge, you must perform your duty

independent of other agencies, peoples, or prejudices. One of

the mot damaging criticisms a court can receive is that it is

controlled by another agency or group of people and has become a

rubber stamp. This perception will affect the respect and

efficiency of the court. Your actions will greatly contribute

to a favorable concept of the court.

Section 100 ─ Introduction

100.205 Immunities of the Judge. Judges are not liable for the

consequences of their judicial acts if they have jurisdiction

for the performance of such acts. If you, as the judge, have

exceeded the limits of your jurisdiction, you may not be

protected. General immunity is limited to recognized judicial

acts and provides no protection for acts beyond the boundaries

of your duty as a judge.

It is because of this limitation, the first question the

judge must ask whenever called upon to perform a judicial act

is, “Do I have jurisdiction to act?”

100.206 The Judge and the Adversary System. Our courts have been

established as a forum where all parties can present their

differences and seek a fair and just solution. The system

functions under the adversary procedure, where each party to a

dispute presents evidence and arguments in the manner most

beneficial to that position. The case is then submitted to the

Trier-of-fact. It is essential for the proper operation of the

system that a trial or hearing be presided over by a judge who

is impartial and thoughtful. The judge must also be attentive

to make certain that the proper law is applied and proper rules

of evidence and procedure are followed in each case. In no

other way can the parties be assured of their basic

constitutional right to a “fair trial”. This ideal is the

cornerstone of our judicial system.

Section 200 ─ Court Structure

SECTION 200 – COURT STRUCTURE

200.100 INTRODUCTION

By Article VII, the 1972 Montana Constitution established a three-level court system and set out

the jurisdiction of each court.

Section 1. Judicial Power. The judicial power of the state is vested in one

Supreme Court, district courts, justice courts, and other such courts as may be

provided by law.

Section 5. Justices of the Peace. (1) There shall be elected in each county at

least one justice of the peace with qualifications, training, and monthly

compensation provided by law. There shall be provided such facilities that they

may perform their duties in dignified surroundings.

(2) Justice courts shall have such original jurisdiction as may be provided by law.

They shall not have trial jurisdiction in any criminal case designated a felony

except as examining courts.

(3) The legislature may provide for an additional justice of the peace in each

county.

Comment. Municipal courts and city courts are then

established by legislative action.

3-1-101 MCA. The several courts of this state. The following are courts of

justice of this state:

(1) the court of impeachment, which is the senate;

(2) the supreme court;

(3) the district courts;

(4) the municipal courts;

(5) the justice courts;

(6) the city courts and such other courts of limited jurisdiction as the legislature

may establish in any incorporated city or town.

3-1-201 MCA What courts have seals. Each of the following courts shall have

seals:

(1) the supreme court;

(2) the district courts;

(3) the municipal courts.

3-6-101 MCA Establishment of court. (1) A city with a population of 4,000 or

more, according to the last federal census, may have a court, known as the

municipal court of the city of (designating the name of the city) of the state of

Montana.

Section 200 ─ Court Structure

The court must be a court of record. The municipal court shall assume continuing

jurisdiction over all pending city court cases in the city in which the municipal

court is established.

(2) A city may have a municipal court only if the governing body of the city

elects by a two-thirds majority vote to adopt the provisions of this chapter by

ordinance, and, in the ordinance, provides the manner in which and time when the

municipal court is to be established and is to assume continuing jurisdiction over

all pending city court cases. If a city judge is not an attorney and the office is

abolished because a municipal court is established, the ordinance must provide

that the time when the establishment of the municipal court takes effect is the date

on which the municipal court judge elected at the next election held under 3-6-

201 begins the municipal court judge’s term of office. The ordinance must be

consistent with the provisions of this chapter.

3-10-101 MCA. Number and location of justices’ courts – authorization to

combine with city court – justice’s court of record. (1) There must be at least one

justice’s court in each county of the state, which must be located at the county

seat. The board of county commissioners shall designate the number of justices in

each justice’s court.

(2) The board of county commissioners of each county of the state may

establish:

(a) one additional justice’s court located anywhere in the county; and

(b) one additional justice’s court located in each city having a population

of over 5,000, as provided in subsection (3).

(3) A city having a population of over 5,000 may, by resolution, request the

board of county commissioners to constitute a justice’s court in the city. A

justice’s court must be established in the city if the board of county

commissioners approves the request by resolution.

(4) A justice of the peace of a court constituted pursuant to subsection (3)

may act as the city judge upon passage of a city ordinance authorizing such action

and upon approval of the ordinance by resolution of the board of county

commissioners. If the ordinance and resolution are passed, the city and the

county shall enter into an agreement for proportionate payment of the justice’s

salary, as established under 3-10-207 and 3-11-202, and for proportionate

reimbursement for the use of facilities.

(5) A county may establish the justice’s court as a court of record. If the

justice’s court is established as a court of record, it must be known as a “justice’s

court of record” and, in addition to the provisions of this chapter, is also subject to

the provisions of 3-10-115 and 3-10-116. The court’s proceedings must be

recorded by electronic recording or stenographic transcription and all papers filed

in a proceeding must be included in the record. A justice’s court established as a

court of record may be established by a resolution of the county commissioners or

pursuant to 7-5-131 through 7-5-137.

Section 200 ─ Court Structure

3-11-101 MCA. City court established. A city court is established in each city or

town. A city judge shall establish regular sessions of the court. On judicial days,

the court must be open for all business, civil and criminal. On no judicial days, as

defined in 3-1-302, the court may transact criminal business only.

200.101 Disqualification and Substitution of Judges.

In 1981, the Montana Supreme Court, pursuant to the powers granted by the Montana

Constitution, adopted a new rule relating to the disqualification of judges. The most important

part of these rules, as it relates to our courts, has been amended as listed below:

Disqualification of a judge in a court of limited jurisdiction is limited to those cases

where the judge feels there is a legal reason the judge should not sit on the case, and to those

cases where an affidavit is filed charging the judge with actual bias and prejudice.

3-1-803 MCA. Disqualification of judges ─ all courts.

DISQUALIFICATION OF JUDGES

This section shall, in its application, apply to all courts listed in section 3-1-101 except a

court of impeachment in the state senate.

Any justice, judge, justice of the peace, municipal court judge or city court must not sit or

act in any action or proceeding:

1. To which he is a party, or in which he is interested.

2. When he is related to either party or any attorney or member of a firm of attorneys of

record for a party by consanguinity or affinity within the third degree, computed according to

the rules of law;

3. When he has been attorney or counsel in the action or proceeding for any party or when

sitting in a case on appeal he as a judge in the lower court rendered or made the judgment,

order, or decision appealed from.

DISQUALIFICATION FOR CAUSE

This section is limited in its application to judges presiding in district courts, justice of

the peace courts, municipal courts, small claims courts, and city courts.

1. Whenever a party to any proceeding in any court shall file an affidavit alleging facts

showing personal bias or prejudice of the presiding judge, the matter shall be referred to the

Montana Supreme Court. If the affidavit is in compliance with subsections (a), (b), and (c)

below, the Chief Justice shall assign a district judge to hear the matter. If the affidavit is filed

against a judge of a municipal court, justice court, or city judge, any district judge presiding in

the district of the court involved may appoint either a justice of the peace, a municipal judge or a

city court judge, to hear any such proceeding.

