                                          No. 05-399

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 85


STATE OF MONTANA, TOWN OF DARBY,
RAVALLI COUNTY,

              Plaintiff and Respondent,

         v.

JACK J. JENKINS,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DC 02-145,
                     Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jack J. Jenkins, pro se, Shelby, Montana


              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     George Corn, Ravalli County Attorney, Hamilton, Montana


                                                          Submitted on Briefs: March 22, 2006

                                                                     Decided: April 25, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Jack Jenkins appeals an Order of the District Court for the Twenty-First Judicial

District, Ravalli County, denying his Petition for Writ of Certiorari or Supervisory Control.

We affirm.

¶2     We address the following issue on appeal: Did the District Court abuse its discretion

when it denied Jenkins’ Petition for Writ of Certiorari or Supervisory Control?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     The District Court entered the following statement of facts in its May 24, 2005

Opinion and Order denying Jenkins’ petition.

              It appears undisputed that pursuant to a number of Darby City Court
       judgments in 1997, 1998 and 2002, Mr. Jenkins was assessed fines totaling
       $2,875.00 and was ordered to complete the ACT program and pay the cost
       thereof in the sum of $200.00. The fines and fees were to be paid in full by
       March 11, 2003. Jenkins filed an appeal of his convictions to this Court on
       September 11, 2002, but subsequently moved to dismiss his appeal. The
       appeal was dismissed by this Court and the case remanded to Darby City Court
       on October 23, 2002. On November 18, 2002, Jenkins was arrested for Felony
       DUI and other charges. He ultimately pled guilty to that charge and on June 4,
       2003 was sentenced to thirteen (13) months in State custody, plus five (5)
       years as a persistent felony offender and five (5) years probation.
              On July 30, 2003, Jenkins was sentenced to the Montana State Prison.
       He has a parole eligibility date of September 11, 2005, and a discharge date of
       June 16, 2009.
              On September 24, 2003, the Darby City Court issued a “Fail to Comply
       Warrant” directing that Jenkins be arrested and brought before the Darby City
       Court to show cause why he should not be held in contempt of court for failure
       to pay the assessed fines and fees.
              Jenkins has applied for a pre-release center placement, but the Montana
       Department of Corrections refused consideration of a pre-release placement
       due to the outstanding warrant from Darby City Court.
              According to the pre-sentence investigation report dated June 3, 2003,
       in Cause No. DC-02-170, Jenkins is in good health and has a work history

                                             2
       including employment as a logger, and various other jobs in Montana,
       Washington, Nevada and Idaho.
               Jenkins filed a “Motion to Dismiss and Request to Enter into Payment
       Agreement” with the Darby City Court, by which he sought to have the Court
       recall/dismiss the warrant in exchange for a time pay agreement which would
       allow him to qualify for a pre-release placement. The City Attorney opposed
       the motion and the Court entered its order denying the motion on January 24,
       2005.

¶4     As the State points out in its brief on appeal, many of the facts stated above are not

substantiated in the record now before this Court because they come from other sources such

as Jenkins’ Department of Corrections (DOC) file. However, the State further notes that the

Statement of Facts in Jenkins’ opening brief indicates that he does not disagree with the

District Court’s findings.

                                       DISCUSSION

¶5     Did the District Court abuse its discretion when it denied Jenkins’ Petition for Writ of
Certiorari or Supervisory Control?

¶6     A Writ of Certiorari, or a Writ of Review, may be granted by this Court or a district

court or any judge of those courts “when a lower tribunal, board, or officer exercising

judicial functions has exceeded the jurisdiction of the tribunal, board, or officer and there is

no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy.” Section

27-25-102, MCA. Moreover, this Court will not overturn a district court’s denial of a writ

unless an abuse of discretion is shown. Schaefer v. Egeland, 2004 MT 199, ¶ 11, 322 Mont.

274, ¶ 11, 95 P.3d 724, ¶ 11 (citing Shiplet v. Egeland, 2001 MT 21, ¶ 5, 304 Mont. 141, ¶ 5,

18 P.3d 1001, ¶ 5). “An abuse of discretion occurs when a district court acts arbitrarily

without conscientious judgment or exceeds the bounds of reason.” Schaefer, ¶ 11 (citing

                                               3
Bailey v. Beartooth Communications Co., 2004 MT 128, ¶ 10, 321 Mont. 305, ¶ 10, 92 P.3d

1, ¶ 10).

¶7     Jenkins claims the Darby City Court exceeded its jurisdiction by denying him due

process and speedy trial rights and unfairly denying his ability to qualify for community

corrections programs while in the custody of the Department of Corrections. The State

argues that the fact that the City Court denied Jenkins’ motion does not mean that the City

Court Judge exceeded her jurisdiction, which is the standard for certiorari.

