State ex rel. Nelson v. Montana Ninth Judicial Dist. Court, Glacier County

• Decision Date: 18 November 1993
• Docket Number: No. 92-512,92-512
• Citation: 262 Mont. 70,863 P.2d 1027
• Parties: STATE of Montana ex rel., James C. NELSON, Glacier County Attorney, Relator, v. MONTANA NINTH JUDICIAL DISTRICT COURT, GLACIER COUNTY, The Honorable R.D. McPhillips, Presiding Judge, Respondent.
• Court: Montana Supreme Court

Page 1027

863 P.2d 1027

262 Mont. 70

STATE of Montana ex rel., James C. NELSON, Glacier County Attorney, Relator, v. MONTANA NINTH JUDICIAL DISTRICT COURT, GLACIER COUNTY, The Honorable R.D. McPhillips, Presiding Judge, Respondent.

No. 92-512.

Supreme Court of Montana.

Submitted Sept. 3, 1993.

Decided Nov. 18, 1993.

Larry Epstein, Glacier County Atty., Thane Johnson (argued), Deputy Glacier County Atty., Cut Bank, for relator.

David F. Stufft (argued), Cut Bank, for respondent.

Wm. Nels Swandal, Livingston, Montana County Attys. Ass'n., for amicus curiae.

Thomas J. Beers, Missoula Montana Trial Lawyers Ass'n., for amicus curiae.

William F. Hooks, Appellate Defender Office, Helena, amicus curiae, for Appellate Defender Office.

TRIEWEILER, Justice.

Defendant William V. Hill was charged by information, filed in the Ninth Judicial District Court in Glacier County, with felony assault in violation of § 45-5-202(2)(c), MCA; obstructing a peace officer in violation of § 45-7-302(1), MCA; and resisting arrest in violation of § 45-7-301(1)(a), MCA. Prior to trial, defendant formally waived his right to a jury trial and requested a trial of factual issues before the District Court without a jury. However, in response, the State demanded a jury trial of all factual issues. After considering the arguments of the parties, the District Court concluded that § 46-16-110(3), MCA, permitted defendant to waive his right to trial by jury and did not violate Article II, Section 26, of the Montana Constitution. On that basis, the District Court denied the State's demand for a jury trial. The State petitioned this Court to review the District Court's decision. We accepted review of this issue pursuant to our authority to exercise supervisory control. Upon completion of that review, we affirm the order of the District Court.

The issues presented to this Court for its consideration are:

1. Is this an appropriate case in which to exercise supervisory control?

2. Does the State of Montana have a right, pursuant to Article II, Section 26, of the Montana Constitution, to trial by jury in criminal cases, or can the right to trial by jury be waived by defendant, over the State's objection, pursuant to § 46-16-110(3), MCA?

I.

Is this an appropriate case in which to exercise supervisory control?

The exercise of supervisory control by the Montana Supreme Court over the state's district courts is authorized by Article VII, Section 2(2), of the Montana Constitution, and by Rule 17(a), M.R.App.P.

We have held that assumption of original jurisdiction for the purpose of exercising supervisory control is appropriate when:

(1) Constitutional issues of major state-wide importance are involved;

(2) The case involves purely legal questions of statutory and constitutional construction; and

(3) Urgency and emergency factors exist, making the normal appeal process inadequate.

State ex rel. Racicot v. District Court (1990), 244 Mont. 521, 524, 798 P.2d 1004, 1006.

In this case, all three bases for the exercise of supervisory control are present. The right of the State of Montana to demand trial by jury of criminal issues in the face of a waiver by a criminal defendant raises the constitutional issue set forth above. There are no factual issues to consider on appeal. We have been asked to resolve what the State contends is a conflict between Article II, Section 26, of our State Constitution, and § 46-16-110(3), MCA, as enacted by our Legislature. Furthermore, if we were to accept the State's position, the appeal process would be inadequate. Section 46-20-103, MCA, strictly limits the State's right to appeal from a final judgment in a criminal case to the statutory grounds provided. Those statutory grounds do not include denial of the State's demand for trial by jury. Finally, any appeal from an acquittal of the defendant after trial by the district court without a jury would violate defendant's right to be free from double jeopardy, which is guaranteed by the Fifth Amendment of the United States Constitution, and Article II, Section 25, of Montana's Constitution. State v. Cool (1977), 174 Mont. 99, 568 P.2d 567.

Therefore, we conclude that this is a proper case in which to exercise original jurisdiction and consider the issue of whether the State of Montana has a constitutional right to trial by jury in all criminal cases.

II.