(a) The affidavit for disqualification must be filed more than thirty (3) days before the date

set for hearing or trial.

(b) The affidavit shall be accompanied by a certificate of counsel of record that the affidavit

has been made in good faith. An affidavit will be deemed not to have been made in good faith if

it is based solely on rulings in the case which can be addressed in an appeal from the final

judgment.

Section 200 ─ Court Structure

personal bias or prejudice may be set aside as void.

(d) The judge appointed to preside at a disqualification proceeding may assess attorneys

fees, costs and damages against any party or his attorney who files such disqualification without

reasonable cause and thereby hinders, delays or takes unconscionable advantage of any other

party, or the court.

200.102 Interim Disqualification.

3-1-1109 MCA. Interim disqualification of judicial officer. (1) A judicial officer

must be disqualified from serving as a judicial officer, without loss of salary,

while there is pending an indictment or an information charging the officer with a

crime punishable as a felony under Montana or federal law.

(2) When the commission files with the supreme court a recommendation that a

judicial officer be removed or retired, the judicial officer must be disqualified

from serving as a judicial officer, without loss of salary, pending the supreme

court’s review of the record and proceedings.

Section 200 ─ Court Structure

200.200 MUNICIPAL COURT JURISDICTION.

3-6-103 MCA. Jurisdiction. (1) The municipal court has jurisdiction coordinate

and coextensive with the justices’ courts of the county where the city is located

and has exclusive original jurisdiction of all civil and criminal actions and

proceedings provided for in 3-11-103. (2) Municipal courts have concurrent

jurisdiction with the district court in actions arising under Title 70, chapters 24

through 27.

(3) Applications for search warrants and complaints charging the commission of

a felony may be filed in municipal court. The municipal court judge has the same

jurisdiction and responsibility as a justice of the peace, including holding

preliminary hearings. The city attorney may initiate proceedings charging a

felony if the offense was committed within the city limits, but the county attorney

shall take charge of the action if an information is filed in district court.

Comment. 40-4-123 MCA gives concurrent jurisdiction to

district courts, municipal courts, justice’s courts, and city

courts to hear and issue orders under 40-4-121. The 1989

Legislature gave authority to all courts, including city courts

for the issuance of temporary restraining orders, preliminary

injunctions, and orders of protection. These statutes were

updated in 1995 and Statute 40-15-301 grants the same

jurisdiction for protective orders listed in 40-15-201.

Comment. Municipal court judges have the authority to perform

marriages as provided for in 40-1-301 MCA.

200.201 Term of Office.

3-6-201 MCA. Number of judges ─ election ─ term of office ─ chief judge ─

duties of chief judge ─ assistant judge. (1) The governing body of a city shall

determine by ordinance the number of judges required to operate the municipal

court.

(2) A municipal court judge who is not a part-time assistant judge appointed

under subsection (6) must be elected at the general election, as provided in

13-1-104(2). The judge’s term commences on the first Monday in January

following the election. The judge shall hold office for the term of 4 years and

until a successor is elected and qualified.

(3) Except as provided in subsection (2), all elections of municipal court judges

are governed by the laws applicable to the election of district court judges.

(4) If there is more than one municipal court judge, the judges shall adopt a

procedure by which they either select a chief municipal court judge at the

beginning of each calendar year or by which the position of chief municipal court

judge rotates among the judges in order of seniority at the beginning of each

calendar year, with the most senior judge serving during the first year of the

rotation.

Section 200 ─ Court Structure

(5) The chief municipal court judge shall provide for the efficient management of

the court, in cooperation with the other judge or judges, if any, and shall:

(a) maintain a central docket of the court’s cases;

(b) provide for the distribution of cases from the central docket among the

judges, if there is more than one judge, in order to equalize the work of the

judges;

(d) if there is more than one judge, temporarily reassign or substitute judges

among the departments as necessary to carry out the business of the court; and

(e) supervise and control the court’s personnel and the administration of the

court.

(6) A municipal court judge may, with the approval of the governing body of the

city, appoint a part-time assistant judge, who must have the same qualifications as

a judge pro tempore under 3-6-204, to serve during the municipal court judge’s

term of office. An order by a part-time assistant judge has the same force and

effect as an order of a municipal court judge.

200.202 Qualifications/Bonds/Restrictions.

3-6-302 MCA. Qualifications ─ certification ─ training. (1) A municipal court

judge must have the same qualifications as a judge of a district court, as set forth

in Article VII, section 9, of the Montana constitution, except that a municipal

court judge need only be admitted to the practice of law in Montana for at least 3

years prior to the date of appointment or election.

(2) A municipal court judge shall reside in the county in which the court is

located and shall meet the residency requirements provided in 3-10-204.

(3) The commission on courts of limited jurisdiction, upon finding compliance

with subsections (1) and (2), shall issue a certificate, as required in 3-1-1502,

prior to the municipal court judge assuming office. The certificate must be

conditioned upon continued compliance with the minimum judicial education

requirements provided for in this section. The certificate must be filed with the

clerk and recorder as provided in 3-1-1502.

(4) A municipal court judge shall complete a minimum of 15 hours of continuing

judicial education requirements each year or a greater number established by the

supreme court. Attendance at the two annual training sessions under 3-10-203

may fulfill the requirement provided for in this subsection.

(5) Completion of a course approved for continuing judicial or legal education

hours applies to the judicial education requirements under subsection (4).

(6) A municipal court judge is entitled to reimbursement by the city in which the

judge holds or will hold court for all actual and necessary expenses and costs

incurred in attending a continuing judicial or legal education course.

(7) On or before December 31 of each year, a municipal court judge shall file an

affidavit of compliance with the continuing judicial education requirements

established in this section with the commission on courts of limited jurisdiction.

The supreme court may sanction a municipal court judge or declare a vacancy in

the office of the judge for failure to meet the training requirements established in

this section.

Section 200 ─ Court Structure

Art. VII, Sec. 9, Mont. Const. Qualifications. . . . (4) Supreme court justices shall

reside within the state. During his term of office, a district court judge shall

reside the district and a justice of the peace shall reside in the county in which he

is elected or appointed. The residency requirement for every other judge must be

provided by law.

2-9-802 MCA. Bonds ─ amount. All elected or appointed city or town officers

and employees must be bonded in the amount required by ordinance. The amount

for which a city or town officer or employee must be bonded must be based on the

amount of money or property handled and the opportunity for defalcation.

3-1-604 MCA. Restrictions on municipal court judges. A municipal court judge

may not practice law before the judge’s own municipal court or hold office in a

political party during the judge’s term of office.

200.203 Election.

See 200.201.

200.204 Official bond.

7-4-4109 MCA. Official bond. Each officer of a city or town who is required to

give bond shall file the bond, duly approved, within 10 days after receiving notice

of election or appointment or, if notice is not received, then on or before the date

fixed for the assumption of the duties of the office to which the officer is elected

or appointed.

