1 IN THE SUPREME COURT OF THE STATE OF MONTANA OP 07
- 0745 2008 MT251

_________________ PEDRO HERNANDEZ, Justice of the Peace, Department #2, Yellowstone County, Montana,

Applicant , v. BOARD OF COUNTY COMMISSIONERS, Yellow stone County, Respondent , and ST ATE OF MONTANA, Intervenor and Respondent. O P I N I O N A N D O R D E R

_________________ ¶1 On December 19, 2007, Yellowstone County Justice of the Peace Pedro Hernandez ( “Petitioner” ) filed with this Court an “Original Writ

– Petition for Declaratory Judgment ” wherein he challenge d the constitutionality of § 3
- 10
- 101(5), MCA , p roviding for the creation of justice’s courts of record within Montana counties
. After recei ving summary responses from the Yellowstone County Board of County Commiss ioners and the State of Montana , this Court ordered full briefing on three of Petitioner’s claims and summarily dismissed Petitioner’s remaining claims. The parties duly submitted their briefs in July 15 20082

accordance with our Order and, a fter reviewing th os e briefs , w e deny the petition for declaratory judgment. Factual and Procedural Background ¶2 In 2003, the Montana Le gislature passed legislation authorizing Montana counties to establish justi ce c ourts as justice’s courts of record. SeeS ec. 5, Ch. 389, L. 2003 (House Bill No. 358 ( “HB 358 ” ) ). This legislation was designed to reduce the strain of multiple trials and to increase judicial efficiency. The sponsor of HB 358 , Representative Micha el Lange, testified before the House Committee on the Judiciary that creating justice’s courts of record would allowcounties “to streamline cases, eliminate the number of appeals, and provide speedy trials.”S tatement of Rep. Lange, Hearing on HB 358, House Committee on the Judiciary (January 28, 2003). HB 358 was codified at § 3
- 10
- 101(5), MCA . After some minor changes in the language of § 3
- 10
- 101(5), MCA, in 2005, this statute now provides:

A county may establish the justice ’ s court as a court of re cord. If the justice ’ s court is established as a court of record, it m

ust be known as a “justice ’ s court of record”and, in addition to the provisions of this chapter, is also subject to the provi sions o f 3
- 10
- 115 and 3
- 10
- 116. The court ’ s proceedings mu st be recorded by electronic recording or stenographic transcription and all papers filed in a proceeding must be included in the record. A justice ’ s court of record may be established by a resolution of the county commissioners or pursuant to 7
- 5
- 131 through 7
- 5
- 137. ¶3 In accordance with § 3
- 10
- 101(5), MCA, the Yellowstone County Board of County Commissioners passed Resolutio n No. 07
- 90o n October 2, 2007, making the Yellowstone C ounty Justice Court a court of record effective January 1, 2008. Reso lution No. 07
- 90 provided in pertinent part : It is in the best interest of the public to make Justice Court a court of record. It will serve judicial economy. A defendant will be entitled to only one trial in3

Justice Court and an appeal on the record in Distric t Court. It will eliminate de novoappeals to District Court. ¶4 Petitioner filed his petition for declaratory judgment with this Court on December 19, 2007. H e argued in his petition that the creation of a j ustice ’s c ourt of record in Yellowstone County i s contrary to Article VII , Section1 o f the Montana Constitution,w hich vests judicial power in “one supreme court, district courts, justice courts, and such other c ourts as may be provided by law ” ; Article VII, Section2 (3) o f the Montana Constitution , which vests the power to make rules governing practice and procedure for all other courts in the Montana Supreme Court ; and Article VII, Section4(2) o f the Montana Constitution , which provides that “ [ t] he district court shall hear appeals from inferior courts as trials anew unless otherwis e provided by law.” Pe titioner also argued that § 3
- 10
- 101(5), MCA, violates the following provision s of the Montana Constitution: Article II, Section 2 (right of self
government); Article II, Section8 (right of participation); Article II, Section 17 (ri ght to due processo f law); Article III, Section1 ( separation of powers); A rticle XIV, Section8 (amendment by legislative referendum) ; and Article X IV, Section9 ( amendment by initiative). In addition, Petitioner contendedthat he is entitled to recoverhis costs and attorney feesin this matter pursuant to the “private attorney general ”theory and § 27
- 8
- 313, MCA. ¶5 On January 10, 2008, the Stateo f Montana, through the Office of the Montana Attorney General, mo ved to intervene in this matter pursuant to M. R. App. P. 27 , p roviding for intervention bythe State in matters involving c onstitutional questions. The State filed a summary response to the petition on February 7, 2008. That same day, the Office of the4

