NO. 85-208 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

WILLIA1\1 HAMMER and KARLA J. HAMMER, 

Petitioners, 

THE JUSTICE C0UR.T OF LEWIS & CLARK 

COUNTY, STATE OF MONTANA, BERNARD 

McCARTHY, et al., 

Respondents. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioners: 

Daniel J. Shea argued, Helena, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay Smith argued, Asst. Atty. General, Helena 

Bernard McCarthy, Judge, Justice Court, Helena 

Nick Jacques, Helena, Montana 

Filed: 

Submitted: April 8, 1986 

Decided: June 10, 1986 

JUN 1 0 1986 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is a petition in original jurisdiction for a 

declaratory judgment that § 3-15-203(2), MCA and Rule 14.F, 

M.J.R.Civ.P. which require prepayment of jury fees in justice 

courts are unconstitutional. 

This case arises out of a suit brought in Justice Court 

of Lewis and Clark County by 5-D's Collections against 

William and Karla Hammer for $1,155.67 for medical services 

rendered by St. Peter's Community Hospital. The Hammers 

requested a jury trial. They were notified that under S 

3-15-203, MCA and Rule 14.F, M.J.R.Civ.P., they must deposit 

a one-day jury fee of $144.00 with the court five days prior 

to trial. The notice stated that failure to pay the jury fee 

would mean no jury would be called. 

The Hammers petitioned this Court in original 

jurisdiction seeking a declaratory judgment pursuant to SS 

27-8-101-313, MCA that the jury fee laws are 

unconstitutional, because they deprive petitioners of their 

right to trial by jury under Art. 11, § 26, 1972 Mont. Const. 

Art. VII, § 2, 1972 Mont. Const. provides we may "issue, 

hear, and determine writs of habeas corpus and such other 

writs as may be provided by law." In Grossman v. State 

(Mont. 1984), 682 P.2d 1319, 1322, 41 St.Rep. 804, 805, we 

stated that this Court has the authority to accept original 

jurisdiction where the issues are of statewide impact and 

where the purpose of the declaratory judgment proceeding will 

serve the office of a writ. In Montana Power Company v. 

Public Service Commission (Mont. 1984) , P.2d -1 41 

St.Rep. 1601, we assumed original jurisdiction because delay 
could result in irreparable harm and assumption of 

jurisdiction would promote judicial economy. In this case we 

have a justiciable controversy which has statewide impact, in 

that the jury fee laws apply to all justice courts. Delay 

could result in abridging vita.1 constitutional rights of 

litigants. The purpose of this declaratory judgment serves 

the office of a writ, and it would promote judicial economy 

to accept jurisdiction rather than forcing piecemeal 

litigation as to the constitutionality of the statute. We 

therefore accept jurisdiction. 

The jury fee laws are set out in 5 3-15-203, MCA which 

states: 

(1) A jury panel member, in both civil and 

criminal actions, shall receive a fee of $12 per 

day for attendance before a court not of record and 

a mileage allowance, as provided in 2-18-503, for 

traveling each way between his residence and the 

court. A jury panel member selected for a case 

shall receive an additions-1 $13 per day while 

serving. 

(2) In civil actions, the jurors' fees must be 

paid by the party demanding the jury and taxed as 

costs against the losing pa.rty. 

This statute is implemented by Rule 14 .F, M. J.R.Civ.P. : 

(1) The party demanding a jury trial shall pay 

jurors' fees as set out in section 3-15-203, MCA, 

and such fee shall be taxed as costs against the 

losing party as determined by the court. 

(2) Deposit, each additional trial day. At or 

before the end of each day of jury trial, the 

justice shall require the parties to deposit an 

amount sufficient to pay juror's fees for the next 

trial day. Failure to make the deposit for the 

next day's juror's fees shall. constitute a waiver 

of the continuance of a jury trial and the trial 

shall continue before the court as a nonjury trial. 

(3) Taxed as costs. The deposits for juror's fees 

required under (1) and (2) of this rule shall be 

taxed as costs against the losing party. 
Petitioners argue that these statutes viol-ate Art. 11, 5 

26, 1972 Mont. Const.: "The right of trial by jury is 

secured to all and shall remain inviolate.. . ." 

Respondent argues that the jury fee laws are 

constitutional for three reasons. First, he argues prior 

Montana case law has held the constitution guarantees the 

right to jury trial in the class of cases in which the right 

was enjoyed when the constitution was adopted. In Re C.L.A. 

