ORIGINAL                                                                                    07/08/2020


             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                        Case Number: OP 20-0351


                                        OP 20-0351


  ALVIN BURDEN,
                                                                          RLED
                                                                          JUL 0 8 2020
                    Petitioner,
                                                                       Bowen Greenwood
        V.                                                           Clerk of Suprerne Court
                                                                        State of Montana

                                                                    ORDER
  MONTANA EIGHTH JUDICIAL DISTRICT
  COURT,CASCADE COUNTY,HONORABLE
  JOHN A. KUTZMAN,

                    Respondent.


       Petitioner Alvin Burden, via counsel, seeks a writ of supervisory control vacating
 the below-referenced orders ofthe Eighth Judicial District Court, Cascade County, denying
 his motions to continue trial in Cause No. CDC-19-350. He asserts that the court erred in
 denying the motions because the State did not object, he is not currently incarcerated
 pending trial, and the ongoing and again-surging threat of Covid-19 is particularly acute
 under the circumstances ofthis case.
       As pertinent here, supervisory control is an extraordinary remedy sometimes
 justified when urgency or emergency factors make the normal appeal process inadequate,
 when the case involves purely legal questions, and when the other court is proceeding under
 a mistake of law resulting in gross injustice under the particular circumstances at issue.
 M. R. App. P. 14(3). Whether supervisory control is appropriate is a highly discretionary
 matter determined on a case-by-case basis. Stokes v. Mont. Thfrteenth Judicial Dist. Court,
 2011 MT 182,¶ 5, 361 Mont. 279,259 P.3d 754(citations omitted).
       Jury trial is currently set for July 13, 2020. Based on the limited record before us,
 it appears that Burden moved to continue the July 13,2020 trial date on May 19,2020, due
 to difficulty in interviewing witnesses caused by the COVID-19 pandemic. On June 10,
 2020, the District Court denied the motion based on "current arrangement?' permitting
only one jury trial every few weeks and that it could not continue a trial date due to
inconvenience. On June 19, 2020, Burden's counsel moved for reconsideration based on
the again-surging Covid-19 threat, her particularly high risk of Covid-19 exposure and
contraction under the circumstances, and her current state of self-quarantine. On June 26,
2020,the District Court again denied the motion in single-sentence order.
       While we generally do not exercise supervisory control without obtaining a response
from the respondent court under M.R. App.P. 14(7), this case presents a rare circumstance
warranting immediate exercise of supervisory control due to the imminent urgency of the
situation, the unique nature of the material facts and governing law, and the frivolity and
futility of ordering a response, the timing of which would necessarily moot the matter at
issue and effectively grant the requested relief without a response in any event.
Accordingly, based on the unique circumstances of this case, and without establishing
precedent, we find good cause in the interests ofjustice under M. R. App. P. 14(3) and
Montana Constitution Article VII, Section 2(2) to exercise supervisory control and
summarily grant Burden's petition.
       Therefore,
      IT IS ORDERED that the petition for a writ of supervisory control is ACCEPTED
and GRANTED.
      IT IS FURTHER ORDERED that the June 26, 2020 Order that denied
Burden's Motion for Reconsideration to Continue Trial Due to Covid-19 Concerns
in Cause No. CDC-19-350 is VACATED.
       The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioner, all counsel of record in the Eighth Judicial District Court, Cascade County,
Cause No. CDC-19-350, and the Honorable John A. Kutzman, presiding.
       DATED this 7th day of July, 2020.



                                                               Chief Justice



                                             2
3
