POTTER v DISTRICT COURT
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NO. IN 94-069 THE SUPREME COURT OF THE STATE OF MONTANA 1994 ROBERT L. POTTER, DEBRA LEE STEINER and JASON W. RIGGS, Petitioners, -vDISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CUSTER, and THE HONORABLE JOE I;. HEGEL, Presiding Judge, SEP I z t994 Respondents. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Petitioners: R.L. Stephens, Jr., Billings, Montana: R. Allen Beck, Billings, Montana; James Graves, Oliver, Graves & Toennis, Billings, Montana For Respondents: Hon. Joseph P. Mazurek, Attorney General; Micheal Wellenstein, Assistant Attorney General; Gary Bunke, Deputy Custer County Attorney Submitted: Decided: Filed: August 9, 1994 September 12, 1994 Justice James This C. is Nelson an original issuance of warrants were Peace." The execution marijuana and other was two delivered charged felony signed with pursuant possession MCA. with intent Debra a Riggs was with intent §§ that they rendering were the to serve (hereinafter appropriate with by of adopted by of criminal a this felony search warrants magistrate, Specifically, the peace justice of under of MCA. MCA. invalid. and Courts 45-g-103, possession independent of a criminal § count of Potter 45-g-103, the an substitute statutes of one justice a to § 45-2-302, by warrants of criminal to the drugs, accountability, and issued as Rules) with validity acting Judges Commission charged the search qualified of was not Robert pursuant pursuant search seizure count felony, the of dangerous a sell, attack the Certification one 45-2-301, that the and charged to argue properly MCA, of The the Defendant of felony 45-g-103, defendants defendants under Steiner out Justice to sale sell, sell, to alleging thereby to led criminal 45-9-101(l), Court. 1993. "Acting items. of the arises 18, as Rice, related to possession August warrants count of which the Jason Defendant The of intent Defendant on Steven drug § Opinion proceeding warrants by one to with pursuant search the the Limited Court the was not the peace Rules for Jurisdiction on October 24, 1990 and found at Title 3, Ch. 1, part 15, MCA, Annotations (1992), at 48-51. jurisdiction We Therefore, to conclude issue that, according to the search for the the defendants, warrants. reasons 2 We hereafter Mr. Rice had no this is agree. set forth, an appropriate power jurisdiction authority of or this suppress the to evidence accordingly, hold that the initio, its an Court issue ab vacate enter this and, We void must and suppressing case. were Court which control jurisdiction warrants District over supervisory of search matter order Steven search and order should pursuant was without the result, a that the defendants' consistent seized accept warrants, as with to its we Rice that, denying exercise motion to opinion this the warrants. Donald Scho'ct BACKGROUND At duly times pertinent all elected, County and 11, on the 1993, call August qualified Judge him 1G vacation only through Justice peace the office as 20, of in notified substitute August that case, of justice serve this acting Schott's to during and to Mr. as Peace for Custer On August Rice of Judge the county. that Justice 1993, the was that it might the Peace during Schott would be on time. Mr. Rice was and is the pastor of the Lutheran Church in Miles City. He Powder previously River held these bench in River County County, the also Rice for 1987. Mr. Rice on regularly the the City of the 1987, Justice Judge approximately passed Courts search elected During attended Since the was of Commission signed and positions March Commission. was and his the of for on years, the certification training sessions the warrants, 3 August Commission Mr. Rice leaving the in Powder required by (Commission). Jurisdiction to for bench test Limited prior Peace Broadus. three tenure the He sponsored 18, 1993, approved by the when Mr. Mr. Rice to act as substitute Subsequent approved River to to act County On and Although City 18, of the peace. Custer applications and execution of other drug filed against On October Suppress search Rice was search suppress on MCA, the has peace been in Powder Undersheriff, Don Neese warrants Mr. Rice. was the available, Rice was believing search the in the the to Undersheriff authorized himself to Peace, As warrants. resulted and of an subsequent be of Neese substitute the acting granted stated seizure 1993, defendant the above, the marijuana and felony Potter The motion challenged several grounds including qualified defendants on same The which December as an independent 15, court subsequently 7, The grounds. December 1993. Rice judges. drug charges filed the the a Motion validity of the that Mr. issue the motion to warrants on allegation magistrate to to warrant. The the not search city defendants. 