*1 SERVICES, INC., Plаintiff CENTRAL and Re- NORTH Ap- HAFDAHL, spondent, v. KENNETH M. Defendant pellant. No. 80-228. Submitted 1981. Jan.
Decided March
Arnold H. Peterson and Daniel R. Carpenter, plaintiff respondent. Helena, Gen., Maynard Mike Rick Larsen Greely, Atty. John Gen., Helena, curiae. Asst. for amicus argued, Attys. of the Court. delivered the opinion
MR. MORRISON JUSTICE which upheld This from District Court judgment 25, Ch. of the claims Title small constitutionality procedure, Court, constitutionality MCA. The District after sustaining act, $678.25. in favor of the plaintiff entered judgment of the peace, sitting before justice case was tried This originally was but neither were present, Both jury. without found in peace counsel. The justice by legal represented to the District Court. appealed and defendant favor plaintiff, through the District Court attempted appear Defendant the trial A judge. but was denied opportunity counsel claims pro- of the small provisions de novo is prohibited by cedure; therefore, reviewed only questions the trial court was court affirmed. entered justice law. The judgment (1) the small claims are: Whether issues presented MCA, court, un- Ch. Title justice pursuant (2) to counsel? defendant of constitutionally deprived court, in justice pursuant the small claims рrocedure Whether 35, MCA, defendant of unconstitutionally deprived Ch. Title (3) Whether the provision to a trial jury? the right of his pleading, assist a in the preparation party peace unconstitutionally to section pursuant Whether, (4) of due part the. party process? deprives opposing *3 unconstitutional, can stand? the balance procedure Part I for a trial. The claims makes no provision small MCA, 25-35-105(2), that a not be party may provides Section anby unless all attorney represented represented by a trial de novo in Section attorney. prohibits shall be limited the District Cоurt provides appeals of law. questions to, is to above referred statutory
The effect of the provisions, at factfinding and to counsel deny stages deny jury process. is silent on to counsel in
The Montana Constitution
right
cases,
that such
is im
right
civil
but
all courts have held
nearly
see Prudential Ins.
in due
For
guarantees.
example
plicit
379,
(1946), 173 P.2d
Co. v. Small Claims Court
Cal.App.2d
38;
The question whether the to counsel must be affоrded in a small court claims was treated by the Idaho specifically Supreme Walus, Court in v. Foster The supra. Idaho small claims pro- cedure, Montana, unlike the present procedure afforded a trial de novo with counsel on In appeal. answering argument court, counsel could not be denied in the small claims the Idaho Court said: Supreme court,
“A in the plaintiff small claims commenc- knowingly his action ing therein cannot thereafter to the denial of object counsel; (as and a defendant was avail appellant) may himself of to the District Court in a trial de novo with assistance of counsel therein. Such satisfies the due process require- ment.” 347 at P.2d The same result was reached in Prudential Ins. Co. America v. Court,
Small Claims supra. 25-35-403(2), MCA,
Section provides: “There shall not be a trial de novo in the District Court. The shall be limited to ques- tions of law.”
Subsection above is unconstitutional quoted, because it denies counsel effectively at all levels of factual determination. The counsel can be denied in the small claims procedure, as the long protected Since we have appeal. struck the Court, prohibition trial de novo in District against we find sec 25-35-105(2), MCA, constitutional, tion to be if the unconstitu tional can be severed.
Part 2 question whether trial is in small required court, claims a more difficult provides question. Article Section *4 Constitution, the Montana “Trial provides: The by jury. right of trial is secured to all and shall inviolate by jury remain ...” This Court has the to its own right interpret constitution in manner which grants than are secured greater rights under the federal con- However, the the to the con- uphold
stitution.
courts
duty
enactments if such can be
stitutionality
legislative
accomplished
Walus,
reasonable construction.
v.
We hold
Foster
by
supra.
the
to trial
is satisfied if it is
at
granted
constitutional right
by jury
level,
the District Court
denied at the small claims level.
though
in Liv-
the U.S.
Court
Supreme
was addressed
question
by
This
459,
(7 Pet.)