200.205 Training/Certification.

3-11-204 MCA. Training sessions for judges. (1) There must be two mandatory annual

training sessions supervised by the supreme court for all elected and appointed city

judges. One of the training sessions may be held in conjunction with the Montana

magistrates’ association convention. Actual and necessary travel expenses, as provided

in 2-18-501 through 2-18-503, and the costs of registration and books and other materials

must be paid to the elected or appointed judge for attending the sessions. Whenever the

office of city judge is held by a justice of the peace, the costs imposed by this subsection

are the joint responsibility of the county and the municipality, with the costs to be

allocated and charged in proportion to the work done for each governmental entity. In all

other cases, the costs must be paid by the city or town in which the judge holds or will

hold court and must be charged against that city or town.

(2) Each city judge shall attend the training sessions. Failure to attend

disqualifies the judge from office and creates a vacancy in the office. However,

the supreme court may excuse a city judge from attendance because of illness, a

death in the family, or any other good cause.

Section 200 ─ Court Structure

3-1-1502. Training and certification of judges. Except as provided in 3-1-1503, a

judge selected for a term of office may not assume the functions of the office

unless the judge has filed with the county clerk and recorder in the jurisdiction a

certificate of completion of a course of education and training prescribed by the

commission.

3-1-1503. Exception ─ temporary certificate . (1) Section 3-1-1502 does not

apply to a judge who has received a temporary certificate issued by the

commission as provided for in subsection (2).

(2) The commission may issue a temporary certificate enabling a judge to

assume the functions of the office pending completion of a course as required

by 3-1-1502. The temporary certificate must be in a form and subject to the

terms and conditions prescribed by the commission.

(3) The commission may issue a temporary certificate only if:

(a) the judge is appointed or elected after the course is offered; or

(b) the commission grants an excuse because of a personal illness, a death in

the family, or other good cause.

(4 The appointing authority for an appointed judge shall notify the

commission of the person appointed, and the person appointed must be

certified as provided in 3-1-1502 or this section prior to assuming office.

3-1-1508 MCA. Credit toward annual training. Attendance of a training

course prescribed by 3-1-1502 shall apply toward fulfillment of mandatory

annual training requirements provided in 3-10-203 and 3-11-204.

Comment. 3-1-1501 MCA defines the term “judge” to mean a

municipal court judge, a justice of the peace, or a city judge.

“Commission” means the Commission on Courts of Limited

Jurisdiction established by the Supreme Court.

200.206 Salary and Expenses.

3-6-203 MCA. Salary. The salary of the municipal court judge must be set by

ordinance or resolution and is payable monthly by the city treasurer. Actual and

necessary expenses for the municipal court judge are expenses, as defined and

provided in 2-18-501 through 2-18-503, incurred in the performance of official

duties.

3-11-204 MCA. Training sessions for judges. (1) . . . Actual and necessary travel

expenses, as provided in 2-18-501 through 2-18-503, and the costs of registration

and books and other materials must be paid to the elected or appointed judge for

attending the session.

3-1-1506 MCA. Expenses. Each judge is entitled to reimbursement for all actual

and necessary travel expenses and other costs incurred in attending a course of

training education pursuant to 3-1-1502. Such reimbursement must be paid as

provided for in 3-10-203 and 3-11-204.

Section 200 ─ Court Structure

200.207 Court Facilities and Sessions:

3-6-105 MCA. Courtroom and supplies. A room for the municipal court, with

the necessary furniture, fixtures, and supplies, shall be provided by the city

wherein the court is located.

3-6-106 MCA. Sessions of court ─ departments . (1) The municipal court must

be in continuous session from 9 a.m. to noon and from 1 p.m. to 4 p.m. on every

day except nonjudicial days. The judge may designate additional hours as the

judge believes necessary. If there is more than one judge, each judge may hold a

session of the court and may designate additional hours as the judge believes

necessary.

(2) If there is more than one judge, the chief municipal court judge shall divide

the court into departments, make rules for the government of the court, and

describe the order of the court’s business.. Each department must be numbered,

and a judge must be assigned to each department.

3-1-301 MCA. Days on which courts may be held. Courts of justice may be held

and judicial business transacted on any day, except as provided in 3-1-302.

3-1-302 MCA. Nonjudicial day. (1) No court may be open nor may any judicial

business be transacted on legal holidays, as provided for in 1-1-216, and on a day

appointed by the president of the United States or by the governor of this state for

a public fast, thanksgiving, or holiday, except for the following purposes:

(a) to give, upon its request, instructions to a jury when deliberating on its

verdict;

(b) to receive a verdict or discharge a jury;

a proceeding of a criminal nature.

(2) Injunctions, writs of prohibition, and habeas corpus may be issued and served

on any day.

3-1-312 MCA. Sitting of court to be public. The sittings of every court of justice

must be public, except as provided in 3-1-313.

3-1-313 MCA. Sittings of court ─ when private. (1) in an action for dissolution

of marriage, criminal conversation, or seduction, the court may direct the trial of

any issue of fact joined therein to be private and exclude all persons except the

officers of the court, the parties, their witnesses, and counsel.

(2) During the examination of a witness in any cause, the court may, in its

discretion, exclude some or all of the other witnesses in the cause.

Section 200 ─ Court Structure

200.208 Acting Judge.

3-6-204 MCA. Disqualification ─ judge pro tempore . When a judge of a

municipal court has been disqualified or is sick or unable to act, the judge shall

call in a sitting or retired judge of a court of record or an attorney who has been a

member of the state bar of Montana for 5 or more years to act as a judge pro

tempore. The judge pro tempore has the same power and authority as the

municipal court judge.

200.209 Forfeiture of a Judicial Position.

Art. VII, Sec. 10, Mont. Const. Forfeiture of judicial position. Any holder of a

judicial position forfeits that position by either filing for an elective public office

other than a judicial position or absenting himself from the state for more than 60

consecutive days.

200.210 Vacancy/Removal/Resignation.

7-4-4111 MCA. Determination of vacancy in municipal office. An office

becomes vacant on the happening of any of the following events before the

expiration of the term of the incumbent:

(1) the death of the incumbent;

(2) a determination pursuant to Title 53, Chapter 21, Part 1, that the incumbent is

mentally ill;

(3) the incumbent’s resignation;

(4) the incumbent’s removal from office;

(5) the incumbent’s absence from the city or town continuously for 10 days

without the consent of the council;

(6) the incumbent’s open neglect or refusal to discharge duties;

(7) the incumbent’s ceasing to be a resident of the city or town or, in the case of a

city council member, ceasing to be a resident of the city council member’s ward.

This subsection does not apply to an appointed municipal officer who resides

outside the city or town limits with the approval of the city or town governing

body and within a distance of the city or town approved by the governing body.

(8) the incumbent’s ceasing to discharge the duty of the office for a period of 3

consecutive months, except when prevented by illness or when absent from the

city or town by permission of the governing body;

(9) the incumbent’s conviction of a felony or of any offense involving moral

turpitude or a violation of official duties;

(10) the incumbent’s refusal or neglect to file an official bond within the time

prescribed;

(11) the decision of a competent tribunal declaring void the incumbent’s election

or appointment.

7-4-4113 MCA. Removal of appointed officer. The council, upon written

charges to be entered upon their journal, after notice to the party, and after trial by

the council may remove any nonelected officer by vote of two-thirds of all

members-elect.

Section 200 ─ Court Structure

3-11-204 MCA. Training sessions for judges. …(2) Each city judge shall attend

the training sessions. Failure to attend disqualifies the judge from office and

creates a vacancy in the office. However, the supreme court may excuse a city

judge from attendance because of illness, a death in the family, or any other good

cause.

3-1-1507 MCA. Disqualification. Each judge shall complete a course of training

and education as required by 3-1-1502. Subject to 3-1-1503, failure to obtain a

certificate of completion disqualifies the elected or appointed judge from

assuming office and creates a vacancy in the office.

Art. V, Sec. 13, Mont. Const. Impeachment. (1) The governor, executive

officers, heads of state departments, judicial officers, and such other officers as

may be provided by law are subject to impeachment, and upon conviction shall be

removed from office. Other proceedings for removal from public office for cause

may be provided by law.

Art. VII, Sec. 10, Mont. Const. Forfeiture of judicial position. (See 200.209.)

Art. VII, Sec. 11, Mont. Const. Removal and discipline. (1) The legislature shall

create a judicial standards commission consisting of five persons and provide for

the appointment thereto of two district judges, one attorney, and two citizens who

are neither judges or attorneys.

(2) The commission shall investigate complaints, and make rules implementing

this section. It may subpoena witnesses and documents.

(3) Upon recommendation of the commission, the supreme court may:

(a) Retire any justice or judge for disability that seriously interferes with

the performance of his duties and is or may become permanent; or

(b) Censure, suspend, or remove any justice or judge for willful

misconduct in office, willful and persistent failure to perform his duties,

violation of canons of judicial ethics adopted by the supreme court of the

state of Montana, or habitual intemperance.

(4) The proceedings of the commission are confidential except as provided by

statute.

2-16-502 MCA. Resignations. (1) Resignations must be in writing and made as

follows: . . .

(d) by all county and township officers not commissioned by the

governor, to the clerk of the board of commissioners of their respective

counties.

(e) by all other appointed officers, to the body or officer that appointed

them; . . .

Section 200 ─ Court Structure

200.300 JUSTICE COURT JURISDICTION

3-10-301 MCA. Civil jurisdiction. (1) Except as provided in 3-11-303 and in

subsection (2) of this section, the justices’ courts have jurisdiction:

(a) in actions arising on contract for the recovery of money only if the

sum claimed does not exceed $7,000, exclusive of court costs;

(b) in actions for damages not exceeding $7,000, exclusive of court costs,

for taking, detaining, or injuring personal property or for injury to real

property when no issue is raised by the verified answer of the defendant

involving the title to or possession of the real property;

for injury to the person, except that, in actions for false imprisonment,

libel, slander, criminal conversation, seduction, malicious prosecution,

determination of paternity, and abduction, the justice of the peace does not

have jurisdiction;

(d) in actions to recover the possession of personal property if the value of

the property does not exceed $7,000;

(e) in actions for a fine, penalty, or forfeiture not exceeding $7,000

imposed by a statute or an ordinance of an incorporated city or town when

no issue is raised by the answer involving the legality of any tax, impost,

assessment, toll, or municipal fine;

(f) in actions for a fine, penalty, or forfeiture not exceeding $7,000

imposed by a statute or assessed by an order of a conservation district for

violation of Title 75, chapter 7, part 1;

(g) in actions upon bonds or undertakings conditioned for the payment of

money when the sum claimed does not exceed $7,000, though the penalty

may exceed that sum;

(h) to take and enter judgment for the recovery of money on the

confession of a defendant when the amount confessed does not exceed

$7,000, exclusive of court costs;

(i) to issue temporary restraining orders, as provided in 40-4-121, and

orders of protection, as provided in Title 40, chapter 15;

(j) to issue orders to restore streams under Title 75, chapter 7, part 1, or to

require payment of the actual cost for restoration of a stream if the

restoration does not exceed $7,000.

(2) Justices’ courts do not have jurisdiction in civil actions that might result in a

judgment against the state for the payment of money.

Comment: 40-4-123 gives concurrent jurisdiction to district

courts, justice courts, municipal courts, and city courts to hear

and issue orders under 40-4-121. These sections were updated in

1995 and section 40-15-301 grants the same jurisdiction for

protective orders listed in 40-15-201.

Comment. City judges and justices of the peace have the

authority to perform marriages as provided for in 40-1-301.

Section 200 ─ Court Structure

3-10-302 MCA. Jurisdiction over forcible entry, unlawful detainer, and residential

landlord/tenant disputes. The justices’ courts have concurrent jurisdiction with the

district courts within their respective counties in actions of forcible entry and unlawful

detainer and in actions brought under Title 70, chapter 24.

3-10-303 MCA. Criminal jurisdiction. (1) The justices’ courts have jurisdiction of

public offenses committed within the respective counties in which the courts are

established as follows:

(a) except as provided in subsection (2), jurisdiction of all misdemeanors punishable

by a fine not exceeding $500 or imprisonment not exceeding 6 months or both;

(b) jurisdiction of all misdemeanor violations of fish and game statutes punishable by

a fine of not more than $1,000 or imprisonment for not more than 6 months or both;

fine exceeding $500 or imprisonment exceeding 6 months, or both;

(d) concurrent jurisdiction with district courts of all misdemeanor violations of fish

and game statutes punishable by a fine exceeding $1,000 or imprisonment exceeding 6

months, or both;

(e) jurisdiction to act as examining and committing courts and for that purpose to

conduct preliminary hearings;

(f) jurisdiction of all violations of Title 61, chapter 10; and

(g) all misdemeanor violations of Title 81, chapter 8, part 2.

(2) In any county that has established a drug treatment court or a mental health treatment

court, the district court, with the consent of all judges of the courts of limited jurisdiction

in the county, has concurrent jurisdiction of all misdemeanors punishable by a fine not

exceeding $500 or imprisonment not exceeding 6 months, or both.

16-6-201 MCA. Jurisdiction of courts. (1) As to misdemeanor actions, the districts

courts of this state have concurrent jurisdiction with justice of the peace courts in all

prosecutions under the Montana Alcoholic Beverage Code described in 16-1-101.

(2) The jurisdiction provided for in subsection (1) is in addition to the jurisdiction of:

(a) justices’ courts, as provided in 3-10-303;

(b) municipal courts, as provided in 3-6-303;

Section 200 ─ Court Structure

200.301 Term of Office.

3-10-205 MCA. Term of office. The term of office of justices of the peace is as

provided in 7-4-2205.

200.302 Qualifications/Bonds.

7-4-2201 MCA. General qualifications for county office. A person is not eligible

for a county office who at the time of election is not:

(1) of the voting age required by the Montana constitution;

(2) a citizen of the state; and

(3) (a) an elector of the county in which the duties of the office are to be

exercised; or

(b) in the case of an office consolidated between two or more counties, an

elector in one of the counties in which the duties of the office are to be

exercised.

3-10-204 MCA. Residence requirements. (1) A justice of the peace must reside

in the county in which the justice’s court is held.

(2) A person is not eligible for the office of justice of the peace unless the person

is a citizen of the United States and has been a resident of the county in which the

person is to serve for 1 year preceding election or appointment.

3-10-202 MCA. Oath ─ proof of certification . (1) Each justice of the peace,

elected or appointed, after receipt of the certificate of election or appointment,

shall, before entering upon the duties of office, take the constitutional oath of

office, which must be filed with the county clerk.

