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IN THE SUPREME COURT OF THE STATE OF MONTANA

OP 07-0745

2008 MT 251

_________________

PEDRO HERNANDEZ, Justice of the Peace,

Department #2, Yellowstone County, Montana,

 Applicant,

 v.

BOARD OF COUNTY COMMISSIONERS,

Yellowstone County,

 Respondent,

 and

STATE 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 challenged the constitutionality of § 3-10-101(5), MCA, providing for the 

creation of justice’s courts of record within Montana counties. After receiving summary 

responses from the Yellowstone County Board of County Commissioners 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 2008
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accordance with our Order and, after reviewing those briefs, we deny the petition for 

declaratory judgment.

Factual and Procedural Background

¶2 In 2003, the Montana Legislature passed legislation authorizing Montana counties to

establish justice courts as justice’s courts of record. See Sec. 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 Michael Lange,

testified before the House Committee on the Judiciary that creating justice’s courts of record 

would allow counties “to streamline cases, eliminate the number of appeals, and provide 

speedy trials.” Statement 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 record. If the 

justice’s court is established as a court of record, it must be known as a 

“justice’s court of record” and, in addition to the provisions of this chapter, is 

also subject to the provisions of 3-10-115 and 3-10-116. The court’s 

proceedings must 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 Resolution No. 07-90 on October 2, 2007, making the Yellowstone 

County Justice Court a court of record effective January 1, 2008. Resolution 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 in 
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Justice Court and an appeal on the record in District Court. It will eliminate 

de novo appeals to District Court.

¶4 Petitioner filed his petition for declaratory judgment with this Court on December 19, 

2007. He argued in his petition that the creation of a justice’s court of record in Yellowstone 

County is contrary to Article VII, Section 1 of the Montana Constitution, which vests judicial 

power in “one supreme court, district courts, justice courts, and such other courts as may be 

provided by law”; Article VII, Section 2(3) of 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, Section 4(2) of the Montana Constitution, which provides 

that “[t]he district court shall hear appeals from inferior courts as trials anew unless 

otherwise provided by law.” Petitioner also argued that § 3-10-101(5), MCA, violates the 

following provisions of the Montana Constitution: Article II, Section 2 (right of selfgovernment); Article II, Section 8 (right of participation); Article II, Section 17 (right to due 

process of law); Article III, Section 1 (separation of powers); Article XIV, Section 8

(amendment by legislative referendum); and Article XIV, Section 9 (amendment by 

initiative). In addition, Petitioner contended that he is entitled to recover his costs and 

attorney fees in this matter pursuant to the “private attorney general” theory and § 27-8-313, 

MCA.

¶5 On January 10, 2008, the State of Montana, through the Office of the Montana 

Attorney General, moved to intervene in this matter pursuant to M. R. App. P. 27, providing 

for intervention by the State in matters involving constitutional questions. The State filed a 

summary response to the petition on February 7, 2008. That same day, the Office of the 
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Yellowstone County Attorney, on behalf of Yellowstone County and the Yellowstone 

County Board of County Commissioners (collectively “Yellowstone County”), filed its 

summary response to 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 of the Montana Constitution; (2) district courts’ de novo 

jurisdiction under Article VII, Section 4(2) of the Montana Constitution; and (3) costs and 

attorney fees. Thus, we ordered the parties to prepare briefs addressing these issues. We 

urged Yellowstone County and the State to join their arguments to the extent that they agreed 

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 powers; Article II, Section 2, pertaining to the right 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 under the Due 

Process Clause of the Montana Constitution (Article II, Section 17) and we declined to 

entertain further briefing on this claim.

¶7 On March 24, 2008, Petitioner filed with this Court his Brief in Support of Petition for 

Original Writ. Yellowstone County and the State (collectively “Respondents”) filed a 
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consolidated brief in response on May 21, 2008, and Petitioner filed his reply brief on 

May 28, 2008. 

Discussion

¶8 As a threshold matter, we first determine whether this is an appropriate case for this 

Court’s exercise of original jurisdiction. In their summary responses to the petition, 

Respondents agreed 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 Assumption 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 purely legal questions of statutory and constitutional construction; and (3) 

urgency and emergency factors exist making the normal appeal process inadequate. 

Montanans for Coal Trust, ¶ 27 (citing Butte-Silver Bow Local Govern. v. State, 235 Mont. 

398, 401-02, 768 P.2d 327, 329 (1989); State ex rel. Greely v. Water Court of State, 214 

Mont. 143, 691 P.2d 833 (1984)); M. R. App. P. 14(4). All of these criteria are met here.

¶10 First, as the parties point out, the issue of whether the creation of justice’s courts of 

record violates certain provisions of the Montana Constitution is of statewide importance. 

Several 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 just 

Yellowstone County. Second, there are no disputed facts in this case. The issues presented 

involve purely legal questions of statutory and constitutional construction. Third, urgency 

and emergency factors exist in this case that would make the normal appeal process 
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inadequate. Before an appeal from 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. If 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. Hence, 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 – Petition for Declaratory Judgment.” Therefore, we address the 

following claims raised by Petitioner: (1) whether the creation of justice’s courts of record 

violates Article VII, Section 1 of 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 power

¶12 Article VII, Section 1 of the Montana Constitution 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.”