Yellowstone County Attorney, o n behalf of Ye llowstone County and the Yellowstone County Board

o f County Commissioners ( collectively “Yellowstone County”) , filed its summary respons eto the petition. ¶6 After reviewing the petition and the summary responses thereto, we concluded that full briefing was appropriate as to the following claims raised in the petition: ( 1 ) judicial power under Article VII, Section 1 o f the Montana Constitution ; ( 2) district c ourts’ de novo jurisdictionunder Article VII, Section 4(2) of the Montana Constitution ; and ( 3) c ostsand attorney fees. Thus, we ordered the parties to prepare briefs addressing the se issues. We urged Yellowstone County and the State to join their arguments to the extent that they ag reed with each other or to file a consolidated brief. We also stated in our Order that we were not persuaded by Petitioner’s arguments on his claims under the following provisions of the Montana Constitution and we declined to entertain further briefing on these claims: Article VII, Section 2(3), pertaining to Supreme Court rulemaking authority; Article III, Section 1, pertaining to separation of p owers; Article II, Section 2, pertaining to the ri ght of self government; Article II, Section 8, pertaining to the right of participation; and Article XIV, Sections 8 and 9, pertaining to amendment of the Constitution by referendum and initiative. We also determined that Petitioner did not have standing to raise a claim underthe Due Process C lause of the Montana Constitution ( Article II, Section 17 ) and we declined to
entertain f

urther briefing on thisclaim. ¶7 On March 24, 2008, Petitioner filed with this Court his Brief in Support of Petition for Original Writ
. Y ellowstone Countyand the State (collectively “Respondents”) filed a5

consolidated brief in response on May 21, 2008 , and Petition er filed his reply brief on May 28, 2008
. Discussion ¶8 As a threshold matter, we firstdetermine whether this is an appropriate case for this Court’s exercise of original jurisdiction. In their summary responses to the petition, Respondents agre ed with Petitioner that this Court should accept original jurisdiction in this
case. However, original jurisdiction cannot be bestowed by agreement. Montanans for Coal Trust v. State , 2000 MT 13, ¶ 22, 298 Mont. 69, ¶ 22, 996 P.2d 856, ¶ 22. ¶9 A ssumption by this Court of original jurisdiction over a declaratory judgment action is proper when: (1) constitutional issues of major statewide importance are involved; (2) the
case involves purelyl egal questions of statutory and constitutional construction ; and ( 3) urgency and emergency factors exist making the normal appeal process inadequate. Montanans for C

oal Trust, ¶ 27 (citing Butte

- Silver Bow Local Govern. v. State , 235 Mont. 398, 401
- 02, 768 P.2d 327, 329 (1989); Statee x rel. Greely v. Water Court of S tate , 214 Mont. 143, 691 P.2d 833 (1984)); M. R. App. P. 14(4). All of these criteria are met here. ¶10 First, a s the parties point out, the issue of whether the creation of justice’s courts of record violates certain provisions of the Montana Constitution isof statewide importance. Se veral counties in Montana have already created justice’s courts of record. Thus, a decision
on the constitutionality of § 3
- 10
- 101(5), MCA, will affect multiple counties, not ju st Yellowstone County. Second , there are no disp uted facts in this case. The issues presented involvepurely legal questions of statutor y and constitutional construction
. Third, urgency and emergency factors exist in this c ase that would make the normal appeal process6

inadequate. B efore an appeal fro m a justice court judgment presenting this issue could reach this Court, potentially hundreds of misdemeanor criminal cases would be resolved in the justice’s courts of record throughout Montana. I f Petitioner’s claims were ultimately sustained, any judgments of conviction would be undermined and the prosecutions likely lost due to the running of the statute of limitations in those cases. H ence, to require an action be brought in a county that has created a justice’s court of record would needlessly spawn litigation and any further delay could create confusion as to the administration of justice. ¶11 Accordingly, we hold that this Court does have original jurisdiction to entertain Petitioner’s “ Original Writ

– P etition for Declaratory Judgment
. ”Therefore, w e address the following claims raised by Petitioner: (1) whether the creation of justice’s courts of record violates Article VII , Section1 o f the Montana Constitution ; ( 2) whether the creation of justice’s courts of record violates Article VII, Section 4(2) of the Montana Constitution; and (3) whether Petitioner is entitled to his costs and attorney fees for bringing this action.

1. Article VII, Section 1

– judicial pow

er ¶12 Article VII, Section 1 of the Montana Constitution provides: “The judicial powero f the state is vested in one supreme court, district courts, justice courts, and such other courts as may be provided by law. ” ¶13 Petitioner argues that § 3
- 10
- 101(5), MCA, violates Article VII, Section 1, because justice courts are a specifically
- designate d constitutional court and, as such, they are entitled to constitutional protection. P etitioner also argues that the Le gislature may “create” additional courts, but it may not “abolish” constitutional court s .7

¶14 Respondents argue, on the other hand, that § 3
- 10
- 101(5), MCA, does not violate Article VII, Section 1 , because thisc onstitutional provision gr ants the Legislature the
authority to create and vest judicial power in justice’s courts of record , thus Petitioner’s arguments to the contrary fail
. ¶15 Statutes are presumed to be constitutional , and it is the duty of this Court to avoid an unconstitutional interpretation if possible. School Trust v. Statee x rel. Bd. of Com’rs , 1999 MT 263, ¶

11, 296 Mont. 402, ¶

11, 989 P.2d 800, ¶ 11 (citing State v. Nye , 283 Mont. 50 5, 510, 943 P.2d 96, 99 (1997)). Every possible presumption must be indulged in favor of the constitutionality of a legislative act. Po well v. State Compensation Ins. Fund, 2 000 MT 321, ¶ 13, 302 Mont. 518, ¶ 13, 15 P.3d 877, ¶ 13 (citing Davis v. Union Pacific R. Co. , 282 Mont. 233, 240, 937 P.2d 27, 31 (1997); State v. Safew ay Stores , 106 Mont. 182, 199, 76 P.2d 81, 84 (1938)). The party challenging the constitutionality of a statute bears the burden of proving

that it is unconstitutional “beyo nd a reasonable doubt” 1 and, if any doubt exists, it must be resolved in favor of the statute
. Powell , ¶ 13 ( citing Grooms v. Ponderosa Inn , 283

1 In Oberson v. U

. S . Dep. of Agric., Forest Ser. , 2007 MT 293, ¶¶ 33
- 37, 339 Mont 519, ¶¶ 33
- 37, 171 P.3d 715, ¶¶ 33
- 37 (Leaphart, N elson, Cotter, JJ
. , c oncurring), the concurring Justices criticized the use of the “beyond a reasonable doubt”s tandard for constitutional challenges. Although pointing out that this Court has applied this standard to constitutional challenges for over 100 years, the concurring Justices found this to be “an incongruous standard to apply to the proving of a legal proposition as opposed to an issue of fact.” Oberson , ¶ 34. The concurring Justices also expressed their agreement with theo bservation of the United States District Court for the Northern District of New York that the “beyond a reasonable doubt” standard is “an ‘absurd standard of decision’ for a question of law.” Oberson , ¶

3 4 (quoting Blue Sky Entertainment, Inc. v. Tow n of Gardiner, 711 F. Supp. 678, 6 97
- 98 n. 19 (N.D.N. Y. 1989)). “ ‘In essence, the “beyond a reasonable doubt”standard is suited to resolving questions which involve some element of fact. A question of law is not decided by any standard of decision prescribed for a trier of fact.’ ” Oberson , ¶ 34 (quoting Blue Sky, 711 F. Supp. at 698 n. 19 ).8

Mont. 459, 467, 942 P.2d 699, 703 (1997); Heisler v. Hines Motor Co., 2 82 Mont. 270, 279, 937 P.2d 45, 50 (199 7)). ¶16 As we noted above, Article VII, Section 1, provides: “ The judicial power of the state is vested in one supreme court, district courts, justice courts, and such other courts as may be provided by law” (emphasis added)
. The Convention Notes to Artic le VII, Section 1, following the recitation of this provision in the Montana Code Annotated , statethat it “[r] evises [the] 1889 constitution by allowing the legislature to establish ‘inferior’ courts, such as a small claims court, as well as intermediate courts of appeal.”Thus, the compilers of the Montana Code Annotated recognized that the phrase “such other courts as may be provided by law” grant sthe Legislature the authority to create inferior courts. ¶17 While Petitioner concedes that the language of Article VII, Se ction 1, confer sp ower
on the Le gislature to create “inferior” courts or “courts of limited jurisdiction,” he argues that it does not permit the Legislature to “abolish,” “eliminate,” or “substitute” another court at the cost of elimination of justice courts
. ¶18 Contrary to Petitioner’s assertions, nothing in the legislation allowing the creation of justice’s courts of record indicates a legislative intent to aboli sh existing justice courts. The creation of justice’s courts of record merely pro vides Montana counties with a choice of whether they want their justice court to be one of record. Indeed, the Le gislature gave counties the option of creating justices’ courts of re cord
. See § 3
- 10
- 101, MCA. ¶19 Petitioner also complains that there are nor ules governing procedure in justice’s courts of record to advise pro selitigants as to the effect of proceeding without an attorney,9

or that trial before a justice’s court of record precludes a trial de novo if appealed. On the contrary, at the same ti me the 2003 Legislature enacted § 3
- 10
- 101(5), MCA, allowing for the creation of justice’s courts of record, it also enacted § 3
- 10
- 115, MCA, setting forth the rules to be followed in justice’s courts of record. This statute provides:

