NO. 95-508

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

TIMOTHY D. SUPOLA,

Petitioner and Appellant,

v.

MONTANA DEPARTMENT OF JUSTICE

DRIVERS LICENSE BUREAU,

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bryan C. Tipp, Tipp and Buley, Missoula, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Mich;eeallenE.

Wellenstein, Assistant Attorney General,

Montana; Alan J. Hall, Deputy City Attorney,

Billings, Montana

Submitted on Briefs: August 22, 1996

Decided: October 18, 1996

Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant Timothy D. Supola (Supola) appeals the order of the

Thirteenth Judicial District Court, Yellowstone County, concluding

that he was not entitled to a jury trial on his petition to

challenge the suspension of his driver's license.

Affirmed.

On February 13, 1995, Supola was arrested for driving under

the influence of alcohol. Following his arrest, Supola refused to

submit to a breath test to determine the level of his intoxication.

Because of this refusal, Supola's driver's license was

automatically suspended pursuant to § 61-a-402 (3), MCA, the implied

consent law.

Supola subsequently filed a petition in the District Court

challenging the validity of the license suspension. He also

requested that the matter be heard by a jury. The District Court

denied his request for a jury trial, concluding that Supola was not

constitutionally entitled to a jury in a proceeding to challenge

the suspension of his driver's license. Supola appeals.

The sole question presented on appeal is whether the District

Court erred in concluding that Supola was not entitled to a jury

trial on his petition challenging the § 61-8-402 (3), MCA, automatic

suspension of his driver's license.

It is a question of law whether an individual is entitled to

a trial by jury. In re Matter of C.L.A. and J.A. (1984), 211 Mont.

393, 395, 685 P.2d 931, 933. This Court reviews a district CoUrt’S

conclusions of law de nova, to determine whether they are correct.

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Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont.

459, 469, 898 P.Zd 680, 686 (citing Steer, Inc. v. Dept. of Revenue

(1990), 245 Mont. 470, 803 P.2d 601).

Supola first argues that the statute which provides for an

appeal from a driver's license suspension does not, by its terms,

prohibit a trial by jury and that, therefore, he should be allowed

to have a jury trial if he so chooses. The pertinent statute,

§ 61-8-403, MCA, provides in part:

(1) Within 30 days after notice of the right to a

hearinq has been given by a peace officer, a person may

file a petition to challenge the license suspension or

revocation in the district court in the county where the

person resides or in 'the county where the arrest was

made.

(2) The court has jurisdiction and shall set the

matter for hearing. . .

(3) Upon request of the petitioner, the court may

order the department to return the seized license or

issue a stay of the suspension or revocation action

pending the hearing.

(4) (a) The court shall take testimony and examine

the facts of the case .

(b) The court shall determine whether the

petitioner is entitled to a license or whether the

petitioner's license is subject to suspension or

revocation.

(Emphasis added.)

When construing a statute, "the office of the judge is simply

to ascertain and declare what is in terms or in substance contained

therein, not to insert what has been omitted or to omit what has

been inserted." Section l-2-101, MCA. When a statute is "plain,

unambiguous, direct and certain, the statute speaks for itself and

there is nothing left for the court to construe." Curtis v. Dist.

Court of the Twenty-first Judicial Dist. (1994), 266 Mont. 231,

3
235, 879 P.2d 1164, 1166 (quoting State v. Hubbard (1982), 200

Mont. 106, 111, 649 P.2d 1331, 1333).

The plain language of 5 61-E-403, MCA, dictates that the court

shall both examine the facts and determine the merits of the

petition. The statute does not contemplate the role of a jury in

such a hearing; rather, it presumes a jury will not be present and

assigns to the court the task of determining both facts and law.

No other interpretation is possible from a plain reading of the

statute. We therefore conclude that § 61-s-403, MCA, does not

provide for a~jury trial.

Supola next argues that § 61-8-403, MCA, as interpreted,

violates his constitutional right to a trial by jury. Article II,

Section 26 of.the Montana Constitution provides:

The right of trial by jury is secured to all and shall

remain inviolate. But upon default of appearance or by

consent of the parties expressed in such manner as the

law may provide, all cases may be tried without a jury or

before fewer than the number of jurors provided by law.

In all civil actions, two-thirds of the jury may render

a verdict, and a verdict so rendered shall have the same

force and effect as if all had concurred therein. 1n all

criminal actions, the verdict shall be unanimous.

Supola contends that this section provides a right to a jury trial

in all controversies, including a hearing regarding the propriety

of his driver's license suspension. We disagree.

