Winter v. 1st Judicial Dist. ( 2021 )

1.1 L.
07/20/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0334
OP 21-0334
FLED
THOMAS WINTER AND BARBARA JUL 2 0 2021
BESSETTE, Bowen Careenwood
Clerk of Supreme Court
State of Montana
Petitioners,
v.
ORDER
MONTANA FIRST JUDICIAL DISTRICT
COURT,LEWIS AND CLARK COUNTY,
THE HONORABLE MICHAEL F. MCMAHON,
PRESIDING JUDGE,
Respondent.
Petitioners Thomas Winter and Barbara Bessette seek a writ of supervisory control
directing the First Judicial District Court, Lewis and Clark County, to vacate its July 2,
2021 Order denying their motion for a temporary restraining order in its Cause No.
ADV-2021-699.
Supervisory control is an extraordinary remedy that is sometimes justified when
urgency or emergency factors make the normal appeal process inadequate, the case
involves purely legal questions, and one or more ofthe three following circumstances exist;
the other court is proceeding under a mistake of law and is causing a gross injustice,
constitutional issues of state-wide importance are involved, or the other court has granted
or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3).
Consistent with Rule 14(3), it is the Court's practice to refrain from exercising supervisory
control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh
Jud. Dist. Ct., No.OP 16-0517,386 Mont. 393,386 P.3d 545(table)(Oct. 18,2016);Lichte
v. Mont. Eighteenth Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540, 382 P.3d 868(table)(Aug. 24, 2016). "[A] writ of supervisory control is not to be used as a means to
circumvent the appeal process. Only in the most extenuating circumstances will such a
writ be granted." State ex rel. Ward v. Schmall, 190 Mont. 1,617 P.2d 140(1980).
White and Bessette allege that supervisory control is necessary in this case because
they believe Senate Bill 140, which they have challenged in their underlying Complaint for
Declaratory and Injunctive Relief, is unconstitutional. They further allege that the District
Court denied their motion for a temporary restraining order on July 2, 2021, and set a
preliminary injunction hearing for July 15, 2021.1 Although Petitioners assert they are
challenging the District Court's denial of their motion for a temporary restraining order,
their filing is devoid of discussion of that order, focusing entirely on the constitutional
arguments they have raised below. Although M. R. App. P. 14(5)(b)(iv) requires that a
petition for writ of supervisory control must include as an exhibit "a copy of
each ... order ... referred to in the petition or which is necessary to make out a prima facie
case or to substantiate the petition?'Petitioners have failed to provide a copy ofthe District
Court's July 2,2021 order. As such, their filing is inadequate.
Moreover, as noted above, supervisory control is only available if there is no
adequate remedy on appeal. Under M.R. App. P. 6(3)(e), an aggrieved party may appeal
from an order granting or dissolving, or refusing to grant or dissolve, an injunction,
provided that it is the lower court's final decision on the referenced matter. An order
granting a preliminary injunction is immediately appealable, notwithstanding that the
merits ofthe controversy remain to be determined. Caldwell v. Sabo, 2013 MT 240, 371
Mont. 218, 308 P.3d 81. In this case, Petitioners clearly have an adequate remedy via the
normal appeal process.
IT IS THEREFORE ORDERED that the Petition for a Writ of Supervisory Control
is DENIED and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioners, all counsel of record in the First Judicial District Court, Lewis and Clark
County, Cause No. ADV-2021-699, and the Honorable Michael F. McMahon,presiding.
Petitioners did not request that the District Court matter be stayed pending the outcome of this
Petition. We therefore assume this hearing proceeded as scheduled.
2
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DATED this ebday of July, 2021.
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