3 - 10 - 115. Appeal todistrict court from justice ’ s court of record -- record on appeal. (1) A party may appeal to district court a judgment or order from a justice ’ s court of record. The appeal is confined to review of the record and questions of law, subject to the supremec ourt ’ s rulemaking and supervisory authority. (2) The record on appeal to district court consists of an electronic recording or stenographic transcription of a case tried, together with all papers filed in the action. (3) The district court may affirm , reverse, or amend any appealed order or judgment and may direct the proper order or judgment to be entered or direct that a new trial or further proceeding be had in the court from which the appeal was taken. (4) Unless the supreme court establishes ru les for appeal from a justice ’ s court of record to the district court, the Montana Uniform Municipal Court Rules of Appeal to District Court, codified in Title 25, chapter 30, apply to appeals to district court from the justice ’ s court of record. ¶20 Here, Petitioner has not proven “beyond a reasonable doubt”that § 3
- 10
- 101(5), MCA, violates Article VII, Section 1. Powell , ¶ 13
. Accordingly, we hold that justice’s courts of record do not unconstitutionally aboli sh justice courts . Rather, justice’s courts o f record are created in accordance with the meaning of Article VII, Section 1, and are, therefore, constitutional. There is nothing in Article VII, Section 1, that prohibits a constitutionally created justice court from being a justice’s court of record.

2. Article VII, Section 4(2)

– district courts’ de novo jurisdiction10

¶21 Article VII, Section 4(2) of the Montana Constitution providesin pertinent part : “The district court shall hear appeals from inferior courts as trials anew unless otherwise provided bylaw. ” ¶22 Petitioner argues that the elimination of de novo trials following appeal from justice’s courts of record violates Article VII, Section 4(2). Respondents argue, on the other hand, that the phrase “unless otherwise provided by law” in Article VII, Section 4(2), allows the Le gislature to eliminate de novo appeals from inferior courts to district courts. ¶23 “In interpreting a constitutional provision, the intent of the framers of the constitutional provision controls its meaning.” Woirhayev. Fourth Ju dicial D ist. C ourt, 1998 MT 320, ¶ 15, 292 Mont. 185, ¶ 15, 972 P.2d 800, ¶ 15 (citing Keller v. Smith , 170 Mont. 399, 405, 553 P.2d 1002, 1006 (1976)). ¶24 Here, the phrase “unless otherwise provided by law” gives the Le gislature the ability to provide for something other than de novo appeals in district courts. The Delegates to the 1972 MontanaC onstit

utional Convention debated whether or not to include this languagein Article VII, Section 4(2) , and specifically contemplated that the Le gislature could dec ide to eliminate trials de novo
. The initial languageof Article VII, Section 4(2), ended with the word “anew” until Delegate Jerome Loendorf proposed adding thep hrase“unless otherwise provided by law
. ” Montana Constitutional Convention, Verbatim Trans cript, February 29, 1972, p. 1075. In support of his amendment , Delegate Loendorf argued that [p] rocedures can be provided in the future by which you could have appeals other than trial de novo from a Small Claims Court or any other inferior court to a Di strict Court. This is not a limiting factor. It’s something that allows for flexibility, and it does allow for trust in the Le gislature. W e’ve trusted them , I think, in many areas and should trust them in this area.11

Montana Constitutional Convention, V erbatim Transcript, February 29, 1972, p. 1078. ¶25 Also speaking in support of the amendment, Delegate Arlyne Reichert quoted a speech from William Burnett, the presiding judge of the Denver County Court, discussing trial sde novo: Take, for instance, the matter of appeals. A s lower court proceedings are traditionally not of record, appeals must involve a trial de novo in a higher court. Thus, the person involved in a minor case becomes entitled to two complete trials at public expense. The convicted felo n or loser of th e million
dollar lawsuit has nosuch right. This new trial appeal, which may be had irrespective of error at the original trial, is not only costly but breeds contempt and disrespect for the lower court. Itf avors the rich over the poor, the affluent over the ignorant, the dishonest over the honest. An interesting object lesson may be drawn from our Colorado experience. When de novo was eliminated by making the lower courts of record, appeals from our court were cut in half. Thus, the o ne trial, one appeal rule is not only good justice, it is also good economy. Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, p. 1076. A nd, Delegate PaulHarlow added his supportto the amendment when he stated : [W]ithout the amendment, this thing is contradictory and does not allow the people any flexibility in the future in regards to forming the kind of courts that they want. Y ou’re freezing in the inferiorness of the inferior courts when you do not allow the Legislature toim prove them by law. I heartily support the amendment, and I feel all of us should if we are concerned with court improvement. Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, p. 1077. ¶26 The Delegates to the 1972 Montana Constitutional Convention thoroughly debated whether to add the language “unless otherwise provided by law ”to Article VII, Section 4(2), and what effect adding this language might have in the future on trials de novo . After weighing and measuring th e impact of this amendment, the delegates voted 62 to 32 inf avor12