(1833),
The statutes of
from
Pennsylvania,
to be settled
the
by
comptroller
between the state
its offiсers
If a balance was
an executive counsel.
general
approved by
state,
was authorized
general
found
be due the
the comptroller
the officer resided to issue
the
of the county
direct
clerk
.where
was further pro-
to collect the amount due. It
summary process
should be allowed to
that the
by
vided
person aggrieved
from the settle-
facts by jury through appealing
have a trial of the
of the state.
Court
general
Supreme
ment of the comptroller
enter sufficient
that the
required
aggrieved party
The law further
con-
of such
appeal.
аs a
the prosecution
surety
prerequisite
was attacked
being
derogation
of these statutes
stitutionality
Con-
secured
jury”
Pennsylvania
the “right
said:
the U.S.
Court
question,
stitution.
resolving
Supreme
In
we
see
bill of
can
rights,
“As to the
Pennsylvania
sixth section
of the viola-
these
fasten imputation
laws on which
nothing
since,
the lien attached
in creating
tion of the
of trial
by jury;
accounts,
is secured to
of an
to the settled
debtor;
Trac-
.”
was cited by approval Capital
. . This case
Part 3 attacks the of section constitutionality further Appellant 25-35-201(2), MCA, which “The shall assist provides: justice his or his claimant in instruct clerk preparing complaint provide such assistance . . .” contends that he is denied due Appellant proc- ess of law virtue of the one of the justice peace assisting to the We no find merit in this contention. litigation. By Court, a trial to the de novo on District guaranteeing appeal will guarantees constitutional be satisfied.
Part The remaining is quеstion whether the balance of the small 25-35-101, MCA,
claims procedure, 25-35-406, section through MCA, 25-35-403(2), MCA, exclusive of section can stand. The pro cedure contains the following clause: “If a severability part invalid, act all valid that are parts severable from the invalid part remain in effect. If a part this act invalid in one or more of its applications, remains part in effect in all valid applica tions that are severable from the invalid applications.” Ch. (1977). Section Laws of Montana We must find the (1) procedure constitutional if severance leaves an otherwisе (2) complete procedure, we can accomplish severance while honoring legislative intent as the balance of the act. 25-35-303, MCA,
Section provides all civil actions tried in small claims court must be or electronically stenographically 25-35-404, MCA, recorded. Section the entire provides record of in the small proceedings claims court shall be transmitted to Court, District including or recording transcript referred to in 25-35-303, sections, section MCA. two These which constitute the heart of the appeal procedure provided, contemplate aрpeal limited to questions of law. Since we have struck the prohibition novo, trial de which remains is in-
against with the procedure required. compatible in- not able to ascertain intent. The legislative legislature We are novo, a trial de and the procedure pro- tended to prohibit For questions example, is tailored a review of legal only. vided Yet, in an ap- no is made of bond requirement appeal. mention Court, novo is re- from court to District where trial de peal 25-33-201, through a bond must be section quired, posted, 25-33-207, section MCA. *6 a trial novo is unconstitu- de the prohibition against
Because tional, For procedure. are without an appropriate appeal we left stated, be available an must made the reasons previously therefore, We, we find that Court. novo in District with trial de section prohibition, sever the unconstitutional cannot we able to act. Neither and have complete appeal procedure what the intent determine legislators’ requirement constitutional have been had known they would District Court. for a trial de novo in court, section in justice the small claims We hold inclusive, MCA, 25-35-406, 25-35-101, section through void. be unconstitutional
Furthermore,
this un
obtained under
that а judgment
we hold
of the act
unconstitutionality
is not void and the
constitutional act
effect. Chicot County
of its
the judgment
does
deprive
60 S.Ct.
308 U.S.
Bank
Dist. v. Baxter State
Drainage
317,
This opinion date hereof. after the final becoming tive to judgments Part 5 directions Court with the District case We remand court having refile in any Plaintiff the judgment. vacate jurisdiction. and WEBER concur. HARRISON
MR. JUSTICES MR. SHEEHY specially concurring: JUSTICE I concur that the act a small establishing claims court division in courts, the justice (Title 24, Ch. Laws of 1977 MCA) Ch. is unconstitutional it because makes no trial, for a provision сon- Mont.Const., trary with the authored disagree Mor- foregoing opinion, by Justice
rison, however, when concludes that it is constitutionally per- missible under our state constitution to deny trial at the small claims court level in court if trial de novo af- justice is forded on in the District Court.
