### No. 14962 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

CHARLES 

### L. CRABTREE, Petitioner and Respondent,
VS. 

### THE STATE OF MONTANA and MARVIN DAGEL, Sheriff,Respondents and Appellants.
Appeal from: District Court of the Third Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellants: Hon. Mike Greely,Attorney General, Helena, Montana Chris Tweeten,Assistant Attorney General, argued,

Helena,Montana For Respondent: Richardson and Richardson, Butte, Montana William Richardson argued, Butte, Montana

Submitted: January 14, 1980 Decided:

# MAR10

# 1.wMr. Justice John Conway Harrison delivered the Opinion of the Court.
c his is an appeal by the Stateof Montana from an order of the DistrictCourt, Third Judicial District, inand for Granite County, which released thepetitioner, Charles 

### L. Crabtree, from custody of the County Sheriff who was holding him pursuant toan extradition request from the Stateof Oregon. The issue before thisCourt iswhether the trialjudge erred inconsidering the

### meritsof the Oregon charges against Crabtreewhen deciding whether or not he should be extradited to the Stateof Oregon. The petitioner and hiswife Corrine A. Melton (Crabtree)


### were divorced on February 27, 1970 in the Clackamas County CircuitCourt. That court ordered petitioner topay $225 per month for the support of the parties' three children. The wife had difficulty collecting the supportpayments from the petitioner. InJuly 1970, she sought the assistance of the Clackamas County DistrictAttorney incontacting the petitioner to collectpayments. Petitioner was located in Phillipsburg, Montana, where he resided. Heowns and operates a logging company inGranite County. Petitioner agreed topay the wife $150 per month forchild suppport, but in the firsttenmonths of 1972, the wife reported that she received only five supportpayments. In September 1973, the Clackamas County CircuitCourt determined that the petitioner was $1500 inarrears for support payments. In 1975, a Clackamas County grand jury returned a three count indictment for nonpayment of child support against the petitioner. Warrants forpetitioner's 

### arrest

### were sent to the GraniteCounty Sheriff. Although no arrestwas made, onOctober 31, 1976, the Granite County DistrictCourt entered
an order requiring the petitioner topay $150 per month for the support of the three children. Petitioner made only three payments between August 1976 and January 1977, and on August 22, 1978, the Clackamas County grand jury indicted the petitioner for two counts of criminal nonsupport, a class C felony inOregon. The records of the Clackamas County Circuit Court show that in 1978 only
one payment was received from the petitioner. The Governor of Oregon signed a requisition seeking extradition of the petitioner to Oregon for a trial in Clackamas County on two counts of criminal nonsupport. Upon receipt of the requisition, Governor Thomas Judge of Montana issued a warrant for the arrestof petitioner and for his deliverance to the authorized agent of the Governor of Oregon. Petitioner was arrested by the Granite County Sheriff
on April 19, 1979, and filed a petition with the District Court inwhich he named the State of Montana asplaintiff and himself as defendant, and sought relief by means of a 

### writof habeas corpus. Each party filed a brief and memorandum in support of 

### itsposition, and the District Court held
a show cause hearing on July 24, 1979. The court's order of August 7, 1979 ordered the release of petitioner from the custody of the Granite County Sheriff and required the petitioner topay $100 per month for the support of his two
sons. It is from this order that the Stateof Montana appeals. This case involves an interpretation of the interaction between Montana's Uniform Reciprocal Enforcement of Support Act and the Uniform Criminal Extradition Act. This appearstobe a case of firstimpression inMontana. The appellant State's argument 

### isbased on its contention that the extradition of petitioner is for a criminal charge and that a judicial review of the propriety of the extraditionorder must be limited to the inquiry permitted by the United States Supreme Court in the case of Michigan
v. Doran (1978), 

### -U.S. 99 S.Ct. 530. See also State
v. Booth (1958), 134 Mont. 235, 328 P.2d 1104; In

### re Hart (1978)I 

### -Mont. 

## , 583 P.2d 411, 35 St.Rep. 1234. In Doran, the petitioner sought a 

### writof habeas corpus in order to avoid extradition for charges of theft of a motor vehicle and theftby embezzlement. The United States Supreme Court held that the Michigan Supreme Court erred when it reversed the trial court's denial of the habeas corpus petition. The Doran decision 

### isbased on the Court's interpretation of ArticleIV, Section 2 of the United States Constitutionwhich provides: "A Person charged inany Statewith Treason, Felony, or other Crime, who shall flee from Justice, and be found inanother State, shall on Demand of the executive authority of the State from which he fled, be delivered up, to be removed to the Statehaving Jurisdiction of the Crime." The Supreme Court held thatArticle IV, Section 2 prohibited courts in the asylum statefrom reviewing the determination of a neutral magistrate in the demanding state thatprobable
cause to support the extradition demand existed. The Court stated thatonce the governor of the asylum stategranted extradition, a court considering release on habeas corpus
can do no more than decide "(a)whether the extradition documents on their face are inorder; (b)whether the petitioner has been charged with a 

### crime in the demanding state;(c) whether the petitioner 

### is the person named inthe 

### request for extradition; and (d) whether the petitioner 

### is a fugitive." Doran, supra, at535. In the present 

### case, Winston L. Bradshaw, presiding judge of the Clackamas County Circuit Court, certified that he investigated the facts and circumstances of the case, and that the

### meritsof the case warrant application for requisition. The Governor of the Stateof Montana has determined that the copy of the requisition and other duly authenticated papers filedwith the demand justify the exercise of his discretion ingranting extradition. Therefore, the State



### . 

# - argues that Suran,' supra, 

### limits the inquiry of theMontana courts to the four points stated within the opinion. The petitioner argues thatDuran does not apply tohis petition because the charge against him is based on his alleged failure tocomply with the child support order, which 

### iscivil and not criminal. He analogizes his duty of support toother duties involving family matters, such 

### as custody matters. He argues that the petition for habeas corpus of a child detained contrary toa custody order 

### is treated asa civilmatter, and that the court indetermining the

### merits of the petition has determined that the child is illegally detained, relying upon In

### re Thompson (1926), 77 Mont. 466, 251 P. 163. We find no 

### meritin this argument. Here the petitioner
was indicted for a criminal offense, criminal nonsupport, which is listed as a class C felony in the State of Oregon. The Stateof Oregon clearly contemplates criminal proceedings against petitioner asitsrequisition for extradition stated that he had committed a 

### crime in the State of Oregon and that there was no hope of success in initiating further pro-ceedings againsthim under URESA. Even the petitioner's own petition seeks release from extradition for criminal charges and is clearly distinguishable from cases he 

### citeswhere the habeas corpus proceeding was determined tobe civil. Petitioner has given us no case authority, nor does there appear tobe any reason from those cases cited by him for distinguishing'Ba.xim from the present case. We find that section 46-30-225, MCA, as

### well as the

$0 holding of the United States Supreme Court inBuran, require the reversal of the 

### ~istrict Court's order granting 

### release of the petitioner. The matter isreturned to the District Court of GraniteCounty reinstating the proceeding and granting the Oregon request forextradition.

We concur: 

# a4~ae Chief Justice



# CM-

# e.a

// Justices 

# C/ Mr. Justice Daniel J. Shea willfilean opinion later.