Exhaust-Local-Then-Random: Montana’s New Contiguous-Pool Protocol for Assigning Substituted District Judges Under SB 41

Introduction

In AF 09-0289, the Supreme Court of Montana announced a revised framework for assigning judges when a district court judge is substituted, recused, or disqualified. Prompted by Senate Bill 41 (2025), which requires random selection from a larger group of judges limited by geographic proximity, the Court, working through the Office of the Court Administrator (OCA), has circulated draft implementation rules and sought broad public and judicial input. The Court’s September 12, 2025 Order also postpones a previously scheduled public meeting to allow for additional comment and refinement.

The materials accompanying the Order include two memoranda (August 11 and August 28, 2025) from Chief Justice Cory Swanson and Court Administrator Dave McAlpin. These memoranda outline the proposed system, identify statutory constraints (notably § 3-1-804, MCA), and describe the technology, training, and launch timeline necessary to make the new assignment process operational by October 1, 2025 (the legislative deadline).

The stakeholders are expansive: the District Court Council, State Bar of Montana, trial lawyers’ associations (plaintiff and defense), county attorneys, public defenders, criminal defense lawyers, each District Court Judge, and each Clerk of District Court. The procedural overhaul affects every Montana judicial district and addresses a core concern of fairness: who takes over a case when the originally assigned judge cannot continue.

Summary of the Opinion and Administrative Action

The Court’s Order does three main things:

• Directs broad dissemination of the draft rules and solicits public and judicial comment.
• Postpones the public meeting previously set for September 23, 2025, until after the close of the comment period.
• Endorses a path to implement SB 41 by October 1, 2025, including software integration, trainings, and a refined assignment protocol responsive to feedback received.

Substantively, the updated proposal (August 28) adopts two key refinements:

• All local judges in a multi-judge district must be exhausted before any judge from another district is randomly assigned.
• Regional pools are built from contiguous (adjoining) judicial districts, with a minimum of four additional judges available. If adjoining districts do not supply four, the next closest district by ordinary travel routes is added. The 13th Judicial District is excluded from all regional pools; if its local judges are all exhausted, assignment defaults to the statewide pool.

A statewide “fail-safe” pool will include active judges who volunteer (targeting 10 judges); if insufficient volunteers exist, the Chief Justice may seek the consent of retired judges to serve in that pool. OCA has developed a software tool that integrates with Full Court Enterprise (FCE) so that Clerks can execute the random selections and record assignments accurately. Demonstrations and trainings are scheduled to ensure an October 1 launch.

Analysis

Precedents and Authorities Cited

• Senate Bill 41 (2025). SB 41 mandates that, after substitution, recusal, or disqualification, subsequent judicial assignments proceed by random selection from “a larger group,” with the group limited geographically to a reasonable distance from the original judicial district. This statute is the driver of the new framework.
• § 3-1-804, MCA (Substitution of judge). The memoranda interpret SB 41 in conjunction with the existing substitution statute, particularly § 3-1-804(6). The last sentence—quoted in the record—states: “In a multijudge district, all other district judges in that district must be called before a district judge from another district is called.” The August 28 update explicitly aligns the new system with this statutory requirement by exhausting all local judges first.
• Prior administrative rulemaking docket (AF 09-0289). The Court uses this docket to manage and revise statewide procedures on judicial substitution and assignment, reaffirming the Court’s rulemaking role over practice and procedure in the courts and its coordination with the OCA and District Court Council.

Notably, the initial August 11 memo contemplated expanding the pool once only a single local judge remained, observing that when only one judge is left, the assignment is no longer “by chance.” Implementing that approach would have required revising § 3-1-804(6), MCA. In response to feedback, the August 28 update pivots to full exhaustion of local judges first, thus avoiding any statutory conflict.

Legal Reasoning and Framework

The Court’s reasoning reflects a careful harmonization of a new legislative mandate (SB 41) with longstanding Montana substitution practice codified in § 3-1-804, MCA.

