NO. 92-616 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

v. 

JOHN McCARVEL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles F. Moses 

Billings, Montana 

For Respondent: 

(argue, Law Firm, 

Mary Jane McCalla (argued), City Attorney's Office, 

City of Billings, Billings, Montana 

Submitted: September 3, 1993 

Filed: 

Decided: November 18, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The City of Billings filed its complaint in the City Court of 

the City of Billings in Yellowstone County on June 21, 1991, 

alleging that on that same date defendant John M. McCarvel operated 

his motor vehicle while under the influence of alcohol in violation 

of 5 61-8-401(a), MCA (1989). Over defendant's objection, the 

charge against him was tried before a jury in City Court on 

July 10, 1992. The jury returned its verdict, finding defendant 

guilty as charged. Defendant appealed his conviction to the 

District court for the Thirteenth Judicial District in Yellowstone 

County and moved that court to dismiss the charges against him as 

a matter of law. The motion was denied. Following denial of that 

motion, defendant moved to change his plea from not guilty to 

guilty, and with the City's consent pursuant to 5 46-12-204(3), 

MCA, reserved his right to appeal from the District Court's denial 

of his motion to dismiss. This appeal is Prom that order. We 

affirm the order of the District Court. 

The issues raised by defendant on appeal are as follows: 

1. Did the District Court err when it refused to dismiss the 

charge against defendant based on the City Court's denial of his 

demand for a nonjury trial? 

2. Did the District Court err when it refused to dismiss the 

charge against defendant based on the fact that he was charged with 

a violation of a state statute, rather than a city ordinance? 

3. Did the District Court err when it held that the city 

attorney had authority to prosecute defendant in this case? 

2 
DISCUSSION 

The following facts were stipulated to by the parties in the 

District Court and provide the factual background for defendant's 

appeal : 

A complaint was filed against John McCarvel on June 21, 1991, 

charging defendant with driving while under the influence of 

alcohol, in violation of 5 61-8-401(a) , PlCA (1989) . The City of 

Billings demanded that the issues raised by its complaint be tried 

by a jury. Defendant, however, waived his right to trial by jury 

and moved to strike the city attorney's jury demand. 

The City Court rejected defendant's demand for a nonjury trial 

and set this case for trial with a jury on July 10, 1992. Prior to 

trial, defendant moved to dismiss the case on the basis that the 

City had no authority to charge him with a violation of State law 

and that the city attorney had no authority to prosecute him. 

A jury trial was held on July 10, 1992, at which time the city 

attorney represented the City of Billings, and defendant was 

represented by his own counsel. The jury returned a verdict, 

finding that defendant was guilty as charged with driving under the 

influence of alcohol. The City Court Judge pronounced sentence, 

and defendant filed a timely notice of appeal to the District 

Court. 

There is no stipulation between the parties regarding what 

occurred in the District court, and there is very little record. 

However, it appears from the District Court record that the 

following events transpired in the District Court: 

3 
After filing his notice of appeal, defendant moved the 

District Court to dismiss the charge against him on the basis that 

he had been denied equal protection and due process when he was 

denied his right to waive a jury trial in the City Court. As 

additional bases for his motion, he asserted that the City had no 

authority to prosecute him under state law, and that the city 

attorney had no authority to prosecute the charges against him. 

In response to defendant's motion, the City pointed out that 

defendant's appeal to the District Court entitled him to a trial de 

novo and that it had no objection to defendant's waiver of trial by 

jury in the District Court. It contended that, therefore, the City 

Court's failure to grant defendant's waiver of a jury trial was 

irrelevant. The City objected to the other bases for defendant's 

motion based on their merits. 

On November 4, 1992, the District Court denied defendant's 

motion to dismiss. Eight days later, defendant filed his waiver of 

trial by jury. No jury demand was filed by the City, and there is 

no further order from the District Court denying defendant's 

request to waive trial by jury. 

Instead, the District Court's minute entry dated November 25, 

1992, indicates that defendant moved for permission to withdraw his 

plea of not guilty and enter a plea of guilty to the charge of 

driving under the influence of alcohol. That motion was granted 

and defendant's guilty plea was accepted. 

