                                 No. 89-59
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1989



GARY G. DORAN,
                 Petitioner and Appellant,
         -vs-
THE CITY COURT OF WHITEFISH, MONTANA,
and THE HONORABLE BRADLEY I?. JOHNSON,
a Judge thereof,
                 Respondent.




APPEAL FROM:     District Court of the Eleventh Judicial ~istrict,
                 In and for the County of Flathead,
                 The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 James D. Moore; Moore   &   Doran, ~alispell,Montana
         For Respondent:
                 Bradley F. Johnson, whitefish city Judge, whitefish,
                 Montana



                                    submitted on ~riefs: May 18, 1989
                                      Decided: September 7, 1989
                                             a
Filed:
Mr. Justice William E. Hunt, Sr., delivered the opinion of
the Court.


     The District Court of the Eleventh Judicial District,
Flathead County, granted a writ of certiorari and supervisory
control to review the propriety of sanctions and contempt
imposed upon Petitioner, Gary G. Doran, by the City Court of
Whitefish. After the ~istrictCourt affirmed the City Court
without a hearing, Petitioner moved to alter or amend the
judgment. ~ollowinga hearing, the District Court denied the
motion. petitioner appeals. We reverse and remand.
     The sole issue raised on appeal is whether the District
Court erred in upholding the city Court's imposition of
sanctions and contempt.
     petitioner is an attorney at law, practicing in the
~alispell area.   On February 9, 1988, he agreed to defend
Anthony Conces against a charge of driving while under the
influence, pending in the Whitefish City Court. Conces had
been charged with the offense on November 23, 1987, and,
prior to obtaining petitioner's services, had represented
himself in the matter. Apparently, during the period Conces
represented himself, he was granted a series of continuances
by the City Court, and therefore was not arraigned until
January 19, 1988.     On the same day he agreed to represent
Conces, Petitioner called the City Court to verify the trial
date and was informed that a jury trial was scheduled for
February 24, 1988.
     On February 16, 1988, petitioner began a district court
jury trial, State v. Beggio. sometime after the trial began,
the Honorable ~ i c h a e l H. Keedy, judge for the Eleventh
~udicial~istrict  Court, scheduled an emergency child custody
hearing for Wednesday, February 24, 1988, at 9:30 a.m., a
time that directly conflicted with the Conces trial in City
Court.   petitioner, as representative of the child, was
required to attend the hearing. Petitioner's office received
notice of the custody hearing on Thursday, February 18, 1988,
while Petitioner was still involved in the ~ e g g i o trial.
Because of the continuing nature of the Beggio trial,
Petitioner did not return to his office until Friday,
February 19, 1988, and did not receive actual notice of the
conflict with the Conces trial until after 5 p.m. on that
day.
       On Monday, February 22, 1988, closing arguments in State
v. ~ e g g i owere made; the trial was completed at approximately
12:30 p.m. That afternoon, Petitioner represented defendants
in two separate proceedings, a felony arraignment and a
felony sentencing.       He instructed his secretary to contact
the whitefish City Court to advise it of the conflict of
February 24.       Petitioner's secretary called the City Court
two times during the afternoon of February 22 and was advised
by the city Court clerk that it was unlikely that a
continuance would be granted.
      On the morning of Tuesday, February 23, 1988, after
attending a probation revocation hearing before the District
Court, petitioner called the City Court. He was advised by
the City Court clerk that the Judge was busy and that no
continuance had been granted. He was told to call back in 15
minutes, which he did, only to be informed that the Judge had
left for the day without granting a continuance. Petitioner
then called the City Judge's home phone and left a message on
the Judge's answering machine. The City Judge disputes ever
having received such a message, maintaining that the
recording device on his answering machine was not operating
on February 23.
     petitioner then prepared a written motion to continue,
which his law partner delivered to the whitefish Police
Department, located next to the City Court, at about 3:30
p.m. on February 23.    The motion was left with the police
department because it appeared that no one was present at
City Court. The motion was accompanied by a letter signed by
~istrict Court Judge Keedy, stating that the Conces trial
directly conflicted with a district court hearing.
     The City Judge did not receive the motion to continue
until the following morning, February 24, 1988, the day set
for the Conces trial. At 10 a.m. that day, a jury panel was
