No. 80-228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

NORTH CENTRAL SERVICES, INC., 

Plaintiff and Respondent, 

-VSKENNETH M. HAFDAHL, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Hill, The Honorable 

B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morrison, Ettien and Barron, Havre, Montana 

Chris R. Young argued, Havre, Montana 

For Respondent: 

Arnold H. Peterson, Havre, Montana 

Daniel R. Carpenter, Havre, Montana 

For Amicus Curiae: 

Hon. Mike Greely, Attorney General, Helena, 

Montana 

Rick Larsen and John Maynard argued, Asst. Atty. 

Generals, Helena, Montana 

Filed: 

Submitted: January 12, 1981 

Decided: March 11, 1981. 

MAR 12 1988 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

This is an appeal from a District Court judgment which 

upheld the constitutionality of the small claims procedure, 

Title 25, Ch. 35, MCA. The District Court, after sustaining 

constitutionality of the act, entered judgment in favor of 

the plaintiff for $678.25. 

This case was originally tried before a justice of the 

peace, sitting without a jury. Both parties were present, 

but neither was represented by legal counsel. The justice 

of the peace found in favor of plaintiff, and defendant 

appealed to the District Court. Defendant attempted to 

appear in the District Court through counsel but was denied 

that opportunity by the trial judge. A trial de novo is 

prohibited by the provisions of the small claims procedure; 

and therefore, the trial court reviewed only questions of 

law. The judgment entered in justice court was affirmed. 

The issues presented on appeal are: (1) Whether the 

small claims procedure in justice court, pursuant to Title 

25, Ch. 35, MCA, unconstitutionally deprived defendant of 

the right to counsel? (2) Whether the small claims procedure 

in justice court, pursuant to Title 25, Ch. 35, MCA, unconstitutionally deprived defendant of the right to a trial by 

jury? (3) Whether the provision that a justice of the peace 

may assist a party in the preparation of his pleading, 

pursuant to section 25-35-201 (2), MCA, unconstitutional.ly 

deprives the opposing party of due process? (4) Whether, if 

part of the procedure is unconstitutional, the balance can 

stand? 

Part 1 

The small claims procedure makes no provision for a 

jury trial. Section 25-35-105(2), MCA, provides that a 
party may not be represented by an attorney unless all 

parties are represented by an attorney. Section 25-35- 

403 (2), MCA, prohibits a trial de novo in the District Court 

and provides that appeals shall be limited to questions of 

law. 

The effect of the statutory provisions, above referred 

to, is to deny a jury trial and to deny counsel at all 

stages of the fact-finding process. 

The Montana Constitution is silent on right to counsel 

in civil cases, but nearly all courts have held that such 

right is implicit in due process guarantees. For example 

see Prudential Ins. Co. v. Small Claims Court (1946), 76 

Cal.App.2d 379, 173 P.2d 38; Foster v. Walus (1959), 81 

Idaho 452, 347 P.2d 120. We hold that in Montana the right 

to counsel is implicit within constitutional guarantees of 

due process, and the right to counsel must exist at some 

stage in the proceeding. 

The question of whether the right to counsel must be 

afforded in a small claims court was specifically treated by 

the Idaho Supreme Court in Foster v. Walus, supra. The 

Idaho small claims procedure, unlike the present procedure 

in Montana, afforded a trial de novo with counsel on appeal. 

In answering the argument that counsel could not be denied 

in the small claims court, the Idaho Supreme Court said: 

"A plaintiff in the small claims court, by knowingly 

commencing his action therein cannot thereafter object to the denial of counsel; and a defendant (as 

was appellant) may avail himself of the right to 

appeal to the District Court in a trial de novo with 

assistance of counsel therein. Such satisfies the 

due process requirement." 347 P.2d at 125. 

The same result was reached in Prudential Ins. Co. of 

America v. Small Claims Court, supra. 
Section 25-35-403(2), MCA, provides: "There shall not 

be a trial de novo in the District Court. The appeal shall 

be limited to questions of law. " 

Subsection 2, above quoted, is unconstitutional because 

it effectively denies counsel at all levels of factual 

determination. The right to counsel can be denied in the 

small claims procedure, as long as the right is protected on 

appeal. Since we have struck the prohibition against a 

trial de novo in District Court, we find section 25-35- 

105(2), MCA, to be constitutional, if the unconstitutional 

provision can be severed. 