(2) Before the county clerk may file the oath, the elected or appointed justice

shall satisfy the clerk that the justice is certified as provided in 3-1-1502 or

3-1-1503.

2-9-701 MCA. County officers and employees to be bonded. (1) All county

officers and employees must be bonded for the faithful performance of all official

duties required by law.

(2) A bond may cover an individual officer or employee, or a blanket bond may

cover all officers and employees or any group or combination of county officers

and employees.

2-9-703 MCA. Purchase. (1) The board of county commissioners shall purchase

all surety bonds for all county officers and employees. . . .

200.303 Election/Appointment.

3-10-201 MCA. Election. (1) Each justice of the peace must be elected by the

qualified electors of the county at the general state election immediately

preceding the expiration of the term of office of the justice of the peace’s

predecessor.

(2) A justice of the peace must be nominated and elected on the nonpartisan

judicial ballot in the same manner as judges of the district court.

Section 200 ─ Court Structure

(3) Each judicial office must be a separate and independent office for election

purposes, each office must be numbered by the county commissioners, and each

candidate for justice of the peace shall specify the number of the office for which

the candidate seeks to be elected. A candidate may not file for more than one

office.

(4) Section 13-35-231, prohibiting political party endorsement for judicial

officers, applies to justices of the peace.

3-10-206 MCA. Vacancies. If a vacancy occurs in the office of a justice of the

peace, the county commissioners of the county must appoint an eligible person to

hold the office until the next general election and until a successor is elected and

qualified.

3-1-1501 MCA. Definitions. As used in this part, the following definitions

apply:

(1) “Commission” means the commission on courts of limited jurisdiction

established by the supreme court.

(2) “Judge” means:

(a) a municipal court judge;

(b) a justice of the peace; or

200.304 Oath of Office.

3-10-202 MCA. Oath ─ proof of certification . (1) Each justice of the peace,

elected or appointed, after receipt of the certificate of election or appointment,

shall, before entering upon the duties of office, take the constitutional oath of

office, which must be filed with the county clerk.

(2) Before the county clerk may file the oath, the elected or appointed justice

shall satisfy the clerk that the justice is certified as provided in 3-1-1502 or

3-1-1503.

200.305 Training/Certification.

3-10-203 MCA. Orientation course ─ annual training. (1) Under the supervision

of the supreme court, a course of study must be presented as soon as is practical

following each general election. Actual and necessary travel expenses, as defined

in 2-18-501 through 2-18-503, and the costs of registration and books and other

materials must be paid to the elected or appointed justice of the peace for

attending the course by the county in which the justice of the peace holds or will

hold court and must be charged against that county.

(2) There must be two mandatory training sessions supervised by the supreme

court for all elected and appointed justices of the peace. One of the training

sessions may be held in conjunction with the Montana magistrates’ association

convention.

Section 200 ─ Court Structure

Actual and necessary travel expenses, as defined in 2-18-501 through 2-18-503,

and the costs of registration and books and other materials must be paid to the

elected or appointed justice of the peace for attending the sessions by the county

in which the justice of the peace holds or will hold court and must be charged

against that county.

(3) Each justice of the peace shall attend the training sessions provided for in

subsection (2). Failure to attend disqualifies the justice of the peace from office

and creates a vacancy in the office. However, the supreme court may excuse a

justice of the peace from attendance because of illness, a death in the family, or

any other good cause.

3-11-204 MCA. Training sessions for judges. (1) There must be two mandatory

annual training sessions supervised by the supreme court for all elected and

appointed city judges. One of the training sessions may be held in conjunction

with the Montana magistrates’ association convention. Actual and necessary

travel expenses, as provided in 2-18-501 through 2-18-503, and the costs of

registration and books and other materials must be paid to the elected or

appointed judge for attending the sessions. Whenever the office of city judge is

held by a justice of the peace, the costs imposed by this subsection are the joint

responsibility of the county and the municipality, with the costs to allocated and

charged in proportion to the work done for each governmental entity. In all other

cases, the costs must be paid by the city or town in which the judge holds or will

hold court and must be charged against that city or town.

(2) Each city judge shall attend the training sessions. Failure to attend

disqualifies the judge from office and creates a vacancy in the office. However,

the supreme court may excuse a city judge from attendance because of illness, a

death in the family, or any other good cause.

3-11-205 MCA. Justice of the peace or judge of another city as city judge. (1) In

a town or third-class city, the council may designate a justice of the peace or the

city judge of another city or town to act as city judge. The justice of the peace or

city judge must reside in the county in which the town or city is situated. The city

or town may by ordinance fix the funding for the judge and enter into an

agreement with the county, the other city or town, or the justice of the peace or

the judge for payment of salaries and training expenses. The justice of the peace

or other city judge shall, after agreeing to the designation and after approval by

the board of county commissioners or governing body of the city or town, act in

that capacity and is the city judge in all cases arising out of violations of statutes

or ordinances. If the justice of the peace or city judge of another city or town is

required to travel from the justice’s or judge’s place of residence to hold court, the

justice or judge must be paid the actual and necessary travel expenses, as provided

in 2-18-501 through 2-18-503, by the town or city in which the court is held.

(2) The offices of city judge and justice of the peace may be combined if a justice

of the peace is authorized in a city pursuant to 3-10-101.

Section 200 ─ Court Structure

3-1-1502 MCA. Training and certification of judges. Except as provided in

3-1-1503, a judge selected for a term of office may not assume the functions of

the office unless the judge has filed with the county clerk and recorder in the

jurisdiction a certificate of completion of a course of education and training

prescribed by the commission.

3-1-1503 MCA. Exception ─ temporary certificate. (1) Section 3-1-1502 does

not apply to a judge who has received a temporary certificate issued by the

commission as provided for in subsection (2).

(2) The commission may issue a temporary certificate enabling a judge to assume

the functions of the office pending completion of a course as required by

3-1-1502. The temporary certificate must be in a form and subject to the terms

and conditions prescribed by the commission.

(3) The commission may issue a temporary certificate only if:

(a) the judge is appointed or elected after the course is offered; or

(b) the commission grants an excuse because of a personal illness, a death in

the family, or other good cause.

(4) The appointing authority for an appointed judge shall notify the commission

of the person appointed, and the person appointed must be certified in 3-1-1502 or

this section prior to assuming office.

3-1-1508 MCA. Credit toward annual training. Attendance of a training course

prescribed by 3-1-1502 shall apply toward fulfillment of mandatory annual

training requirements provided in 3-10-203 and 3-11-204.

2-16-501 MCA. Vacancies created. An office becomes vacant on the happening

of any one of the following events before the expiration of the term of the

incumbent:

(1) the death of the incumbent;

(2) a determination pursuant to Title 53, chapter 21, part 1, that the incumbent

suffers from a mental disorder and is in need of commitment;

(3) resignation of the incumbent;

(4) removal of the incumbent from office;

(5) the incumbent’s ceasing to be a resident of the state or, if the office is local, of

the district, city, county, town, or township for which the incumbent was chosen

or appointed or within which the duties of the incumbent’s office are required to

be discharged;

(6) except as provided in 10-1-1008, absence of the incumbent from the state,

without the permission of the legislature, beyond the period allowed by law;

(7) the incumbent’s ceasing to discharge the duty of the incumbent’s office for

the period of 3 consecutive months, except when prevented by sickness, when

absent from the state by permission of the legislature, or as provided in

10-1-1008;

(8) conviction of the incumbent of a felony or of an offense involving moral

turpitude or a violation of the incumbent’s official duties;

Section 200 ─ Court Structure

(9) the incumbent’s refusal or neglect to file the incumbent’s official oath or bond

within the time prescribed;

(10) the decision of a competent tribunal declaring void the incumbent’s election

or appointment.

