No 

No. 98-223

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 320

RICHARD QUINTON WOIRHAYE, 

Relator, 

v.

MONTANA FOURTH JUDICIAL DISTRICT

COURT, MISSOULA COUNTY, THE 

HONORABLE JOHN S. HENSON, Presiding Judge, 

Respondent. 

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ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Relator: 

Richard R. Buley, Tipp & Buley, Missoula, Montana

For Respondent:

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

Assistant Attorney General, Helena, Montana

Karen Townsend, Deputy County Attorney, Missoula, Montana 

Heard and Submitted: November 19, 1998

Decided: December 23, 1998

Filed:

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__________________________________________

Clerk

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

¶1. In this case, Richard Quinton Woirhaye seeks a writ of supervisory control 

regarding a decision of the Fourth Judicial District Court, Missoula County. That 

court upheld the constitutionality of § 46-17-201(3), MCA, against Woirhaye's claim 

that the statute violated his right to trial by jury. In a June 2, 1998 order, we 

accepted supervisory control. We now hold that § 46-17-201(3), MCA, violates the 

right to trial by jury.

¶2. The issue is whether § 46-17-201(3), MCA, infringes upon the rights guaranteed 

under Article II, Sections 24 and 26 of the Montana Constitution by allowing a 

misdemeanor criminal defendant to exercise his right to a jury trial only once, in 

either justice court or in district court on trial de novo. 

¶3. In March 1997, Richard Quinton Woirhaye was charged with a misdemeanor 

offense of driving under the influence of alcohol (DUI) in Missoula County, Montana. 

Inasmuch as the offense was a misdemeanor, the complaint was brought before the 

Missoula County Justice of the Peace, pursuant to § 3-10-303, MCA. 

¶4. Woirhaye asserted his right to a jury trial at that proceeding, and the justice 

court jury convicted him of the DUI charge. Woirhaye then appealed to the District 

Court for a trial de novo pursuant to Article VII, Section 4(2), of the Montana 

Constitution and § 46-17-311, MCA. 

¶5. Section 46-17-201(3), MCA, provides:

A defendant in a misdemeanor case filed in justice's or city court is limited to one jury 

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trial, either in justice's or city court or on appeal to the district court. The defendant shall 

either elect a jury trial in justice's or city court or reserve jury trial for the district court in 

the event of conviction and subsequent appeal to the district court. The defendant's 

election or reservation must be noted by the court on the face of the charging document.

Wishing to be tried by jury in the District Court, Woirhaye moved that court to declare 

that § 46-17-201(3), MCA, violated his right to jury trial and was therefore 

unconstitutional. The court entered an order and supporting memorandum of law denying 

Woirhaye's motion. Woirhaye then applied to this Court for a writ of supervisory control, 

and this Court accepted jurisdiction.

Discussion

¶6. Does § 46-17-201(3), MCA, infringe upon the rights guaranteed under Article II, 

Sections 24 and 26 of the Montana Constitution, by allowing a misdemeanor criminal 

defendant to exercise his right to a jury trial only once, in either justice court or in 

district court on trial de novo? 

¶7. Once this Court has accepted supervisory control, as we have in this case, our 

standard of review of constitutional questions is plenary. If, upon presentation of a 

matter to the Court by means of a writ, it is apparent from the record that a relator 

will be deprived of a fundamental right, both justice and judicial economy require 

the Court to then resolve the issue in favor of the relator. State ex rel. Coburn v. 

Bennett (1982), 202 Mont. 20, 34, 655 P.2d 502, 509.

¶8. Section 46-17-201(3), MCA, contains the substantive provisions of Chapter 129, 

L. 1997. The sponsor of this legislation described it as a bill which "streamlines the 

process [of criminal misdemeanor trials] and saves counties money and citizens time 

on juries." Testimony of sponsor at hearing before Montana Senate Judiciary 

Committee, March 7, 1997. The other provisions of the Act, codified at §§ 46-7-102(1)

(g) and 46-17-311(1), MCA, require the justice of the peace to inform misdemeanor 

criminal defendants of their "right to elect one jury trial," and reiterate that jury 

trial on appeal to district court is available only if jury trial was not elected in justice 

court. 