Part 2 

The question of whether a jury trial is required in 

small claims court, provides a more difficult question. 

Article 2, Section 26, the Montana Constitution, provides: 

"Trial by jury. The right of trial by jury is secured to all 

and shall remain inviolate . . ." This Court has the right 

to interpret its own constitution in a manner which grants 

greater rights than are secured under the federal constitution. 

However, it is the duty of the courts to uphold the constitutionality of legislative enactments if such can be accomplished 

by reasonable construction. Foster v. Walus, supra. We hold 

that the constitutional right to trial by jury is satisfied 

if it is granted at the District Court level, though denied 

at the small claims level. 

This question was addressed by the U. S. Supreme Court 

in Livingston v. Moore (1833). 32 U.S. (7 Pet.) 469, 8 L.Ed. 

751. Article XI, Ch. I, Constitution of Pennsylvania adopted 

in 1776, provided "That in controversies respecting property, 

and in suits between man and man, the parties have a right 

to trial by jury. which ought to be held sacred." In the 
Constitution of Pennsylvania adopted in 1790, Article IX, 

section 6, declared "That trial by jury shall be as heretofore, 

and the right thereof remain inviolate." 

The statutes of Pennsylvania, from 1782, required all 

accounts between the state and its officers to be settled by 

the comptroller general and approved by an executive counsel. 

If a balance was found to be due the state, the comptroller 

general was authorized to direct the clerk of the county 

where the officer resided to issue summary process to collect 

the amount due. It was further provided that the person 

aggrieved by the process should be allowed to have a trial 

of the facts by a jury through appealing from the settlement 

of the comptroller general to the Supreme Court of the 

state. The law further required that the aggrieved party 

enter sufficient surety as a prerequisite to the prosecution 

of such appeal. The constitutionality of these statutes was 

attacked as being in derogation of the "right to trial by 

jury" secured by the Pennsylvania Constitution. In resolving this question, the U. S. Supreme Court said: "As to 

the sixth section of the Pennsylvania bill of rights, we can 

see nothing in these laws on which to fasten imputation of 

the violation of the right of trial by jury; since, in 

creating the lien attached to the settled accounts, the 

right of an appeal to a jury is secured to the debtor; . . 

." This case was cited by approval in Capital ~raction Co. 

v. Hoff (1898), 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873. 

We hold that section 25-35-403(2), MCA, is unconstitutional. 

because it effectively denies the right to trial by jury at all 

levels. We further hold that the right to trial by jury, as 

secured by the Montana Constitution, remains inviolate if provided on appeal to the District Court. 
Part 3 

Appellant further attacks the constitutionality of 

section 25-35-201(2), MCA, which provides: "The justice 

shall assist any claimant in preparing his complaint or 

instruct his clerk to provide such assistance . . ." Appellant 

contends that he is denied due process of law by virtue of 

the justice of the peace assisting one of the parties to the 

litigation. We find no merit in this contention. By guaranteeing a trial de novo on appeal to the District Court, 

all constitutional guarantees will be satisfied. 

Part 4 

The remaining question is whether the balance of the 

small claims procedure, section 25-35-101, MCA, through 25- 

35-406, MCA, exclusive of section 25-35-403(2), MCA, can 

stand. The procedure contains the following severability 

clause: "If a part of this act is invalid, all valid parts 

that are severable from the invalid part remain in effect. 

If a part of this act is invalid in one or more of its 

applications, the part remains in effect in all valid applications that are severable from the invalid applications." 

Ch. 573, Section 21, Laws of Montana (1.977). 

We must find the procedure constitutional if (1) severance leaves an otherwise complete procedure, and (2) we can 

accomplish severance while honoring legislative intent as to 

the balance of the act. 

Section 25-35-303, MCA, provides that all civil actions 

tried in small claims court must be electronically or stenographically recorded. Section 25-35-404, MCA, provides the 

entire record of proceedings in the small claims court shall 

be transmitted to the District Court, including the recording 

or transcript referred to in section 25-35-303, MCA. These 
two sections, which constitute the heart of the appeal 

procedure provided, contemplate an appeal limited to 

questions of law. Since we have struck the prohibition 

against a trial de novo, the appeal procedure which remains 

is incompatible with the appeal procedure required. 

We are not able to ascertain legislative intent. The 

legislature intended to prohibit a trial de novo, and the 

appeal procedure provided is tailored to a review of legal 

questions only. For example, no mention is made of a bond 

requirement on appeal. Yet, in an appeal from justice court 

to District Court, where a trial de novo is required, a bond 

must be posted, section 25-33-201, MCA, through section 25- 

33-207, MCA. 