of adopting it
. Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, p. 1078. ¶27 Petitioner has failed to prove “beyond a reasonable doubt” that § 3
- 10
- 101(5), MCA, violates Article V II, Section 4(2). Pow ell, ¶ 13 . Th e plain wording of Article VII, Section 4(2), and the intent of the framers in adopting that provision are unquestionable and lead to the conclusion that the actions of the Le gislature in enacting § 3
- 10
- 101(5), MCA, all owing for the creation of justice’s courts of record, and the Yellowstone County Board of County Commissioners in adopting Resolution No. 07
- 90, creating a justice’s court of record in Yellowstone County, were constitutionally permissible under Article VII , Section 4(2). The elimination of appeal by trial de novo was contemplated by the Delegates , and where coupled with the requirement that a justice’s court of record maintain an electronic record and that there is an appeal of legal issues to the district court, the Legislature’s action does not violate Article VII, Section 4(2). 3. Costs and attorney fees ¶28 Petitioner argues that he should recover his attorneyfees and costs under either the “private attorney general” theory adopted in School Trust v. Statee x rel. Bd. ofCom’rs , 1 999 MT 263, ¶ 67, 296 Mont. 402, ¶ 67, 989 P.2d 800, ¶ 67 , orthe discretionary right under § 27
- 8
- 313, MCA, and Mountain West v. Brewer ( “ Brewer” ) , 2003 MT 98, 315 Mont. 231, 69 P.3d 652. Respondents argue that because Petitioner did not prevail in this action, he should not be awarded his attorney fees and costs. ¶29 Montana follows the general American Rule that a party in a civil action is not entitled to attorney fees absent a specific contractual or statutory provision. Brewer, ¶ 1413

(citing Mountain West Farm Bureau v. Hall, 2001 MT 314, ¶ 13, 308 Mont. 29, ¶ 13, 38 P.3d 825, ¶ 13). W e have recognized equitable exceptions to the American Rule , however, including awarding attorney fees pursuant to the “private attorney general ” theory. Bre wer, ¶ 14 (citing School Trust, ¶ 67)
. ¶30 We determined in School Trust that the “private attorney general” theor y permits an award of attorneyf

ees, in the discretion of the court, based upon the strength or societal importance of the public pol icy vindicated by the litigation; the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and the number of people standing to benefit from the decision. School Trust, ¶ 66 (citing Serrano v. Priest, 569 P.2d 1303 , 1314 (Cal. 1977)). However, we awarded attorney fees to the School Trust in that case because it “successfullyl itigated issues of importance to all Montanans and incurred significant legal costs .” School Trust, ¶ 69 (emphasis added). ¶31 Section 27
- 8
- 313, MCA, also allows a court to award attorney fees in a declaratory judgment action when the court, in its discretion, deems such an award “necessary or proper.” Trusteeso

f Indiana Universityv. Buxbaum , 2 003 MT 97, ¶ 4 2 , 315 Mont. 210, ¶ 42, 69 P.3d 663, ¶ 42
. However, w e pointed out in Brewer that a court may award attorney fees only to a prevailing

party. Brewer, ¶ 11 (citing Kunst v. Pass , 1998 MT 71, ¶ 38, 288 Mont. 264, ¶ 38, 957 P.2d 1, ¶ 38). Because Petitioner has not prevailed here, we hold that he is not entitled to an award of costsand attorney fees. ¶32 Based on the foregoing, ¶33 IT IS ORDERED that Petitioner’s “ Original Writ

– P etition for Declaratory Judgment”is DENIED.1 4

¶34 IT IS FURTHER ORDERED that Petitioner’s request for an award of attorney fee s and costs in his favor is DENIED. ¶35 IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order to all counsel of record. Dated this 15 th day of July, 2008.
/S/ JAMES C. NELSON
We Concur: /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART /S/ JIM RICE /S/ BRIAN MORRIS