NO. 85-208 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

WILLIA1\1HAMMER and KARLA J. HAMMER, Petitioners,

THE JUSTICE C0UR.T OF LEWIS & CLARK COUNTY, STATE OF MONTANA, BERNARD McCARTHY, etal., Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Petitioners: DanielJ. Shea argued, Helena, Montana

ForRespondents: Hon. MikeGreely, AttorneyGeneral, Helena, Montana ClaySmithargued, Asst. Atty. General, Helena BernardMcCarthy, Judge, Justice Court, Helena Nick Jacques, Helena, Montana

Filed: Submitted: April 8, 1986 Decided: June10, 1986 

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ClerkMr. 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 areunconstitutional. This case arises out of a suitbrought 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., theymust deposit

a one-day jury fee of $144.00 with the court five days prior to trial. Thenotice stated that failuretopay the jury fee would mean no jurywould 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 trialby juryunderArt. 11, § 26, 1972Mont. Const. Art. VII, § 2, 1972Mont. Const. provideswemay "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 thepurpose of the declaratory judgmentproceeding 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 delaycould result in irreparable harm and assumption of jurisdictionwould promote judicial economy. In this casewe have a justiciable controversywhich 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 attendancebefore 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 losingpa.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 losingparty asdeterminedby 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 anonjury trial. (3) Taxed as costs. Thedeposits for juror's fees required under (1) and (2) of this rule shall be taxed as costs against the losingparty.Petitioners argue that these statutesviol-ateArt. 11, 5 26, 1972 Mont. Const.: "The right of trial by jury is secured to alland 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 constitutionwas 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 guaranteesthe right to jury trialonly 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 interpretationof 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 restrainton jury trials. This Court, on severalprior 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 withthe right to jury trial. We stated that changes which affect the form but not the substance of the right may pass constitutionalmuster. In North Central Servicesv. Hafdahl

(Mont. 1981), 625 P.2d 56, 38 St.Rep. 372,we held the small claims procedure in Justice Court unconstitutionallydeprived litigants of the right to trial by jury. The small claims procedure made no provision fora jury trial in justice court and prohibited trial de novo on appeal. We held it was unconstitutionaltodeny 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 onpoint. 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 issuewe are cognizant of the importanceof the right to trialby jury. The right to trialby jury is guaranteedby the Federal Constitution in Art. 111, S 2. Fear that jury trialmay 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 1972Montana Constitution the right is guaranteed in three places: Art. 11, § 7,Art. 11, $3 24 andArt. 11, § 26. We are also aware of the increasing importance of justice courts in the judicial system. In fact, many citizens of this statewill have their only contact with thejudicial system in justice court. The justice courts have jurisdiction over misdemeanors punishableby a fine ofup 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 statutewhich requiresprepayment 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 trialby jurya fundamentalright: Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictmentby grand.juryhas served and remainsone of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolatenessand sanctity against the passing demandsof expediency or convenience. Reid v. Covert (1957),354U.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 apay-as-you-gobasis. The idea that justice can be bought is analogous to the sin of simonywhich was the practice ofbuying the souls of friends and relatives out of purgatory and into heaven which inspired thisverse: 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. 

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Justice

We Concur:

JusticesMr. JusticeFred J. Weber dissents as follows:

Themajority holds that the plain meaning of the Montana Constitution controls and that the legislative enactment of S 3-15-203,MCA, (whichprovides 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 themajority 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 casewe stated the question

as whether or not a jury trial is required in small claims court. Themajority 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 wasunconstitutional. 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 districtcourt. 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,wemust conclude that the constitutionalright to a trialby juryhas been satisfied with regard to claims made in justicecourt. In accordwithNorth Central Services, Iwould therefore hold in the present case that the constitutional right to trialby jury at the justice court level is satisfied because it isgranted at the district court level. Therehasbeen no denialof a constitutional right to trialby 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 generalprinciple. However, Iquestion that it applies to the present facts. I believe it important to consider anotherprovision of

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

# . That section states in part as followswith regard to the jurisdictionof district courts: (2)The district court shall hear appeals from inferior courts as trials anew unless otherwise providedby law.

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# .If the right to a factual determinationby a jury were constitutionally necessary at the justice court level, as suqgested by the majority, then that factual determinationby a jury should be binding in subsequentdeterminations. However, inourConstitution,thepeople ofMontanahave 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 treatmentof jury fact determinations by the district court,which must be accepted by appellate courts. Appellate courts are not allowed tomake independent factualdeterminations. We are required to balance constitutional provisions. Because a rightof trial anew is granted after an appealofa 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 satisfiedwhere it is granted at the district court level.

Justice

Mr. Justice L.C. Gulbrandson joins in the foregoing dissent ofMr. JusticeFred J. Weber.

\ Justice

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