Because the prohibition against a trial de novo is unconstitutional, we are left without an appropriate appealprocedure. For the reasons previously stated, an appeal 

must be made available with a trial de novo in District 

Court. We, therefore, find that we cannot sever the unconstitutional prohibition, section 25-35-403(2), and have a 

complete act. Neither are we able to determine what the 

legislators' intent on an appeal procedure would have been 

had they known of the constitutional requirement for a trial 

de novo in District Court. 

We hold the small claims procedure in justice court, 

section 25-35-101, MCA, through section 25-35-406, MCA, 

inclusive, to be unconstitutional and void. 

Furthermore, we hold that a judgment obtained under 

this unconstitutional act is not void and the unconstitutionality of the act does not deprive the judgment of its effect. 

Chicot County Drainage Dist. v. Baxter State Bank (1940)~ 308 

U.S. 371, 60 S.Ct. 317, 84 L.Ed 329. 
This opinion is effective as to the litigants in this 

case and effective as to judgments becoming final after the 

date hereof. 

Part 5 

We remand this case to the District Court with directions to vacate the judgment. Plaintiff may refile in any 

court having jurisdiction. 

We concur: 
Mr. Justice John C. Sheehy specially concurring: 

I concur that the act establishing a small claims court 

division in the justice courts, Ch. 572, Laws of 1957 (Title 

25, Ch. 35, MCA) is unconstitutional because it makes no 

provision for a jury trial, contrary to 1972 Mont. Const., 

Art. 11, § 26. 

I disagree with the foregoing opinion, authored by 

Justice Morrison, however, when it concludes that it is 

constitutionally permissible under our state constitution to 

deny a jury trial at the small claims court level in the 

justice court if a trial de novo is afforded on appeal in 

the District Court. 

An unwelcome result of the reasoning of the foregoing 

opinion is that it holds constitutionally invalid a provision 

which is normally perfectly valid, namely, that an appeal 

from the justice court is not to be by trial de novo. There 

is nothing constitutionally impermissible in a legislature 

providing that appeals from a justice court shall be only 

on questions of law. Himovitz v. Justice's Court (1926) 

77 Cal.App. 95, 246 P. 82. It would not be necessary in the 

foregoing opinion to hold such a provision invalid if we 

decided that to provide a jury trial at the first stage of 

the small claims court procedure is a constitutional requirement. 

The foregoing opinion posits that if a litigant has a 

right to a jury trial on appeal through a trial de novo, his 

jury right is preserved. The fact remains, however, that 

the litigant must first pass through a trial in the small 

claims court without a jury before he can get to the appeal 

stage. He would be given no right to a jury trial in the 
first layer of of the decisional system. The state constitution says that "[tlhe right of trial by jury is secure 

to all and shall remain inviolate." 1972 Mont. Const., Art. 

11, § 26. The foregoing opinion, by holding the litigant's 

right to a jury trial in an appeal de novo setting preserves 

the right inviolate, violates it. The litigant is in truth 

denied a jury trial until his appeal. The state constitution 

is not thereby obeyed. 

T further disagree with the foregoing opinion that 

the right to counsel in the small claims court can be constitutionally denied, if the right to counsel is guarantied 

on appeal in a de novo procedure. 

The right to counsel is implicit in the constitutional 

guaranties of due process, and I insist that the right to 

counsel must exist in the small claims court under the 

present statutory scheme. 

The opinion foregoing relies on the Idaho case of 

Foster v. Walus (1959), 81 Idaho 452, 347 P.2d 120, and upon 

the California case of Prudential Ins. Co. v. Small Claims 

Court (1946), 76 Cal.App.2d 379, 173 P.2d 38. California, 

however, in later cases, has had to modify its position 

somewhat with respect to the right to counsel. In Mendoza 

v. Small Claims Court of Los Angeles J.D. (1958), 49 Cal.2d 

668, 321 P.2d 9, it was held that the denial of right to 

counsel in unlawful detainer actions in a small claims court 

was invalid since under the provisions there, a tenant for 

month to month could be deprived of the possession of his 

property after a hearing where the tenant was not represented 

by counsel. Additionally, in Brooks v. Small C1. Ct., Downey 

J.D., Los Angeles Cty. (1973), 8 Cal.3d 661, 504 P.2d 12431 

the California court held that the requirement in the small 
claims court statutes of an undertaking on appeal from a 

judgment in a small claims court constituted a taking of 

property prior to a due process hearing with a right to 

counsel. 