Does the State of Montana have a right, pursuant to Article II, Section 26, of the Montana Constitution, to trial by jury in

criminal cases, or can the right to trial by jury be waived by defendant, over the State's objection, pursuant to § 46-16-110(3), MCA?

BACKGROUND

The right to trial by jury in federal courts was guaranteed by Article III, Section 2, and the Sixth Amendment of the United States Constitution. In Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, the U.S. Supreme Court held that the right of jury trial for serious offenses is a fundamental right guaranteed to citizens charged with crimes in state courts pursuant to the due process clause of the Fourteenth Amendment.

In Patton v. United States (1930), 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, the Supreme Court held that although a right to jury trial was guaranteed under the Federal Constitution to a defendant charged with a crime, that right could be waived. In Duncan, the court emphasized that that right of waiver would also extend to state courts.

However, in Singer v. United States (1965), 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638, the court concluded that "[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right," and that, therefore, the government could constitutionally condition the waiver of jury trial by requiring approval of the government and the trial court as had been done in Rule 23(a), of the Federal Rules of Criminal Procedure. In arriving at its conclusion that there was no constitutional right to a trial without a jury, and that the federal government's limitation on a defendant's right to waive a jury trial was constitutional, the U.S. Supreme Court acknowledged that the various states had provided for different methods by which waiver of jury trials could be accomplished. It made the following observation:

We are aware that the States have adopted a variety of procedures relating to the waiver of jury trials in state criminal cases. Some have made waiver contingent on approval by the prosecutor, e.g., California (Cal. Const. Art. I, § 7), Indiana (Ind.Ann.Stat. § 9-1803 (1956 Repl. vol.), Alldredge v. Indiana, 239 Ind. 256, 156 N.E.2d 888 (1959)), and Virginia (Va. Const. § 8, Va.Code Ann. § 19.1-192 (1950 Repl. vol.), Boaze v. Commonwealth, 165 Va. 786, 183 S.E. 263 (1936)). Others, while not giving the prosecutor a voice, have made court approval a prerequisite for waiver, e.g., Georgia (Ga.Code Ann. § 102-106 (1955), Palmer v. State, 195 Ga. 661, 25 S.E.2d 295 (1943)), and Washington (Wash.Rev.Code § 10.01.060 (1963 Supp.)). Still others have provided that the question of waiver is a matter solely for the defendant's informed decision, e.g., Connecticut (Conn.Gen.Stat.Rev. § 54-82 (1958)), and Illinois (Ill.Ann.Stat. c. 38, § 103-6 (Smith-Hurd ed. 1964), Illinois v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468 (1955)). However, the framers of the federal rules were aware of possible alternatives when they recommended the present rule to this Court, see Orfield, Trial by Jury in Federal Criminal Procedure, 1962 Duke L.J. 29, 69-72; this Court promulgated the rule as recommended; and Congress can be deemed to have adopted it, 18 USC § 3771 (1958 ed.).

Singer, 380 U.S. at 36-37, 85 S.Ct. at 790-91.

The Supreme Court in Singer did not hold that, as a matter of constitutional law, approval by the state or the trial court was necessary before the right to jury trial could be waived by a defendant. It simply held that there was no constitutional right to a trial before the court without a jury and that the method for waiver chosen by the Federal Rules of Civil Procedure which required approval of the prosecution and the trial court was not unconstitutional.

A more current and comprehensive analysis of how the various states have chosen to provide for waiver of the right to trial by jury in criminal cases is set forth in Criminal Jury Trials In Iowa: A Time For Revision, 31 Drake L.Rev. 187 (1982). The author points out in that article that:

The procedures in state courts can generally be broken down into three categories: (1) those which adhere to the principles of Federal Rule of Criminal Procedure 23(a); (2) those which require at least court approval of the defendant's request for waiver; and (3) those which provide for a unilateral waiver by the defendant. Typically the individual procedure involves a constitutional provision referring to the "inviolate" nature of trial by jury, a statute or court rule establishing the formalities and case history. [Footnotes omitted].

31 Drake L.Rev. at 199. The appendix to the Drake Law Review article indicates that in ten states a jury trial can be waived by the unilateral act of the defendant; nineteen states have followed the lead of the federal government by requiring court approval and consent of the government; eight states require only the consent of the government; twelve states require only court approval; and the State of North Carolina does not permit waiver under any circumstances.

Montana's Constitution and statutes have varied on this subject over the period of our State's history. As originally provided in Article III, Section 23, of the 1889 Montana Constitution, the right to trial by jury could not be waived in criminal felony cases. Section 23 provided in relevant part that:

The right of trial by jury shall be secured to all, and remain inviolate, but in all civil cases and in all criminal cases not amounting to felony, upon default of appearance...