An unwelcome result of the reasoning foregoing opinion that it holds invalid a which is constitutionally provision normally valid, that an perfectly namely, from the court is not justice to be trial de novo. There is nothing constitutionally impermissi- ble in a legislature providing from court shall appeals (1926) be of law. questions Minovitz v. Court Justice’s 95, 246 P. It Cal.Ap. 82. would not be in the necessary foregoing to hold such opinion invalid we decided that to pro- vide a trial at the first stage the small claims court pro- cedure ais constitutional requirement. that if a has foregoing opinion posits litigant novo,
trial on a trial de his appeal through right preserved. *7 remains, however, The fact that the must first litigant pass through a trial in the small claims court without a before he can to get the He would to a appeal stage. be no trial in the given right first of the decisional state layer system. The constitution says of trial right is secure to all and shall remain in- “[t]he Mont.Const., violate.” 1972 26. The foregoing opiniоn, the to a by holding trial in an litigant’s right de novo inviolate, the setting preserves right violates it. The is in litigant truth a denied trial until his The state constitution is appeal. not thereby obeyed.
I further with disagree the foregoing opinion that the right to counsel in the small denied, claims court can be constitutionally pro- on in de novo
the to counsel guaranteed cedure. the to counsel is constitutional implicit guaranties
The right exist in that the counsel must due I insist process, claims court under the scheme. statutory small present Idaho case of v. Walus relies Foster opinion foregoing 452, 120, (1959), the California case 81 Idaho 347 P.2d upon (1946), 76 Ins. v. Claims Court Cal.App.2d of Prudential Co. Small however, cases, 379, California, has had to in later 173 P.2d its somewhat with counsel. respect modify position (1958), 49 v. Small Claims Court Los D. Angeles In Mendoza J. 9, it was that the denial of right Cal.2d 321 P.2d held court was detainer actions in small claims in counsel in unlawful there, a month tenant for month to valid since under the provisions of his after hearing could be of the possession property deprived Additionally, was not counsel. where tenant represented D., Ct., Cty. v. Small Cl. Los Downey Angeles Brooks J. the California 504 P.2d Cal.3d Cal.Rptr. statutes of in the small claims court rеquirement court held that the court from a in a small claims judgment an undertaking with hearing due prior constituted taking property counsel. mind, I direct attention our With the later California cases in 25-35-406, MCA, That procedure. small claims court section statute provides: or collect a to enforce Proceedings
“Execution judgment. to execution upon the laws relating are governed by judgment court justice’s judgments.” 25-31-1101, 25-13-501, et and section seq., seq.,
Under section et court under the in a small claims the holder of judgment on the execution judgment scheme can statutory procure present denied the debtor has been debtor’s Since property. judgment such ex- claims court procedure, to counsel in small and denial of of his taking property would constitute ecution given opportuni- because the due process judgment-debtor
449 to have counsel before his is levied There is no ty property upon. of execution under our small claims present provision stay court procedure.
Because a debtor in a claims small court judgment procedure have his executed and because the may property upon, that in the small claims the the сourt claimant can have assistance (section 25-35-201(2), in his framing complaint, MCA) I would hold that the denial of to counsel in right the small claims court anis unconstitutional of due deprivation to the litigants.
The constitutional defect of no
counsel could not be
cured
the
clause to
using
severability
the remainder
uphold
act. When court holds that a law
bemay
upheld by severing
invalid provisions, the remainder of the law
be sustained as
valid
it is
in
and
complete
capable
executed in
being
itself
accordance with the
intent.
legislative
Gullickson v. Mitchell
(1942),
358,
Furthermore,
Mont.
Therefore, I would hold that such an act is unconstitutional unless it in provides the first instance counsel at all stages.
MR. SHEA in part part: concurring dissenting JUSTICE I that the small claims set Ch. Title agree up unconstitutional, will clause severability act, save of this act. the substance In enacting legislature ig- nored the constitutional guaranteed by Mont.Const., II, however, 26. The holds that majority, § if a small act guarantees sufficient new claims procеdure to District Court and second trial held there. here because I that the part with believe majority trial must be the court of guaranteed original jurisdiction
— on the merits. A fair reading a trial that first conducts the court this interpretation. requires of Art. *9 II, on the first sentence of Art.
The seizes majority § “[t]he — of secured to all and shall remain inviolate” trial by jury of this section. It is not enough But the ignores remaining language sentence, 26 of section language to the first the quote remaining trial is in guaranteed shows without the question jury this state. each of the trial courts of Mont.Const., Art. 26 provides: The 1972 § “Trial of to all The trial is secured by jury. by jury shall remain inviolate. But default of or con- upon by appearance of as the sent the in such manner law parties expressed may pro- vide, all be tried without a or before than may jury cases fewer the actions, all number of law. In civil two-thirds of jurors provided by verdict, render shall the and verdict so rendered have jury may the as had In same force and effect if all concurred therein. all actions, criminal the verdict shall be unanimous.” levels of trial between courts. distinguish does This section section, read its is crystal of when entirety, meaning “the out in the first sentence: is set clear. The explicit guarantee to all and shall remain inviolate.” of is secured by jury sentence, be trial courts can the trials in all Montana second By ifor if the agree, than the number of required jurors less sentence, in all trial trial of civil case third By defaults. the party state, of two-thirds jury required agreement courts of this sentence, trial fourth and last theBy in order to reach verdict. requires of this state case in all courts criminal a verdict. in order to reach jury unanimous agreement However, be reference what could more clear. I don’t know the right guaranteeing 1889 constitutional provision con- trial, the 1889 transforming of the framers the intent shows Mont.Const., The 1889 the 1972 provision. stitutional provision Ill, 23, provides:
451 all, “The of trial shall be by jury secured to and remain in- violate, but in all civil cases in all criminal cases not amount- ing felony, default of upon or appearance, by consent the par- ties in such expressed manner the law may prescribe, trial by waived, be or a trial had may less number of by any jurors than the number court, by law. A in a provided justice’s both misdemeanor, civil cases and in cases of criminal shall consist of not more than six In all persons. civil actions and in all criminal cases not amounting felony, two-thirds in number the jury verdict, render a and such verdict so rendered shall have the same force and effect as such concurred therein.” with
A careful provi- comparison — sion, shows there are two substantial other changes First, under the 1889 Con- style drafting changes changes. stitution, a not waive a in a defendant could felony Constitution, case, criminal but under the defendant *10 Second, can waive a trial. under the agreement jury parties, cases, 1889 Constitution two-thirds non-felony jury verdict; a need reach but under the 1972 agree binding provi- sion, in all criminal cases the vеrdict must be unanimous. *11 Amendment in the Seventh for provided jury was whether the second issue The Constitution.
the United States District of before the on law existing trial based to jury Government, applies of the United States a ward became Columbia irrelevant issues are totally a ward. These district became after the own to an our constitutional provision jury interpretation trials. that that
It is clear in trial under 1972 holding jury Mont.Const., II, a 26 can be by providing preserved jury § at a ignored second trial has majority totally appeal, of our constitution. is not a provisions It base deci- enough sion on the first sentence of Art. only stated,
IAs have ahead of already got itself in majority first trial can take without a but that a holding place jury, with a second trial must be It also im- jury guaranteed. appears by in the a that the to counsel in plication majority civil opinion before must be and that the jury, guaranteed, absence of counsel amounts to a denial due law. I don’t agree. first that would trial to be held in require
I I emphasize if either one of the demanded small claims proceedings also are benefits to trial in small trial. I believe there if it of counsel. claims court is conducted without benefit of main of a is to have objectives One small claims procedure at justice. Although illusory this speedy inexpensive concept best, we not lose it still of which should objective sight. less of counsel at trial often makes it speedy, surely presence makes more expensive.