12, on County Justice items, Evidence. warrant of Mr. Rice, warrants the justice for that County related Mr. Mottram Mr. signed the here, Custer Paul faith, substitute city County. applications good Miles issue at two substitute 1993, Judge in presumed, a Custer two for incident as August presented justice the judge 1993, denied provides in Court issued the a challenging District 1993, and filed its motion pertinent held consolidated the a written relying search hearing on the motion order on on 46-5-103(1)(c), § December part: A search and seizure, whether with may not be held to be illegal if: 4 or without a warrant, 16, (c) any irregularity in the proceedings has no effect on the substantial rights of the accused. The District Court, finding that Mr. Rice was "qualified" in terms of competence and experience, and that any mistakes were "innocent errors of omission and not directed by any purpose to evade the legal requirements," concluded that "although the procedure used to call in Steven Rice as substitute justice of the peace was technically flawed, the substantial rights of the Defendants were not affected..." The defendants filed an application for Writ of SuperVisory Control or Other Appropriate Writ on June 1, 1994, stating that the District Court had found the issue raised at the suppression hearing could be dispositive of the case, and that the defendants should take the issue to this Court. The defendants allege that the specific issue to be determined by this Court is: Is the failure to have a Magistrate signing search or does this constitute constitutional rights of properly appointed, independent warrants a "mere technicality" a violation of the substantial the defendants? DISCUSSION I. The exercise of SUPERVISORY supervisory CONTROL control by this Court is authorized by Article VII, Section 2(2) of the Montana Constitution We are reluctant to exercise and by Rule 17(a), M.R.App.P. supervisory control as it is an extraordinary remedy. rel. O'Sullivan v. 175 P.2d 763, District Court (1946), 764. Notwith.standing, State ex 119 Mont. 429, 431-32, supervisory control is appropriate where the district court is proceeding under a mistake 5 of law, and in so doing is causing a gross injustice, State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348; State ex rel. Fitzgerald v. District Court (1985), Mont. 217 106, 114, 703 P.2d 148, 153-54, and where, as here, requiring a defendant to stand trial would result in unnecessary expenditures of time and resources. 599, 600: State ex rel. State ex rel. Fletcher v. Torres (1994), 51 St. Rep. District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 994; State ex rel. First Bank System v. District Court (1989), 240 Mont. 77, 84, 782 P.2d 1260, 1264. Here, the State concedes that if the search warrants at issue are invalid and if the evidence resulting from the execution of those warrants is suppressed, then it will have no case against the defendants. No argument has been advanced that the evidence could have been seized under any exception requirement. to the written warrant Under such circumstances, because we conclude that the search warrants are void ab initio, it would be fundamentally unfair and prejudicial, not to mention a waste of time and the limited resources of the court and counsel, to require this case to proceed further. Accordingly, it is appropriate that we assume jurisdiction of this case and exercise original jurisdiction under a writ of supervisory control in order to forestall further needless and expensive litigation. II. WHO MAY ACT AS SUBSTITUTE JUSTICE OF THE PEACE At the outset, we stress that nothing in this opinion is meant to reflect adversely on the training, experience, professional competence or integrity of either Mr. Rice or Judge Schott. 6 The critical legal question which we address is simply whether, at the time he issued the search warrants, was Mr. Rice, under the law, a duly appointed and qualified substitute justice of the peace? We must answer that question in the negative, and in doing so, begin our analysis with the Constitution of the State of Montana. The judicial power of the state derives from Article VII of Montana's 1972 Constitution. Section 5 of Article VII provides, in pertinent part: Justices of the peace. (1) There shall be elected in each county at least one justice of the peace with compensation qualifications, training, and monthly provided by law. . . . (3) The legislature may provide for additional justices of the peace in each county. That Article and Section of our State Constitution make it clear that the legislature is to establish, by law, the qualifications and training of justices of the peace and, in its discretion, provide for additional justices of the peace in each county. __, See This Court may make rules generally, Title 3, Ch. 10, MCA. governing the practice and procedure in all courts of this state. Art. VII, Sec. 2(3), Mont. Const. It follows that Article VII, also empowers the Section 5 of the Constitution legislature to establish, by law, the qualifications of and procedures for appointing substitute justices of the peace in the various counties. The statute authorizing the appointment of substitute justices of the peace is found at § 3-lo231, MCA. That statute provides: (1) Whenever a justice of the peace is disqualified from acting in any action because of the application of the court ' s disqualification supreme rules on and substitution of judges, subdivision 1, 2, or 3, he shall either transfer the action to another justice's court in the same county or call in a justice from a neighboring county to preside in his behalf. (2) Within 30 days of taking office, a justice of the peace shall provide a list of persons who are qualified to hold court in his place during a temporary absence when no other justice or city judge is available. The persons listed must be of good moral character and have community support, a sense of community standards, and a basic knowledge of court procedure. The county commissioners shall administer the oath of office to each person on this list as soon as possible after the person has received a waiver of training from the supreme court. (3) Whenever a justice is sick, disabled, or absent, the justice may call in another justice, if there is one readily available, or a city judge or a person from the list provided for in subsection (2) to hold court for the absent judge until his return. If the justice is unable to call in a substitute, the county commissioners shall call in another justice, a city judge, or a person from the list provided for in subsection (2). (4) During the time when a justice of the peace is on vacation or attending a training session, another justice of the peace of the same county shall be authorized to handle matters that otherwise would be handled by the absent justice. When there is no other justice of the peace in the county, the justice of the peace may designate another person in the same manner as if the justice were sick or absent. (5) A justice of the peace of any county may hold the court of any other justice of the peace at his request. In of training, serving judges terms on courts municipal courts, § supervised by Commission of 3-l-1501, legislature limited MCA) Rules § provide training from justices on an Commission. has mandated that all jurisdiction (justice, city and attend 3-lo-231(2), that the MCA, substitute Commission occasional Section annual training Rule 5C, judges may receive a to as them pursuant 8 to § of MCA; and enabling basis 3-10-203, sessions Rules. However, the the act the Rule 4, Commission waiver of substitute 3-lo-231(2) through (5), MCA. Rule 5C of the Commission Rules requires the sitting justice of the peace to submit a request for a waiver of training to the Commission and show that the substitute judge, as mandated by 5 3-lo-231(2), MCA, is of good moral character, has good community support, a sense of community standards, knowledge of court procedure. and a basic After reviewing the request, the Commission advises the sitting judge of its decision. Rule 5C(3), Commission Rules. Therefore, according to the applicable statutes and Commission Rules, before a person is legally qualified to serve as a substitute justice of the peace, the following requirements must be followed: (1) within 30 days of taking office the elected or appointed justice of the peace must create a list of persons who are qualified to act in the sitting justice's absence when no other justice or city court judge is available, 5 3-lo-231(2), MCA; (2) the sitting justice of the peace must request and obtain from the Commission a waiver of training for the substitute judge, § 3-10231(2), MCA, and Commission Rule 5C; and (3) the substitute judge must be sworn in by the county commissioners, § 3-lo-231(2), MCA. Additionally, the defendants maintain that, before calling in a substitute judge from the list, there must be no other justice of the peace, or city judge available to act as a substitute judge. We agree with that conclusion. Reading § 3-lo-231(3) and (4), MCA, in pari materia, with § 3-lo-231(2), MCA, as we must (5 l-2-101, MCA) , it is clear that a sitting judge may call in a substitute judge from the list 'I... when no other justice or city judge is 9 available." that, Section under addition the statutory the three to preceding paragraph must first there is judge before from In the that "the almost that training as Rules from suppression as to calling case, there violated. used 5 that judge. a before While that he justice of the set above before she Mr. peace the and sitting Mr. is found was flawed also was 5C a of the waiver of to act at the qualified County, justice in concluded testified was judge above authorized Custer Rice city the Rule Rice for a if Court obtain Schott believed the did it not called in to is, follow as a judge. Judge hold or that Court first Judge that substitute MCA, peace MCA. Rice District in peace, or District Steven he undisputed forth question person nevertheless, procedures no utilize the substitute (4), the of the qualified fact, conclude immediately MCA), and 3-lo-231(2), Commission acting In to of (3) is the justice justice a Moreover, the of hearing in we legislature, in 3-lo-231(2), 3-lo-231(2), mandated the (9 the sitting another available, respect." substitute serve in 'was language Commission forth call procedure the set to instant every by opinion, a Sections scheme Accordingly, enacted requirements resorting list. scheme this readily the MCA. of attempt one statutory 3-lo-231(2), Schott court did not draw in office, nor his temporary did he request Commission for Mr. Rice Commission Rule 5C. The a list absence and as up obtain required evidence at 10 of persons within 30 waiver of a by the § qualified days of training 3-lo-231(2), suppression to taking from the MCA, and hearing showed that Judge Schott had a copy of a "Request for Waiver of Training" dated May 6, 1991, in his files which asked the Commission to waive the training requirements for Mr. Rice from "now until December 31, 1994. " However, Judge Schott did not have any evidence that he actually mailed th,e request to the Commission. to the testimony of Harlan P. Goan, Moreover, according Assistant Supreme Court Administrator, the Commission did not have any evidence that the request was received or approved prior to the issuance of the search warrants. Therefore, it is clear from the record that the Commission had not approved Mr. Rice to serve as substitute justice of the peace for Custer County on August 18, 1993, the date he signed the search warrants. Furthermore, Mr. Rice was not sworn by the county commissioners as required by § 3-lo-231(2), MCA, and, although city judge Mottram was available to serve as a substitute, he was not asked to do so as mandated by 5 3-lo-231(2), (3) and (4), MCA. While finding that "the procedure used to utilize Steven Rice was flawed in almost every respect, " the District Court, relying on 5 46-5-103(1)(c), MCA, denied the defendants' motion to suppress concluding that the technical errors did not affect the substantial rights of the defendants. We disagree with the court's legal conclusion in that respect. We conclude that the basic inquiry in this case should not be whether the substantial rights of the defendants were affected as a result of a "technical error, " but whether Mr. Rice had authority or jurisdiction in the first instance to issue the search warrants 11 at It all. issue that the is search evidence search warrant a Court to v. Montana in the under to initio, and ab absence exception substantial authority of from rights Article a the to be II, valid warrant free Section power as "the to binding orders or from 11 judgments." make Bonner the (1950), power in or the peace district court judges and (b), MCA. Montana law or power to within 3-l-1501(2), The the issue municipal to city of 5 of which authority of a sitting Court, Constitution court this State. to no search judges other and pursuant to Montana's persons judge as Montana a person term and lawfully the Article 9 for VII, 3-lo-231(2), 12 the of it the duly Section in authority (which peace, with the (1991). by Article a statutory powers and elected or 3-10-231, Section MCA, and MCA enacted a is justices the by law" exercise peace. warrants "judge" granted has 747, 46-5-220(2)(a) justices power P.2d and 46-l-202(10), substitute of to the § Constitution, might justice pursuant of functions, not State jurisdiction, The judges 214 Sections warrants. court authority 425, issue geographical grants judicial legislature, by 414, to municipal judge's city Mont. MCA), means a person who is "vested perform Section or search and 123 authority within This void defendants no judicial of appointed were seizures exclusively scheme warrants their reposed VII, had defined decide, but In power Rice recognized and has ex rel. Bennett § Mr. Constitution. This includes if the the violate searches Montana's 753. from or did unreasonable that, warrants, seized requirement, only axiomatic 2(3), has MCA. of the adopted the Commission Rules which implement, in certain respects, that legislative scheme. Unless the procedures required by those statutes and the Commission Rules are followed, then no substitute justice is appointed, and the person seeking to exercise the powers of a judge as his substitute has no authority or jurisdiction to do so. That person is, quite simply, not a judge as he has not been vested by law with the power to perform the functions of a judge. Since he was not a lawfully appointed and sworn substitute judge, Mr. Rice had no more authority to issue a search warrant than did any other member of the general public. Regardless that Mr. Rice was qualified by training and experience to a judge, he was not, in fact, a judge at the time he issued the search warrants, because the statutory procedures to make him a judge and to vest him with the power to perform judicial functions had not been followed. Since the search warrants at issue here were not issued by a they were void ab initio, of no force or effect, judge, and provided no authority under which the authorities could search the defendants' property and seize evidence. The defendants argue that our holding in State v. Tropf (1975)) 166 Mont. 79, 530 P.2d 1158, is persuasive authority. We agree that our decision in that case supports our opinion here. In Tropf, the county attorney's office prepared a complaint and affidavit for a search warrant which contained a district court heading and signature line. On the day of the search in question, there were no district judges present in the courthouse, so the 13 police detective submitted the complaint and affidavit to the Great Falls city police judge. The police judge signed the search warrant with the district court heading and signature line. 530 P.2d at 1159. Tropf, This Court upheld the district court's suppression of the evidence obtained under the search warrant, concluding that police courts are courts of limited jurisdiction and have only such authority as is expressly conferred upon them. Tropf, 530 P.2d a.t 1160. Under the statutory scheme in place at the time we decided Troaf, police judges did not have authority to issue search warrants, were not "judges" for purposes of issuing search warrants and therefore, city police judge was void. Similarly, the search warrant issued by the Tropf, 530 P.2d at 1161. in the instant case, we hold that the search warrants issued by Mr. Rice on August 18, 1993, were not issued by a judge, that those search warrants were void ab initio and that any evidence seized pursuant to those warrants must be suppressed. Accordingly, we remand this case to the Sixteenth Judicial District Court for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. We Concur: Chief Justice .7b=, +h+M-bL u 14 Justices 15 specially COnCUrring: Chief Justice J. A. Turnage, I concur in the majority opinion. While the statutory was not even minimally procedure set forth in 5 3-10-231, MCA, followed in this case, I also suggest that portions of the statute make it difficult for a substitute judge to qualify and for local law enforcement and the public to determine whether a substitute judge is properly qualified to perform judicial functions. Section 3-l&231(2), MCA, provides that l'[t]he county commissioners shall administer the oath of office to each person on [the substitute judge] list." In addition to being unwieldy, it is not likely that all three county commissioners are going to administer the oath of office to the substitute judges on the list: yet, that is what the statute seemingly requires. Moreover, that requirement is in conflict with § 7-5-2121, MCA, which provides that- member of the board of county commissioners may administer oaths. Additionally, 5 2-16-211, MCA, provides that the oath of judicial officers may be taken before any officer authorized to administer oaths. See, 5 l-6-101, MCA. Accordingly, the statute should be amended to simply require that the oath of office for substitute judges be taken before any member of the board of county commissioners or before any officer authorized to administer oaths. Finally, there is nothing in the statutory scheme enacted by the legislature that requires any "paper trail" at the local level when the sitting judge calls in a substitute. That necessitates, as here, the local law enforcement authorities and perhaps court 16 personnel or other interested persons either presuming that the person who is called in is a qualified substitute judge, or, alternatively, having to seek verification from the Office of the Court Administrator of the Supreme Court in Helena. Neither approach is satisfactory, especially when a search warrant is being sought over a weekend, on a holiday, after business hours or under exigent circumstances. Section 3-lo-,231, MCA, should be amended to require that the substitute judges subscribe a written oath of office in conformity with the provisions of Article III, Section 3, of the Montana Constitution and 5 2-16-211, MCA, and that the written oath be then filed in the office of the county clerk in accordance with 5 3-10202, MCA, along with the sitting judge's list of qualified substitute judges and the Commission's written approval and waiver of training for those substitutes. I also submit that the statute be amended to require updated and current copies of the list of qualified and sworn substitute judges be provided from time to time to local law enforcement by the county clerk. Given the extreme consequences of an unqualified substitute judge attempting to act in a judicial capacity, as our opinion here clearly give indicates, I urge the next session of the legislature to serious amendments. consideration to the above proposed statutory The next unlawful search warrant might be issued for the crucial evidence in a homicide case. Chief Justice James C. Nelson, autho joins in the special concu Justice September 12, 1994 CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail,prepaid, to the following named: R. L. Stephens, P.C. 316 No. 25th St. P.O. Box 1438 Billings, MT 59103-14Y 38 R. Allen Beck, P.C. 724 Grand Ave. Billings, MT 59101 James Graves. Eso. ----~--z ---x. Oliver, Graves & Toennls, P.I P.O. Box 7227 Billings, MT 59103-7227 David L. Irving Attorney at Law 110 Fifth St. So. Glasgow, MT 59230 Hon. Joseph P. Mazurek, Attorney General MicheaI Wellenstein, Assistant Justice Bldg. Helena, MT 59620 Gary Bunke Custer County Attorney 1010 Main St. Miles City, MT 59301 ERR OF THE SUPREME COURT STATE OF MONTANA
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