The inviolate right to a jury trial is not a prospective one,

automatically granted in every new proceeding which may arise.

Rather, the right which is constitutionally preserved is that right

to a jury trial which existed at the time the constitution was

enacted. In other words, "the rule in Montana is that our state

4
constitution only guarantees the right to a jury trial in the class

of cases in which the right was enjoyed when the constitution was

adopted." Matter of C.L.A., 685 P.2d at 933 (citations omitted).

There is not, and never has been, a right to a jury trial in

purely equitable actions in Montana. Downs v. Smyk (1982), 200

Mont. 334, 341, 651 P.2d 1238, 1242. In fact, an attempt was made

during the 1972 constitutional convention to extend the right to a

jury trial to actions in equity, but this attempt failed.

Therefore, "in equity cases, the judge may call a jury to his

assistance if he chooses, but is not bound to do so." Downs, 651

P.2d at 1242 (quoting Little v. Mackel (1968), 151 Mont. 421, 425,

443 P.2d 891, 893-94).

Suspension or revocation of a,driver's license pursuant to the

implied consent law is a civil administrative sanction, not a

criminal penalty. In re Petition of Burnham (19851, 217 Mont. 513,

518, 705 P.2d 603, 607. It is not intended to punish the driver,

but to protect the public. Burnham, 705 P.2d at 607 (citing

Griffith v. Brustkern (1983), 202 Mont. 438, 658 P.2d 410; In the

Matter of France (1966), 147 Mont. 283, 411 P.2d 732). The hearing

to determine the propriety of the driver's license suspension is an

action in equity because compensatory or punitive damages, the

traditional relief afforded by a court of law, are not permitted.

Instead, the only possible relief is the reinstatement of the

driver's license and the consequent resumption of driving

privileges. Because the hearing is an action at equity, no right

to a trial by jury exists and the hearing is not subject to the

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constitutional protections afforded by Article II, Section 26 of

the Montana Constitution.

We are careful, however, to distinguish this purely equitable

matter from other controversies which might involve both issues of

equity and of law. In such cases, the presence of a legal question

may serve to trigger the parties' right to a jury trial even though

equitable questions are also presented. &, for example, Gray v.

City of Billings (1984), 213 Mont. 6, 689 P.2d 268. In _Grav, this

Court held:

where equitable and legal claims are joined in the same

action, there is a right to jury trial on the legal

claims which must not be infringed either by trying the

legal issues as incidental to equitable ones or by a

court trial of a common issue between the claims.

Gray, 689 P.2d at 272 (quoting Ross v. Bernhard (1970), 396 U.S.

531, 90 S.Ct. 733, 24 L.Ed.2d 729). Conversely, in the case at bar

the issue presented and the possible relief afforded are purely

equitable.

But Supola argues that.the suspension hearing is not a purely

equitable action because his driver's license cannot be returned to

him unless and until he pays a $100 reinstatement fee. Section 61-

2-107, MCA. He contends that this fee constitutes a punishment of

the driver, which in turn converts the equitable action into a

legal one and triggers his right to a jury trial.

Supola argues that the reinstatement fee is a punishment but

at the same time concedes that, under Burnham, the suspension

itself is not. He draws this distinction on the grounds that the

reinstatement fee does nothing to protect the public, while

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protection of the public is the rationale underlying the suspension

itself. Again, Supola misconstrues the plain language of the

statute.

Section 61-2-107(l), MCA, provides:

License reinstatement fee to fund county drinking

and driving prevention programs. Notwithstanding the

provisions of any other law of the state, a driver's

license that has been suspended or revoked under 61-5-205

or 61-E-402 must remain suspended or revoked until the

driver has paid to the department a fee of $100 in

addition to any other fines, forfeitures, and penalties

assessed as a result of conviction for a violation of the

traffic laws of the state.

The stated purpose of this statute, as articulated in its title, is

"to fund county drinking and driving prevention programs," not to

punish the driver. Drinking and driving prevention programs have

the obvious effect of protecting the public by increasing public

awareness of the dangers of drunk driving. Suspension of the

license pursuant to 5 61-e-402, MCA, is a civil sanction, Burnham,

705 P.2d at 607, and so is payment of the reinstatement fee

required by § 61-z-107, MCA. Neither constitutes a criminal

penalty and neither will serve to convert the suspension hearing

from a proceeding at equity to a proceeding at law.

For these reasons, we hold that a driver is not entitled to a

jury in a proceeding to determine the propriety of an automatic

driver's license suspension imposed pursuant to 5 61-8-402(3), MCA.

The decision of the District Court is affirmed.

Justice
We concur:

Justices