NO. 85-295
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1985
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
RAY ALVIPJ M c A L L I S T E R ,
D e f e n d a n t and A p p e l l - a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M i s s o u l . a ,
t h e H o n o r a b l e N a t A l l e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
R a y A. M c A l l i s t e r , pro se, M i s s o u l a , M o n t a n a
For R e s p o n d e n t :
Hon. M i k e G r e e L y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
R o b e r t D e s c h a m p s , Missoula C o u n t y A t t o r n e y , iss sou la,
Montana
S u b m i t t e d on b r i e f s : A u g u s t 1 5 , 1 9 8 5
Decided: O c t o b e r 3, 1 9 8 6
---
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant, Ray Alvin McAllister, appeals from the denidl
of his application for a writ of certiorari by the District
Court, Fourth Judicial District, County of Missoula,
uphol-ding the judgment of the Justice Court, finding
defendant guilty of the offense of criminal contempt in
violati-on of S 45-7-309, FICA, a mj sdemeanor. We affirm the
District Court.
On January 4, 1984, McAll.ister was cited for driving
wlth an expired vehicle registration in violation of S
61-3-312, MCF, and for driving without a valid policy of
insurance in violation of 5 61-6-301, MCA. A trial date was
set for February 7, 1984. At the time set for trial Justice
of the Peace Janet L. Stevens disqualified herself from the
case. Thereafter, Justice of the Peace Nancy L. Sabo of
Ravalli County assumed jurisdiction.
On March 30, 1984, McAllister appeared pro - and moved
se
to dismiss the complaint on two grounds. First, McA11-j-ster
argued he was being twice put in jeopardy for the liability
insurance citation because he had been previously cited for
the same offense some 17 months earlier, in August 1 9 8 2 . The
second ground for dismissal alleged by McAllister was that
his insurer and the Montana State Insurance Commission had
acted improperly and therefore he could not be held
accountable for failure to have insurznce. On April 25,
1984, the motion to dismiss was denied and the trial date was
rescheduled.
The State dismissed the insurance violation on June 25,
1984. On June 26, 1984, McAllister filed a document he
entitled "Criminal Counter-complaintw which alleged several
criminal violations against state officials and agencies
which included justices of the peace, legislators, county
attorneys, and the Montana State Insurance Commission.
A pretrial hearing was held on August 21, 1984, to
narrow the issues at the trial for the expired registration
citations. At the beginning of the pretrial hearing,
McAllister interrupted Judge Sabo and demanded that she prove
the court had jurisdiction over him. McAllister contended
that the court had no jurisdiction over him because of the
double jeopardy issue. Judge Sabo made efforts to explain to
McAllister that the jeopardy argument had been denied at the
prior hearing on his motion to dismiss. After a number of
interruptions Judge Sabo told McAllister that if he did not
sit down and remain quiet she would have to hold him in
contempt. McAllister persisted in his conduct after the
second and third warning from Judge Sabo, resulting in his
being held in contempt. Upon hearing this, McAllister began
to leave the courtroom. At this point McAllister pulled
something out of his brief case which Judge Sabo believed to
be a gun. Judge Sabo immediately requested two legal interns
that were present to sununon a police officer.
The object McAllister removed from his brief case was
not in fact a gun hut a mace pistol. Before any police
officers arrived, McAllister pointed the mace pistol all
around the room and especial-ly at Con Kelly, a legal intern,
who was representing the county attorney's office at the
pretrial hearing.
Within approximately two minutes, two police officers
arrived in the courtroom. Upon the officers' arrival,
McAllister backed into a corner of the courtroom and ignored
the officers demand that he set the mace pistol down. Within
a few minutes three more police officers appeared. All five
officers then approached McAllister and again told him to set
the mace pistol down or have it taken away. Upon
McAllisterts failure to heed the officers' command, the two
officers closest to him apprehended him and removed the mace
pistol from his possession. The officers then removed
McAllister to the Missoula County jail.
A formal contempt charge was filed against P~lcAllister,
and a trial was held before Justice of the Peace William P.
Monger on October 29, 1984. McA.llister was convicted of
criminal contempt, fined $250.00 and sentenced to two days in
jail, suspended.