With the later California cases in mind, I direct 

attention to our section 25-35-406, MCA, in the small claims 

court procedure. That statute provides: 

"Execution of judgment. Proceedings to 

enforce or collect a judgment are governed 

by the laws relating to execution upon 

justice's court judgments." 

Under section 25-31-1101, et seq., and section:25-13- 

501, et seq.,~~,the holder of a judgment in a small claims 

court under the present statutory scheme can procure execution 

on the judgment debtor's property. Since the judgment debt~r 

has been denied the right to counsel in the small claims 

court procedure, any such execution would constitute a 

taking of his property and a denial of due process because 

the judgment-debtor is not given an opportunity to have 

counsel before his property is levied upon. There is no 

provision for a stay of execution under our present small 

claims court procedure. 

Because a judgment debtor in a small claims court 

procedure may have his property executed upon, and because 

of the provision that in the small claims court the claimant 

can have the assistance of the justice in framing his complaint, 

(section 25-35-201(2), MCA.) I would hold that the denial 

of right to counsel in the small claims court is an unconstitutional deprivation of due process to the litigants. 

The constitutional defect of no right to counsel could 

not be cured by using the severability clause to uphold the 

remainder of the act. When a court holds that a law may be 

upheld by severing invalid provisions, the remainder of the 
law may be sustained as valid only --- if it is complete - in 

itself - and capable - of being executed - in accordance with -- the 

legislative -- intent. Gullickson v. Mitchell (1942), 113 

Mont. 359, 126 P.2d llC6. Furthermore, the appellate court 

must be able to say that after the elimination of the invalid 

portions, the remainder of the act would have been enacted 

by the legislature. State v. Holmes (1935), 100 Mont. 256, 

47 P.2d 624. I am judicially out of shape for such a long 

j ump . 

Therefore, I would hold that such an act is unconstitutional unless it provides a jury trial in the first 

instance and right to counsel to all parties at all stages. 
Mr. Justice Daniel J. Shea concurring in part and dissenting 

in part: 

I agree that the small claims procedure set up in Title 

25, Ch. 35, MCA, is unconstitutional, and that the severability clause will not save the substance of this act. In 

enacting this act, the legislature ignored the constitutional 

right to jury trial guaranteed by 1972 Mont. Const., Art. 

11, 5 26. The majority, however, holds that it is sufficient 

if a new small claims procedure act guarantees the right to 

jury trial by an appeal to District Court and a second trial 

held there. I part with the majority here becanse I believe 

that the right to jury trial must be guaranteed in the court 

of original jurisdiction--the court that first conducts a 

trial on the merits. A fsir reading of Art. 11, § 26, 

requires this interpretation. 

The majority seizes on the first sentence of Art. 11, § 

25, "[tlhe right of trial by jury is secured to all and 

shall remain inviolatew--but ignores the remaining language 

of this section. It is not enough to quote the first sentence, 

for the remaining language of section 26 shows without 

question that the right to jury trial is guaranteed in each 

of the trial courts of this state. 

The 1972 Mont. Const., Art. 11, 5 26 provides: 

"Trial by jury. The right of trial by jury 

is secured to all and shall remain inviolate. 

But upon default of appearance or by consent 

of the parties expressed in such manner as the 

law may provide, all cases may be tried without 

a j:lry or before fewer than the number of jurors 

provided by law. In all civil actions, two-thirds 

of the jury may render a verdict, and a verdict so 

rendered shall have the same force and effect as if 

all had concurred therein. In all criminal actions, 

the verdict shall be unanimous." 

This section does not distinguish between levels of trial 

courts. 
The meaning of this section, when read in its entirety, 

is crystal clear. The explicit guarantee is set out in the 

first sentence: "the right of trial by jury is secured to 

all and shall remain inviolate." Ey the second sentence, 

trials in - all Montana trial courts can be by less than the 

required number of jurors if the parties agree, or if a 

party defaults. By the third sentence, trial of a civil 

case in - all trial courts of this state, required the agreement of two-thirds of the jury in order to reach a verdict. 

By the fourth and last sentence, trial of a criminal case 

in - all trial courts of this state requires the unanimous 

agreement of the jury in order to reach a verdict. 

I don't know what could be more clear. However, 

reference to the 1889 constitutional provision guaranteeing 

the right to jury trial, shows the intent of the framers in 

transforming the 1889 constitutional provision to the 1972 

provision. The 1889 Mont. Const., Art. 111, 5 23, provides: 

"The right of trial by jury shall be secured 

to all, and remain inviolate, but in all civil 

cases and in all criminal cases not amounting to 

felony, upon default of appearance, or by consent 

of the parties expressed in such manner as the 

law may prescribe, a trial by jury may be waived, 

or a trial had by any less number of jurors than 

the number provided by law. A jury in a justice's 

court, both in civil cases and in cases of 

criminal misdemeanor, shall consist of not more 

than six persons. In all civil actions and in all 

criminal cases not amounting to felony, two-thirds 

in number of the jury may render a verdict, and 

such verdict so rendered shall have the same 

force and effect as if all such jury concurred 

therein. " 

A careful comparison of the 1889 provision with the 

1972 provision, shows that there are only two substantial 

changes--the other changes are style and drafting changes. 

First, under the 1889 Constitution, a defendant could not 

felony 

waive a jury trial in a/criminal case, but under the 1972 

Constitation, a defendant by agreement of the parties, can 
w~ive a jury trial. Second, under the 1889 Constitution in 

nonfelony cases, only two-thirds of the jury need agree to 

reach a binding verdict; but under the 1972 provision, in 

all criminal cases the verdict must be unanimous. 

The Convention Notes on the right to jury trial show 

that these were the only changes contemplated by the delegates. 

The note to section 26 states: 

"Revises 1889 constitution [Art. 111, sec. 231 

by permitting a defendant to waive a jury trial 

in felony cases as well as civil and misdemeanor 

cases and by requiring all jurors [rather than 

2/31 agree before a defendant may be convicted 

of a misdemeanor." 

No one would argue that a person did not have a right 

to a jury trial in justice court under the old constitution; 

and no one should argue that a person does not have a right 

to a jury in justice court, police court, or a small claims 

court under the 1972 constitution. The right is there--it 

is "secured to all and shall remain inviolate." A&. 11, 5 

26. 

For reasons I don't understand, the majority cites, 

without explanation, two United States Supreme Court decisions: 

Capital Traction Co. v. Hoff (1898), 174 U.S. 1, 19 S.Ct. 

580, 589, 43 L.Ed. 873; and Livingston v. Moore (18331, 32 

1J.S. (7 Pet.) 469, 8 L.Ed. 751. Neither case is applicable 

to the question raised here. 

In Livingston v. Moore, suprz, a Pennsylvania case, the 

procedures in that state set up an administrative method for 

settling of accounts between the state and its officers. No 

trial was involved at all. Once the comptroller authorized 

the clerk to issue summary process to collect the amount he 

decided was due, any aggrieved state officer could immediately 

cut off that process by appealing to the Pennsylvania Supreme 
Court and demanding a jury trial. Therefore, the right of 

jury trial was guaranteed the moment the administrative 

proceedings were completed and the comptroller reached a 

decision. 

Another reason Livingston does not apply here is that 

the court interpreted constitutional provisions wholly 

unlike the provision - in Montana. The constitutional provisions 

actually involved in Pennsylvania, stated: 

"In controversies respecting property, and 

in suits between man and man, the parties 

have a right to trial by jury, which ought 

to be held sacred." Art. 22, Const. of 

Penn. adopted in 1776. 

"Trial by jury shall be as heretofore, and 

the right thereof remain inviolate." Sec. 

6, Bill of Rights, Const. of Pznn. adopted 

in 1790. 

These provisions cannot be compared at all with Montana's 

constitutional provision, Art. 11, 5 26. I see no reason 

why Livingston has any bearing on interpreting our own 

constitutional provision. 

Nor does Capital Traction Co. v. Hoff, supra, have any 

bearing on the issue raised here under our own constitution. 

That case involved issues not even involved in this case. 

The first issue was whether the trial procedure in the 

District of Columbia violated the right to a jury trial as 

provided for in the Seventh Amendment to the United States 

Constitution. The second issue was whether the right to 

jury trial based on law existing before the District of 

Columbia became a ward of the United States Government, 

applies after the district became a ward. These issues are 

totally irrelevant to an interpretation of our own constitutional provision on jury trials. 