¶9. The right to trial by a jury of one's peers has been part of the Anglo-American 

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concept of justice since the Magna Carta was signed in the year 1215. Chapter 39 of 

the Great Charter provides: "No free man shall be taken, imprisoned, disseised, 

outlawed, banished, or in any way destroyed, nor will We proceed against or 

prosecute him, except by the lawful judgment of his peers and by the law of the 

land." Like other concepts articulated in the Magna Carta, the concept of the right to 

trial by jury has flourished and, in fact, expanded over time. 

¶10. In the United States, the right to trial by jury is guaranteed under Article III, 

Section 2, clause 3, and the Sixth Amendment to the United States Constitution. The 

Sixth Amendment right to trial by jury was made applicable to the States under the 

Due Process Clause of the Fourteenth Amendment. 

¶11. In addition, the right to trial by jury is guaranteed under the Montana 

Constitution. Article II, Section 24, Montana Constitution, sets forth the rights of the 

criminally accused:

In all criminal prosecutions the accused shall have the right to appear and defend in person 

and by counsel; to demand the nature and cause of the accusation; to meet the witnesses 

against him face to face; to have process to compel the attendance of witnesses in his 

behalf, and a speedy public trial by an impartial jury of the county or district in which the 

offense is alleged to have been committed, subject to the right of the state to have a change 

of venue for any of the causes for which the defendant may obtain the same. [Emphasis 

supplied.]

Article II, Section 26, of the Montana Constitution states that "[t]he right of trial by jury is 

secured to all and shall remain inviolate," and further provides that "[i]n all criminal 

actions, the verdict shall be unanimous."

¶12. In denying Woirhaye's motion regarding jury trial, the District Court relied 

upon Ludwig v. Massachusetts (1976), 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732. In 

Ludwig, the United States Supreme Court upheld Massachusetts' two-tiered system 

of trial courts for criminal cases, in which an initial trial held before a judge sitting 

as the finder of fact could be appealed to a higher court in which the defendant could 

obtain a jury trial. The Court held that Massachusetts' two-tiered system "absolutely 

guarantees trial by jury to persons accused of serious crimes and . . . is fair and not 

unduly burdensome." Ludwig, 427 U.S. at 630, 96 S.Ct. at 2788, 49 L.Ed.2d at 741.

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¶13. Unlike the issue in the present case, the issue in Ludwig related to the right to 

jury trial as guaranteed under the United States Constitution. The question was 

further limited to the extent of the Sixth Amendment right to jury trial ("[i]n all 

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, 

by an impartial jury . . . "), made applicable to the States through the Fourteenth 

Amendment. As the Court pointed out, the Article III, Section 2, clause 3 provision of 

the United States Constitution stating that "[t]he Trial of all Crimes . . . shall be by 

Jury" does not apply to the States and was therefore not at issue. 

¶14. Additionally, when interpreting our own State Constitution, we have refused to 

"march lock-step" with the United States Supreme Court's interpretation of 

corresponding provisions in the federal constitution. State v. Bullock (1995), 272 

Mont. 361, 384, 901 P.2d 61, 75. This is especially true where, as here, the language of 

the Montana Constitution setting forth the rights guaranteed is not identical to the 

language used in the federal Constitution. 

¶15. In interpreting a constitutional provision, the intent of the framers of the 

constitutional provision controls its meaning. Keller v. Smith (1976), 170 Mont. 399, 

405, 553 P.2d 1002, 1006. The intent of the framers should be determined from the 

plain meaning of the words used. If that is possible, no other means of interpretation 

are proper. Keller, 170 Mont. at 405, 553 P.2d at 1006. 

¶16. The guarantees of the Montana Constitution are plain on their face in that an 

accused has an absolute right to a trial by jury "[i]n all criminal prosecutions." Art. 

II, Sec. 24, Mont. Const. Further, in all criminal cases an accused has the right to 

have the jury return a unanimous verdict. Art. II, Sec. 26, Mont. Const. 

¶17. These provisions in the Montana Constitution were modeled after Article III, 

Sections 16 and 23 of the 1889 Montana Constitution, with some changes. A 

comparison of the 1889 and the 1972 Montana Constitutions shows that the intent of 

the framers of the present Constitution was to strengthen the jury trial right in 

misdemeanor cases. Under Article III, Section 23 of the 1889 Montana Constitution, 

a person could be convicted of a misdemeanor by a jury verdict of two-thirds of the 

jury's number. However, the 1972 Montana Constitution strengthened the jury trial 

right by providing that in all criminal actions, both felony and misdemeanor, the 

verdict of the jury must be unanimous. Art. II, Sec. 26, Mont. Const.