On January 23, 1985, McAllister filed an application for
a writ of certiorari for review of the contempt conviction in
the District Court. In the meantime, Judge Sabo requested
District Judge Harkin assume jurisdiction over the automobile
registration citation as well. Judge Harkin agreed to assume
iurisdiction, combined the traffic charge with the writ of
certiorari, and called in Judge Nat Allen to preside.
On March 20, 1985, a hearing was held in the District
Court before Judge Allen. The District Court ordered that
Justice Monger's notes of the contempt proceeding be typed up
and remanded the traffic citation for trial in Justice Court
within 60 days. On April 20, 1985, the second hearing was
held with regard to McAll-ister's writ. The District Court
held there was no excess of jurisdiction, denied. the writ and
upheld the conviction. The charge of driving with an expired
registration was eventually dismissed by the State on May 15,
1985, for lack of a speedy trial.
The only issue before this Court on review is whether
the District Court properly denied McAllister's writ of
certiorari.
A writ of certiorari is a discretionary writ issued out
of the Supreme Court or out of the district court, directed
to an inferior tribunal, board or officer. Lay v. District
Court (1.948), 122 Mont. 61, 68. 198 P.2d 761, 765. The
function of the writ of certiorari is to determine whether
the inferior court exceeded its jurisdiction. Rose v.
District Court (Mont. 1981), 628 P.2d 662, 664, 38 St.Rep.
830, 833; Matter of Gravely and Hammerbacker (1980), 188
Mont. 546, 555, 61-4 P.2d 1033, 1038. By statute there are
three indispensable requisites to the granting of the writ of
certiorari; namely: (1) excess of jurisdiction, i.e. that
an inferior tribunal or board has exceeded its jurisdiction;
(2) absence of the right to appeal from the act, order or
judgment assailed as done or made without jurisdiction; and
(3) lack of a plain, speedy and adequate remedy other than
certiorari. Section 27-25-102, MCA; Lichte v. District Court
(1948), 121 Mont. 34, 42, 189 P.2d 1004, 1007. Since
certiorari is a discretionary writ, we will. determine only
whether the District Court abused its discretion in denying
WcAllister's application for the writ.
The judgment of the court in cases of contempt is final
and conclusive. There is no appeal, but the action of a
lustice of the peace can be reviewed by the district court of
the county in which the justice of the court of limited
jurisdiction resides. Section 3-1-523, MCA. Thus, with
regard to the latter two requisites for a writ of certiorari,
McAllister's application for a writ was proper.
We look now to determine whether the Justice Court acted
within its jurisdiction. Under its contempt power the
Justice Court may sua sponte find a person in criminal
contempt of the court's authority. Further, the criminal
contempt action is totally independent of the case out of
which the contempt arose. State v. Abrams (Mont. 1984), 680
The offense of criminal contempt, a misdemeanor, is set
forth in S 45-7-309, MCA, and provides:
A person commits the offense of criminal contempt
when he knowingly engages in any of the followi.ng
conduct:
(a) disorderly, contemptuous, or insolent behavicr
committed during the sitting of a court in its
immediate view and presence and directly tending to
interrupt its proceedings or to impair the respect
due to its authority;
(b) breach of the peace, noise, or other
disturbance directly tending to interrupt a courts
proceeding;. ..
McAllister's conduct at the pretrial hearing on August 21,
1984, clearly justified Judge Sabo in exercising her contempt
power. Thereafter, a complaint was filed formally charging
McAllister with criminal contempt. On October 29, 1984,
trial was held in Missoula Justice Court before Judge Monger
and McAl-lister was found guilty of contempt.
The Justice Court's jurisd.iction over the contempt trial
can be found at 5 3-10-303, MCA, which pr0vi.d.e~:
The just.icesl courts have jurisdiction of public
offenses committed within the respective counties
in which such courts are established as follows:
(1) Jurisdiction of all misdemeanors punishable by
a fine not exceeding $500 or imprisonment not
exceeding 6 months or both such fine and
imprisonment; . . ..
A misdemeanor criminal contempt action, like most other
misdemeanors, is punishable by up to 6 months in jail or
$500.00 or both. Section 45-7-309 ( 2 ) , MCA. The Justice
Court clearly had jurisdiction over McAllisterls contempt
trial and did not exceed that jurisdiction.
The District Court did not ebuse its discretion in
denying McAllister's application for a writ of certiorari.
We affirm.
We Concur: