                                              NO.    85-208

                 I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                    1986




WILLIA1\1 HAMMER a n d KARLA J. HAMMER,

                     Petitioners,



THE J U S T I C E C0UR.T OF L E W I S & CLARK
COUNTY, S T A T E O F MONTANA, BERNARD
McCARTHY, e t a l . ,

                     Respondents.




O R I G I N A L PROCEEDING:


COUNSEL O F RECORD:


         For P e t i t i o n e r s :

                     D a n i e l J. S h e a a r g u e d , H e l e n a , Montana


         For Respondents:

                     Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                     C l a y S m i t h argued, A s s t . A t t y . G e n e r a l , H e l e n a
                     B e r n a r d M c C a r t h y , Judge, J u s t i c e C o u r t , H e l e n a
                     Nick Jacques, H e l e n a , Montana




                                                    Submitted:         A p r i l 8, 1986

                                                      Decided:         June 1 0 , 1 9 8 6



Filed:     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 S S
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),
unconstitutional.
                             MCA   and    Rule   14.F,


                                         L d Justice
                                          ) w -4         *
                                                         M.J.R.Civ.P.




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 con-
cludes 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 "re-
stricts 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 effec-
tively 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 ration-
ale 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 constitution-
al 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 arbi-
trariness 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 con-
stitutionally necessary at the justice court level, as suq-
gested by the majority, then that factual determination by a
jury should be binding in subsequent determinations.         Howev-
er, 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 funda-
mentally   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.



                                                                        \



                                           I
                                    Justice
