¶ 8 The court granted the Vickers' motion based on two procedural errors in securing the validity of the search warrants. First, the court found several procedural flaws in securing Barney's authority to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA, and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 391, 880 P.2d 1319, 1324. Second, the court found that Judge Larsen failed to use the proper method of calling in a substitute justice of the peace as prescribed by § 3-10-231, MCA, and Potter, 266 Mont. at 391, 880 P.2d at 1324.
Koo v. State, 640 N.E.2d 95 (Ind. App. 1994)............................ 9-10 Potter v. District Court of Sixteenth Judicial District, 266 Mont. 384, 880 P.2d 1319(1994).............................................................7-9, 13 State v. Preslar, 751 S.W.2d 477 (Tex. 1988)............................9-11
¶ 18 Did the substitute justice of the peace have authority to issue the search warrant? ¶ 19 Beaupre argues that § 3-10-231(3), MCA, was violated because there was no attempt to call in another justice of the peace or city judge to issue the search warrant prior to contacting substitute Judge Rennie for execution of the warrant and that the warrant is void pursuant to our decisions in State v. Vickers, 1998 MT 201, 290 Mont. 356, 964 P.2d 756, and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 880 P.2d 1319. ¶ 20 Section 3-10-231, MCA, provides:
Thus, we accept supervisory control in this matter, and we proceed to address the main issue in this case which is: Whether Judge Harkin was vested with authority under the provisions set forth in § 3–10–231, MCA, to act as a substitute justice of the peace and preside over Blodgett's jury trial. ¶ 11 “The term ‘judge’ (which includes municipal and city court judges and justices of the peace, § 3–1–1501(2), MCA), means a person who is ‘vested by law’ with the power to perform judicial functions....” Potter v. Dist. Court of the Sixteenth Judicial Dist., 266 Mont. 384, 393, 880 P.2d 1319, 1325 (1994). And, one is vested with the authority to act as a substitute justice of the peace only if all of the criteria of the authorization procedure are followed.
Therefore, the Legislature has provided that the DOLI shall not make rules for or otherwise control the WCC. ¶ 24 We addressed a similar issue in Potter v. District Court, 266 Mont. 384, 880 P.2d 1319 (1994). In Potter, we stated that unless the procedures for authorizing and calling in a substitute justice of the peace (see § 3-10-231, MCA) are followed, then no substitute justice is appointed and "the person seeking to exercise the powers of a judge as his substitute has no authority or jurisdiction to do so."
Again, I cannot agree with our contrary approach. See Potter v. Sixteenth Jud. Dist. Ct., 266 Mont. 384, 880 P.2d 1319 (1994); State v. Vickers, 1998 MT 201, 290 Mont. 356, 964 P.2d 756; Pinnow v. Mont. State Fund, 2007 MT 332, 340 Mont. 217, 172 P.3d 1273. Potter and Vickers involved individuals who failed to comply with the procedures required by statute for serving as a substitute justice of the peace.
Supervisory control, however, is appropriate where the district court is proceeding under a mistake of law and, in so doing, is causing a gross injustice. See, e.g., State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348; Potter v. District Court (1994), 266 Mont. 384, 388, 880 P.2d 1319, 1322. ¶ 16 [2] Here, the District Court is proceeding under a mistake of law because it concluded that Evans was not in custody during the interview and that § 41-5-331, MCA, had thus not been violated.
The most oft-cited standard is that "supervisory control is appropriate where the district court is proceeding under a mistake of law, and in so doing is causing a gross injustice." See, e.g., Potter v. District Court (1994), 266 Mont. 384, 880 P.2d 1319; State ex rel. Torres v. District Court (1994), 265 Mont. 445, 877 P.2d 1008; State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 701 P.2d 1346; State ex rel. Fitzgerald v. District Court (1985), 217 Mont. 106, 703 P.2d 148. This standard has its roots in the turn-of-the-century case of State ex rel. Whiteside v. District Court (1900), 24 Mont. 539, 63 P. 395, in which this Court explained: