B. Lowry V v. Bragg ( 2022 )

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09/06/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0466
OP 22-0466
BOBBY FRANCIS LOWRY, V,
SEP 0 6 2022
Bowen Greenwood
Court
Petitioner, Cle rk of Supreme
State of Montana
v.
FIRST JUDICIAL DISTRICT COURT, LEWIS ORDER
AND CLARK COUNTY, the HONORABLE
MICHAEL F. MCMAHON, and CAPTAIN
BRADLEY BRAGG, LEWIS & CLARK
COUNTY DETENTION CENTER,
Respondents.
Self-represented Petitioner Bobby Francis Lowry has filed a petition for a writ of
mandate with this Court, after seeking similar relief in the Lewis and Clark County District
Court, "where his trials were taking place." We amend the caption to include the First
Judicial District Court and the presiding Judge. See § 27-26-102(1), MCA.
Lowry explains that several months ago, he accidentally broke his hearing aid—
needed for his severe hearing impairment. Lowry states that he has not received a
replacement, even after requesting one. Lowry points to §§ 49-4-501, and 49-4-508, MCA,
the statutes for interpreters in judicial proceedings for deaf persons. He claims he also has
suffered ear infections and argues that he "must receive medical care for his disability and
reasonable accommodation . . . ."
A writ of mandate, or mandamus, is specific and statutorily driven. Sections 27-26-
101 through 27-26-403, MCA. To state a claim for rnandarnus, a party must show
entitlement to the performance of a clear legal duty by the party against whom the writ is
directed and the absence of a plain, speedy, and adequate remedy at law. Section 27-26-
102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834.
Upon review, we conclude that Lowry has not met the requirements to obtain a writ
of mandate, as he has not dernonstrated a clear legal duty for which he has no other remedy
"in the ordinary course of law." Section 27-26-102(2), MCA; Smith, ¶ 28. Lowry is
correct that the law requires courts to appoint an interpreter to assist a deaf person who is
a party to judicial proceedings. Section 49-4-503, MCA. As defined by statute, a "deaf
person" is "a person whose hearing is totally impaired or is so seriously impaired as to
prohibit the person frorn understanding oral communications" or communicating spoken
language. Section 49-4-502(2), MCA. Lowry is entitled to an interpreter only if he meets
that statutory definition—a factual determination for the trial court. It is not clear frorn the
materials Lowry has submitted that the District Court has considered or made findings
whether Lowry qualifies for a court-appointed interpreter. Lowry presurnably has counsel
in his criminal case to advocate for his rights, and he retains the right to appeal from any
adverse judgment.
Finally, to the extent the petition alleges inadequate medical care, a writ of mandate
is not the appropriate civil rernedy. See Gates v. Missoula Cty. Comm'rs, 235 Mont. 261,
262-63, 766 P.2d 884, 885 (1988) (holding that habeas corpus is not the correct remedy for
constitutional claims, including lack of "adequate food, shelter, clothing, medical care,
exercise, individual security, and a law library" and that "disputed factual issues should be
directed to an appropriate district court, since it is not the role of this Court to function as
primary fact-finder."). Again, Lowry's claims require factual development and
deterrnination, not suitable in an original writ proceeding before this Court. Because
conditions of confinement may be challenged in an ordinary civil rights action, Lowry has
a plain and adequate remedy of filing a complaint in a state or federal district court.
IT IS THEREFORE ORDERED that Lowry's Petition for Writ of Mandate is
DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy to: the Hon. Michael
F. McMahon, District Court Judge; Angie Sparks, Clerk of District Court, Lewis and Clark
County, under Cause Nos. DC-2021-178, DC-2021-398, and DC-2021-537; Captain
Bradley Bragg, LCCDC; counsel of record; Leo Gallagher, Lewis and Clark County
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Attorney; Katie Jerstad, Deputy County Attorney; Office of the Public Defender, Lewis
and Clark County; and Bobby Francis Lowry V personally.
i ``{``—•
DATED this -b ' day of Septernber, 2022.
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