200.306 Salaries and Expenses.

3-10-207 MCA. Salaries. (1) Subject to subsections (2) through (4), the board of

county commissioners shall set salaries for justices of the peace by resolution and

in conjunction with setting salaries for other officers as provided in 7-4-2504.

(2) The salary of the justice of the peace may not be less than the salary for the

district clerk of the court in that county.

(3) If the justice’s court is not open for business full time, the justice’s salary

must be commensurate to the workload and office hours of the court. The salary

of a justice of the peace may not be reduced during the justice’s term of office.

(4) The salary of the justice of the peace for a justice’s court of record may not

exceed 90% of the salary of a district court judge determined as provided in

3-5-211.

3-1-1506 MCA. Expenses. Each judge is entitled to reimbursement for all actual

and necessary travel expenses and other costs incurred in attending a course of

training and education pursuant to 3-1-1502. Such reimbursement must be paid

as provided for in 3-10-203 and 3-11-204.

3-10-203 MCA. Orientation course ─ annual training. (1) Under the supervision

of the supreme court, a course of study must be presented as soon as is practical

following each general election. Actual and necessary travel expenses, as defined

in 2-18-501 through 2-18-503, and the costs of registration and books and other

materials must be paid to the elected or appointed justice of the peace for

attending the course by the county in which the justice of the peace holds or will

hold court and must be charged against that county.

(2) There must be two mandatory training sessions supervised by the supreme

court for all elected and appointed justices of the peace. One of the training

sessions may be held in conjunction with the Montana magistrates’ association

convention. Actual and necessary travel expenses, as defined in 2-18-501 through

2-18-503, and the costs of registration and books and other materials must be paid

to the elected or appointed justice of the peace for attending the sessions by the

county in which the justice of the peace holds or will hold court and must be

charged against that county.

(3) Each justice of the peace shall attend the training sessions provided for in

subsection (2). Failure to attend disqualifies the justice of the peace from office

and creates a vacancy in the office. However, the supreme court may excuse a

justice of the peace from attendance because of illness, a death in the family, or

any other good cause.

Section 200 ─ Court Structure

200.307 Court Facilities and Sessions.

3-10-103. County to provide facilities. The board of county commissioners of

the county in which the justice of the peace has been elected or appointed:

(1) shall provide for the justice’s court:

(a) the office, courtroom, and clerical assistance necessary to enable the

justice of the peace and the clerk of justice’s court, if any, to conduct business

in dignified surroundings;

(b) the books, records, forms, papers, stationery, postage, office equipment,

and supplies necessary in the proper keeping of the records and files of the

court and the transaction of the business; and

supplements; and

(2) may provide a clerk of justice’s court.

3-10-102 MCA. When courts open. A justice’s court is always open for the

transaction of business, except on legal holidays and nonjudicial days.

3-1-301 MCA. Days on which court may be held. Courts of justice may be held

and judicial business transacted on any day except as provided in 3-1-302.

3-1-302 MCA. Nonjudicial day. (1) No court may be open nor may any judicial

business be transacted on legal holidays, as provided for in 1-1-216, and on a day

appointed by the president of the United States or by the governor of this state for

a public fast, thanksgiving, or holiday, except for the following purposes:

(a) to give, upon its request, instructions to a jury when deliberating on its

verdict;

(b) to receive a verdict or discharge a jury;

proceeding of a criminal nature.

(2) Injunctions, writs of prohibition, and habeas corpus may be issued and served

on any day.

3-1-312 MCA. Sittings of court to be public. The sittings of every court of

justice must be public, except as provided in 3-1-313.

3-1-313 MCA. Sittings of court ─ when private. (1) In an action for dissolution

of marriage, criminal conversation, or seduction, the court may direct the trial of

any issue of fact joined therein to be private and exclude all persons except the

officers of the court, the parties, their witnesses, and counsel.

(2) During the examination of a witness in any cause, the court may in its

discretion, exclude some or all of the other witnesses in the cause.

3-1-314 MCA. Proceedings to be in English language. Every written proceeding

in a court of justice in this state must be in the English language, and judicial

proceedings must be conducted, preserved, and published in no other.

Section 200 ─ Court Structure

3-10-208 MCA. Office hours of justices. In the resolution providing for the

salary, the county commissioners shall designate the office hours for each

justice’s court. Office hours shall be commensurate with the salary provided.

Comment: Attorney General Opinion, Vol. 35, No. 99, dated

December 6, 1974, held as follows: “The justice of the peace

who is located at the county seat cannot close that court one

day a week in order to hold justice court in another city.”

200.308 Acting Justice.

3-10-231 MCA. Circumstances in which 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, 3-1-803 and 3-1-805, the justice of the peace hall either transfer the

action to another justice’s court in the same county or call a justice from a

neighboring county to preside.

(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 the justice’s place during

a temporary absence when another justice 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.

(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 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.

to local law enforcement officers.

(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 justice until 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).

Section 200 ─ Court Structure

(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 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 that justice’s request.

200.309 Forfeiture of Judicial Position.

Art. VII, Sec. 10, Mont. Const. Forfeiture of judicial position. Any holder of a

judicial position forfeits that position by either filing for an elective public office

other than a judicial position or absenting himself from the state for more than 60

consecutive days.

7-4-2208 MCA. Absence of county officers from state. (1) Subject to subsection

(2) and except as provided in 10-1-1008, if a county officer is absent from the

state for a period of more than 30 consecutive days without the consent of the

board of county commissioners, the officer forfeits the office.

(2) If the county officer who is seeking consent to be absent from the state for

more than 30 consecutive days is a member of the board of county

commissioners, the officer may participate in the vote on the question of

providing consent for the absence.

200.310 Vacancy/Removal/Resignation.

2-16-501 MCA. Vacancies created. An office becomes vacant on the happening

of any one of the following events before the expiration of the term of the

incumbent:

(1) the death of the incumbent;

(2) a determination pursuant to Title 53, chapter 21, part 1, that the incumbent

suffers from a mental disorder and is in need of commitment;

(3) resignation of the incumbent;

(4) removal of the incumbent from office;

(5) the incumbent’s ceasing to be a resident of the state or, if the office is local, of

the district, city, county, town, or township for which the incumbent was chosen

or appointed or within which the duties of the incumbent’s office are required to

be discharged;

(6) except as provided in 10-1-1008, absence of the incumbent from the state,

without the permission of the legislature, beyond the period allowed by law;

(7) the incumbent’s ceasing to discharge the duty of the incumbent’s office for

the period of 3 consecutive months, except when prevented by sickness, when

absent from the state by permission of the legislature, or as provided in

10-1-1008;

(8) conviction of the incumbent of a felony or of an offense involving moral

turpitude or a violation of the incumbent’s official duties;

(9) the incumbent’s refusal or neglect to file the incumbent’s official oath or bond

within the time prescribed;

Section 200 ─ Court Structure

(10) the decision of a competent tribunal declaring void the incumbent’s election

or appointment.