On December 11, 1992, an amended judgment was entered which 

reflects that defendant's guilty plea was entered pursuant to 

4 
5 46-12-204(3), MCA, with the consent of the city attorney, so that 

defendant reserved his right to appeal from the District Court's 

denial of his motion to dismiss the charge against him. It is 

clear from the transcript of the hearing at which the change of 

plea was accepted that defendant was not appealing from a District 

Court denial of his right to waive trial by jury. He intended to 

appeal from the District Court's refusal to dismiss the charge 

against him. The following dialogue is illustrative: 

MS. McCALLA: Yes, your honor. The City has no objection 

to the defendant reserving his right to take his pretrial 

motions up for appeal. 

THE COURT: The court will approve that plea under those 

conditions. The specified conditions namely would be the 

motion to dismiss filed by the defendant? 

MR. MOSES: Well, we're entering a plea of guilty. 

THE COURT: I understand. But you're reserving the right 

to have a post-judgment ruling upon the pre-judgment 

motion? 

MR. MOSES: Yes, that is entirely correct. The court is 

correct, and that's the position that we take. 

THE COURT: And so that the record is clear, as I 

understand the statute, the specified motion, the motion 

that is being specified is the motion to dismiss filed in 

this Court by you on behalf of the defendant? 

MR. MOSES: That is true, based upon the fact that we're 

pleading guilty. 

Did the District Court err when it refused to dismiss the 

charge against defendant based on the City Court's denial of his 

demand for a nonjury trial? 
Prior to October 1, 1991, 5 46-17-201(2), MCA, provided that 

in misdemeanor cases "[a] trial by jury may be waived by the 

consent of both parties expressed in open court and entered in the 

docket." (Emphasis added). Based upon an amendment to that 

statute in the 1991 session of the Legislature, the statute now 

provides, and provided at the time of defendant's trial in Billings 

City Court, as follows: "Upon consent of the defendant, a trial by 

jury may be waived." (Emphasis added). 

Defendant contends that based on this change, he had a 

statutory right to a nonjury trial Ln City Court, and that the City 

Judge's refusal to grant a nonjury trial violated his 

constitutional rights to equal protection and to due process. The 

City, on the other hand, successfully argued that pursuant to 

Article 11, Section 26, of the Montana Constitution, a jury trial 

could not be waived without its consent. The City Court agreed. 

Without reaching the due process and equal protection issues, 

we agree that pursuant to 5 46-17-201(2), MCA (as amended in 1991), 

defendant had a statutory right to waive trial by jury in the City 

court. See State ex rel. Nelson v. Ninth Judicial District Court, supreme Court Cause 

No. 92-512, decided November 18, 1993. 

However, we do not agree that the District Court erred by 

failing to dismiss the charges against defendant after he appealed 

to the District Court from the City Court. 

Pursuant to 5 25-33-301, MCA, defendant was entitled to a 

trial de novo in the District Court. That section provides: 
(1) All appeals from justices' or city courts must be 

tried anew in the district court on the papers filed in 

the justice's or city court unless the court, for good 

cause shown and on such terms as may be just, allow other 

or amended pleadings to be filed in such action. The 

court may order new or amended pleadings to be filed. 

Each party has the benefit of all legai objections made 

in the justice's or city court. 

(2) When the action is tried anew on appeal, the 

trial must be conducted in all respects as other trials 

in the district court. The provisions of this code as to 

trials in the district courts are applicable to trials on 

appeal in the district court. 

Pursuant to the right provided in 5 46-17-201, MCA, defendant 

waived his right to jury trial in the District Court. The City 

lodged no objection to that waiver, and made no demand of its own 

for trial by jury. There is no indication in the record that the 

District Court overruled defendant's waiver of his right to trial 

by jury. The only indication is that the District Court refused to 

dismiss the charges altogether based on the fact that defendant's 

waiver had not been honored in the City Court. We have previously 

held that: 

The district court does not, on appeal from a justices 

court, sit as a court of review, but tries the cause de 

rlovo (Code Civ. Proc., sec. 1761; Pen. Code, sec. 2717, 

Missoula El. Light Co. v. Mqun , 13 Mont . 394, 34 Pac. 488. ) 

After the cause reaches that court, the trial and other 

proceedings are the same as in causes originating there, 

its jurisdiction depending upon the fact of jurisdiction 

by the justice's court of the subject matter and of the 

parties. That the justice had jurisdiction of the 

offense charged here is clear. (Code Civ. Proc., sec. 