¶13 Petitioner argues that § 3-10-101(5), MCA, violates Article VII, Section 1, because 

justice courts are a specifically-designated constitutional court and, as such, they are entitled 

to constitutional protection. Petitioner also argues that the Legislature may “create” 

additional courts, but it may not “abolish” constitutional courts.
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¶14 Respondents argue, on the other hand, that § 3-10-101(5), MCA, does not violate 

Article VII, Section 1, because this constitutional provision grants 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. State ex rel. Bd. of Com’rs, 1999 

MT 263, ¶ 11, 296 Mont. 402, ¶ 11, 989 P.2d 800, ¶11 (citing State v. Nye, 283 Mont. 505, 

510, 943 P.2d 96, 99 (1997)). Every possible presumption must be indulged in favor of the 

constitutionality of a legislative act. Powell v. State Compensation Ins. Fund, 2000 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. Safeway 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 “beyond a reasonable doubt”

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 and, if any doubt exists, it 

must be resolved in favor of the statute. Powell, ¶ 13 (citing Grooms v. Ponderosa Inn, 283 

 

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 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, Nelson, Cotter, JJ., concurring), the concurring

Justices criticized the use of the “beyond a reasonable doubt” standard 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 the observation 

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, ¶ 34 (quoting Blue Sky Entertainment, Inc. v. Town of Gardiner, 711 F. Supp. 678, 

697-98 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). 
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Mont. 459, 467, 942 P.2d 699, 703 (1997); Heisler v. Hines Motor Co., 282 Mont. 270, 279, 

937 P.2d 45, 50 (1997)). 

¶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 Article VII, Section 1, 

following the recitation of this provision in the Montana Code Annotated, state that 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” grants the Legislature the authority to create inferior courts.

¶17 While Petitioner concedes that the language of Article VII, Section 1, confers power 

on the Legislature 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 abolish existing justice courts. The 

creation of justice’s courts of record merely provides Montana counties with a choice of 

whether they want their justice court to be one of record. Indeed, the Legislature gave 

counties the option of creating justices’ courts of record. See § 3-10-101, MCA. 

¶19 Petitioner also complains that there are no rules governing procedure in justice’s 

courts of record to advise pro se litigants as to the effect of proceeding without an attorney, 

 
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or that trial before a justice’s court of record precludes a trial de novo if appealed. On the 

contrary, at the same time 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 to district 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 supreme court’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 rules 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 abolish justice courts. Rather, justice’s courts of 

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 jurisdiction
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¶21 Article VII, Section 4(2) of the Montana Constitution provides in pertinent part: “The 

district court shall hear appeals from inferior courts as trials anew unless otherwise provided 

by law.” 

¶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 

Legislature 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.” Woirhaye v. Fourth Judicial Dist. Court, 

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 Legislature the ability 

to provide for something other than de novo appeals in district courts. The Delegates to the

1972 Montana Constitutional Convention debated whether or not to include this language in 

Article VII, Section 4(2), and specifically contemplated that the Legislature could decide to 

eliminate trials de novo. The initial language of Article VII, Section 4(2), ended with the 

word “anew” until Delegate Jerome Loendorf proposed adding the phrase “unless otherwise 

provided by law.” Montana Constitutional Convention, Verbatim Transcript, 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 District Court. This is not a limiting factor. It’s something that allows for 

flexibility, and it does allow for trust in the Legislature. We’ve trusted them, I 

think, in many areas and should trust them in this area.
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Montana Constitutional Convention, Verbatim 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 

trials de novo:

Take, for instance, the matter of appeals. As 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 felon or loser of the milliondollar lawsuit has no such 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. It favors 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 one trial, one appeal rule is not only good justice, it is also good 

economy. 

Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, p. 1076. And, 

Delegate Paul Harlow added his support to 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. You’re freezing in the inferiorness of the inferior courts when you 

do not allow the Legislature to improve 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 the impact of this amendment, the delegates voted 62 to 32 in favor 
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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 VII, Section 4(2). Powell, ¶ 13. The 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 Legislature in enacting § 3-10-101(5), MCA, allowing 

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 attorney fees and costs under either the 

“private attorney general” theory adopted in School Trust v. State ex rel. Bd. of Com’rs, 1999 

MT 263, ¶ 67, 296 Mont. 402, ¶ 67, 989 P.2d 800, ¶ 67, or the 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, ¶ 14
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(citing Mountain West Farm Bureau v. Hall, 2001 MT 314, ¶ 13, 308 Mont. 29, ¶ 13, 38 

P.3d 825, ¶ 13). We have recognized equitable exceptions to the American Rule, however, 

including awarding attorney fees pursuant to the “private attorney general” theory. Brewer, 

¶ 14 (citing School Trust, ¶ 67).

¶30 We determined in School Trust that the “private attorney general” theory permits an 

award of attorney fees, in the discretion of the court, based upon the strength or societal 

importance of the public policy 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 “successfully litigated 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.” Trustees of Indiana University v. Buxbaum, 2003 MT 97, ¶ 42, 315 Mont. 210, 

¶ 42, 69 P.3d 663, ¶ 42. However, we pointed out in Brewerthat 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 costs and attorney fees.

¶32 Based on the foregoing,

¶33 IT IS ORDERED that Petitioner’s “Original Writ – Petition for Declaratory 

Judgment” is DENIED.
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¶34 IT IS FURTHER ORDERED that Petitioner’s request for an award of attorney fees 

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 15th day of July, 2008.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS