Maloney v. Gordon, 92-218

• Decision Date: 22 September 1992
• Docket Number: No. 92-218,92-218
• Citation: 254 Mont. 314,837 P.2d 1341
• Parties: Joseph MALONEY, Petitioner and Appellant, v. Tina GORDON, City Judge, City Court of Columbia Falls, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1341

837 P.2d 1341

254 Mont. 314

Joseph MALONEY, Petitioner and Appellant, v. Tina GORDON, City Judge, City Court of Columbia Falls Respondent and Respondent.

No. 92-218.

Supreme Court of Montana.

Submitted on Briefs Sept. 10, 1992.

Decided Sept. 22, 1992.

James C. Bartlett, Hash, O'Brien & Bartlett, Kalispell, for petitioner and appellant.

Marc Racicot, Atty. Gen., Michael S. Wellenstein, Asst. Atty. Gen., Helena, Katherine R. Curtis, City Atty., Columbia Falls, for respondent and respondent.

McDONOUGH, Justice.

Appellant, Joseph Maloney, appeals from an order and judgment of the District Court of the Eleventh Judicial District, Flathead County, dismissing his petition for writ of review, writ of mandamus, writ of supervisory control and other appropriate relief. We affirm.

Joseph Maloney (Maloney) was charged in the City Court of Columbia Falls with the misdemeanors of speeding and driving an automobile while under the influence of alcohol. He was charged under a document entitled Notice to Appear and Complaint signed by police officer R. Dettwiler. Maloney pled not guilty and a trial was held.

At trial there was testimony that the complaint was not properly sworn to by officer Dettwiler. Maloney made a motion to dismiss on such grounds. The city judge took the motion under advisement and proceeded with the trial. Maloney was convicted on both charges. The city judge later denied Maloney's motion to dismiss, ruling that the failure of the officer to swear to the complaint did not prejudice Maloney's substantial rights. Maloney has appealed his conviction de novo and his trial is pending in the District Court.

At the same time, Maloney appealed his conviction, he filed with the District Court a petition for writ of review, writ of mandamus, writ of supervisory control, or other appropriate writ, asking the District Court to direct the city court to dismiss the charges. The city filed an answer and a hearing was held. The District Court denied and dismissed the petition for the various writs.

The District Court was correct in dismissing Maloney's petitions. There is no constitutional or statutory provision granting a district court the authority to issue a writ of supervisory control to a city court. See State, Etc. v. City Court of Choteau (1982), 198 Mont. 223, 225, 645 P.2d 428, 429. Maloney having failed to properly raise the issue of supervisory control by this Court, we will not address it.

The District Court's authority to issue a writ of mandamus in reviewing the action of the city court is controlled by Sec. 27-26-102, MCA, which states:

When and by whom issued. (1) It may be issued by the supreme court or the district court or any judge of the district court to any inferior tribunal,...