3-10-203 MCA. Orientation course ─ annual training. (1) Under the supervision

of the supreme court, a course of study must be presented as soon as is practical

following each general election. Actual and necessary travel expenses, as defined

in 2-18-501 through 2-18-503, and the costs of registration and books and other

materials must be paid to the elected or appointed justice of the peace for

attending the course by the county in which the justice of the peace holds or will

hold court and must be charged against that county.

(2) There must be two mandatory training sessions supervised by the supreme

court for all elected and appointed justices of the peace. One of the training

sessions may be held in conjunction with the Montana magistrates’ association

convention. Actual and necessary travel expenses, as defined in 2-18-501 through

2-18-503, and the costs of registration and books and other materials must be paid

to the elected or appointed justice of the peace for attending the sessions by the

county in which the justice of the peace holds or will hold court and must be

charged against that county.

(3) Each justice of the peace shall attend the training sessions provided for in

subsection (2). Failure to attend disqualifies the justice of the peace from office

and creates a vacancy in the office. However, the supreme court may excuse a

justice of the peace from attendance because of illness, a death in the family, or

any other good cause.

3-1-1507 MCA. Disqualification. Each judge shall complete a course of training

and education as required by 3-1-1502. Subject to 3-1-1503, failure to obtain a

certificate of completion disqualifies the elected or appointed judge from

assuming office and creates a vacancy in the office.

Art. V, Sec. 13, Mont. Const. Impeachment. (1) the governor, executive

officers, heads of state departments, judicial officers, and such other officers as

may be provided by law are subject to impeachment, and upon conviction shall be

removed from public office for cause may be provided by law . . . .

Art. VII, Sec. 10, Mont. Const. Forfeiture of judicial position. Any holder of a

judicial position forfeits that position by either filing for an elective public office

other than a judicial position or absenting himself from the state for more than 60

consecutive days.

Art. VII, Sec. 11, Mont. Const. Removal and discipline. (1) The legislature shall

create a judicial standards commission consisting of five persons and provide for

the appointment thereto of two district judges, one attorney, and two citizens who

are neither judges or attorneys.

(2) The commission shall investigate complaints, and make rules implementing

this section. It may subpoena witnesses and documents.

Section 200 ─ Court Structure

(3) Upon recommendation of the commission, the supreme court may:

(a) Retire any justice or judge for disability that seriously interferes with

the performance of his duties and is or may become permanent; or

(b) Censure, suspend, or remove any justice or judge for willful

misconduct in office, willful and persistent failure to perform his duties,

violation of canons of judicial ethics adopted by the supreme court of the

state of Montana, or habitual intemperance.

(4) The proceedings of the commission are confidential except as provided by

statute.

3-1-602 MCA. Restrictions on justices practicing law or taking claims for

collection. (1) Except as provided in subsection (2), a justice of the peace may

not:

(a) practice law;

(b) draw contracts, conveyances, or other legal instruments or documents;

sense; or

(d) perform any legal duties other than those prescribed by law as the

justice’s official duties in the conduct of cases and proceedings in the

justice’s court.

(2) A justice of the peace who is an attorney and who is admitted to

practice law before the supreme court of the state of Montana may engage

in the general practice of law and practice law in all courts in the state of

Montana, except that the justice, the justice’s law partner or associate, or a

member, may not represent a party involved in a case that is filed or tried

in the justice’s court or in any justice’s court or that is appealed from a

justice’s court in that county.

(3) A justice of the peace who violates any of the provisions of this

section is guilty of malfeasance in office and must be removed from the

office of justice of the peace and is disqualified from holding that office.

3-1-606 MCA. Justice of the peace or constable not to purchase judgment. (1) A

justice of the peace may not purchase or be interested in the purchase or be

interested in the purchase of any judgment or part of a judgment on the justice’s

docket or on any docket in the justice’s possession. A constable may not

purchase or be interested in the purchase of any judgment or part of a judgment

on the docket of a justice of the peace of the county of which the person is a

constable or on a docket in the possession of a justice of the peace in that county.

(2) A violation of subsection (1) is a misdemeanor.

7-4-2520 MCA. Misconduct concerning official fees to result in vacancy of

office. Upon receiving a certified copy of the record of conviction of any officer

for receiving illegal fees or upon proof that the officer collected fees and failed to

account for the fees, the board of county commissioners must declare the office

vacant and appoint a successor.

Section 200 ─ Court Structure

3-10-602 MCA. Penalty. A justice of the peace violating 3-10-601 is guilty of a

misdemeanor, punishable by a fine not exceeding $1,000 or imprisonment not

exceeding 6 months in the county jail, or both. The violator is also guilty of

malfeasance in office and, in the discretion of the court, may be removed from

office. A person removed from office is disqualified from holding the office of

justice of the peace.

Comment. 3-10-601 MCA is the section covering collection and

disposition of fees and their itemized statements. 45-7-401 MCA

is the statute of official misconduct.

2-16-502 MCA. Resignation. (1) Resignations must be in writing and made as

follows: . . . .

(d) by all county and township officers not commissioned by the

governor, to the clerk of the board of county commissioners of their

respective counties;

(e) by all other appointed officers, to the body or officer that appointed

them; . . . .

200.400 CITY COURT JURISDICTION

3-11-102 MCA. Concurrent jurisdiction. (1) The city court has concurrent

jurisdiction with the justice’s court of all misdemeanors and proceedings

mentioned and provided for under Chapter 10, Part 3, of this title.

(2) Applications for search warrants and complaints charging the commission of

a felony may be filed in the city court. When they are filed, the city judge has the

same jurisdiction and responsibility as a justice of the peace, including the

holding of a preliminary hearing. The city attorney may file an application for a

search warrant or a complaint charging the commission of a felony when the

offense was committed within the city limits. The county attorney, however,

must handle any action after a defendant is bound over to district court.

3-11-103. Exclusive jurisdiction. Except as provided in 3-11-104, the city court

has exclusive jurisdiction of:

(1) proceedings for the violation of an ordinance of the city or town, both civil

and criminal;

(2) when the amount of the taxes or assessments sought does not exceed $5,000,

actions for the collection of taxes or assessments levied for any of the following

purposes, except that no lien on the property taxed or assessed for the nonpayment

of the taxes or assessments may be foreclosed in any such action:

(a) city or town purposes;

(b) the erection or improvement of public buildings;

bridge;

(d) the acquisition or improvement of any public grounds; and

(e) public improvements made or ordered by the city or town within its limits;

Section 200 ─ Court Structure

(3) actions for the collection of money due to the city or town or from the city or

town to any person when the amount sought, exclusive of interest and costs, does

not exceed $5,000;

(4) when the amount claimed, exclusive of costs, does not exceed $5,000, actions

for;

(a) the breach of an official bond given by a city or town officer;

(b) the breach of any contract when the city or town is a party or is in way

interested;

(d) the enforcement of forfeited recognizances given to, for the benefit of, or

on behalf of the city or town; and

(e) collection on bonds given upon an appeal taken from the judgment of the

court in any action mentioned in subsections (4)(a) through (4)(d);

(5) actions for the recovery of personal property belonging to the city or town

when the value of the property, exclusive of the damages for the taking or

detention, does not exceed $5,000; and

(6) actions for the collection of a license fee required by an ordinance of the city

or town.

