No. 14246 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA, ON THE I RELATION OF RICHARD L. TURK, Relator,

THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF CASCADE, and the HONORABLE TRUMAN G. BRADFORD, presiding District Judge et al., Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: Joseph C. Engel, I11 argued, Butte,Montana For Respondents: Hon. Mike Greely,Attorney General, Helena,Montana Sheri K.Sprigg, Assistant Attorney General, argued,

Helena, Montana J. Fred Bourdeau, CountyAttorney, Great Falls,Montana Dennis Lopach, Helena,Montana

Submitted: May 4, 1978 Decided:

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## 1978 Filed:

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## 19?@Mr. Justice John C. Sheehy delivered the Opinion of the Court.

his is an application by relator,Richard L. Turk, for a writ of supervisory control to be issued against respondentcourts, arising from the prosecution of the relator for two alleged violations of the Motor Carrier Act, sections 8-101 through 8-132,R.C.M. 1947. Turk is the owner of a certain Peterbiltmotor tractor and semi-trailer. On June 22, 1976,Turk, as lessor,entered into

awritten lease agreement for the use of the tractor and trailer with Montana Pole & Treating Plant of Butte,Montana. The written lease provides in essence that the lessor leases the tractor and trailer to the lessee for a period beginning in Butte, Montana and ending in Great Falls,Montana. The lessee is to hire and have exclusive direction of all drivers of said equipment and to pay the driver's wages and expenses and other incidentalpayments, including unemployment payments and social security payments. The lessee is to furnish oil, fuel, and other items necessary to operate themotor vehicle equipment during the term of the leasewith the lessor to bear the cost of any repairsdue to mechanical failure or expenses necessary to keep themotor vehicle in operating condition. The lessee agrees to pay for insurance during the term of the lease, and to carry public liability cargo and property damage insurance and to assume the risk for liability to any persons arising during the trailer lease. Exclusive possession and control of the equipment isvested in the lessee. The amount of rental to be paid by the lessee, however, is left blank. There is no provision in the lease that the lessee assumes full responsiblity for all regulatory fees nor does it appear that the leasewas certified by the Public Service

### omm mission. he public ServiceCommission of the State of Montana is chargedwith the duty of enforcing the Motor Carrier ~ct, section 8-103,R.C.M. 1947. On June 23, 1976, its enforcement officer, ~lbert Calkins, inspected the tractor and trailer in Cascade County while itwas enroute from Butte to Great Falls during the term of the written lease, carrying a load. As a result of the inspection, he issued a complaint and summons in the Justice of the Peace Court in Cascade County against the driver of the motor vehicle equipment, Turk, charging that Turk did unlawfully operate a motor vehicle for the transportationof property for hire without having a certificate of public convenience and necessity as required by section 8-102(b)

### , R.C.M. 1947. It is admitted by the State that this charge grew from the determination by Officer Calkins that the terms of the leaseunder which Montana Pole & Treating Plantwas operating the vehicle, through the driver Turk,did not complywith the requirements of the Montana Motor Carrier Act. On August 24, 1976, trial was had in Justice Court before

a jury on the charge against Turk,with Turk defending himself pro 

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se. The State called Albert Calkins as its witness, and through him 

### - introduced two written exhibits, a truck check list, and the lease agreement with Montana Pole. Defendant Turk appeared as his own witness. After closing arguments and instructions to the jury,a verdict was returned finding defendant "notguilty" of the charge against defendant aswe have quoted it above. On October 3, 1977,Turk again entered into a written lease agreementwith Montana Pole & Treating Plant for the same motor equipment, identical in terms and conditions to thewritten lease of June 22, 1976,except for the date. Again, the vehicle was inspected on October 3 by Officer Albert Calkins, acting on behalf of the Public Service 

### c om mission and again, on October 20, 1977,a"~otice to Appear and Complaint"was issued to defendant, charging him with violation of the Motor CarrierAct in the same language used in the first summons and complaint. This time Turk, appearing through counsel, filed amotion to dismiss, which the Justice Court denied. hereafter, Turk filed with the District Court of the Eighth Judicial District, Cascade County, application for a writ of supervisory control to be issued out of the District Court to the Justice of the Peace Court for dismissal of the latest charge against Turk. That application was denied by the District Court

on December 22, 1977. The Justice Court then set the second cause against Turk for trial onApril 20, 1978;however, Turk filed his application for a writ in this Court on April 6, 1978. This Court set the application for adversaryhearing, and oral arguments have now been heard and considered by this Court. Turk raises these issues in support of his application: (1)His remedy by appeal is inadequate; (2) the Justice Court is wrongfully disregarding the applicable lawwith respect to the second charge against Turk; (3)Turk isbeing subjected to extended and needless litigation; and (4) the second charge against Turk is barred by the doctrine of collateral estoppel. Respondents counter that: (1) Appeal is the proper remedy and the only remedy in a criminal cause; (2) Turk has also available to him post-conviction relief if convicted,and habeas corpus; (3) the applicationwas not timely filed;and (4)collateral estoppel is not a bar to the prosecution of a second charge. We turn first to the issueof the application of the doctrine of collateral estoppel. This doctrine is discussed in ~essell

v. Jones, (1967),149 Mont. 418, 421, 427 ~.2d 295:

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## * * *'Collateral estoppel' as raised by this casemay be considered as a branch of the doctrine of res judicata but is distinguishable from the bar to litigation normally called res judicata. The distinction is that res judicata bars the same parties from relitigating the same cause of action while collateral estoppelbars the sameparties from relitigating issueswhich were decided with respect to a different cause of action. See Cromwellv. County of Sac, 94 U.S. 351, 

### 24 L.Ed. 195, for a frequently cited discussion of thisdistinction. The bar that arises from collateral estoppel extends to all questions essential to the judgment and actually determined by a prior valid judgment. Nadeau v. Texas Co., 104Mont. 558, 69 P.2d 586, 593, 111A.L.R. 874; Restatement of Judgments, 568." Thus, if the identical issueswere litigated in the first charge against Turk, it appears the doctrine of collateral estoppel should apply. Respondents argue,however, that the record is insufficient here to establish collateral estoppel because the first charge against Turk was tried in JusticeCourt,which is not a court of record. Thus, respondents argue that other issuesmay have determined the verdict of not guilty under the first charge; for example,whether or not Turk was in fact operating the vehicle, whether it was in fact a "motorvehicle"within themeaning of the Motor CarrierAct,whether he was actually operating the vehicle for the transportation of property,whether he was operating the vehicle for hire, or whether he did in facthave a certificate of public convenienceand necessity. It is the duty 

### of the party asserting collateralestoppel to present to the court evidence of the prior judgment or sufficient portions of the record to enable the court to reach the conclusion that collateralestoppel does apply. State Farm Fire & Casualty Co. v. Century Home Components, Inc., (1976), 275 Or. 97, 550 P.2d 1185, 1188. However, in this case, that is impossible for Turk because of a lack of record in a Justice of the Peace Court,other than the stenographer's notes as to the introduction of exhibits, to which we have already adverted. Nor are we aided by the languageof the chargesbrought against Turk in each of the complaints filed against him,because in each instance he is 'chargedwith violating the provisions of section 8-102(b), R.C.M. 1947. This codeprovision is simply a blanket section,making it unlawful to violate any portion of or to fail to complywith the provisions of the Motor CarrierAct. while we agreewith counsel for respondentsthat the record ought to reflect identity of issues in order toestablisheollateral estoppel,we are disinclined to do so here, and thus dismiss Turk's application, on two grounds: (1)Under the peculiar circumstances of this case it is impossible for Turk to supply a full record; (2) In following that route,we would be regarding form rather than substance, and there can be no doubt that the real issue in each of the charges filed against Turk iswhether the operation of themotor vehicle equipment under the lease arrangements comes within the provisions of the Motor Carrier Act. A strong argumentpresented by counsel for the State is that in a criminalcase, the only review available is by appeal or by post-conviction relief. In State ex rel. LaFlesch v. District Court, (1974),165Mont. 302, 304, 529 P.2d 1403, we pointed out that section 95-2401,R.C.M. 1947,provides that Chapter 24 of the Montana Code of Criminal Procedure governs appellate review in all criminal cases and all other existing methods of review in such

cases are abolished. Moreover, it isprovided in section 95-2601, R.C.M. 1947,that any person adjudged guilty of an offense in a court of record who has no adequate remedy by appeal and who claims

aviolation of the Constitution,or lack of jurisdiction,may obtain

a hearing in the post-conviction remedy provided by Chapter 26 of the Montana Code of Criminal Procedure. Yet those provisions do not quite touch this case for if Turk is convicted in the ~usticeCourt, on appeal his case will be tried de novo in the District 

