State v. Davis

Decision Date10 May 2016
Docket NumberNo. DA 14–0525.,DA 14–0525.
Citation383 Mont. 281,371 P.3d 979,2016 MT 102
PartiesSTATE of Montana, Plaintiff and Appellee, v. Kelly DAVIS, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad M. Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Bruce E. Becker, Park County Attorney, Kathleen Carrick, Deputy County Attorney, Livingston, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Kelly Davis appeals the decision and order of the Sixth Judicial District Court, Park County, denying his motion to dismiss his misdemeanor DUI conviction. We restate the issues on appeal as follows:

1. Whether Davis's trial before a non-lawyer justice of the peace violated his constitutionally-guaranteed right to due process of law.
2. Whether Davis's trial before a non-lawyer justice of the peace deprived him of his constitutionally-guaranteed right to effective assistance of counsel.

¶ 2 We affirm.


¶ 3 On January 12, 2013, a Park County law enforcement officer arrested Davis on suspicion of Driving under the Influence of Alcohol (DUI). Two days later, the Board of Commissioners of Park County passed Resolution No. 1147, which changed the Park County Justice Court from a non-record court into a court of record, effective immediately. Appeals to a district court from a justice court of record are not taken as trials de novo. Section 3–10–115(1), MCA.

¶ 4 Davis was arraigned on January 24, 2013, in Park County Justice Court, Honorable Linda Budeski presiding. Budeski is not an attorney licensed to practice law in Montana. At the arraignment, Davis pleaded not guilty to DUI, second offense, in violation of § 61–8–401, MCA. A second DUI is punishable by up to one year of incarceration. Section 61–8–714(2)(a), MCA.

¶ 5 Davis filed a motion to dismiss in justice court arguing that the prosecution of a jailable offense before a non-lawyer judge without the option of a trial de novo before a lawyer-judge violates the Due Process and Right to Counsel Clauses of the United States and Montana Constitutions. The Justice Court denied Davis's motion to dismiss.

¶ 6 Davis was tried in justice court before a jury and was found guilty on July 16, 2013. Thereafter, the Justice Court issued a written sentence and judgment, which Davis appealed to the District Court demanding a trial de novo. Davis also filed a motion to dismiss.

¶ 7 On December 10, 2013, after considering briefs on the issue from both parties, the District Court denied Davis's motion to dismiss, concluding that Davis's constitutional rights had not been violated by his trial being conducted by a non-lawyer judge in a court of record without a trial de novo.1 We granted Davis leave to file an out of time appeal. M. R. App. P. 4(6).


¶ 8 A district court's denial of a motion to dismiss in a criminal case presents a question of law that we review de novo for correctness. State v. Willis, 2008 MT 293, ¶ 11, 345 Mont. 402, 192 P.3d 691. We exercise plenary review of constitutional issues of due process and the right to counsel. In re Mental Health of C.R.C., 2009 MT 125, ¶ 13, 350 Mont. 211, 207 P.3d 289.


¶ 9 1. Whether Davis's trial before a non-lawyer justice of the peace violated his constitutionally-guaranteed right to due process of law.

¶ 10 Section 3–10–101(5), MCA, authorizes counties to establish justices courts as courts of record. “The court's proceedings must be recorded by electronic recording or stenographic transcription and all papers filed in a proceeding must be included in the record.” Section 3–10–101(5), MCA. Pertinent here, justices courts have jurisdiction within their respective counties over “all misdemeanors punishable by a fine not exceeding $500 or imprisonment not exceeding 6 months, or both.” Section 3–10–303(1)(a), MCA. Justices of the peace are not required to be licensed attorneys. See Sections 3–10–202, –204, 3–1–1502, MCA. In an appeal from a justice court established as a court of record, the district court functions as an appellate court and the appeal is confined to a review of the record and questions of law. Section 3–10–115(1), MCA ; Stanley v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, 148 P.3d 643 (citing State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137 ).