68); that it had jurisdiction of the defendant is also 

clear, because the record discloses his plea of not 

guilty and his presence at trial and judgment. The 

defendant, having by his appeal asked for a trial de ?love, 

cannot be heard to insist that the district court should 

confine its action thereon to a review of errors and 

irregularities in the proceedings ofthe justice [court,] 
and determine the case accordingly. By taking the 

appeal, the irregularities attending the rendition of 

judgment were waived. The motion was properly denied. 

Stutev. OlBrien (1907), 35 Mont. 482, 491, 90 P. 514, 516-17. 

Likewise, in this case, the District Court was not a court of 

review, it was an opportunity for defendant to have a trial de novo 

without a jury and thereby cure whatever prejudice resulted from 

the City Court's refusal to apply the right to waiver provided for 

in § 46-17-201, MCA. We hold that the District Court did not err 

by refusing to dismiss the charge against defendant based on errors 

or irregularities that occurred in the City Court. 

11. 

Did the District Court err when it refused to dismiss the 

charge against defendant based on the fact that he was charged with 

a violation of a state statute, rather than a city ordinance? 

For his second issue on appeal, defendant contends that when 

the City of Billings enacted 5 61-8-401, MCA, which prohibits 

operating a motor vehicle under the influence of alcohol, it failed 

to adopt the penalty provisions found at 5 61-8-714, MCA, and 

therefore, was without authority to prosecute defendant. 

The City responds that Article 24.101 of the Billings, 

Montana, City Code, provides that: 

It is unlawful and punishable as provided in 

sections 61-8-714 and 61-8-723 for any person who is 

under the influence of: 

(a) alcohol to drive or be in actual physical 

control of a vehicle upon the ways of this state open to 

the public . . . . 
Therefore, the City points out that its ordinance adopting 

5 61-8-401, MCA, does in fact provide a penalty provision. 

However, more importantly, the City responds that defendant was not 

charged under its city ordinance, but instead under the state 

statute found at 5 61-8-401(a), MCA. It points out that pursuant 

to 5 3-11-302(2), MCA, it was authorized to bring a criminal action 

in its name for a violation of state statutory law that occurs 

within the Billings city limits. Furthermore, the City points out 

that 5 3-11-102, MCA, provides that the City Court has concurrent 

jurisdiction with the Justice Court to decide misdemeanor 

violations arising under State law when they occur within the City. 

We agree. 

We conclude that pursuant to the above statutes, the City did 

have authority to prosecute defendant and that the District Court 

did not err when it refused to dismiss the charge against defendant 

based on lack of statutory authority for the charge. 

111. 

Did the District Court err when it held that the city attorney 

had authority to prosecute defendant in this case? 

The final basis for defendant's motion to dismiss the charge 

against him and for this appeal is his argument that since the 

charge against him was based on state law, the city attorney had no 

authority to prosecute it. However, as noted above, the City Court 

had concurrent jurisdiction to try the charges against defendant, 

and the City had authority to bring the charges when the alleged 

incident occurred within its city limits. 
Section 7-4-4604, MCA, provides that "jilt shall be the duty 

of the city attorney to attend before the city court and other 

courts of the city and the district court and prosecute on behalf 

of the city." Therefore, we hold that the city attorney did have 

authority to prosecute defendant based upon the allegation that he 

operated a motor vehicle while under the influence of alcohol 

within the city limits of the City of Billings. We hold that the 

District Court did not err when it refused to dismiss the charge 

against defendant based on lack of authority by the city attorney 

to prosecute him. 

For these reasons, we affirm the District Court's order 

denying defendant's motion to dismiss the charge against him, and 

affirm the judgment entered in the District Court pursuant to 

defendant's guilty plea. 

We concur: 

November 18, 1993 

CERTIFlCATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Charles F. Moses 

MOSES LAW FIRM 

P.O. Box 2533 

Billings, MT 59103-2533 

MARY JANE McCALLA 

Prosecutor 

City of Billings 

P.O. Box 1178 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA