(506 P.2d 1228)
No. 25695Supreme Court of Colorado.
Decided March 5, 1973.
Defendant was charged with violation of municipal assault ordinance and moved to dismiss charge on ground that ordinance was preempted by state assault statute. Upon denial of his motion, defendant petitioned District Court for relief in nature of prohibition and District Court stayed further proceedings in Municipal Court. City then filed original proceeding for vacation of stay order and Supreme Court issued rule to District Court to show cause why stay order should not be vacated.
Rule Made Absolute
1. MUNICIPAL CORPORATIONS — Assault Ordinance — Preempted — Assault Statute — Negative — Criminal Code. Where, on July 1, 1972, the Colorado Criminal Code took effect and the state assault statute (C.R.S. 1963, 40-2-35) was repealed, and where defendant was charged with an assault ordinance violation occurring on July 7, 1972, held, under these circumstances, although it could be argued that the municipal assault ordinance was preempted by the assault provisions of the Colorado Criminal Code (1971 Perm. Supp., C.R.S. 1963, 40-3-201 through 40-3-204), nevertheless, it could not be argued that the ordinance was preempted by 40-2-35.
2. PROHIBITION — Relief — District Court — Inferior Court — Exceed Jurisdiction — Rules. C.R.C.P. 106(a)(4) provides in part that relief in the nature of prohibition will lie in the district court where an inferior court has exceeded its jurisdiction and there is no plain, speedy and adequate remedy.
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3. ASSAULT AND BATTERY — Ordinance — Preempted — Statute — Repealed — Prohibition — Negative. In prosecution against defendant under municipal assault ordinance, where district court could not have found that municipal court would exceed its jurisdiction on the ground that such assault ordinance was preempted by repealed assault statute (C.R.S. 1963, 40-2-35), and where district court failed to find that defendant seeking prohibition lacked a plain, speedy and adequate remedy, held, under these circumstances, prohibition in these circumstances, prohibition in the district court would not lie.
Original Proceeding
Raymond C. Johnson, City Attorney, Douglas S. Wamsley, Deputy, for petitioner.
No appearance for respondent.
En Banc.
MR. JUSTICE GROVES delivered the opinion of the Court.
Daniel J. Montana was charged with a violation of the assault ordinance of the City of Lakewood, which is not a home rule city. The Lakewood Municipal Court denied his motion to dismiss the charge. The motion was based on the ground that the ordinance was pre-empted by the state assault statute, C.R.S. 1963, 40-2-35. Montana then petitioned the respondent district court for relief in the nature of prohibition, again alleging state pre-emption of the assault ordinance.
The respondent district court stayed further proceedings in the municipal court on the ground that the municipal court would “exceed its jurisdiction unless ordered to desist by this court.” Lakewood then filed an original proceeding here. We issued a rule to the respondent to show cause why it accepted jurisdiction of Montana’s petition for relief in the nature of prohibition and why its stay order should not be vacated. The respondent has not answered and we now make our rule absolute.
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[1] In his petition to the district court for relief in the nature of prohibition, Montana’s only argument was that the assault ordinance had been pre-empted by the state assault statute, C.R.S. 1963, 40-2-35. Montana, however, was charged with an ordinance violation occurring on July 7, 1972. On July 1, 1972, the Colorado Criminal Code took effect and 40-2-35 was repealed. Although it could be argued that the municipal assault ordinance was pre-empted by the assault provisions of the Colorado Criminal Code, 1971 Perm. Supp., C.R.S. 1963, 40-3-201 through 40-3-204, it could not be argued that the ordinance was pre-empted by 40-2-35. [2,3] C.R.C.P. 106(a)(4) provides, in part, that relief in the nature of prohibition will lie in the district court where an inferior court has exceed its jurisdiction and there is no plain, speedy and adequate remedy. The district court could have found that the municipal court would exceed its jurisdiction on the ground that the municipal assault ordinance was pre-empted by C.R.S. 1963, 40-2-35. Further, the district court failed to find that Montana lacked a plain, speedy and adequate remedy. Under these circumstances, we believe that prohibition in the district court would not lie.At the time we issued a rule to show cause in this matter, we assumed that there would be an adversary proceeding. Also, we thought that possibly we might be able to rule on the question of whether this ordinance has been pre-empted by the new Criminal Code. With no appearance on the part of the respondents, we deem it unwise at this time to attempt to determine whether Lakewood’s ordinance is valid.
MR. JUSTICE KELLEY does not participate.
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