No. 14246 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

I 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, IN AND 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, County Attorney, Great Falls, Montana 

Dennis Lopach, Helena, Montana 

Submitted: May 4, 1978 

Decided: JUL I 0 1978 

Filed: JUL 1 0 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 respondent courts, 

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 Peterbilt motor tractor 

and semi-trailer. On June 22, 1976, Turk, as lessor, entered into 

a written 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 incidental payments, including 

unemployment payments and social security payments. The lessee is 

to furnish oil, fuel, and other items necessary to operate the motor 

vehicle equipment during the term of the lease with the lessor to 

bear the cost of any repairs due to mechanical failure or expenses 

necessary to keep the motor 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 is vested 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 lease was certified by the Public Service omm mission. 
 he public Service Commission of the State of Montana is 

charged with 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 it was 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 transportation of 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 lease under 

which Montana Pole & Treating Plant was operating the vehicle, 

through the driver Turk, did not comply with 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 

- 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 "not guilty" of the charge 

against defendant as we have quoted it above. 

On October 3, 1977, Turk again entered into a written lease 

agreement with Montana Pole & Treating Plant for the same motor 

equipment, identical in terms and conditions to the written 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 Carrier Act in the same language 

used in the first summons and complaint. This time Turk, appearing 

through counsel, filed a motion 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 on April 20, 1978; however, Turk filed his application 

for a writ in this Court on April 6, 1978. 

This Court set the application for adversary hearing, 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 law with respect to the 

second charge against Turk; (3) Turk is being 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 application was not timely filed; and (4) collateral estoppel 

is not a bar to the prosecution of a second charge. 

We turn first to the issue of the application of the doctrine of collateral estoppel. This doctrine is discussed in ~essell 

v. Jones, (1967), 149 Mont. 418, 421, 427 ~.2d 295: 
" * * *'Collateral estoppel' as raised by this 

case may 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 estoppel bars 

the same parties from relitigating issues which 

were decided with respect to a different cause 

of action. See Cromwell v. County of Sac, 94 

U.S. 351, 24 L.Ed. 195, for a frequently cited 

discussion of this distinction. 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., 104 Mont. 558, 69 P.2d 586, 593, 

111 A.L.R. 874; Restatement of Judgments, 568." 

Thus, if the identical issues were 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 Justice Court, which is not a 

court of record. Thus, respondents argue that other issues may 

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 "motor vehicle" within the meaning of the 

Motor Carrier Act, 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 fact have a certificate of 

public convenience and necessity. 

It is the duty of the party asserting collateral estoppel 

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 collateral estoppel 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 language 
of the charges brought against Turk in each of the complaints 

filed against him, because in each instance he is 'charged with 

violating the provisions of section 8-102(b), R.C.M. 1947. This 

code provision is simply a blanket section, making it unlawful to 

violate any portion of or to fail to comply with the provisions of 

the Motor Carrier Act. 

while we agree with counsel for respondents that 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 is whether the operation 

of the motor vehicle equipment under the lease arrangements comes 

within the provisions of the Motor Carrier Act. 

A strong argument presented by counsel for the State is 

that in a criminal case, the only review available is by appeal or 

by post-conviction relief. In State ex rel. LaFlesch v. District 

Court, (1974), 165 Mont. 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 is provided 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 

a violation 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 ~ustice 
Court, on appeal his case will be tried 

-- 

de novo in the District 

Court. Section 95-2009, R.C.M. 1947. Moreover, his post-conviction 

rights would 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 as matters now sit. It does appear that 

there will be extended and needless litigation between the contending parties unless it is forestalled in some way. 

The Public Service Commission has other avenues of action 

open to it. Mandamus and injunction are available to compel compliance with valid regulations affecting the public. 13 Am Jur 2d, 

Carriers S32. Turk himself has an available remedy. He could proceed under the Uniform Declaratory Judgment Act 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 this matter as coming to us from the ~istrict 

Court, we have the power under section 95-2402, R.C.M. 1947, to 
suspend all rules relating to review in criminal cases, and to 

order such proceedings as may be necessary; even if section 95-2402 

does not apply, our constitutionally-granted power of general supervisory control over all other courts (Article VII, 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 proceedings with 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 

agreements under which Turk is transporting property without certification, and the prompt prosecution of such action to a reasonably 

speedy termination. 

Justice 

We Concur: 

Chief Justice 
IN 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, IN AND FOR THE COUNTY OF 

CASCADE, and the HONORABLE TRUMAN G. 

BRADFORD, presiding District Judge, FILED 

and THE JUSTICE COURT OF THE EIGHTH 

JUDICIAL DISTRICT OF THE STATE OF JULIO 1978 

MONTANA, IN AND FOR THE COUNTY OF 

CASCADE, and the HONOROABLE J. VAUGHN 

.3Lmad 2. Nearno# 

BARRON, presiding Justice of the Peace, CLERK OF SUPREME COURje 

STATE OF Bm 

Respondents. 

-- - 

ORDER 

Pursuant to the order and opinion filed in this Court 

in the above entitled cause, 

IT IS HEREBY ORDERED: 

(1) That the Justice Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, 

and the Honorable J. Vaughn Barron, its presiding Justice of 

the Peace, be and are each hereby ordered to stay proceedings 

in that certain criminal cause pending in its court in which 

defendant Richard L. Turk is charged with a violation of section 8-102(b), R.C.M. 1947, on the complaint of Albert Calkins, 

representing the Montana Public Service Commission, filed 

October 3, 1977, 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 agreements under which Turk is transporting property 

without certification, and the prompt prosecution of such 

action to a reasonably speedy termination. 

(2) That notice 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