It is clezir that in holding that the right to jury 

trial under 1972 Mont. Const., Art. 11, 5 26 can be preserved 
by providing for a jury trial at a second trial on appeal, 

the majority has totally ignored the provisions of our 

constitution. It is not enough to base a decision only on 

the first sentence of Art. 11, § 26. 

As I have already stated, the majority got ahead of 

itself in holding that the first trial can take place without 

a jury, but that a second trial with a jury must be guaranteed. 

It also appears by implication in the majority opinion that 

the right to counsel in a civil trial before a jury, must be 

guaranteed, and that the absence of counsel amounts to a 

denial of due process of law. I don't agree. 

I emphasize first that I would require a jury trial to 

be held in any small claims proceedings if either one of the 

parties demanded a jury trial. I also believe there are 

benefits to a jury trial in a small claims court if it is 

conducted without benefit of counsel. 

One of the main objectives of a small claims procedure 

is to have speedy and inexpensive justice. Although this 

concept is illusory at best, it is still an objective of 

which we should not lose sight. The presence of counsel at 

a trial often makes it less speedy, and surely makes it more 

expensive. 

A jury trial without benefit of counsel can reach the 

equities of a case. One of the objectives of a small claims 

court is to simplify pleadings, to do away with the technical 

rule6 of evidence, and to generally get to the heart of the 

issue in order to reach an equitable solution. This can be 

done only if the small claims court is more a court of 

equity than it is a court of law. 

Although I have no empirical evidence to back my statement, I don't think I am going astray in stating that most 
people in this country do not want to entrust the fate of a 

case to the hands of one person. Most people would feel far 

better about their trial if it was a jury of their fellow 

citizens deciding their case. People in this country are 

naturally suspicious of entrusting their fate to one person. 

If a jury, zather than a judge, decides a small claims case, 

I believe that a party on the receiving end of an adverse 

jury verdict, will more readily abide by the jury's decision. 

If so, he is less likely to take an appeal and the litigation 

will be ecded. 

A small claims court judqe who genuinely wants to see 

the case fairly submitted to a jury, will do his best to see 

that the jury has the whole story. If the proceedings are 

to be effective, the jury should be invited to participate 

in the trial by asking questions and generally getting to 

the bottom of the case so that the equities can be felt. 

Once those equities are felt, I believe the collective 

judgment of a jury is more likely to reach an equitable 

result than is the judgment of one person. A jury is the 

cross-section of the community and a jury is the conscience 

of the community. A judge is not. 

I do not say that a jury decision in a small claims 

court should in all cases be irrevocably final. Perhaps 

there should be an appeal process, and in that appeal process 

it might be best to let counsel participate. Nor do I say 

that a jury system as I recommend would not have its abuses; 

there is no system yet devised by man that has not been 

abused. But if abuses do occur, surely the existing legal 

remedies could be fashione2 to reach the abuses. If the 

abuses were frequent and wide-ranging, I have no doubt that 

the legislature would be asked to convert the small claims 

court into a court of law, with all the forinal procedures. 
Under Art. 11, 5 26 of our constitution, the right to 

jury trial in a small claims court is "inviolate." But 

if we have the faith in the jury system as'we all say we do 

(and I am a true believer), we should let it operate in a 

small claims court differently than in a strict court of 

law. The results may be good, or they may be bad, but we 

should give it a chance, for any abuses can be corrected. 

There are several unhealthy implications of a decision 

that permits a jury trial only at a second trial, after there 

on the 

has already been a nonjury trial/ merits In the court below. 

The realities are that in nany if not most of the trials, a 

jury trial waiver would be the result. We should not bury our 

heads in the sand. 

The legislature cannot help but be aware that the district 

courts, are, for the most part, overburdened with cases to 

try--both criminal and civil. There is more than a probability 

that a case appealed from a small claims court will not have 

as good a chance of getting on the jury trial calendar as 

are the criminal cases and civil cases filed directly in district 

court. The case on appeal from the small claims court may 

well languish at the district court level for a long period 

of time before it is ever tried. Nor can it be denied that 

district judges are most reluctant to call in juries to try 

civil appeals coming to them from a lower court. A district 

court judge undoubtedly will directly or indirectly pressure 

counsel or the parties to waive a jury trial. It is not 

unheard of that district judges have their own way of convi~cing 

counsel that it is best to waive a jury trisl, and that 

message inevitably gets back to the client. Only a strongwilled client can prevail upon his lawyer and the trial 
judge in his insistence on a jury trial. These are not 

theories; they are the realities. If the right to a jury 

trial is to mean anything, this is not the way it should 

be. 

