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# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 24-0341

DAWSON DENNIS PATRICK, DYLAN TODD LEE OVITT, SAMUAL MURRELL GREEN, JOHN ARISPE, JOHN ANTHONY BLACKBURN, JAMES HORODYSKI, JAMES LONDON, HARLEY MCDONALD, TROY PARKER, BRANDON ROSENHAHN, and ANDREW SUITONU,

Petitioners, v. MONTANA FOURTH JUDICIAL DISTRICT COURT, MINERAL COUNTY, HONORABLE SHANE A. VANNATTA, Presiding,

Respondent. ORDER


# FILED AUG 1 

## 32024
Bowen Greenwood Clerk of Supreme Court State of Montane 

### Petitioners are eleven individualswho faced criminal chargesin theMineral County Justice Court. In the cases ofDawson Dennis Patrick, Dylan Todd Lee Ovitt, and Samual Murrell Green,theJustice Court granted motionsto suppress evidence on thebasisthatthe investigations into their respective alleged offenses were carried out by a Mineral County SheriffsDeputy whowas not qualified tobe a peace officer at the time ofthe investigation and arrest. The State appealed the Justice Court's respective orders to the District Court, where the matters were assigned to District Court Judge Hon. Shane A. Vannatta. The District Court reversed the JusticeCourt's orders grantingsuppression ofevidence in these three cases. In the cases of John Arispe, John Anthony Blackburn, James Horodyski, James London, Harley McDonald, Troy Parker, Brandon Rosenhahn, and Andrew Suitonu, the Justice Court dismissed the matters without prejudice. The State appealed those orders to the District Court, where the matters were assigned to District Court Judge Hon. John W. Larson. Those appeals remain pending in the District Court. 08/13/2024

Case Number: OP 24-0341On May 29, 2024, Petitioners petitioned this Court for writ ofsupervisory control,

alleging the District Court erred in reversing the Justice Court's orders in the cases of Patrick, Ovitt, and Green. At our invitation, the State and Judge Vannatta both responded. The State opposes Petitioners' requested reliefwhile Judge Vannatta reiterates the basis for his rulings. Supervisory control is an extraordinary remedy that may be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3). The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues ofstate-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶5, 361 Mont. 279, 259 P.3d754 (citations omitted). ConsistentwithRule 14(3),itistheCourt'spracticetorefrain from exercising supervisory control when the petitionerhas an adequate remedy ofappeal. E.g., Buckles v. Seventh Jud. Dist. Ct., No. OP 16-0517, 386 Mont. 393, 386 P.3d 545 (table) (Oct. 18, 2016); Lichte v. Mont. Eighteenth Jud. Dist. Ct., No. OP 16-0482, 385 Mont. 540, 382 P.3d 868 (table) (Aug. 24, 2016). As a preliminary matter, we conclude only the matters concerriing Patrick, Ovitt, and Green may be further considered by this Court. M. R. App. P. 14(6) provides in part, "If a petition for an extraordinary writ or for a writ of supervisory control is filed with respecttoanyproceedingpendinginthe districtcourt, thepetition and any exhibitsrelating to a ruling ofthe district court must be served upon the districtjudge against whose ruling it is directed and upon all parties." This Court lacksjurisdiction to entertain the claims of the other petitioners since the Petition was not served upon Judge Larson. B.D. & J.D. v. Thirteenth Jud. Dist, No. OP 21-0335, 405 Mont. 536, 495 P.3d 4'17 (Jul. 20, 2021). Moreover, as Judge Larson has made no rulings, Petitioners cannot establish that he is proceeding under a mistake oflaw.

2Asto further consideration ofthisPetition concerningPatrick, Ovitt, and Green, the

issue presented is purely one of law: whether the District Court erred in reversing the Justice Court's orders granting PetitiOners' motions to suppress on the basis that the officers were not qualified to act as peace officers at the time ofinvestigation and arrest. Petitioners argue that we should accept this petition as a matter ofjudicial economy. However, we have frequently explainedthat conservingresources,withoutmore, provides insufficient grounds to justify supervisory control where a party can seek review of the lower court's ruling on appeal and there is no evidence that relief on appeal would be inadequate. Yellowstone Elec. Co. v. Mont. Seventh Jud. Dist. Ct, No. OP 19-0348, 397 Mont. 552, 449 P.3d 787 (table) (Aug. 6, 2019). Thus, the basis ofjudicial economy, without more, would notjustify our further consideration onpetition for writ. The State arguesthat denials ofmotionsto suppress in criminal cases are a common
occurrencethat do not merit consideration ofsupervisory control. The State further asserts that Petitioners each have an adequate remedy on appeal and this Court does not exercise supervisory control for the mere convenience ofthe parties. "[A]writofsupervisory controlisnottobeused asameansto circumventtheappeal process: Only in the most extenuating circumstances will such a writ be granted." State
ex rel. Ward v. Schmall, 190 Mont. 1, 617 P.2d 140 (1980). In this case, we have determined supervisory control is appropriate because Petitioners' respective cases may otherwise have different outcomes—including settlements that would preclude appeal— and the outcome ofTetitioners' cases may affect otherprosecutions, includingthose cases pendingbefore Judge Larson. We thus further entertain this petition for the underlying matters ofPatrick, Ovitt, and Green. In each case, Patrick, Ovitt, and Green were arrested by Mineral County Sheriffs Deputy David Kunzelman after Kunzelman conducted a DUI investigation. In Patrick's case, Mineral County Sheriffs Deputy Eric Lindauer assisted in the traffic stop and detention, which occurred on August 14, 2022. Lindauer also observed Ovitt's arrest
on August 26, 2022. In Green's case, Mineral County Sheriffs Deputy Shawn Visintin arrived on scene after Kunzelman initiated a traffic stop and provided Kunzelman with 3backup on May 6, 2022.

At the time of these arrests, Kunzelman, Lindauer, and Visintin (collectively "Deputies") had not completed their mental health evaluations by a qualified provider as required for appointment as a peace officer under § 7-32-303(2)(g), MCA. The statute provides, in relevantpart: (2)A sheriffofa county

. . . may not appoint aperson as apeace officerwho does not meet the qualifications provided in this subsection (2).

. . . A peace officer must:

(g) be free of any mental condition that might adversely affect performance ofthe duties pfapeace officer, as determined after: (i) a mental health evaluation performed by a licensed physician or a mental health professional who is licensed by the state under Title 37, who is acting within the scope ofthe person's licensure when performing a mental health evaluation, who is not the applicant's personal physician or licensed mental health professional, and who is selected by the employing authority; or (ii) satisfactory completion of a standardized mental health evaluation instrument determined by the employing authority tobe sufficientto examine forany mental conditionswithin the meaning of this subsection (2)(g), ifthe instrument is scored by a licensed physician or a mental health professional acting , within the scope ofthe person's licensureby a state.
Priortotheinvestigationsand arrests atissue,Deputieshadundergonementalhealth evaluations performed by a physician assistant. However, a physician assistant is neither
a "physician"nor a "mental health professional" as defined by § 37-3-102(12), MCA, and § 53-21-102(11), MCA, respectively. The State does not dispute that the evaluations conducted by aphysician assistant did not comply with the statutory requirement. Kunzelman completed a statutorily compliant mental health evaluation on October 2, 2022, and ceased employment with Mineral County on December 30, 2022.