A trial without benefit counsel can reach the of a equities case. One of the of a objectives small claims court is to simplify to do pleadings, evidence, with the away technical rules of and to generally the heart of the in get issue order to reach an equitable solution. can This be done if the small claims court is more a court of than it is a equity court of law. statement,
Although I have no evidence to back empirical my I don’t think am I going astray stating most this people do not want to country entrust the fate of a case to the hands of one person. Most would people feel far better about their trial if it was of their fellow citizens their case. deciding People country naturally suspicious entrusting their fate to one per- case, son. If a rather than a jury, decides judge, small claims *12 verdict, end of an adverse jury a on the receiving thаt party believe so, he is less likely decision. If abide jury’s will more readily will -be ended. and the take an litigation wants to see the case who claims court judge genuinely A small has best to see that the jury a will do his submitted to jury, fairly effective, the jury are to be If the the whole story. proceedings asking questions in the should be invited to participate can equities of the case so that the to the bottom getting generally felt, collective judg- I believe the those are equities be felt. Once than is the result to reach equitable of a is more likely ment jury of the communi- is the cross-section one A jury person. judgment A is not. of the community. judge and a is the conscience ty jury should in claims court decision in small do not say I should be an appeal there be final. irrevocably Perhaps all cases counsel be best let it process might and in process, as recommend would that a system Nor do I say participate. abuses; has man that no devised by have there is system yet its occur, surely existing legal But if abuses do not been abused. If the abuses were to reach the abuses. could be fashioned remedies doubt that the legislature have no and wide-ranging, I frequent into a court of the small claims court asked to convert would be law, formal with all the procedures. constitution, trial in of our the right
Under the faith in the is “inviolate.” But if we have small claims court believer), (and we do I am a true as we all we say jury system than in a claims court differently it in a small should let operate bad, or be they may results bemay good, strict court law. The chance, for abuses can be corrected. it a but we should give that per- of decision several unhealthy implications There are trial, has been after there already at a second mits a jury below. The realities on mеrits in the court nonjury trials, would be trial waiver if not most of the that in many heads in the sand. We should not our bury the result. courts, aware that the district but be cannot help The legislature — are, both try with cases overburdened part, for the most criminal civil. There more than that a case probability ap- from a pealed small claims court will not have as a chance of good on the getting trial calendar as are the criminal cases and civil cases filed directly district court. The case on from the small claims court well at the district court languish level long time period beforе is ever Nor can tried. it be denied that district are most judges reluctant call in civil juries try to them appeals from a coming lower court. A district court judge will undoubtedly or directly or indirectly pressure counsel the par- ties to waive a *13 trial. It is not jury unheard of that district judges have their own ofway convincing counsel that it is best to waive a trial, and that message gets back to inevitably the client. Only a strong-willed client can prevail his and upon lawyer the trial in his insistence on judge theories; a jury trial. These are not they are the realities. If the to trial is mean anything, is not the it should way be. was no аnd to
Even if there from district pressure judges lawyers court, a waive trial in from small claims the trial, is it to undeniable fact that would take time long get the is or whether the trial waived and a whether jury, hears the of small claims court general the case. If judge purpose merits, served, is to be is best to full trial on before it have the the in the small claims court. jury,
We act to have declared the small claims be unconstitu- today the small claims again tional. If decides create legislature court, the I would that its members read suggest closely Const., would that must Mont. 26.1 think they agree they § does in the small claims court. That section for provide trials trials and lower court between district court distinguish has er- when the trial. But the majority guaranteeing so done here. roneously
MR. DALY. JUSTICE
I concur with the concurrence dissent. foregoing dissenting: MR. CHIEF HASWELL JUSTICE would section MCA trial de I declare prohibiting questions novo in the District Court and restricting appeals Act, unconstitutional, rest and law sever from the declare I would vacate the balance the Act constitutional. Accordingly, and the case to the District Court a trial remand judgment de novo. with save one. I agree majority points opinion part with the in its that the еntire Act is un-
company majority holding constitutional because which remains after 25-35-403(2), MCA, section “is with the excising incompatible ap- “we are unable ascertain peal procedure required;” with to the regard intent” legislative appeal procedure; therefore the remainder of the Act cannot be incomplete severed. view,
In intent is clear unmistakable from the my legislative of the Act: language invalid, all valid of this act is 21. If Severability. part
“Section in effect. If from the invalid remain part severable parts of its in one or more part of this act is invalid аpplications, part that are severable from in all valid remains effect applications (1977), Ch. Laws of Montana the invalid applications.” I find no de difficulty severing prohibition against novo in District Court and limiting questions *14 law from the rest of the Act. The small claims procedure appeal remains because the statutes from the complete governing appeals court to the District Court Section 25-33-101 et seq., justice apply. These statutes for the filing MCA. provide procedure appeal inclusive, (sections MCA),for an 25-33-101 to 25-33-104 undertak- (sections of execution on 25-33-201 to stay ing appeal inclusive, MCA), de the District 25-33-207 for novo in Court 25-33-301, MCA) (section and for the District procedure inclusive, MCA). (section to 25-33-306 Court 25-33-301 statute, the small claims a specific provisions procedure, court to justice control over the from governing appeals provisions statute, Court, the extent of incon- the District general
457
(1975),
sistencies. Martel
Inc. v. Gleason
Inc.
Constr.
Equip.
479, 483,
883, 885;
v.
Mont.
P.2d
Fickes Missoula County
(1970),
272,
As I see the remainder of the Act would have been enacted by after legislature unconstitutional reason of excising part by itself, in the Act severability with conformity (1942), the other requirements Gullickson v. Mitchell 113 Mont. 359, 375, 1106, 1115, P.2d and City Missoula v. Holmes Likewise, 100 Mont. 47 P.2d the provi- sions on provide complete by incorpora- tion of existing statutes from governing appeals justice court District Court. Viewed in this Iway, find the Act in itself complete and one which the legislature would have intended to be in effеct even without section MCA. reasons,
For the I dissent from the foregoing majority holding that the entire Small Claims Court Act is unconstitutional. The Notes trial show that these Convention jury were the The note only changes contemplated by delegates. section 26 states: Ill, a “Revises 1889 constitution sec. by permitting 23] [Art. as defendant to waive trial in cases well civil and felony and than requiring misdemeanor cases jurors [rather %] before defendant be convicted of misdemeanor.” agree No one would argue that did person not have a constitution; trial in court under the old justice one no should court, does argue not have a person right to court, or a small police claims court under the 1972 constitution. — there “secured to all and shall remain inviolate.” Art. § understand, cites, For reasons don’t without ex- majority two United States planation, Court decisions: Supreme Capital 589, (1898), 19 S.Ct. 174 U.S. v. Traction Co. Hof Pet.) (7 L.Ed.873; 32 U.S. v. Moore Livingston raised here. to the question case is 751. Neither applicable L.Ed. case, the Moore, pro- Pennsylvania v. supra, In Livingston for settling method state set administrative up cedures in that at was No trial involved state and its officers. between the accounts summary thе clerk issue authorized the comptroller all. Once due, was any aggrieved he decided to collect the amount process by appealing cut off could immediately state officer trial. and demanding Court the Pennsylvania Supreme Therefore, the moment trial was guaranteed and the comptroller were completed administrative proceedings a decision. reached is that the court here does apply Another reason Livingston unlike the wholly provisions constitutional interpreted in Penn- involved actually The constitutional provisions Montanа. stated: sylvania, suits between man and in property, “In controversies respecting to be man, which ought have a to trial by jury, Penn, Const, XI, in 1776. adopted held sacred.” Art. heretofore, re- thereof and the right shall be as “Trial by jury Penn, Const, IX, Bill of Rights, Sec. main inviolate.” in 1790. adopted con- at all with Montana’s cannot be compared These provisions reason why Livingston 26. I see no Art. II stitutional provision, constitutional provision. our own bearing interpreting has any have bearing v. Hof, supra, Traction Co. Nor does Capital case in- That under our own constitution. raised here on the issue issue was this case. The first involved in issues not even volved violated the of Columbia in the District the trial whether