(Mont. 1984), 685 P.2d 931, 41 St.Rep. 1444. In Re C.L.A., 

held the right to jury trial does not exist in civil 

proceedings to terminate parental rights because our state 

constitution guarantees the right to jury trial only in cases 

in which the right was enjoyed when the constitution was 

adopted. However, this case is not dispositive because the 

right to jury trial in justice court existed when the 1889 

Constitution was adopted and was not changed by the 1972 

Constitution. Art. 111, $ 23, 1889 Mont. Const., 5 1080 

General Laws of Montana (1887); Art. 11, $ 26, 1972 Mont. 

Const.; $ 25-31-804, MCA. The issue here is not whether or 

not the right to jury trial exists in civil cases in justice 

courts, the issue is the interpretation of the language, "and 

shall remain inviolate." 

Second, respondent cites cases from several other 

jurisdictions which have upheld jury fees against a right to 

jury trial challenge and argues that jury fees are a 

permissible procedural restraint on jury trials. 

This Court, on several prior occasions, has been called 

on to interpret the right to jury trial in Montana. In 

Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.Rep. 912, 

we held mandatory submission of claims to the medical 

malpractice panel did not unconstitutionally interfere with 
the right to jury trial. We stated that changes which affect 

the form but not the substance of the right may pass 

constitutional muster. In North Central Services v. Hafdahl 

(Mont. 1981), 625 P.2d 56, 38 St.Rep. 372, we held the small 

claims procedure in Justice Court unconstitutionally deprived 

litigants of the right to trial by jury. The small claims 

procedure made no provision for a jury trial in justice court 

and prohibited trial de novo on appeal. We held it was 

unconstitutional to deny the right to jury trial totally, but 

that the right to jury trial remains inviolate if there is 

provided an appeal to the district court. 

Neither of those cases is directly on point. The issue 

here is whether the laws requiring prepayment of jury fees 

for civil cases in justice courts conflict with the 

constitutional guarantee that the right to jury trial shall 

remain inviolate. As we decide this issue we are cognizant 

of the importance of the right to trial by jury. 

The right to trial by jury is guaranteed by the Federal 

Constitution in Art. 111, S 2. Fear that jury trial may be 

abolished was one of the principal sources of objection to 

the Federal Constitution and an important reason for the 

adoption of the Bill of Rights. Schick v. United States 

(1904), 195 U.S. 65, 78, 24 S.Ct. 826, 831, 49 L.Ed. 99, 

105-6. The Sixth Amendment reaffirmed the right to jury 

trial in criminal cases and the Seventh Amendment insured 

jury trial in civil cases. In the 1972 Montana Constitution 

the right is guaranteed in three places: Art. 11, § 7, Art. 

11, $3 24 and Art. 11, § 26. 

We are also aware of the increasing importance of 

justice courts in the judicial system. In fact, many 

citizens of this state will have their only contact with the 
judicial system in justice court. The justice courts have 

jurisdiction over misdemeanors punishable by a fine of up to 

$500 or imprisonment for up to six months or both and 

concurrent jurisdiction for misdemeanors punishable in excess 

of those figures. Section 3-10-303, MCA. The justice courts 

also have jurisdiction in civil matters for damages claimed 

up to $3,500. Section 3-10-301, MCA. 

We hold that the plain meaning of the constitution 

controls and that the legislative enactment of S; 3-15-203, 

MCA, restricts the inviolate right to jury trials in justice 

court. We so hold for two reasons. First, the plain 

language of the constitution mandates it. Any other 

construction renders the language of the constitution 

meaningless. Second, the jury fees paid by the party 

demanding a jury trial are taxed as costs against the losing 

party. Section 25-31-1004, MCA. This suggests that the 

statute which requires prepayment of jury fees is not a true 

mechanism for recovery of costs but rather a device to 

discourage the exercise of the right to jury trial. As 

Justice Black stated in the case which declared the right to 

trial by jury a fundamental right: 

Trial by jury in a court of law and in accordance 

with traditional modes of procedure after an 

indictment by grand. jury has served and remains one 

of our most vital barriers to governmental 

arbitrariness. These elemental procedural 

safeguards were embedded in our Constitution to 

secure their inviolateness and sanctity against the 

passing demands of expediency or convenience. 

Reid v. Covert (1957), 354 U.S. 1, 10, 77 S.Ct. 1222, 1227, 1 

The right to jury trial is not inviolate if it is 

accorded only to those who can afford to pay for it. Jury 

trials should not be available in Montana on a pay-as-you-go 
basis. The idea that justice can be bought is analogous to 

the sin of simony which was the practice of buying the souls 

of friends and relatives out of purgatory and into heaven 

which inspired this verse: 

As soon as the coin in the coffer rings, 

The soul from purgatory springs. 

We accept this petition for original jurisdiction and 

declare S 3-15-203(2), MCA and Rule 14.F, M.J.R.Civ.P. 

unconstitutional. 

L)dw 

Justice 

-4 * 

We Concur: 

Justices 
Mr. Justice Fred J. Weber dissents as follows: 

The majority holds that the plain meaning of the Montana 

Constitution controls and that the legislative enactment of 

S 3-15-203, MCA, (which provides for justice court jury fees) 

restricts the inviolate right to jury trials in justice 

court. The majority then concludes that the provisions of 

that code section together with Rule 14.F, M.J.R.Civ.P., are 

unconstitutional. I disagree with the holding and 

conclusion. 

The majority refers to North Central Services, Inc. v. 

Hafdahl (Mont. 1981), 625 P.2d 57, 38 St.Rep. 372, and concludes that the case is not directly in point. In contrast, 

1: believe North Central Services is directly in point and 

mandates a conclusion contrary to the majority opinion. 

As above pointed out, the majority opinion concludes 

that the code section on jury fees in justice court "restricts the inviolate right to jury trials in justice court." 

That directly contradicts the position taken in 

North Central Services. In that case we stated the question 

as whether or not a jury trial is required in small claims 

court. The majority in that opinion concluded: 

We hold that the constitutional right to trial by 

jury is satisfied if it is granted at the District 

court level, though denied at the small claims 

level. 

North Central Services, 625 P.2d at 58. While it is true 

that in North Central Services we held that a code section 

was unconstitutional, we did so on the basis that it effectively denied the right to trial by jury at both the small 

claims court and district court level, and concluded that was 
unconstitutional. The circumstances are different with 

regard to justice courts. 

Section 3-5-303, MCA, provides that the district court 

has appellate jurisdiction in cases arising in justice 

courts. Section 25-33-301, MCA, provides that all appeals 

from justice courts must be tried anew in the district court. 

That section further provides that when the action is tried 

anew on appeal, the trial must be conducted in all respects 

as other trials in the district court. Applying the rationale of North Central Services, because the statutes clearly 

grant a right of trial by jury in the trial anew at the 

district court level, we must conclude that the constitutional right to a trial by jury has been satisfied with regard to 

claims made in justice court. 

In accord with North Central Services, I would therefore 

hold in the present case that the constitutional right to 

trial by jury at the justice court level is satisfied because 

it is granted at the district court level. There has been no 

denial of a constitutional right to trial by jury. 

The majority opinion emphasizes that the right to trial 

by jury is one of our vital barriers to governmental arbitrariness which are imbedded in our Constitution. I agree 

with that theory as a general principle. However, I question 

that it applies to the present facts. 

I believe it important to consider another provision of 

our Montana Constitution, Art. VII, $ 4 (2) . That section 

states in part as follows with regard to the jurisdiction of 

district courts: 

(2) The district court shall hear appeals from 

inferior courts as trials anew unless otherwise 

provided by law. . . 
If the right to a factual determination by a jury were constitutionally necessary at the justice court level, as suqgested by the majority, then that factual determination by a 

jury should be binding in subsequent determinations. However, in our Constitution, the people of Montana have chosen to 

allow a trial anew at the district court level, thereby 

eliminating the significance of a jury determination at the 

justice court level. If the jury determination were fundamentally important as suggested in the majority opinion, 

those findings of fact would not be disturbed. Contrast 

these provisions to the treatment of jury fact determinations 

by the district court, which must be accepted by appellate 

courts. Appellate courts are not allowed to make independent 

factual determinations. 

We are required to balance constitutional provisions. 

Because a right of trial anew is granted after an appeal of a 

justice court judgment, we may properly conclude that 

North Central Services was correct when it held that the 

constitutional right to trial by jury is satisfied where it 

is granted at the district court level. 

Justice 

Mr. Justice L.C. Gulbrandson joins in the foregoing 

dissent of Mr. Justice Fred J. Weber. 

\ 

Justice I