IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 3

DAVID E. McGILLIVRAY, WILLIAM J. BOONE, 

STANLEY E. CARTER, LINDA SUSAN DAVIS, DALE C.

FREY, STACEY A. GROFF, RICHARD Q. WOIRHAYE, 

MONTE JAY THOMAS, and RANDY L. WELLS, 

Plaintiffs and Appellants, 

v. No. 98-009

STATE OF MONTANA, 

Defendant and Respondent. 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

AARON R. MAKI, 

Plaintiff and Appellant, 

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

v. No. 98-157

STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, in and for the County of 

Missoula, Honorable Douglas G. Harkin Judge Presiding (98-009) 

District Court of the Eighteenth Judicial District, in and for the County of 

Gallatin, Honorable Mike Salvagni Judge Presiding (98-157) 

COUNSEL OF RECORD:

For Appellants:

Bryan C. Tipp, Tipp and Buley, Missoula, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General; Chris D. Tweeten, 

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

Chief Counsel, Helena, Montana

Submitted on Briefs: November 19, 1998

Decided: January 7, 1999

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1. In these consolidated appeals, the Plaintiffs and Appellants petitioned the Fourth 

Judicial District Court, Missoula County, and the Eighteenth Judicial District Court, 

Gallatin County, for declaratory judgment that §§ 46-7-102, 46-17-201(3), and 46-17-

311(1), MCA, as amended by Ch. 129, L. 1997, violate their fundamental 

constitutional rights under the Montana Constitution. The District Courts denied the 

relief requested, and these appeals followed. We reverse. 

¶2. The issue is whether the District Courts erred as a matter of law in dismissing the 

Plaintiffs' complaints for declaratory relief.

¶3. In August 1997, the Missoula County Plaintiffs, each of whom was then a 

defendant in a criminal proceeding before the Missoula County Justice Court, filed 

their complaint for declaratory relief in the District Court. They asked the court to 

declare that §§ 46-7-102, 46-17-201(3), and 46-17-311(1), MCA, violated their right to 

jury trial as guaranteed under the Montana Constitution by forcing them to choose 

between having a trial by jury in Justice Court or deferring the right to jury trial for 

a possible appeal to District Court.

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

¶4. The State of Montana moved to dismiss the complaint, arguing that the issues 

raised could properly be addressed in the Plaintiffs' pending criminal actions and 

were therefore not appropriate for declaratory judgment. The District Court agreed. 

Stating that "the purpose of the Declaratory Judgment Act in Montana does not 

allow this Court to render such a decision," the District Court granted the State's 

motion to dismiss. 

¶5. Plaintiff Maki appeals from a comparable ruling of the Eighteenth Judicial 

District Court, Gallatin County. Plaintiffs' request that the two causes be 

consolidated on appeal was granted by order of this Court on June 16, 1998. 

Discussion

¶6. Did the District Courts err as a matter of law in dismissing the Plaintiffs' 

complaints for declaratory relief?

¶7. On appeal, this Court reviews a decision that declaratory judgment is not proper 

to determine whether the district court abused its discretion. Brisendine v. State Dept. 

of Commerce (1991), 253 Mont. 361, 364, 833 P.2d 1019, 1020. We review the 

conclusions on which the lower court's decision is based as we do all legal issues, to 

determine whether those conclusions are correct. Ridley v. Guarantee Nat. Ins. Co.

(1997), 286 Mont. 325, 329, 951 P.2d 987, 989. 

¶8. The purpose of the Uniform Declaratory Judgment Act is "to settle and to afford 

relief from uncertainty and insecurity with respect to rights, status, and other legal 

relations." Section 27-8-102, MCA. Under the Act, courts have the power to declare 

rights, status, and other legal relations whether or not further relief is or could be 

claimed. Section 27-8-201, MCA. Declaratory judgment is proper when a justiciable 

controversy exists: genuine and existing rights are affected by a statute; a judgment 

of the court can effectively operate on the controversy; and a judicial determination 

will have the effect of a final judgment upon the rights, status, or legal relations of 

the real parties in interest. Gryczan v. State (1997), 283 Mont. 433, 442, 942 P.2d 112, 

117. 

¶9. The State argues that an adequate remedy exists for any denial of constitutional 

rights in this case because each misdemeanor criminal defendant can appeal the 

denial of jury trial to this Court. By the State's scheme, each misdemeanor defendant 

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

who wishes to enforce his constitutional right to trial by jury in all criminal 

prosecutions must first be convicted by jury in justice court. That defendant must 

then go through and pay for both a district court trial and an appeal to this Court 

before the uncertainty concerning that defendant's right to trial by jury can be 

adjudicated. If this Court then determines that the defendant had a right to jury trial 

in district court, that defendant must endure and pay for a new trial on remand. 

Only those defendants who have the financial resources and personal fortitude to 

endure four different court proceedings would be allowed to exercise their 

constitutional right to a trial by jury. Those who will not or cannot afford this 

extensive litigation would be denied their right. 

¶10. This issue could be raised, but it could not be decided in the pending criminal 

prosecutions, either in justice court or in district court. The denial of this 

constitutional right could only be decided upon appeal to this Court when raised as a 

procedural defect in the underlying criminal proceedings. Declaratory judgment on 

this issue is therefore not prohibited by either Goff v. State (1962), 141 Mont. 605, 374 

P.2d 862, or State v. Wilson (1972), 160 Mont. 473, 503 P.2d 522, as is argued by the 

State.

¶11. We hold that the District Courts erred in ruling that declaratory judgment was 

not proper in these cases. A justiciable controversy existed and there was no other 

reasonable remedy to reduce Plaintiffs' and Appellants' uncertainty as to their legal 

rights and status in the criminal actions pending against them. 

¶12. As to the substantive issue on which declaratory judgment is sought, this Court 

decided that question in our recent opinion in Woirhaye v. Fourth Judicial District, 

1998 MT 320. Sections 46-7-102, 46-17-201(3), and 46-17-311(1), MCA, as amended 

by Ch. 129, L. 1997, violate the right to a jury trial as guaranteed under the Montana 

Constitution. These matters are remanded with instructions that the District Courts 

enter declaratory judgment in favor of the Plaintiffs and Appellants.

/S/ J. A. TURNAGE

We concur: 

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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