### -- Court. Section 95-2009, R.C.M. 1947. Moreover, his post-conviction rightswould not accrue until he had been adjudged guilty in a court of record which means after his case has been tried and he has been found guilty in the District Court. Section 95-2601,R.C.M. 1947. The situation confronting us here is novel. Turk, on the one hand, is convinced of the validity of his lease arrangements; yet he has not wade out a case for supervisory control by us of the lower court so as to dismiss the second charge against him. Yet if

we do not act, he may be subject to charge after charge, with each operation by him under the lease,until such time as his conviction is achieved, and only then will his remedy by appeal become effective. The Public Service Commission on the other hand is charged by law to enforce the provisions of the Motor Carrier Act. It has

a duty to prevent the transportation of property for hire by noncertified carriers, if Turk fits in that category. The principal bone of contention, the validity of the lease agreement, requires

a speedy determination by a court of record, yet a speedy determination is far in the offing asmatters now sit. Itdoes appear that there will be extended and needless litigation between the contending parties unless it is forestalled in someway. The Public Service Commission has other avenues of action open to it. Mandamus and injunction are available to compel compliance with valid regulationsaffecting the public. 13 Am Jur 2d, Carriers S32. Turk himself has an available remedy. He could proceed under the Uniform Declaratory JudgmentAct and procure in a court of record a declaration of the legal status of the lease agreements. Section 93-8901,R.C.M. 1947. If we regard thismatter as coming to us from the ~istrict Court,

### we have the power under section 95-2402,R.C.M. 1947,tosuspend all rules relating to review in criminal cases, and to order suchproceedings asmay be necessary; even if section 95-2402 does not apply, our constitutionally-grantedpower of general supervisory control over all other courts (ArticleVII, Section 2, 1972 Montana Constitution) is sufficient for us to act. Accordingly,we hold an order should issue out of this Court directed to the Justice Court of the Eighth Judicial District, State of Montana, in and for the County of Cascade,and to its presiding Justice of the Peace,directing and ordering said court and justice to grant a stay of proceedingswith respect to the second charge filed against Turk, conditioned upon the filing by either of the contending parties, in a court of record and of competent jurisdiction,of an action to determine the validity of the lease agreementsunder which Turk is transporting property without certification, and theprompt prosecution of such action to a reasonably speedy termination.

Justice We Concur:

Chief JusticeIN THE SUPREME COURT OF THE STATE OF MONTANA

No. 14246

THE STATE OF MONTANA, ON THE RELATION OF RICHARD L. TURK, Relator,

THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF CASCADE, and the HONORABLE TRUMAN G. BRADFORD, presiding DistrictJudge, 

# FILED
and THE JUSTICE COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF 

### JULIO

### 1978 MONTANA, INAND FOR THE COUNTY OF CASCADE, and the HONOROABLE J. VAUGHN .3Lmad

# 2.Nearno# BARRON, presiding Justice of the Peace, CLERKOF SUPREMECOURje STATE OFBm Respondents.

-- - ORDER

Pursuant to the order and opinion filed inthis Court inthe above entitled cause, ITIS HEREBY ORDERED: (1) ThattheJustice Courtof the EighthJudicial District of the Stateof Montana, inand for the County of Cascade, and the Honorable J. Vaughn Barron, itspresiding Justice of thePeace, be and are each hereby ordered to stayproceedings inthat certain criminal cause pending initscourt inwhich defendant RichardL. Turkischarged witha violation of section 8-102(b), R.C.M. 1947, on the complaintof AlbertCalkins, representing the Montana PublicService Commission, filed October 3, 1977, conditioned upon the filingby either of the contending parties, ina court of record and of competentjurisdiction,of an action to determine the validity of the lease agreements under which Turk is transportingproperty without certification, and the prompt prosecution of such action to a reasonably speedy termination. (2)Thatnotice of this order, and of the opinion and order of the Court herein referred to be served by mail by the Clerk of this Court to each of the respondents above named and respective counsel of record. DATED this /&&day of July, 1978. 

### ?be-Q-$' Chief Justice 

# @du&Q,

Justices