City of Missoula v. Girard, 2013 MT 168 (June 20, 2013) (5-1) (McKinnon, J.; Rice, J., dissenting)
Issue: Whether the district court correctly held that Girard’s failure to appear at the final pretrial hearing constituted a waiver of his right to trial by jury.
Short Answer: No.
Facts: Girard was cited with disorderly conduct in November 2011. He pled not guilty. The municipal court’s scheduling order set a hearing for Feb. 15, 2013 “to confirm jury or enter a change of plea.” It stated in large print, “Defendant and his/her attorney must be present at this hearing. Defendant’s failure to appear shall be deemed a waiver of jury and the Court shall set a non-jury trial.” Girard signed this, acknowledging he received a copy of it. He also signed an omnibus hearing memorandum and scheduling order that said the same thing.
Girard and his attorney appeared Feb. 15, and the court set the final pretrial hearing for March 14 and a jury trial for March 15. Girard did not appear March 14; only his counsel did. Counsel advised the court that Girard is developmentally disabled, which likely explained his absence, and objected to resetting the case for a bench trial. The court deemed Girard’s nonappearance a waiver of his right to jury trial, and set another final pretrial hearing for April 10, with a bench trial on April 16. The court indicated it could reconsider its decision if counsel presented evidence of Girard’s disability.
Girard and his counsel appeared April 10. Girard orally moved to vacate the bench trial and reset the matter for a jury trial; the municipal court denied the motion. Girard filed a written motion to reconsider the following day, and attached an affidavit of a mental health nurse as well as Girard’s medical records from Providence St. Patrick Hospital.
On April 16, the court denied Girard’s motion and proceeded to nonjury trial. The court found Girard guilty of disorderly conduct.
Procedural Posture & Holding: Girard appealed to the district court on the basis that the court incorrectly interpreted the disorderly conduct statute, that the statute as interpreted is unconstitutionally overbroad, and that the court had abused its discretion in denying Girard his right to a jury trial. The district court affirmed, and Girard appealed. The Supreme Court reverses on the jury trial issue.
Reasoning: The Montana constitution provides the right of trial by jury in Article II, section 26. Additionally, a defendant charged with a misdemeanor “may appear by counsel only, although the court may require the personal attendance of the defendant at any time.” § 46-16-120, MCA.
The city relies on Cox and Trier for the categorical rule that a defendant’s nonappearance at a mandatory pretrial conference is a waiver of his right to a jury trial. The city has misinterpreted these holdings. Cox established that a court may treat a defendant’s nonappearance as a waiver of his right to a jury trial, but it did not establish that a court must do so. Cox did not raise a factual argument that the waiver was invalid; Girard has.
Trier involved an oversight by counsel, which is distinguishable from Girard, whose disabilities and medical conditions prevented or posed a barrier to his arriving promptly for the final pretrial conference.
Here, Girard appeared at all mandatory hearings except the March 14, 2012 final pretrial hearing. Girard presented unrebutted evidence that Girard’s brain injury makes it difficult for him to meet and keep appointments and deadlines. Under these facts, the municipal court abused its discretion in deeming Girard’s failure to appear as a waiver of his right to a jury trial, and the district court erred in affirming.
Justice Rice’s Dissent: The municipal court did not impose a categorical rule of automatic waiver. Instead, it gave Girard an opportunity to demonstrate that he had good cause for not appearing. The Court does not explain what procedure the municipal court should have used, or what needs to be done to avoid the assertion that they are applying a categorical rule of automatic waiver. The Court’s reversal grants Girard a license to miss all court appointments because he has trouble remembering them. Justice Rice would affirm.