4Lindauer, who remains employed as a Mineral County Sheriff's Deputy, completed his

statutorily compliant mental health evaluation on March 23, 2023. Visintin is no longer employed with Mineral County and it is unclear from the rec,ord before us ifhe completed the requisite mental health evaluation prior to the termination ofhis employment. In allthree cases, defense counsel movedto suppress evidenceKunzelman obtained

onthebasisthathewas notqualified to actasapeaceofficer atthetimeofhis investigation and arrest of Patrick, Ovitt, and Green. The Justice Court granted the motions over the State's objection, concludingthatKunzelman had forfeited the authority and arrestpowers ofa peace officer by failing to meet the minimum statutory requirements. Section 7-32- 303(5), MCA ("Any peace officer appointed after September 30, 1983, who fails to meet the minimum requirements as set forth in [§ 7-32-303(2), MCA,]

. . . forfeits the position, authority, and arrestpowers accorded apeace officer in this state."). The State appealed the Justice Court's orders granting suppression to the District Court. Neitherthe State northe defendants disagreedwiththeJustice Court's findings;the District Court solely considered whether the Justice Court erred as a matter of law in suppressing the evidence based on the officers' undisputed lack ofqualifications. The District Court issued similar rulings in the three cases. First, it rejected Petitioners' argument that Deputies, having failed to meet the requirements of § 7-32- 303(2)(g), MCA, could only legally conduct the stop'S at issue by following § 46-6-502, MCA, which governs arrestsby aprivateperson. RelyingonState v. Updegraff, 2011MT 321,363 Mont. 123, 267 P.3d 28, the court determined that, "[a]lthough there were issues with completion of the qualification process," Deputies were certified peace officers because both the Montana Peace Officer Standards and Training Council (POST) and the Mineral County Sheriffhad certified thein as such. In Updegraff, a Jefferson County reserve deputy came upon a car that was parked, at night, in a day-use-only fishing access site in Madison County. She made contact with the driver, concluded that he was intoxicated, and called a Jefferson County Deputy for assistance. Updegraff, ¶ 1. The deputy arrested Updegraff for DUI while the reserve deputy searchedUpdegraffs car and collected evidence. Updegraff, ¶ 14. Updegraffwas 5then charged in the Madison County District Court. The court denied his motion to

suppress, in which he had argued the Jefferson County officers had effected an illegal arrest. Updegraff, ¶ 2. On appeal, Updegraff argued his arrest was illegal because the officers were acting either: (1) under color of law as Jefferson County peace officers, in which case they had no authority to make an arrest in Madison County; or (2) as private citizens, inwhich casethey failed to comply with §46-6-502,MCA,which controls arrests by private citizens. Updegraff¶3. We concluded: [T]he private person arrest statute applies only to arrests by actual "private persons" (i.e., non-peace officers) and those whose arrest authority is, by statute, limited tothat ofaprivateperson. . . . [T]omake awarrantless arrest, an out-of-jurisdiction officer must meet the arrest standard that would apply to a private person in the same circumstances, but

. . . ifthis standard is met, the officer may then follow the procedures applicable to peace officers in procSsing the arrest. Updegraff, ¶ 6. We found it made no sense to attempt to apply the private citizen arrest statute to peace officers because a peace officer is always a peace officer, regardless of whether they are located within theirjurisdiction, because the officer is always vested by lawwith a duty to maintain public order and make arrests for offenses. Updegraff, In 34, 48-49 (citation and internal quotation omitted). In the cases involving Patrick, Ovitt, and Green, theDistrict Court found Deputies
were "similarly situated"to the reserve officer in Updegraffbecause "[t]hey were certified peace officers performing law enforcement duties, not 'private persons'." The court noted that the qualification for appointment as a reserve officer does not include a mental health evaluation under § 7-32-303(2)(g), MCA. It thus reasoned that, "if a reserve officer in Updegraffwas properly characterized as a 'peace officer' for purposes of conducting a DUI investigation and detaining Mr. Updegraff, the Deputies here — with the same qualifications— must be appropriately characterized as 'peace officers'." The court found further support inState v. Robertson, 2019 MT 99, 395 Mont. 370, 440 P.3d 17. In that case, the defendant alleged the arresting officer's wellness examination did not fulfill the requirements of § 7-32-303(2)(g)(i), MCA, and he argued

6the District Court should not have allowed the officer to testify at trial because the officer

was notproperly certified as apeace officer. Robertson, ¶ 12. On appeal, this Court held that Robertson had failed to prove the peace officer's wellness examination did not meet certification requirements, but in any event, the officer could testify as to his personal knowledge regardless ofcertification status. Robertson, ¶23. The District Court found that Robertson provides "insight into the technical non-compliance"with the statute. The District Court reasoned that, since the officer was allowed to testify as to his personal observations regardless ofhis certification status, Kunzelman would be qualified totestify in these cases. Ultimately, the court concluded suppression was not warranted because Patrick, Ovitt, and Green suffered no prejudice from the officers' failure to meet the certification requirements since the officers were "free of any mental condition that would adversely affect [their] performance." Iri its response to the present petition, the court reiterated its reasoning for denying the motions to suppress: "Petitioners' failure to articulate the prejudice suffered since the subject deputies were eventually certified, appointed, and free of any mental condition that would adversely affect their performance when they encountered the subject Petitioners." Petitioners argue Deputies forfeited their position, authority, and arrest powers pursuantto § 7-32-303(5),MCA, andthey therefore lacked the authority to investigate and arrest Petitioners. Pointing out that the District Court did not consider the implications of § 7-32-303(5), MCA, in its orders denying their respective motions, Petitioners argue the court's reliance on Updegraff and Robertson is misplaced. Petitioners argue that the officers in Updegraffwereproperly certified peace officerswho, the Court determined, did notlosetheirauthority to investigate and arrestby traveling outsidetheirjurisdiction,while the officers in the present cases were not properly certified—and thus had no authority to investigate and arrest in anyjurisdiction because they were not "peace officers" pursuant to the statute. The State responds that the District Court correctly concluded Deputies met the requirements ofreserve deputies under § 7-32-213,MCA. It maintains the same rationale 7that allowed an out-of-jurisdiction reserve deputy to investigate and detain the suspect in

Updegraff should apply in the present cases. The State further relies on Wood v. Butorovich, 220 Mont. 484, 716 P.2d 608 (1986), and argues the District Court's ruling is supportedbythe de facto officer doctrine. In Wood, relying on Kansas caselaw, we held a de facto officer's acts are valid insofar as they involve the interest ofthe public and a third person: Apersonwho assumes andperformsthe duties ofapublicofficerundercolor ofauthority and is recognized and accepted as a rightffil holder ofthe office by'all who deal with him is a de facto officer, even though there may be defects inthemannerofhis appointment, orhewasnoteligible forthe office, or failed to conform to some condition precedentto assumingthe office. ' Wood, 220 Mont. at 488-89, 716 P.2d 611 (citations and quotation omitted). However, the de facto officer doctrine cannot override a statute to the contrary. In thepresentmatter, neithertheDistrict Court in its orders northe State in its response brief consider § 7-32-303(5), MCA. The cases upon which they rely also do not apply or interpret § 7-32-303(5), MCA. The statute provides, in relevant part, that an officer who fails to meet the minimum requirements of § 7-32-303(2), MCA, "forfeits the position, authority, and arrest powers accorded a peace officer in this state." Unlike Updegraff, in the cases at issue here, the officers failed to meet the minimum requirements of § 7-32- 303(2), MCA—the reserve officer was not subject to those requirements and the other responding officer presumably met those requirements; merely being physically outside his jurisdiction did not somehow negate his qualifications. See Updegraff ¶ 49. We determined in Updegraffthattheout-of-jurisdictionofficershadauthoritybecause"apeace officer is always a peace officer." Updegraff, ¶ 48 (emphasis in original). In this case, Deputies were not "peace officers" because their failure to meet the statutory minimum requirementsforfeitedthatauthority. Section7-32-303(5),MCA. InRobertson,we adreed with the district court that Robertson had failed to prove that the arresting officer failed to meet the minimum requirements of § 7-32-303(2), MCA, and thus § 7-32-303(5), MCA,
was not at issue. Robertson, ¶ 23. Finally, Wood concerned the apparent authority of commission members whose appointments had expired, not law enforcement officers. 8