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¶18. The State argues that Article II, Section 24 of the Montana Constitution only 

guarantees the right to "a . . . trial by an impartial jury" (emphasis added) in all 

criminal prosecutions. The State asserts that as long as one jury trial is provided, the 

constitutional guarantee is satisfied.

¶19. The right to trial by jury is guaranteed not only under Article II, Section 24, but 

also under Article II, Section 26 of the Montana Constitution: "The right of trial by 

jury is secured to all and shall remain inviolate." The State's argument is not 

persuasive when measured against the language of Section 26.

¶20. The State also points out that Article VII, Section 4(2) of the Montana 

Constitution clearly allows for the possibility that laws might be enacted making 

appeals to district court from justice court not de novo. However, that provision of 

the Constitution is not implicated in this case. Section 46-17-201(3), MCA, does not 

alter the de novo nature of appeals from justice court to district court. Moreover, the 

absence of a guarantee of de novo review does not diminish the right to jury trial in 

fact finding forums. 

¶21. The parties disagree as to whether trial de novo in district court is a different 

prosecution from the one in justice court. We note that it is a different prosecution in 

the sense that both the State and the defense are free to bring in new evidence and 

make new arguments at trial de novo in district court. 

¶22. In addition, and regardless of whether justice court and district court 

proceedings constitute one prosecution or two, it is undisputable that § 46-17-201(3), 

MCA, acts, in effect, as a forced waiver of the right to a jury trial either at the justice 

court level or at the district court level. Under this statute, if errors occurred in a 

justice court jury trial during voir dire, empaneling of the jury, presentation of 

evidence to the jury, or instructions to the jury, the defendant could not raise these 

issues on appeal to district court, since an appeal to that court must be by trial de 

novo. Those issues would not be reviewable by any court, nor would the defendant be 

entitled to a jury trial in district court. If there were a defect in the jury process in 

justice court, the only remedy under the statute would be appeal and trial de novo

before a judge, not a jury, in district court. This results in the very real possibility 

that a misdemeanor criminal defendant may be granted no valid jury trial at all. 

¶23. The State cites North Central Services, Inc. v. Hafdahl (1981), 191 Mont. 440, 625 

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P.2d 56, as authority in support of the constitutionality of § 46-17-201(3), MCA. 

Hafdahl involved a challenge to the small claims court procedure established under 

Title 25, Chapter 35, MCA (1979). That statutory procedure made no provision for a 

jury trial in small claims court. This Court stated in that opinion that the 

constitutional right to trial by jury was satisfied if it was granted at the district court 

level, though denied at the small claims level. Hafdahl, 191 Mont. at 444, 625 P.2d at 

58. 

¶24. That language, however, is dicta and not the basis for the holding in Hafdahl. 

The critical holding on the jury trial issue in Hafdahl hinged on the statutory 

provision that an appeal from small claims court was limited to questions of law and 

was not a trial de novo in district court. This Court held that because appeals from 

small claims court were limited to questions of law, the statute unconstitutionally 

violated the right to jury trial by effectively denying the right to trial by jury at all 

levels. Hafdahl, 191 Mont. at 444-45, 625 P.2d at 59. 

¶25. It is clear to this Court that under Montana's Constitution, a defendant has an 

absolute right not to be convicted of a misdemeanor by less than a unanimous jury. 

Section 46-17-201(3), MCA, however, forces a misdemeanor defendant to be 

convicted by a judge, either in justice court or in district court, rather than by a 

unanimous jury. 

¶26. We decline to follow the dicta in Hafdahl that the right to trial by jury is 

satisfied if it is granted at the district court level although denied at the small claims 

court level, and we will not follow the dicta in Hafdahl in future cases. We hold that 

because it impinges upon rights guaranteed under the Montana Constitution, § 46-17-

201(3), MCA, is unconstitutional and therefore must be stricken from the laws of this 

State. For the same reason, the provisions of Chapter 129, L. 1997, which have been 

codified at §§ 46-7-102(1)(g) and 46-17-311(1), MCA, are stricken as well.

¶27. It is so Ordered.

/S/ J. A. TURNAGE

We concur: 

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/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

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