• Defining “random selection” under SB 41. The statute defines random selection as selection by chance from a larger group, with a geographic constraint. The Court accepts that definition but implements it within the existing substitution architecture. As cases proceed through substitutions, the pool is the set of judges who can lawfully and practically be called given statutory priorities and geographic limits.
• Reconciling random selection with § 3-1-804(6). The key reconciliation is the “exhaustion-first” rule for multi-judge districts. Although the last available local judge is not “selected by chance,” honoring the Legislature’s randomization directive cannot override the explicit statutory command that all local judges be called before reaching outside the district. The update adopts a two-stage approach: randomization within the local bench until exhausted, followed by random selection from a geographically defined regional pool.
• Geographic limitation made concrete. The Court opts for contiguous (adjoining) judicial districts as the default regional pool design, meeting the “reasonable distance” criterion in SB 41 while respecting practical travel realities. If adjacency yields fewer than four additional judges, the nearest district by ordinary travel routes is added, ensuring meaningful randomization while avoiding unworkably large or far-flung pools.
• Special handling for the 13th Judicial District. The 13th JD (a large, high-volume district) is excluded from all regional pools. If all of its local judges are exhausted, assignment will come from the statewide pool. This avoids overloading neighboring districts or causing skewed regional assignments due to the 13th JD’s size and location, while ensuring a robust fallback.
• System resilience: statewide pool. Recognizing that some cases may trigger multiple recusals, declinations, or disqualifications, the statewide pool acts as a fail-safe. Active judges may volunteer; if insufficient, the Chief Justice may seek retired judges’ consent. This preserves the capacity to assign a neutral judge even after local and regional resources are depleted.
• Administrative apparatus and transparency. To operationalize the new system, OCA’s IT team has built a tool integrated with Full Court Enterprise. Clerks will make selections via the application and record results directly into FCE, enhancing transparency and auditability of random selections while standardizing workflows statewide.

Impact and Likely Consequences

The new protocol alters the strategic landscape for litigants and the administrative realities for courts.

• Reduced judge-shopping and enhanced fairness. By randomizing replacement judges from a predefined pool that litigants cannot control, the reforms make assignments less predictable and undercut the ability to maneuver for a preferred judge after a substitution.
• Statutory fidelity without undermining randomization. The “exhaust local judges first” rule preserves Montana’s longstanding intradistrict priority (§ 3-1-804(6)), while still implementing SB 41’s randomization requirements at each eligible stage. The consequence is a system that is random where the statute allows for choice and non-random only where no choice remains.
• Geographic practicality and access to justice. Contiguous regional pools and a travel-based fallback balance randomness with the realities of Montana’s distances, terrain (e.g., the Continental Divide), and weather. This should improve timeliness and reduce undue travel burdens on the judiciary and participants.
• Workload distribution and the 13th JD. Excluding the 13th JD from serving as a regional reservoir limits the risk that its judges are frequently drawn into neighboring cases (or vice versa), an important safeguard given the district’s volume. At the same time, the statewide pool assures that the 13th JD is not stranded if its own bench is fully exhausted.
• Technology-driven uniformity. Integration with FCE promises consistent application across counties, with audit trails that can be reviewed if disputes arise about whether a particular assignment was properly randomized and recorded.
• Training and change management. The scheduled demonstrations and trainings, combined with outreach to all justice-system stakeholders, indicate a deliberate approach to change management. This should minimize disruption at launch (October 1), though some ramp-up challenges are inevitable.
• Litigation risk mitigation. Clear, auditable rules and tools lessen the likelihood of collateral challenges to assignments. Where recusal or disqualification issues arise, the randomization process reduces the perception that reassignment is outcome-driven.

Complex Concepts Simplified

• Substitution vs. recusal vs. disqualification:
  • Substitution generally refers to a party’s statutory right to change the judge once, without cause (timing and conditions governed by § 3-1-804, MCA).
  • Recusal is a judge’s voluntary step aside, often due to a conflict or the appearance of bias.
  • Disqualification is a removal required by law (e.g., conflict of interest, statutory grounds).
  In all three scenarios, a new judge must be assigned—and SB 41 governs how that reassignment happens.
• Random selection “from a larger group.” SB 41 requires that the replacement judge be chosen by chance from a group that is larger than a single individual and limited to a “reasonable distance.” Practically, that means:
  • Within a multi-judge district: random selection among the remaining local judges until none remain.
  • If all local judges are exhausted: random selection from a predefined regional pool made up of adjoining districts (and, if necessary, the closest further district).
  • If both are exhausted or unsuitable: random selection from a statewide volunteer (and, if needed, retired) pool.
• Why the “last local judge” isn’t random—and why that’s okay. When only one local judge remains, there is no “choice,” so randomness has no role. Montana law requires calling all local judges first (§ 3-1-804(6)), and the updated plan adheres to that priority before moving outward to regional randomization.
• Contiguous regional pools. “Contiguous” means neighboring judicial districts (sharing a border). This keeps the pool geographically reasonable. If too few judges are available from contiguous districts to meet the four-judge minimum, the next nearest district is added based on standard travel routes, not “as the crow flies.”
• The 13th Judicial District exception. Because of its size and caseload, the 13th JD is excluded from serving in regional pools, and if its own judges are all exhausted, the backup is the statewide pool. This special rule helps avoid distortions that could arise from the 13th JD’s unique profile.
• Statewide pool as a fail-safe. Active judges may volunteer to be on-call statewide when local and regional options have been exhausted. If fewer than 10 active judges volunteer, retired judges may be asked to consent to serve. This ensures continuity when a case has unusual complexity or widespread conflicts.
• Technology and process controls. The OCA software integrates with Full Court Enterprise, enabling clerks to:
  • Select an appropriate pool (local, regional, or statewide),
  • Trigger a random selection within that pool, and
  • Record the result in the case management system, ensuring transparency and consistency.

