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: - SEP 3 0 1w 

Filed: &p 8 6 t$@O 
Mr. 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 driving while 

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 civil petition in the 

District Court for a writ of supervisory control, writ of 

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 to deal 

with the constitutional aspects of his case. The petition 

that the District Court 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 District Court. However, it withdrew its opposition after consideration of this Court's 

decisions in Bailey v. State (1974), 163 Mont. 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 writ of supervisory control in cases such as this, 

The District Court granted the petition, stayed the 

Justice of the Peace Court proceedings, and heard the writ 
on the merits. On April 11, 1980, the District Court ruled 

against Ward. He now appeals the District Court judgment. 

Relator Ward presents three issues for this Court's 

review: 

1. Whether a state District Court has jurisdiction to 

grant writs of 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 

fact of his refusal to submit to a breathalyzer test will be 

used against him at trial. 

With regard to relator's first issue, we are guided by 

1972 Mont. Const., Art. VII, S2. That constitutional provision expressly grants this Court the power to exercise 

supervisory jurisdiction over all other courts in this 

state. Absent a constitutional provision or statute bestowing upon the District Courts the authority to grant writs of 

supervisory control over Justice of the Peace Courts, we are 

obligated to infer that District Courts do not have such 

power. To the extent that our decisions in Bailey and 

Forsythe, supra, lend tolerant approval to the District 

Court's exercise of supervisory power, they are expressly 

overruled. 

Ward has requested that in the event we do not find 

that the ~istrict Court has jurisdiction, we convert his 

appeal to a writ of supervisory control so that this Court 

may superintend the District Court below. We conclude, as 
we did in State ex rel. Kober & Kyriss v. District Court 

(1966), 147 Mont. 116, 410 P.2d 945, that a writ of supervisory control is not to be used as a means to circumvent 

the appeal process. Only in the most extenuating circumstances will such a writ be granted. In this cause, no such 

circumstances exist. 

The request for a supervisory writ is denied. The 

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

We concur: 

PA 

/1 

Chief Justice 

Justices