40-1-301 MCA. Solemnization and registration. (1) A marriage may be

solemnized by a judge of a court of record, by a public official whose powers

include solemnization of marriages, by a mayor, city judge, or justice of the

peace, by a tribal judge, or in accordance with any mode of solemnization

recognized by any religious denomination, Indian nation or tribe, or native group.

Either the person solemnizing the marriage or, if no individual acting alone

solemnized the marriage, a party to the marriage shall complete the marriage

certificate form and forward it to the clerk of the district court.

(2) If a party to a marriage is unable to be present at the solemnization, the party

may authorize in writing a third person to act as proxy. If the person solemnizing

the marriage is satisfied that the absent party is unable to be present and has

consented to the marriage, the person may solemnize the marriage by proxy. If

the person solemnizing the marriage is not satisfied, the parties may petition the

district court for an order permitting the marriage to be solemnized by proxy.

(3) The solemnization of the marriage is not invalidated by the fact that the

person solemnizing the marriage was not legally qualified to solemnize it if either

party to the marriage believed that person to be qualified.

(4) One party to a proxy marriage must be a member of the armed forces of the

United States on federal active duty or a resident of Montana at the time of

application for a license and certificate pursuant to 40-1-202. One party or a legal

representative shall appear before the clerk of court and pay the marriage license

fee. For the purposes of this subsection, residency must be determined in

accordance with 1-1-215.

Section 200 ─ Court Structure

3-11-104 MCA. Exceptions to civil jurisdiction. City courts do not have

jurisdiction in civil actions that might result in a judgment against the state for the

payment of money.

40-4-123 MCA. Jurisdiction and venue. (1) District courts, municipal courts,

justices’ courts, and city courts have concurrent jurisdiction to hear and issue

orders under 40-4-121.

(2) The municipal judge, justice of the peace, or city court judge shall on motion

suspend all further proceedings in the action and certify the pleading and any

orders to the clerk of the district court of the county where the action was begun if

an action for declaration of invalidity of a marriage, legal separation, or

dissolution of marriage or for parenting is pending between the parties. From the

time of the certification of the pleadings and any orders to the clerk, the district

court has the same jurisdiction over the action a if it had been commenced in

district court.

(3) An action brought under 40-4-121 may be tried in the county in which either

party resides or in which the physical abuse was committed.

(4) The right to petition for relief may not be denied because the plaintiff has

vacated the residence or household to avoid abuse.

200.401 Term of Office.

3-11-201 MCA. Number of judges ─ term of office. (1) The governing body of

a city may determine by ordinance the number of judges required to operate the

city court.

(2) An elected or appointed city judge shall hold office for a term of 4 years and

until the qualification of a successor.

(3) A justice of the peace designated to act as city judge for a city or town under

3-11-205 shall serve as city judge for the duration of the justice of the peace’s

term as justice of the peace or until the agreement provided for in 3-11-205

terminates.

200.402 Qualifications.

7-4-4104 MCA. General qualifications for municipal office. No person is

eligible to any municipal office elective or appointive:

(1) who is not a citizen of the United States; and

(2) who has not met the qualifications prescribed by law or by ordinance adopted

by the governing body of a city or town.

3-11-202 MCA. Salary ─ qualifications. (1) A city judge, at the time of election

or appointment must:

(a) meet the qualifications of a justice of the peace under 3-10-202;

(b) be a resident of the county in which the city or town is located; and

(2) The annual salary and compensation of city judges must be fixed by

ordinance or resolution.

Section 200 ─ Court Structure

(3) Each city judge shall receive actual and necessary travel expenses, as

provided in 2-18-501 through 2-18-503, incurred in the performance of official

duties.

200.403 Election/Appointment.

In a city of first class, 7-4-4101 MCA provides that one

city judge shall be elected. In a city of second class, 7-4-

4102 MCA provides that one city judge shall be elected. 7-4-

4102 MCA also allows a city of third class to determine, by

ordinance, whether the city judge shall be appointed or elected

or may appoint a justice of the peace or a city judge of another

city as judge of the city as provided in 3-11-205 MCA. In a

town, the governing body may appoint a city judge or the

position may be filled by election or the governing body may

appoint a justice of the peace of another city to act as city

judge as provided in 3-11-205 MCA. The offices of city judge

and justice of the peace may be combined if a justice of the

peace is authorized in a city pursuant to 3-10-101 MCA.

200.404 Official Bond.

7-4-4109 MCA. Official bond. Each officer of a city or town who is required to

give bond shall file the bond, duly approved, within 10 days after receiving notice

of election or appointment or, if notice is not received, then on or before the date

fixed for a assumption of the duties of the office to which the officer is elected or

appointed.

200.405 Training and Certification.

3-11-204 MCA. Training sessions for judges. (1) There shall be two mandatory

annual training sessions supervised by the supreme court for all elected and

appointed city judges. One of the training sessions may be held in conjunction

with the Montana magistrates association convention. . . . (2) Each city judge

shall attend the training sessions. . . .

3-1-1502 MCA. Training and certification of judges. Except as provided in 3-1-

1503, a judge selected for a term of office may not assume the functions of the

office unless the judge has filed with the county clerk and recorder in the

jurisdiction a certificate of completion of a course of education and training

prescribed by the commission.

Section 200 ─ Court Structure

3-1-1503 MCA. Exception ─ temporary certificate. (1) Section 3-1-1502 does

not apply to a judge who has received a temporary certificate issued by the

commission as provided for in subsection (2).

(2) The commission may issue a temporary certificate enabling a judge to assume

the functions of the office pending completion of a course as required by 3-1-

1502. The temporary certificate must be in a form and subject to the terms and

conditions prescribed by the commission.

(3) The commission may issue a temporary certificate only if:

(a) the judge is appointed or elected after the course is offered; or

(b) the commission grants an excuse because of a personal illness, a death in

the family, or other good cause.

(4) The appointing authority for an appointed judge shall notify the commission

of the person appointed, and the person appointed must be certified as provided in

3-1-1502 or this section prior to assuming office.

3-1-1508 MCA. Credit toward annual training. Attendance of a training course

prescribed by 3-1-1502 shall apply toward fulfillment of mandatory annual

training requirements provided in 3-10-203 and 3-11-204.

Comment: 3-1-1501 defines the term “judge” to mean a municipal

court judge, a justice of the peace, or a city judge.

“Commission” means the Commission on Courts of Limited

Jurisdiction established by the Supreme Court.

200.406 Salary and Expenses.

7-4-4201 MCA. Salary of officers. The council shall determine by ordinance or

resolution the salaries and compensation of elected and appointed city officers

and all city employees.

3-11-202 MCA. Salary ─ qualifications. (1) A city judge, at the time of election

or appointment must:

(a) meet the qualifications of a justice of the peace under 3-10-202;

(b) be a resident of the county in which the city or town is located; and

(2) The annual salary and compensation of city judges must be fixed by

ordinance or resolution.

(3) Each city judge shall receive actual and necessary travel expenses, as

provided in 2-18-501 through 2-18-503, incurred in the performance of official

duties.