Implementation Timeline and Process Notes

• Mid-August: Memo and draft rule released.
• Aug 13–Sept 12: Public comment and judicial feedback period.
• Aug 18–Sept 12: Demonstrations for clerks (scheduled by OCA).
• Sept 12: Modifications based on comments (reflected in the August 28 update and the Order).
• Sept 15: Chief Justice to seek any Supreme Court rule amendment if necessary (the August 28 update aims to avoid statutory conflicts).
• Sept 15–Oct 1: Trainings for clerks and staff.
• Oct 1: Launch, with ongoing training and troubleshooting thereafter.

The September 23 public meeting is postponed until after the comment period closes, underscoring the Court’s commitment to iterative refinement based on stakeholder input. The Clerk of the Supreme Court is directed to distribute the Order widely and to request that each Clerk of District Court make it available for public review.

Worked Examples

• Multi-judge district (e.g., 4 judges):
  • Original assignment is random among the 4 local judges.
  • If substituted, the replacement is randomly selected from the remaining 3 local judges.
  • If substituted again, random selection from the remaining 2 local judges.
  • If substituted again, the last remaining local judge is assigned (no randomness because only one option remains).
  • Only after all 4 are used does the system move to the regional pool for any further replacement, selected randomly.
• Single-judge district:
  • After substitution, there is no other local judge; the system immediately uses the regional pool for a random selection.
  • If that fails (further recusals/declinations), the statewide pool becomes the backup.
• 13th Judicial District:
  • Randomize among the 13th JD’s local judges until all are exhausted under § 3-1-804(6).
  • If all local judges are exhausted, assignment proceeds directly to the statewide pool (the 13th JD does not draw from a regional pool).

Open Questions and Practical Considerations

• Pool composition details. The August 28 memo provides the criteria (contiguity, minimum of four judges, nearest-by-travel fallback) rather than a final, exhaustive pool list. Final pool definitions will likely be settled after the comment period and published with mapping resources.
• Randomization auditability. While the Court indicates that the OCA tool integrates with FCE, operational transparency (e.g., logs, seeds, and audit trails of random draws) will be important to withstand scrutiny in contested cases.
• Judges’ declinations. The memoranda preserve a judge’s ability to decline an assignment. Courts should anticipate how repeated declinations interact with timeliness goals and ensure the software rapidly moves to the next random draw.
• Travel and cost impacts. Contiguous pooling and travel-based fallbacks are designed to control costs and avoid impractical assignments. Courts and counties may still need to budget for occasional long-distance assignments when local and regional options are depleted.

Conclusion

With this Order and the accompanying memoranda, the Montana Supreme Court establishes a clear, statewide system to implement SB 41: exhaust local judges in multi-judge districts as § 3-1-804(6) requires, then select replacement judges randomly from a geographically reasonable, contiguous regional pool, and finally draw from a statewide pool when necessary. The approach respects statutory priorities, advances fairness and transparency through randomization, and accounts for Montana’s geographic realities.

The postponement of the public meeting and the wide circulation of the draft rule signal the Court’s deliberate, consultative process. The integration with Full Court Enterprise, combined with statewide training, positions clerks to administer the new system uniformly and reliably by the October 1 deadline.

Key takeaways:

• Random assignment is now the norm after substitution, constrained by statutory exhaustion of local judges and by sensible geography.
• Contiguous regional pools, with a minimum of four additional judges, provide robust randomness without sacrificing practicality.
• The 13th Judicial District’s exclusion from regional pools and the creation of a statewide volunteer (and retired) bench ensure resilience for outlier cases.
• Technology-enabled selection and recording within FCE will help standardize practice and enhance accountability across Montana.

In sum, Montana’s revised substitution protocol marries statutory fidelity with modern case management. It should reduce perceptions of judge-shopping, preserve litigants’ confidence in neutral assignment, and provide a scalable template for fair, transparent judicial reassignments statewide.