NO. 88-401 IN THE STTPRFME COURT OF THE STATE OF MONTANA 1988

JAY LEE GATES, AND MARK J. ANDRUS, Petitioners,-vsMISSOULA COUNTY COMMISSIONERS, DANIEL MAGONE, SHERIFF, DR. TjONG, CHISF OF MEDICAT, SERT'ICES, Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD: For Petitioners: Jay LeeGates, pro se, DeerLodqe, Montana Mark J Andrus, pro se, Missoula, Montana For Respondent: Hon. MikeGreely, AttorneyGeneral, Helena, Montana RobertDeschamps, 111, CountyAttorney, Missoula, Montana; MichaelW. Sehestedt, Deputv, Missoula

Submittedon Briefs: Dec. 3, 1988 Decided: December 29, 1988

u c-' -- -- '...> -Y -+ Clerk

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-a-Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Jay Lee Gates and Mark Andrus petition this Court for relief under the habeas corpus and declaratory judgment statutes. They allege a violation of their constitutional rights due to several conditions of confinement at the Missoula County Jail. Petitioners also allege a tort cause of action againstMissoula County officials for the violation of their constitutional rights. We dismiss the petitioners' claim for relief. The issues involved in thismatter are: 

### 1. Ishabeas corpus an appropriate remedy? 2. Does this Court have jurisdiction to consider Petitioners' request for relief as a declaratory judgment 

### or a tort cause of action? Both petitioners were incarcerated in the Missoula County Jail in Missoula, Montana, at the filing of this petition. Since thatdate,Mr. Gates hasbeen transferred to Montana State Prison in Deer Lodge and Mr. Andrus' six month term in the Missoula County Jail beginning inApril of 1988 has presumably been served. During the periods of their incarceration in Missoula, the petitioners contend that they
were denied adequate food, shelter, clothing,medical care, exercise, individual security, and a law library, all of which violated their constitutional rights under the 8th Amendment's protection against cruel and unusual punishment, the similar prohibition in Article 11, Section 22 of the Montana Constitution,and also the 14thAmendment of the U.S. Constitution.

Ishabeas corpusan appropriate remedy? The habeas corpus statute 5 46-22-101(1)

### ,MCA, provides that:

# . . . every person imprisoned or otherwise restrained of his liberty within this state may prosecute a writ of habeas corpus to inquire into the cause -- 

### of such imprisonment andrestraint and, if illegal, to be delivered therefrom. (Emphasis 

### - -- added. This statute allows a prisoner to challenge the legal sufficiency of the cause for incarceration. The petitioners donot allege that the cause of their incarcerationisunlawful. We conclude that habeas corpus is 

### not an appropriate remedy. I1 

### Does this Court have jurisdiction to consider Petitioner's request for relief as a declaratory judgment or a tort causeof action? Petitioners seek declaratory and injunctive relief against Missoula County officials whom they contend have control over the care and conditionof the facility in question. The Montana Supreme Court's power to hear any matter by exercising original jurisdiction is subiect to Rule 17

### (al

The supreme court is an appellate court but it is empoweredby the constitutionof

### Montana tohear and determine such original and remedial writs as may be 

### necessary orproper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is-sometimes justified by circumstance's of an emergency nature, as when a cause of action or a right has arisen under conditionsmaking due considerationin the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by 

### appeal. is deemed necessary or proper. In 

### determining whether to assuHe original jurisdiction in 1.j.qht of 

### that rule, this Court has considered severalfactors as set forth in State ex re1 Thompson v. School District (1970),156Mont. 79, 80, 474P.2d 700, 701: 

### " 

# . .

# .various fact questions appear

# . . . original jurisdiction by this Court will not achieve a thorough examination into the multiple problems presented, and, further, a class action could be instituted in any appropriatedistrict courtwherein exists facilities for taking testimony and making findings of fact and conclusions of law which would be determinative of the fact questions now existing

# .. . "
Mr. Gates and Mr. Andrus present a number of factual questions which they ask this Court to resolve. Those disputed factual issues should be directed to an appropriate district court, since it is not the role of this Court to function as primary factfinder. The petitioners have not demonstrated any emergency which would justify a departure from the usual proceedings in district court to decide the merits of the issues raised. Furthermore, the County points out that at the time this petition was filed, there was a class action pending in which the petitioners were involved, counsel was appointed, and the same issues were raised in that suitas appear in thismatter. We conclude that there isno basis upon which this Court should accept jurisdiction. Petitioners' request for relief is denied and dismissed, withoutprejudice.

I/ CHi'ef Justice /I