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No. 89-256
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

DONALD C. MARKS,

Relator,
-vs-

THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF RROADWATER, THE HONORABLE HENRY LOBLE, PRESIDING,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relator:
Ted J. Doney; Doney & Thorson, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana James Yellowtail, Asst. Atty. General, Helena John T. Flynn, County Attorney, Townsend, Montana Richard Feisthamel, Water Commissioner, Townsend, Montana
Submitted on Briefs: Aug. 17, 1989
Decided: October 19, 1989
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

Relator applies for a writ of certiorari to set aside a
contempt of court order from the First Judicial District
Court of Montana, Broadwater County. We deny the writ.

The issues are:

1.
Did the District Court err in finding that defendant
was in contempt of court?


2.
Did the District Court err in denying defendant's
motion for a continuance?


3.
Did the District Court err in denying defendant's
motion for substitution of judge?



On October 7, 1988, Judge Loble, sitting as water court
judge in place of Judge Lessley, held a show cause hearing,
ordering Mr. Marks to show cause why he should not be held in
contempt for failing to obey the orders and directives of the
Water Commissioner. This hearing was scheduled based upon an
affidavit by Mr. Feisthamel, the Water Commissioner for
Confederate Creek, Broadwater County, Montana. In substance,
this affidavit stated that on September 23, 1988, the Water
Commissioner turned off water at Mr. Marks' diversion point,
but that Mr. Marks turned the water back on without authority
on September 25, 1988. On that same day the Water Commis-
sioner turned the water off a second time, whereupon Mr.
Marks totally removed the headgate from the diversion point
on September 26, 1988. The Water Commissioner also swore
that on September 26 he told Mr. Marks to shut off the water,
but that Mr. Marks refused. The affidavit further stated
that when told that he was being placed under arrest, Mr.
Marks told the Water Commissioner to "get lost" and then
entered his residence.

Prior to the hearing, Mr. Marks obtained counsel. On
October 3, 1988 counsel for Mr. Marks sent a letter to the

court requesting a continuance because he had a prior commit-
ment on October 7. Counsel also requested a substitution of
judge. On October 6, Mr. Marks' counsel received a letter
from the court denying these requests. On the day of the
hearing, October 7, Mr. Marks appeared before the court
without counsel. The court found him in contempt of court
for failing to obey an order of the Water Commissioner. He
was ordered to pay a $250 fine or spend two days in the
county jail. From this order Mr. Marks appeals.

I

Did the District Court err in finding that defendant was
in contempt of court?

In reviewing a contempt appeal, this Court's standard of
review is whether substantial evidence supports the judgment
of contempt. Matter of Graveley (1980), 188 Mont. 546, 555,
614 P.2d 1033, 1039. This Court has also stated:

On reviewing a contempt citation by writ of
certiorari, we are limited to the following consid-
erations: whether the lower court had jurisdiction
to issue the order and secondly, whether there is
evidence supporting the same.

State ex rel., Foss v. District Court (1985), 216 Mont. 327,
331, 701 P.2d 342, 345.

This case involves interference with the actions of a water commissioner's distribution of water and is governed by

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Montana Law