assembled, and the city Court was brought into session. When
the Conces case was called, neither the defendant nor anyone
on his behalf appeared. Due to the absence of the defense,
the City Court granted a continuance.       The court then
proceeded with its calendar, hearing the case of City v.
Ross, in which the defendant was found guilty and assessed a
portion of the jury costs.
     Later that day, the City Judge wrote a letter          to
petitioner, advising him:
     [Ylou have a duty and obligation to this Court
     which has no less dignity than that accorded
     District Court. This Court will not allow you to
     simply dictate and announce your course of dealing
     on matters currently pending and then escape the
     obvious and foreseeable consequences of your
     actions.
The Judge imposed financial sanctions against petitioner in
the amount of $132, the cost of summoning the jury, to be
paid by March 10, 1988.
     When petitioner failed to pay the sanctions, the city
Court directed him to appear on March 21, 1988, to show cause
why he should not be held in contempt. On March 18, 1988,
Petitioner moved   the   court to reset the hearing   due   to
conflicts with previously scheduled District Court hearings.
On March 24, 1988, petitioner forwarded a letter to the City
Judge, stating that he felt that imposition of sanctions was
unreasonable.    He enclosed an affidavit detailing the
circumstances leading to the February 24, 1988, sanctions.
In response, the court set a final due date of April 8, 1988,
for settlement of the sanctions.      When Petitioner again
failed to pay the sanctions, the court set another show cause
hearing for April 20, 1988.     petitioner appeared on that
date, refused to pay the sanctions, was found in contempt and
fined $25. At that time, he served the City Judge with a
writ of certiorari and supervisory control issued by the
District Court.
     On September 12, 1988, the District Court issued a
memorandum and order upholding the City Court's contempt
citation. petitioner moved the Court to alter or amend the
judgment.   After a hearing, the ~istrict Court denied the
motion. From this order, petitioner appeals.
     Although a contempt of court citation is not an
appealable order, a higher court may review the citation by
way of a writ of certiorari.     section 3-1-523, MCA.   On
review, the higher court determines whether the tribunal
issuing the contempt order acted within its jurisdiction, and
whether substantial evidence supports the finding of
contempt. In re the Contempt of Graveley (1980), 188 Mont.
546, 555, 614 P.2d 1033, 1039.
     By statute, a city court may punish an individual for
contempt when that individual disobeys or resists the
"execution of a lawful order or process made or issued by the
judge."   Section 3-11-303, MCA (emphasis added).    We must
therefore determine whether the imposition of sanctions by
the City Court for Petitioner's failure to appear on the day
of   trial  after   repeatedly   requesting  a   continuance
constituted a lawful order. If the order was not lawful, the
City Court exceeded its jurisdiction when it cited Petitioner
for contempt.
     A city court, like any other court, has the power to
"provide for the orderly conduct of proceedings before it or
its officers."     Section 3 - 1 - 1 1 (3), MCA. This power,
however, may not be exercised arbitrarily.
     While we commend the City Court for its efforts to
provide for the orderly conduct of proceedings before it, we
nevertheless hold that, in this case, the court acted
arbitrarily when it imposed sanctions against Petitioner.
Petitioner had no choice but to attend the district court
hearing.   It was impossible for him to be in two places at
one time.   Furthermore, petitioner excercised due diligence
in attempting to alert the City Court of the conflict. In
addition to making several phone calls to the City Court,
petitioner delivered to the Whitefish police Department a
letter signed by District Court Judge Keedy, stating that the
conflict existed.    The City Court had this letter in its
possession on the morning of the day set for trial.
     In addition, the City Court acted arbitrarily in
imposing jury costs as a sanction against petitioner.    The
record shows that the jury mustered for the Conces trial was
used in another trial heard in City Court that very same day.
In the other trial, City v. Ross, the defendant was found
guilty and assessed jury costs. Thus, the sanction of jury
costs against Petitioner amounted to double recovery.
     Because the City Court acted arbitrarily, the imposition
of sanctions did not constitute a lawful order.   Therefore,
the City Court exceeded its jurisdiction when it cited
petitioner for contempt for failing to pay the sanctions.
      Reversed and remanded for entry of an order dismissing
the   contempt   citation   and   sanctions   imposed   against
petitioner.
                                      /
