Mont. Code Ann. » TITLE 3. JUDICIARY, COURTS · CHAPTER 1. COURTS AND JUDICIAL OFFICERS GENERALLY · Part 8. Disqualification and Substitution of Judges Supreme Court Rule
Montana Code Annotated

Mont. Code Ann. § 3-1-804 (2026)

Substitution Of District Judges

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 3
  3. CHAPTER 1
  4. Part 8
  5. 3-1-804 Substitution of district judges

TITLE 3. JUDICIARY, COURTS

CHAPTER 1. COURTS AND JUDICIAL OFFICERS GENERALLY

Part 8. Disqualification and Substitution of Judges Supreme Court Rule

Substitution Of District Judges

3-1-804. Substitution of district judges.

SUBSTITUTION OF DISTRICT JUDGES

This section applies to judges presiding in district courts. It does not apply to any judge sitting as a water court judge, to a workers' compensation court judge, or to a judge supervising the distribution of water under 85-2-406, including supervising water commissioners under Title 85, chapter 5, part 1.

(1) Each adverse party is entitled to one substitution of a district judge.

(a) In a civil action other than those noted in subsection (1)(c), a motion for substitution by the party filing the action must be filed within 30 calendar days after the first summons is served or an adverse party has appeared. A motion for substitution by the party served must be filed within 30 calendar days after service has been completed in compliance with M. R. Civ. P. 4.

(b) In a criminal action, a motion for substitution by the prosecution or the defendant must be filed within 10 calendar days after the defendant's arraignment.

(c) A motion for substitution may not be filed in the following cases: a child abuse or neglect proceeding under Title 41, chapter 3; a youth court action proceeding under Title 41, chapter 5; or a mental health commitment proceeding under Title 53, chapter 21, part 1.

(2) (a) When an initial pleading is filed, the clerk of court shall stamp the name of the district judge to whom the case is assigned on the face of the original and all copies of that document.

(b) A motion for substitution of district judge must be made by filing a written motion with the clerk as follows:

The undersigned hereby moves for substitution of District Judge _______ in this case.

The moving party shall serve copies of the motion for substitution upon all other parties to the proceeding. The clerk shall immediately notify the district judge of the motion and, if there has already been a substitution, the first district judge to whom the case was assigned.

(3) In civil cases, the motion for substitution is not effective for any purpose unless the filing fee for a motion for substitution required by 25-1-201 is paid to the clerk of the district court.

In criminal cases, the motion for substitution is effective upon filing, except as otherwise provided herein for a motion filed by a defendant who is not represented by a public defender, as defined by 47-1-103.

In criminal cases filed by the county attorney, the county attorney shall pay the substitution motion fee required by 25-1-201 within 30 days of receipt of a claim from the clerk of district court. In criminal cases filed by the attorney general, the attorney general shall pay the substitution motion fee required by 25-1-201 within 30 days of receipt of a claim from the clerk of district court.

In criminal cases where the motion is filed by or on behalf of an indigent defendant, as defined by 47-1-103, represented by a public defender, as defined by 47-1-103, the office of public defender, as defined by 47-1-103, shall pay the substitution motion fee within 30 days of receipt of a claim from the clerk of district court. In criminal cases where the motion is filed by or on behalf of a defendant who is not represented by a public defender, as defined by 47-1-103, the motion for substitution is not effective for any purpose unless the substitution motion fee required by 25-1-201 is paid to the clerk of the district court except as waived pursuant to 25-10-404.

The substitution motion filing fee required by 25-1-201 is not a district court expense within the meaning of 3-5-901.

(4) Any motion for substitution that is not timely filed is void. The district judge for whom substitution is sought has jurisdiction to determine timeliness, and if the motion for substitution is untimely, shall enter an order denying the motion.

(5) After a timely motion has been filed, the substituted district judge does not have the power to act on the merits of the case or to decide legal issues in the case, except as provided in subsection (10).

(6) The first district judge who has been substituted or disqualified for cause has the duty of calling in all subsequent district judges. In a multijudge district, all other district judges in that district must be called before a district judge from another district is called.

(7) When a new district judge has accepted jurisdiction, the clerk of court shall provide a copy of the assumption of jurisdiction to the first district judge to whom the case was assigned and to each attorney or party of record. A certificate of service must be attached to the assumption of jurisdiction form in the court file.

(8) If the presiding judge in any action recuses himself or herself or if a new district judge assumes jurisdiction in any action, the right to move for substitution of a district judge is reinstated, except as to parties who have previously obtained a substitution. The time periods run anew from the date of service of notice or other document identifying the new district judge.

(9) No party who is joined or intervenes has any right of substitution after the time has run as to the original parties to proceed.

(10) A district judge who has previously been substituted from the case may agree to set the calendar, draw a jury, and conduct all routine matters including arraignments, preliminary pretrial conferences in civil cases, and other matters that do not address the merits of the case, if authorized by the presiding district judge.

(11) When a new trial is ordered by the district court, each adverse party shall be entitled to one motion for substitution of district judge. The motion must be filed, with the required filing fee, within 20 calendar days after the district court has ordered a new trial.

(12) When a judgment or order is reversed or modified on appeal and the cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party is entitled to one motion for substitution of district judge. The motion must be filed, with the required filing fee, within 20 calendar days after the remittitur from the supreme court has been filed with the district court. There is no other right of substitution in cases remanded by the supreme court.

In criminal cases, there is no right of substitution when the cause is remanded for sentencing.

History: En. Sup. Ct. Ord. dated June 17, 1987; amd. July 29, 1987; amd. Sup. Ct. Ord. Sept. 13, 1988, eff. Sept. 13, 1988; amd. Sup. Ct. Ord. Nov. 20, 1989, eff. Nov. 20, 1989; amd. Sup. Ct. Ord. Nov. 14, 1994, eff. Feb. 1, 1995; amd. Sup. Ct. Ord. Apr. 6, 1995, eff. June 1, 1995; amd. Sup. Ct. Ord. July 9, 2009, eff. Oct. 1, 2009; amd. Sup. Ct. Ord. No. AF 09-0289, March 24, 2015, eff. July 1, 2015.

Notes of Decisions
Cited in 77 cases (15 in the last 5 years), 1988–2026 · leading case: Goldman Sachs Grp., Inc. v. Montana Second Jud. Dist. Court, 2002 MT 83 (Mont. 2002).
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Goldman Sachs Grp., Inc. v. Montana Second Jud. Dist. Court, 2002 MT 83 (Mont. 2002). · cites it 158× “Co-defendants in the underlying District Court cause, Montana Power Company (MPC) and MPC Outside Directors, have filed briefs in support of Goldman Sachs' right of substitution.”
Swan v. State, 2006 MT 39 (Mont. 2006). · cites it 40× “Swan seeks post-conviction relief, in the form of a new trial, on the grounds that his original counsel rendered ineffective assistance of counsel when she failed to act on his request that she invoke his statutory right to an automatic substitution of judges, as provided by…”
Mattson v. Montana Power Co., 2002 MT 113 (Mont. 2002). · cites it 29× “¶6 On May 3, 2001, PPL filed a motion to substitute the District Court Judge pursuant to § 3-1-804, MCA, which permits substitution *509 without cause at certain stages in the proceedings.”
Labair v. Carey, 2017 MT 286 (Mont. 2017). · cites it 30× “A certificate of service must be attached to the assumption of jurisdiction form in the court file.”
Patrick v. State, 2011 MT 169 (Mont. 2011). · cites it 27× “¶6 On August 27, 2010, the Yellowstone County Attorney’s Office filed a motion, pursuant to § 3-1-804, MCA, to substitute Judge Gustafson.”
Pinnow v. Montana State Fund, 2007 MT 332 (Mont. 2007). · cites it 11× “One plausible source of such authority is § 3-1-804, MCA, which provides for the substitution of district court judges; however, this provision specifically excludes the WCC.”
State v. Colburn, 419 P.3d 1196 (Mont. 2018). · cites it 8× “¶ 23 Colburn argues appellate counsel's performance was deficient by failing to relay to trial counsel that this Court had issued remitter in sufficient time to file for substitution of the trial judge.”
State v. Langford, 882 P.2d 490 (Mont. 1994). · cites it 12× “Section 3-1-804, MCA (1991). However, the right to move for a substitute judge is deemed waived if no such motion is made before a judge has been assigned to the cause for ten days after an information has been filed.”
In Re Marriage of Toavs, 2002 MT 230 (Mont. 2002). · cites it 16× “Whether the District Court erred in refusing to honor Kimberly's motion for substitution under § 3-1-804, MCA. ¶4 2. Whether the District Court erred in modifying the parties' parenting plan.”
Cushman v. Montana Twentieth Jud. Dist. Court, 2015 MT 311 (Mont. 2015). · cites it 91× “In October of 2014, Judge Christopher assumed jurisdiction after defendant Abbey/Land, LLC, moved for substitution under § 3-1-804, MCA. Then, at the request of Judge Christopher, Chief Justice McGrath called in retired District Judge Douglas G.”
Daniels v. Thomas, Dean & Hoskins, Inc., 804 P.2d 359 (Mont. 1990). · cites it 9× “Defendants cite § 3-1-804, MCA (1987), to argue that Daniels' filing of the *363 motion for substitution of judge divested Judge Roth of the power to decide the case.”
State Ex Rel. Dusek v. Eighth Jud. Dist. Court, 2003 MT 303 (Mont. 2003). · cites it 44× “We have previously exercised supervisory control to address the proper application of § 3-1-804, MCA, in the civil context. See Goldman Sachs Group, Inc.”
Show all 77 citing cases →
— Mont. Code Ann. § 3-1-804(1) — 24 cases
Goldman Sachs Grp., Inc. v. Montana Second Jud. Dist. Court, 2002 MT 83 (Mont. 2002). “Co-defendants in the underlying District Court cause, Montana Power Company (MPC) and MPC Outside Directors, have filed briefs in support of Goldman Sachs' right of substitution.”
Swan v. State, 2006 MT 39 (Mont. 2006). “Swan seeks post-conviction relief, in the form of a new trial, on the grounds that his original counsel rendered ineffective assistance of counsel when she failed to act on his request that she invoke his statutory right to an automatic substitution of judges, as provided by…”
Patrick v. State, 2011 MT 169 (Mont. 2011). “¶6 On August 27, 2010, the Yellowstone County Attorney’s Office filed a motion, pursuant to § 3-1-804, MCA, to substitute Judge Gustafson.”
Wareing v. Schreckendgust, 930 P.2d 37 (Mont. 1996).
Daniels v. Thomas, Dean & Hoskins, Inc., 804 P.2d 359 (Mont. 1990). “Defendants cite § 3-1-804, MCA (1987), to argue that Daniels' filing of the *363 motion for substitution of judge divested Judge Roth of the power to decide the case.”
— Mont. Code Ann. § 3-1-804(1)(a) — 5 cases
Daniels v. Thomas, Dean & Hoskins, Inc., 804 P.2d 359 (Mont. 1990). “Defendants cite § 3-1-804, MCA (1987), to argue that Daniels' filing of the *363 motion for substitution of judge divested Judge Roth of the power to decide the case.”
Holms v. Bretz, 2021 MT 200 (Mont. 2021).
In Re the Est. of Greene, 2013 MT 174 (Mont. 2013).
McDonald v. Jacobsen, 2021 MT 287 (Mont. 2021).
Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016).
— Mont. Code Ann. § 3-1-804(1)(b) — 9 cases
Collins v. Mont. Eighth Jud. Dist. Court, 418 P.3d 672 (Mont. 2018).
Smith v. State, 2000 MT 327 (Mont. 2000).
State v. McKenzie, 894 P.2d 289 (Mont. 1995).
Caye v. 20th Jud. Dist., 2025 MT 246 (Mont. 2025).
S.L. v. 4th Jud. Dist., 2026 MT 1 (Mont. 2026).
— Mont. Code Ann. § 3-1-804(1)(c) — 7 cases
Goldman Sachs Grp., Inc. v. Montana Second Jud. Dist. Court, 2002 MT 83 (Mont. 2002). “Co-defendants in the underlying District Court cause, Montana Power Company (MPC) and MPC Outside Directors, have filed briefs in support of Goldman Sachs' right of substitution.”
Mattson v. Montana Power Co., 2002 MT 113 (Mont. 2002). “¶6 On May 3, 2001, PPL filed a motion to substitute the District Court Judge pursuant to § 3-1-804, MCA, which permits substitution *509 without cause at certain stages in the proceedings.”
State Ex Rel. Dusek v. Eighth Jud. Dist. Court, 2003 MT 303 (Mont. 2003). “We have previously exercised supervisory control to address the proper application of § 3-1-804, MCA, in the civil context. See Goldman Sachs Group, Inc.”
Swan v. State, 2006 MT 39 (Mont. 2006). “Swan seeks post-conviction relief, in the form of a new trial, on the grounds that his original counsel rendered ineffective assistance of counsel when she failed to act on his request that she invoke his statutory right to an automatic substitution of judges, as provided by…”
In Re Marriage of Toavs, 2002 MT 230 (Mont. 2002). “Whether the District Court erred in refusing to honor Kimberly's motion for substitution under § 3-1-804, MCA. ¶4 2. Whether the District Court erred in modifying the parties' parenting plan.”
— Mont. Code Ann. § 3-1-804(1)(g) — 2 cases
Williams v. Schwager, 2002 MT 107 (Mont. 2002).
Bragg v. McLaughlin, 1998 MT 284N (Mont. 1998).
— Mont. Code Ann. § 3-1-804(10)(c) — 1 case
State Ex Rel. Dusek v. Eighth Jud. Dist. Court, 2003 MT 303 (Mont. 2003). “We have previously exercised supervisory control to address the proper application of § 3-1-804, MCA, in the civil context. See Goldman Sachs Group, Inc.”
— Mont. Code Ann. § 3-1-804(12) — 10 cases
State v. Colburn, 419 P.3d 1196 (Mont. 2018). “¶ 23 Colburn argues appellate counsel's performance was deficient by failing to relay to trial counsel that this Court had issued remitter in sufficient time to file for substitution of the trial judge.”
Labair v. Carey, 2017 MT 286 (Mont. 2017). “A certificate of service must be attached to the assumption of jurisdiction form in the court file.”
Mines Mgmt., Inc. v. Fus, 2014 MT 256 (Mont. 2014).
Draggin' Y Cattle Co. v. Addink, 2016 MT 98 (Mont. 2016).
