No. 82-11 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE ex rel., CHARLES M. JOSLYN, Plaintiff and Respondent,

CITY COURT OF CHOTEAU and CITY JUDGE, JOHN ALBRECHT

## , Defendant and Appellant.

Appeal from: DistrictCourt of the Ninth Judicial District, In and for the County of Teton, The Honorable H. William Coder, Judge presiding.
Counsel of Record: For Appellant: Murphy and Curtis, Choteau, Montana
For Respondent: Charles M. Joslyn, Choteau, Montana

Submitted on Briefs: March 11, 1982 Decided: May 131 1982Mr. JusticeFred J. Weber delivered the Opinion of the Court.
The City Court of Choteau (Choteau) appeals from an order of the District Court, Ninth Judicial District, Teton County, granting a writof supervisory control ordering Choteau City Judge John Albrecht torefrain from presiding
over any furtherproceedings inregard todog licensing citations issued toCharles M. Joslyn (Joslyn). Choteau raises the following issues for review: (1) Whether District Courts have power of supervisory control over city courts. (2) Whether a writof prohibition is proper when a trial de novo on appeal is available inDistrict Court. (3) Whether a defendant incity court can disqualify a city courtjudge by filingan affidavit of bias and prejudice. Wevacate the order. Over a period of severalmonths, Joslyn was issued
seven citations for keeping unlicensed dogs on hispremises inviolation of a Choteau cityordinance. On September 17, 1981, Joslyn submitted an affidavitof disqualification of the cityjudge inrelation tothe firstcitationwhich was issued. Joslyn then filed a petition for a writof prohibition directingAlbrecht torefrain from any further proceedings with regard tothe citation. The petition was later expanded toinclude fiveof the citations. The District Court granted Joslyn a 

### writof supervisory controlwhich prohibited Albrecht from "presiding over any further procedures inany matters now pending inthe city court, Choteau, Teton County, Montana, involving the petitioner, Joslyn."

### The first issue is whether District Courts have the power of supervisory control over city courts. In State ex rel. Ward v. Schmall (1980), Mont. 

### , 617 P.2d 140, 37 St.Rep. 1720, the District Court granted a writ of supervisory controlwhich instructed a justice of the peace to stay criminalproceedings against the relator. In returning the
cause to the justice of the peace for proceedings on the merits, this Court stated that "[albsent a constitutional provision or statute bestowing upon the District Courts the authority to grantwrits of supervisory control over Justice of the Peace Courtswe are obligated to infer that District Courts do not have such power." Ward, 617 P.2d at 141, 37 St.Rep. at 1721-1722. There is likewise no constitutional
or statutory provision granting DistrictCourts supervisory control over city courts. TheWard rationale thus applies here. The DistrictCourt acted outside its jurisdiction in granting a writ of supervisory control. The second issue is whether an issuance of a writ of prohibition by the District Courtwould have been proper. Although Joslyn received a writ of supervisory control, he had requested a writ of prohibition. Section 27-27-101,MCA, provides: "Thewrit of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person,whether exercising functions judicial orministerial,when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.

### " Section 27-27-102,MCA, provides: "The samemay be issued by the supreme court or the district court or any district judge to any inferior tribunal or to a corporation, board, or person in all cases where there is not a plain, speedy,and adequate remedy in the ordinary course of law."In Bailey v. State of Montana (1973), 163 Mont. 380, 517 P.2d 708, a justice of the peace refused to honor a disqualification affidavit. This Court held that the defendant's right of trial de novo on appeal from justice courtprovided him with a plain, speedy,and adequate remedy at law, and ruled that mandamus therefore would not lie. Bailey, 163 Mont. at 385, 517 P.2d at 711; Accord, Statev. Crane (1982), Mont. 

## , 639 P.2d 514, 516, 39 St.Rep. 126, 128. Section 25-33-301,MCA, provides for a trial de novo on appeal to the District Court from the city court. The right to appeal is, in substance, identical to thatwhich this Court ruled a plain, speedy,and adequate remedy in the ordinary course of law in Bailey. Because of his right of appeal to the District Court, Joslyn is not entitled to a writ of prohibition. The third issue is whether a defendant in city court
can disqualify a city court judge by filing an affidavit of bias and prejudice. A Supreme Court order dated June 29, 1981 (codifiedat 3-1-802,MCA), provides for disqualification of judges. Although the order does not specifically refer to city court judges, it does refer to justices of the peace and municipal judges. A city court judge is the type of judge which the disqualification for cause section applies to. Therefore,we find that a city court judge can be disqualified for cause under section 3-1-802,MCA. The District Court lacked jurisdiction to stay the proceedings of the city court. The cause is remanded to the city court for furtherWeConcur:

Chief zlstice 

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