No. 82-11 

IN THE 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: District Court 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 1982 
Mr. Justice Fred 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 writ of supervisory control ordering 

Choteau City Judge John Albrecht to refrain from presiding 

over any further proceedings in regard to dog licensing 

citations issued to Charles 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 writ of prohibition is proper when a 

trial de novo on appeal is available in District Court. 

(3) Whether a defendant in city court can disqualify a 

city court judge by filing an affidavit of bias and prejudice. 

We vacate the order. 

Over a period of several months, Joslyn was issued 

seven citations for keeping unlicensed dogs on his premises 

in violation of a Choteau city ordinance. On September 17, 

1981, Joslyn submitted an affidavit of disqualification of 

the city judge in relation to the first citation which was 

issued. Joslyn then filed a petition for a writ of prohibition 

directing Albrecht to refrain from any further proceedings 

with regard to the citation. The petition was later expanded 

to include five of the citations. 

The District Court granted Joslyn a writ of supervisory 

control which prohibited Albrecht from "presiding over any 

further procedures in any matters now pending in the 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 

control which instructed a justice of the peace to stay 

criminal proceedings 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 grant writs of supervisory control over Justice 

of the Peace Courts we 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 District Courts supervisory 

control over city courts. The Ward rationale thus applies 

here. The District Court 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 Court would have been proper. 

Although Joslyn received a writ of supervisory control, he 

had requested a writ of prohibition. 

Section 27-27-101, MCA, provides: 

"The writ 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 or ministerial, 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 same may 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 court provided 

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, State v. 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 that which 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 (codified at 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 further 
We Concur: 

Chief zlstice 4 Ti\