¶8     We agree with the District Court’s conclusion that while the existence of a warrant

may place Jenkins in an escape-risk classification that impacts his placement within the

DOC, Jenkins has not shown that the Darby City Court is under some legal obligation to

quash an otherwise valid warrant merely to facilitate Jenkins’ placement in a pre-release

center or other community corrections program.

¶9     Moreover, Jenkins has not provided any authority to the effect that the City Court

Judge exceeded her jurisdiction by denying his motion to quash the warrant. Although

Jenkins cites to several decisions of this Court, none of those cases stand for the proposition

that a city court judge exceeds her jurisdiction when she refuses, as a matter of discretion, to

quash an outstanding warrant so as to render the petitioner eligible for alternative placement

within the correctional system.

¶10    Accordingly, we hold that the District Court did not abuse its discretion when it

denied Jenkins’ Petition for Writ of Certiorari or Supervisory Control.

¶11    Affirmed.

                                               4
                                                           /S/ JAMES C. NELSON


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ PATRICIA COTTER




Justice John Warner dissents.

¶12    I disagree with the Court’s holding as it is fundamentally unfair and violates Jenkins’

constitutional right to due process. The Darby City Court has refused to execute or quash its

warrant for Jenkins. As a result, the outstanding warrant renders him ineligible for parole or

community correctional programs.

¶13    The Court states in its Opinion that Jenkins has not shown that the Darby City Court is

under any legal obligation to quash an otherwise valid warrant. I disagree.

¶14    I note that Jenkins is acting pro se in this matter and we will give pro se litigants

reasonable latitude and flexibility in presenting their cases. Jenkins clearly asserts in his

District Court brief that the City Court has denied him his due process rights. Indeed, there is

substantial authority for the position that due process requires “reasonable diligence” in the

issuance and execution of a warrant for arrest. See State v. Longhorn, 2002 MT 135, ¶ 28,

310 Mont. 172, ¶ 28, 49 P.3d 48, ¶ 28 (quoting Doggett v. U.S. (1992), 505 U.S. 647, 656,


                                               5
112 S.Ct. 2686, 2693, 120 L.Ed.2d 520, 531); accord McCowan v. Nelson (9th Cir. 1970),

436 F.2d 758, 760; Shelton v. U.S. Bd. Of Parole (D.C. Cir. 1967); 388 F.2d 567, 574;

Greene v. Michigan Dept. of Corrections (6th Cir. 1963), 315 F.2d 546, 548 (failure of

authorities to proceed with reasonable diligence to execute a warrant for arrest after a parole

violation may result in waiver of violation and loss of jurisdiction if authorities had either

actual or constructive notice of parolee’s whereabouts).

¶15    The City Court has a duty to exercise reasonable diligence in the execution of its

arrest warrant, yet it refuses to do so. Jenkins’ whereabouts is certainly no secret as he is

currently incarcerated at the Crossroads Correctional Center. Due process requires that the

City Court proceed to execute its warrant and order that he be brought before the court to

answer for his contempt of court.1 If the City Court refuses to execute the warrant, then it

must quash it. In any case, the City Court cannot be allowed to sit on the warrant, taking no

further action, for the collateral purpose of keeping Jenkins in prison.

¶16    Even though the Court is correct in concluding that a writ of certiorari is improper

here, the Court ignores Jenkins’ argument that we should exercise supervisory control. This

Court exercises supervisory control in appropriate cases pursuant to the authority granted in

Article VII, § 2(2) of the Montana Constitution, and Rule 17(a), M.R.App.P. The use of this


1
  A court has the authority to execute an arrest warrant when the defendant is currently
housed in a state correctional facility. See section 46-6-215, MCA (execution of a search
warrant); section 46-6-210, MCA (arrest by peace officer); section 46-17-401, MCA (except
as provided in Titles 3 and 6, the proceedings and practices in a municipal court shall be the
same as in a district court); section 3-1-515, MCA (arrest and detention by sheriff); section 3-
11-303(2), MCA (application to city court).

                                               6
power is appropriate where the district court is proceeding based on a mistake of law which,

if uncorrected, would cause a significant injustice. Inter-Fluve v. Montana Eighteenth

Judicial Dist. Court, 2005 MT 103, ¶ 17, 327 Mont. 14, ¶ 17, 112 P.3d 258, ¶ 17. A due

process violation surely constitutes a significant injustice.

¶17    I would issue the writ, reverse the District Court, and remand to the City Court with

instructions to execute its warrant for Jenkins or to quash it, as is constitutionally required.


                                            /S/ JOHN WARNER




                                               7