Missoula v. Mountain Water, 2021 MT 122 (Mont. 2021).
— Mont. Code Ann. § 3-1-804(3) — 1 case
Lesage v. 20th Jud. Dist., 2021 MT 72 (Mont. 2021).
— Mont. Code Ann. § 3-1-804(4) — 5 cases
Missoula v. Mountain Water, 2021 MT 122 (Mont. 2021).
In Re the Est. of Greene, 2013 MT 174 (Mont. 2013).
Holms v. Bretz, 2021 MT 200 (Mont. 2021).
Lesage v. 20th Jud. Dist., 2021 MT 72 (Mont. 2021).
In Re the Est. of Quirin, 2013 MT 231 (Mont. 2013).
— Mont. Code Ann. § 3-1-804(5) — 6 cases
Patrick v. State, 2011 MT 169 (Mont. 2011). “¶6 On August 27, 2010, the Yellowstone County Attorney’s Office filed a motion, pursuant to § 3-1-804, MCA, to substitute Judge Gustafson.”
Missoula v. Mountain Water, 2021 MT 122 (Mont. 2021).
S.L. v. 4th Jud. Dist., 2026 MT 1 (Mont. 2026).
Caye v. 20th Jud. Dist., 2025 MT 246 (Mont. 2025).
Matter of C.A.O., 2014 MT 297N (Mont. 2014).
— Mont. Code Ann. § 3-1-804(6) — 1 case
Cushman v. Montana Twentieth Jud. Dist. Court, 2015 MT 311 (Mont. 2015). “In October of 2014, Judge Christopher assumed jurisdiction after defendant Abbey/Land, LLC, moved for substitution under § 3-1-804, MCA. Then, at the request of Judge Christopher, Chief Justice McGrath called in retired District Judge Douglas G.”
— Mont. Code Ann. § 3-1-804(7) — 1 case
Labair v. Carey, 2017 MT 286 (Mont. 2017). “A certificate of service must be attached to the assumption of jurisdiction form in the court file.”
— Mont. Code Ann. § 3-1-804(8) — 4 cases
Patrick v. State, 2011 MT 169 (Mont. 2011). “¶6 On August 27, 2010, the Yellowstone County Attorney’s Office filed a motion, pursuant to § 3-1-804, MCA, to substitute Judge Gustafson.”
Cushman v. Montana Twentieth Jud. Dist. Court, 2015 MT 311 (Mont. 2015). “In October of 2014, Judge Christopher assumed jurisdiction after defendant Abbey/Land, LLC, moved for substitution under § 3-1-804, MCA. Then, at the request of Judge Christopher, Chief Justice McGrath called in retired District Judge Douglas G.”
Shea v. Babb, 2020 MT 182N (Mont. 2020).
Ratliff v. Pearson, 2011 MT 241 (Mont. 2011).
— Mont. Code Ann. § 3-1-804(9) — 3 cases
Ratliff v. Pearson, 2011 MT 241 (Mont. 2011).
Pallister v. Blue Cross & Blue Shield of Montana, Inc., 2013 MT 149 (Mont. 2013).
In Re the Est. of Quirin, 2013 MT 231 (Mont. 2013).
— Mont. Code Ann. § 3-1-804(c) — 2 cases
Eisenhart v. Puffer, 2008 MT 58 (Mont. 2008).
In the Matter of Cdh, 2009 MT 8 (Mont. 2009).
— Mont. Code Ann. § 3-1-804(d) — 1 case
In the Matter of Cdh, 2009 MT 8 (Mont. 2009).
— Mont. Code Ann. § 3-1-804(e) — 2 cases
City of Hamilton v. Roche (Mont. 1996).
Bragg v. McLaughlin, 1998 MT 284N (Mont. 1998).
— Mont. Code Ann. § 3-1-804(g) — 1 case
State v. Mason, 2003 MT 371 (Mont. 2003).
— Mont. Code Ann. § 3-1-804(l)(a) — 2 cases
Ratliff v. Pearson, 2011 MT 241 (Mont. 2011).
In Re the Est. of Quirin, 2013 MT 231 (Mont. 2013).
— Mont. Code Ann. § 3-1-804(l)(b) — 2 cases
D.H. v. Montana Fourth Jud. Dist. Court, 2012 MT 106 (Mont. 2012).
A.C. v. Montana Tenth Jud. Dist. Court, 2012 MT 110 (Mont. 2012).
— Mont. Code Ann. § 3-1-804(l)(c) — 2 cases
Swan v. State, 2006 MT 39 (Mont. 2006). “Swan seeks post-conviction relief, in the form of a new trial, on the grounds that his original counsel rendered ineffective assistance of counsel when she failed to act on his request that she invoke his statutory right to an automatic substitution of judges, as provided by…”
State Ex Rel. Dusek v. Eighth Jud. Dist. Court, 2003 MT 303 (Mont. 2003). “We have previously exercised supervisory control to address the proper application of § 3-1-804, MCA, in the civil context. See Goldman Sachs Group, Inc.”
— Mont. Code Ann. § 3-1-804(l)(g) — 1 case
State v. Willson, 818 P.2d 1199 (Mont. 1991).
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