### Wood, 220 Mont. at 487, 716 P.2d at 610. This caselaw, relied upon by the District Court

andthe State, cannot overcomethe clear statutory authority of§7-32-303(5),MCA,which

-requires the opposite result. BecauseDeputies didnotmeettheminimum requirements of §7-32-303(2),MCA, they forfeited their "position, authority, and arrest powers" pursuant to § 7-32-303(5), MCA. Therefore, they were not "peace officers"within the meaning ofthe statute when they investigated and arrestedPatrick, Ovitt, and Green. We do not agreewiththeDistrict Court that Petitioners needed to demonstrate they suffered prejudice because ofDeputies' status. Unlike Updegraff, Petitioners were investigated and arrested by individuals who had forfeited the "powers accorded a peace officer in this state." Petitioners need not furtherprove they suffered prejudice. IfDeputies had forfeited their "peace officer"powers, then their authority to arrest
waslimitedtothatafforded aprivateperson. In Updegraff,weexplainedtheprivateperson arrest statute applies to non-peace officers and "thosewhose arrest authority is,by statute, limited to that of a private person." Updegraff, ¶ 6. Section 46-6-502, MCA, therefore applies here. It provides: (1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The private person may usereasonable forceto detain the arrested person. (2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody ofthe person arrested to the officer or agency. Although the statute authorizes a private person to make an arrest, it does not authorize a private person to investigate, search, or collect evidence. Updegraff, ¶ 19. Moreover, it requires theperson makingthe arrest to immediately notify law enforcement and turn over custody ofthe arrestee. Section 46-6-502(2), MCA. There is no credible argument that Deputies acted within the statutory authority to arrest afforded to private persons in the

cases at issue.

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### We conclude the exercise of supervisory control is appropriate in this instance

because the District Court is proceeding under a mistake oflaw that, ifuncorrected, will
cause significant injustice. State ex rel. Dusek v. Eighth Jud. Dist. Ct., 2003 MT 303, 6-7, 318 Mont. 166, 79 P.3d 292. The District Court erred when it reversed the Order Granting Motion to Suppress issued by the Mineral County Justice Court in the cases involving Patrick, Ovitt, and Green. We therefore agree these Petitioners are entitled to reliefin this matter. IT IS THEREFORE ORDERED that the Petition for Writ ofSupervisory Control is ACCEPTED and GRANTED as to Petitioners Dawson Dennis Patrick, Dylan Todd Lee Ovitt, and Samual Murrell Green. IT IS FURTHERE ORDERED that the Petition for Writ ofSupervisory Control is DENIED astoPetitionersJohnArispe, JohnAnthony Blackburn, JamesHorodyski, James London, Harley McDonald, Troy Parker, Brandon Rosenhahn, and Andrew Suitonu. IT IS FURTHER ORDERED that the Findings ofFact, Conclusions ofLaw, and OrderReversing issued by the District Court are REVERSEDin the followingcases: State
v. Patrick, DC-23-35 (TK-595-2022-0001683); State v. Ovitt, DC 23-34 (TK-595-2022- 0001772); and State v. Green, DC 23-36 (TK-595-2022-0000884). The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all parties in the Fourth Judicial District Court, Mineral County, Cause Nos. DC-23-35, DC-23-34, DC-23-36, DC-24-5, DC-24-6,DC-24-10, DC-24-4,DC-24-8,DC24-9, DC-24-7, DC-24-13, and DC-24-12, and the Honorable Shane A. Vannatta and Honorable John W. Larson, presiding. Dated this

### /3 day ofAugust, 2024.

/ 14 q 7 ChiefJustice

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# almJ..4..

Justices

Justice Beth Baker would deny the Petition for Supervisory Control.

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