Supola v. Montana Dept. of Justice, Drivers License Bureau, 95-508

• Citation: 278 Mont. 421,925 P.2d 480
• Decision Date: 18 October 1996
• Docket Number: No. 95-508,95-508
• Parties: Timothy D. SUPOLA, Petitioner and Appellant, v. MONTANA DEPARTMENT OF JUSTICE, DRIVERS LICENSE BUREAU, Respondent and Respondent.
• Court: Montana Supreme Court

Page 480

925 P.2d 480

278 Mont. 421

Timothy D. SUPOLA, Petitioner and Appellant, v. MONTANA DEPARTMENT OF JUSTICE, DRIVERS LICENSE BUREAU,

Respondent and Respondent.

No. 95-508.

Supreme Court of Montana.

Submitted on Briefs Aug. 22, 1996.

Decided Oct. 18, 1996.

Bryan C. Tipp, Tipp and Buley, Missoula, for Petitioner and Appellant.

Joseph P. Mazurek, Attorney General, Michael S. Wellenstein, Assistant Attorney General, Helena, Alan J. Hall, Deputy City Attorney, Billings, for Respondent and Respondent.

HUNT, Justice.

Appellant Timothy D. Supola (Supola) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, concluding that he was not entitled to a jury trial on his petition to challenge the suspension of his driver's license.

Affirmed.

On February 13, 1995, Supola was arrested for driving under the influence of alcohol. Following his arrest, Supola refused to submit to a breath test to determine the level of his intoxication. Because of this refusal, Supola's driver's license was automatically suspended pursuant tos 61-8-402(3), MCA, the implied consent law.

Supola subsequently filed a petition in the District Court challenging the validity of the license suspension. He also requested that the matter be heard by a jury. The District Court denied his request for a jury trial, concluding that Supola was not constitutionally entitled to a jury in a proceeding to challenge the suspension of his driver's license. Supola appeals.

The sole question presented on appeal is whether the District Court erred in concluding that Supola was not entitled to a jury trial on his petition challenging the § 61-8-402(3), MCA, automatic suspension of his driver's license.

It is a question of law whether an individual is entitled to a trial by jury. In re Matter of C.L.A. and J.A. (1984), 211 Mont. 393, 395, 685 P.2d 931, 933. This Court reviews a district court's conclusions of law de novo, to determine whether they are correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601).

Supola first argues that the statute which provides for an appeal from a driver's license suspension does not, by its terms, prohibit a trial by jury and that, therefore, he should be allowed to have a jury trial if he so chooses. The pertinent statute, § 61-8-403, MCA, provides in part:

(1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation in the district court in the county where the person resides or in the county where the arrest was made.

(2) The court has jurisdiction and shall set the matter for hearing....

(3) Upon request of the petitioner, the court may order the department to return the seized license or issue a stay of the suspension or revocation action pending the hearing.

(4)(a) The court shall take testimony and examine the facts of the case....

(b) The court shall determine whether the petitioner is entitled to a license or whether the petitioner's license is subject to suspension or revocation.

(Emphasis added.)

When construing a statute, "the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA. When a statute is "plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe." Curtis v. Dist. Court of the Twenty-First Judicial Dist. (1994), 266 Mont. 231, 235, 879 P.2d 1164, 1166 (quoting State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333).

The plain language of § 61-8-403, MCA, dictates that the court shall both examine the facts and determine the merits of the petition. The statute does not contemplate the role of a jury in such a hearing; rather, it presumes a jury will not be present and assigns to the court the task of determining both facts and law. No other interpretation is possible from a plain reading of the statute. We therefore conclude that § 61-8-403, MCA, does not provide for a jury trial.

Supola next argues that § 61-8-403, MCA, as interpreted, violates his constitutional right to a trial by jury. Article II, Section 26 of the Montana Constitution provides:

The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

Supola contends that this section provides a right to a jury trial in all controversies, including a hearing regarding the propriety of his driver's license suspension. We disagree.

The inviolate right to a jury trial is not a prospective one, automatically granted in every new proceeding which may arise. Rather, the right which is constitutionally preserved is that right to a jury trial which existed at the time the constitution was enacted. In other words, "the rule in Montana is that our state constitution only guarantees the right to a jury trial in the class of cases in which the right was enjoyed when the constitution was adopted." Matter of C.L.A., 685 P.2d at 933 (citations omitted).

There is not, and never has been, a right to a jury trial in purely equitable actions in Montana. Downs v. Smyk (1982), 200 Mont. 334, 341, 651 P.2d 1238, 1242. In fact, an attempt was made during the 1972 constitutional convention to extend the right to a jury trial to actions in equity, but this attempt failed. Therefore, "in equity cases, the judge may call a jury to his assistance if he chooses, but is not bound to do so." Downs, 651 P.2d at 1242 (quoting Little v. Mackel (1968), 151 Mont. 421, 425, 443 P.2d 891, 893-94).

Suspension or revocation of a driver's license pursuant to the implied consent law is a civil administrative sanction, not a criminal penalty. In re Petition of Burnham (1985), 217 Mont. 513, 518, 705 P.2d 603, 607. It is not intended to punish the driver, but to protect the public. Burnham, 705 P.2d at 607 (citing State ex rel. Griffith v. Brustkern (1983), 202 Mont. 438, 658 P.2d 410; In the Matter of France (1966), 147...