### 80-165 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA ex rel., ROBIN DeWAYNE WARD, Petitioner,

NORMA A. 

### SCHMALL, Justice of the Peace for Gallatin County, Montana, Respondent.

Appeal from: District Court of the 

# i- Judicial District, In and for the County of Gallatin. Honorable Joseph Gary, Judge presiding. Counsel of Record: For Petitioner: Goetz and Madden, Bozeman, Montana James Goetz argued, Bozeman, Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena, Montana Dennis Dunphy argued,Assistant Attorney General,

Helena, Montana Donald White, County Attorney, Bozeman, Montana Michael Lilly argued, Deputy County Attorney, Bozeman,

Montana

Submitted: September 8, 1980 Decided: 

# - SEP30

# 1w
Filed: 

## &p 8

## 6t$@OMr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a final civil judgment of the Gallatin County District Court. This case originated as a criminal cause in the Justice of the Peace Court of Norma Schmall. Relator, Robin DeWayne Ward, was arrested on March 31, 1979, for drivingwhile intoxicated. Ward refused to take a chemical test and initiated a constitutional challenge to section 61-8-404 (2)

## , MCA, which automatically approves the admission into evidence of the fact that a defendant refused to submit to a chemical examination. Ward filed a civilpetition in the District Court for a 

### writof supervisory control, 

### writof habeas corpus, or other appropriate 

### writ. Ward argued that because of the constitutional questions involved, a nonlawyer justice of the peace would be ill-equipped todeal with the constitutional aspects of his case. The petition that the DistrictCourt superintend 

### was accompanied by a request that the District Court stay the Justice of the Peace Court criminal proceedings pending disposition of the civil constitutional question by the District Court. The State initially resisted the civil petition for original relief in the DistrictCourt. However, it withdrew its opposition after consideration of this Court's decisions inBailey v. State (1974), 163Mont. 380, 517 P.2d 708, and Forsythe v. Wenholz (1976), 170 Mont. 496, 554 P.2d 1333. In a brief filed on July 17, 1979, the State expressly conceded that the District Court had jurisdiction to grant a 

### writof supervisory control incases such as this, The DistrictCourt granted the petition, stayed the Justice of the Peace Court proceedings, and heard the 

### writon the merits. On April 11, 1980, the District Court ruled againstWard. He now appeals the District Court judgment. Relator Ward presents three issues for this Court's review: 1. Whether a stateDistrict Court has jurisdiction to grant

### writsof supervisory control over Justice of the Peace Courts

# . 2. Whether section 61-8-404(2), MCA, allowing evidence of refusal to submit to a breathalyzer test upon arrest for driving while intoxicated, is a violation of the Fifth Amendment protection against self-incrimination. 3. Whether it is a violation of a defendant's due process rights if police officers do not inform him that the factof his refusal to submit to a breathalyzer test willbe used againsthim attrial. With regard to relator's firstissue, 

### we are guided by 1972 Mont. Const., Art. 

### VII, S2. That constitutional provision expressly grants thisCourt the power to exercise supervisory jurisdiction over allother courts inthis state. Absent a constitutional provision or statutebestowing upon the DistrictCourts the authority togrant

### writsof supervisory control over Justice of the Peace Courts, we are obligated to infer thatDistrictCourts do not have such power. To the extent thatour decisions inBailey and Forsythe, supra, lend tolerant approval to the District Court's exercise of supervisorypower, they areexpressly overruled. Ward has requested that inthe event

### we do not find that the ~istrict Court has jurisdiction, 

### we convert his appeal to a 

### writof supervisory control so that this Court may superintend the DistrictCourt below. We conclude, as

### we did in State ex rel. Kober & Kyriss v. DistrictCourt (1966), 147Mont. 116, 410 P.2d 945, that a 

### writof supervisory control isnot tobe used as a means to circumvent the appeal process. Only inthe most extenuating circumstances will such a 

### writbe granted. In this cause, no such circumstances exist. The request for a supervisory

### writisdenied. The

cause isremanded to the Justice of the Peace Court for proceedings on the merits.

We concur: 

# PA

/1 Chief Justice

Justices