IN THE SUPREME COURT OF THE STATE OF MONTANA



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                                1999 MT 3




                                     DAVID E. McGILLIVRAY, WILLIAM J. BOONE,

                                STANLEY E. CARTER, LINDA SUSAN DAVIS, DALE C.

                                 FREY, STACEY A. GROFF, RICHARD Q. WOIRHAYE,

                                      MONTE JAY THOMAS, and RANDY L. WELLS,



                                                       Plaintiffs and Appellants,



                                                              v. No. 98-009



                                                       STATE OF MONTANA,



                                                     Defendant and Respondent.

                               **********************************

                                                          AARON R. MAKI,

                                                        Plaintiff and Appellant,




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IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              v. No. 98-157



                                                       STATE OF MONTANA,



                                                     Defendant and Respondent.




               APPEAL FROM: District Court of the Fourth Judicial District, in and for the County of

                            Missoula, Honorable Douglas G. Harkin Judge Presiding (98-009)



                        District Court of the Eighteenth Judicial District, in and for the County of

                                Gallatin, Honorable Mike Salvagni Judge Presiding (98-157)



                                                      COUNSEL OF RECORD:



                                                             For Appellants:



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



                                                            For Respondent:



                           Honorable Joseph P. Mazurek, Attorney General; Chris D. Tweeten,



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 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                   Chief Counsel, Helena, Montana




                                              Submitted on Briefs: November 19, 1998

                                                        Decided: January 7, 1999

                                                                    Filed:




                                      __________________________________________

                                                                     Clerk

                      Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1. In these consolidated appeals, the Plaintiffs and Appellants petitioned the Fourth
Judicial District Court, Missoula County, and the Eighteenth Judicial District Court,
Gallatin County, for declaratory judgment that §§ 46-7-102, 46-17-201(3), and 46-17-
311(1), MCA, as amended by Ch. 129, L. 1997, violate their fundamental
constitutional rights under the Montana Constitution. The District Courts denied the
relief requested, and these appeals followed. We reverse.

¶2. The issue is whether the District Courts erred as a matter of law in dismissing the
Plaintiffs' complaints for declaratory relief.

¶3. In August 1997, the Missoula County Plaintiffs, each of whom was then a
defendant in a criminal proceeding before the Missoula County Justice Court, filed
their complaint for declaratory relief in the District Court. They asked the court to
declare that §§ 46-7-102, 46-17-201(3), and 46-17-311(1), MCA, violated their right to
jury trial as guaranteed under the Montana Constitution by forcing them to choose
between having a trial by jury in Justice Court or deferring the right to jury trial for
a possible appeal to District Court.


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 IN THE SUPREME COURT OF THE STATE OF MONTANA


¶4. The State of Montana moved to dismiss the complaint, arguing that the issues
raised could properly be addressed in the Plaintiffs' pending criminal actions and
were therefore not appropriate for declaratory judgment. The District Court agreed.
Stating that "the purpose of the Declaratory Judgment Act in Montana does not
allow this Court to render such a decision," the District Court granted the State's
motion to dismiss.

¶5. Plaintiff Maki appeals from a comparable ruling of the Eighteenth Judicial
District Court, Gallatin County. Plaintiffs' request that the two causes be
consolidated on appeal was granted by order of this Court on June 16, 1998.

                                                               Discussion

¶6. Did the District Courts err as a matter of law in dismissing the Plaintiffs'
complaints for declaratory relief?

¶7. On appeal, this Court reviews a decision that declaratory judgment is not proper
to determine whether the district court abused its discretion. Brisendine v. State Dept.
of Commerce (1991), 253 Mont. 361, 364, 833 P.2d 1019, 1020. We review the
conclusions on which the lower court's decision is based as we do all legal issues, to
determine whether those conclusions are correct. Ridley v. Guarantee Nat. Ins. Co.
(1997), 286 Mont. 325, 329, 951 P.2d 987, 989.

¶8. The purpose of the Uniform Declaratory Judgment Act is "to settle and to afford
relief from uncertainty and insecurity with respect to rights, status, and other legal
relations." Section 27-8-102, MCA. Under the Act, courts have the power to declare
rights, status, and other legal relations whether or not further relief is or could be
claimed. Section 27-8-201, MCA. Declaratory judgment is proper when a justiciable
controversy exists: genuine and existing rights are affected by a statute; a judgment
of the court can effectively operate on the controversy; and a judicial determination
will have the effect of a final judgment upon the rights, status, or legal relations of
the real parties in interest. Gryczan v. State (1997), 283 Mont. 433, 442, 942 P.2d 112,
117.

¶9. The State argues that an adequate remedy exists for any denial of constitutional
rights in this case because each misdemeanor criminal defendant can appeal the
denial of jury trial to this Court. By the State's scheme, each misdemeanor defendant

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 IN THE SUPREME COURT OF THE STATE OF MONTANA


who wishes to enforce his constitutional right to trial by jury in all criminal
prosecutions must first be convicted by jury in justice court. That defendant must
then go through and pay for both a district court trial and an appeal to this Court
before the uncertainty concerning that defendant's right to trial by jury can be
adjudicated. If this Court then determines that the defendant had a right to jury trial
in district court, that defendant must endure and pay for a new trial on remand.
Only those defendants who have the financial resources and personal fortitude to
endure four different court proceedings would be allowed to exercise their
constitutional right to a trial by jury. Those who will not or cannot afford this
extensive litigation would be denied their right.

¶10. This issue could be raised, but it could not be decided in the pending criminal
prosecutions, either in justice court or in district court. The denial of this
constitutional right could only be decided upon appeal to this Court when raised as a
procedural defect in the underlying criminal proceedings. Declaratory judgment on
this issue is therefore not prohibited by either Goff v. State (1962), 141 Mont. 605, 374
P.2d 862, or State v. Wilson (1972), 160 Mont. 473, 503 P.2d 522, as is argued by the
State.

¶11. We hold that the District Courts erred in ruling that declaratory judgment was
not proper in these cases. A justiciable controversy existed and there was no other
reasonable remedy to reduce Plaintiffs' and Appellants' uncertainty as to their legal
rights and status in the criminal actions pending against them.

¶12. As to the substantive issue on which declaratory judgment is sought, this Court
decided that question in our recent opinion in Woirhaye v. Fourth Judicial District,
1998 MT 320. Sections 46-7-102, 46-17-201(3), and 46-17-311(1), MCA, as amended
by Ch. 129, L. 1997, violate the right to a jury trial as guaranteed under the Montana
Constitution. These matters are remanded with instructions that the District Courts
enter declaratory judgment in favor of the Plaintiffs and Appellants.



/S/ J. A. TURNAGE



We concur:


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IN THE SUPREME COURT OF THE STATE OF MONTANA




/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER




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