Even if there was no pressure from district judges and 

lawyers to waive a jury trial in an appeal from a small 

claims court, the undeniable fact is that it would take a 

long time to get to trial, whether the trial is by jury, or 

whether the trial is waived and a judge hears the case. If 

the general purpose of a small claims court is to be served, 

it is best to have the full trial on the merits, before a 

jury, in the small claims court. 

We have today declared the small claims act to be 

unconstitutional. If the legislature decides to again 

create a small claims court, I would suggest that its members 

closely read the 1972 Mont. Const., Art. 11, S 26. I think 

they would agree that they must provide for a jury trial in 

the small claims court. That section does not distinguish 

between district court trials and lower court trials when 

guaranteeing the right to jury trial. But the majority has 

erroneously done so here. /F"\ 
Mr. Chief Justice Frank I. Haswell, dissenting: 

I would declare section 25-35-403 (2), MCA prohibiting 

trial de novo in the District Court and restricting appeals to 

questions of law unconstitutional, sever it from the rest of the 

Act, and declare the balance of the Act constitutional. 

Accordingly, I would vacate the judgment and remand the case to 

the District Court for a trial de novo. 

I agree with the majority opinion on all points save one. 

I part company with the majority in its holding that the entire 

Act is unconstitutional because the appeal procedure which 

remains a£ ter excising section 25-35-403 (2), MCA, I' is incompatible with the appeal procedure required;" that "we are unable 

to ascertain legislative intent" with regard to the appeal 

procedure; and therefore the remainder of the Act is incomplete 

and cannot be severed. 

In my view, legislative intent is clear and unmistakable 

from the language of the Act: 

"Section 21. Severability. If a part of this 

act is invalid, all valid parts that are 

severable from the invalid- part remain in 

effect. If a part of this act is invalid in one 

or more of its applications, the part remains in 

effect in all valid applications that are 

severable from the invalid applications." Laws 

of Montana (1977), Ch. 572, 5 21. 

I find no difficulty in severing the prohibition against 

trial de novo in the District Court and limiting the appeal to 

quest ions of law from the rest of the Act. The small claims procedure on appeal remains complete because the statutes governing 

appeals from the justice court to the District Court apply. 

Section 25-33-101 et seq., MCA. These statutes provide a procedure for the filing of an appeal (sections 25-33-101 to 25-33-104 

inclusive, MCA), for an undertaking and stay of execution on 

appeal (sections 25-33-201 to 25-33-207 inclusive, MCA) , for a 

trial de novo in the District Court (section 25-33-301, MCA) 
and for the procedure in the District Court on appeal (section 

25-33-301 to 25-33-306 inclusive, MCA). The provisions of the 

small claims procedure, a specific statute, control over the provisions governing appeals from justice court to the District 

Court, a general statute, only to the extent of any inconsistencies. 

Martel Constr. Inc. v. Gleason Equip. Inc. (1975), 166 Mont. 479, 

483, 534 P.2d 883, 885. Fickes v. Missoula County (1970), 155 

Mont. 258, 272, 470 P.2d 287, 294. It might be argued that the 

provisions regarding tapes or transcripts of the justice court 

proceedings (section 25-35-404 and 25-35-405, MCA) are incompatible with a trial de novo in District Court, but their utility 

for impeachment of witnesses in the District Court and 

discouraging alteration of testimony in the District Court are 

valid objectives and remain undiminished. 

As I see it, the remainder of the Act would have been 

enacted by the legislature a£ ter excising the unconstitutional 

part by reason of the severability provision in the Act itself, 

and in conformity with the other requirements in Gullickson v. 

Mitchell (1942), 113 Mont. 359, 375, 126 P.2d 1106, 1115, and 

City of Missoula v. Holmes (1935), 100 Mont. 256, 291, 47 P.2d 

624, 636. 

Likewise, the provisions on appeal provide a complete appeal procedure by incorporation of existing statutes governing appeals 

from justice court to District Court. Viewed in this way, I find 

the Act complete in itself and one which the legislature would 

have intended to be in effect even without section 25-35-403(2), 

MCA. 

For the foregoing reasons, I dissent from the majority 

holding that the entire Small Claims Court Act is 

unconstitutional. 

Chief Justice \