¶ 11 The District Court concluded that Davis's constitutional rights were not violated by virtue of his trial being conducted by a non-lawyer judge presiding in a court of record without the right to a trial de novo. The court concluded that Article VII, Section 4(2), of the Montana Constitution, along with our decision in Hernandez v. Board of County Commissioners and State of Montana, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, establish that the Legislature has “the ability to provide for something other than de novo appeals in district courts.” The court concluded also that the statutory scheme that allows for justice court proceedings and the appeal process to district courts “ensures that the Defendant's case is reviewed by a judge with formal legal training, and any alleged errors are reviewed and subject to correction, reversal and/or remand.” The court noted that other jurisdictions such as Wyoming, New Mexico, and South Carolina have concluded that defendants' due process rights are not infringed by having a non-lawyer as a judge. The District Court emphasized that justices of the peace in Montana have extensive training requirements pursuant to § 3–10–203, MCA.

¶ 12 The District Court determined that [t]here is simply no constitutional right to a trial before a judge with formal training,” and that [e]ach state is vested with the authority of devising its judicial system.” The court concluded that the Legislature acted within its power to establish justices courts as courts of record without requiring trial by a lawyer-judge.

¶ 13 As an accused person facing incarceration, Davis contends that he has a fundamental and essential right to a fair trial before a lawyer- judge because “due process requires that both the presenters and the evaluators of legal arguments in criminal trials be lawyers.” Davis argues that a criminal defendant must have a “meaningful opportunity to be heard.” Quoting Powell v. Alabama, 287 U.S. 45, 68–69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), Davis asserts, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” From this, Davis reasons that “being heard by counsel is of little avail if it does not comprehend the right to be heard by a lawyer-judge” because [l]aypersons, by definition, lack the requisite expertise of an attorney to evaluate legal arguments.” Davis concedes that governments are “free to regulate the procedures of their courts in accordance with their own conception of policy and fairness,” but argues that a “judge's qualifications must still meet the constitutional floor of the Due Process Clause.” While Davis concedes that the right to a lawyer-judge is not explicit in the Montana Constitution, he points out that the same is true with many other fundamental rights that are essential to a fair trial, e.g., proof beyond a reasonable doubt, the right to be provided with the prosecution's material evidence, and a neutral and detached judge.

¶ 14 Davis refers to other states—Tennessee, Indiana, California, and Vermont—that have held that due process includes the right of a lawyer-judge for defendants facing the possibility of incarceration. In addition, Davis argues that there is “widespread recognition of the lawyer-judge right across the nation.” The right to a lawyer-judge, according to Davis, began 800 years ago under the Magna Carta, which proclaimed that England would only appoint justices and constables who knew the law of the realm. According to Davis, this idea permeated through our country's history so that today “28 states require lawyer-judges to preside in all cases in which there is a possibility of incarceration ... [and] [a]nother 16 states do permit lay judges to conduct criminal trials but provide criminal defendants with either the option of trial de novo before a lawyer-judge or the ability to request a trial before a lawyer-judge in the first instance.” In contrast, Davis contends that only six states—Montana included—allow a non-lawyer judge to conduct criminal trials without the option of a trial de novo before a lawyer-judge. Because of this “persuasive authority,” Davis contends that Montana “is not in compliance with due process.”

¶ 15 Davis argues further that review by a lawyer-judge on appeal does not cure the lack of a lawyer-judge at trial because “the fundamental right to be heard must first be protected at trial.” Davis contends that much of a trial judge's work is not reviewed on appeal under a de novo standard”; rather, many rulings are reviewed for abuse of discretion or for clear error. According to Davis, this creates the possibility that “a defendant now may be sentenced to imprisonment when a lay judge makes a mistake of law that, because of the standard of review, will evade appellate review by a lawyer-judge.” Davis argues that even if a trial court's error can be remedied on appeal, the defendant already will have gone through substantial “burden, expense, and delay,” and even may have served his or her entire term of imprisonment before the appeal system can provide relief.

¶ 16 The State argues that the use of non-lawyer judges to “expeditiously try minor criminal offenses is consistent with longstanding, traditional common law practice.” Relying on Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the State contends that it is...

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