(dissenting). I dissent because I conclude that sec. 799.21(3), Stats.,1 *485requiring a party in a small claims action to pay jury fees in advance of trial — when jury fees are not required to be paid in civil actions brought pursuant to chs. 801 to 807, Stats.2 — constitutes a denial of constitutional rights.
*486When a litigant in a small claims action demands a trial by jury, the statutes provide that the small claims litigants shall proceed as if the action had originally been begun as a chs. 801-807 proceeding. Sec. 799.21 (4), Stats. 1979-80. Thus sec. 799.21(3) (c) requires a small claims litigant requesting a jury to pay an additional clerk’s fee of $6 and an additional suit tax in an amount that would render the total suit tax paid equal to that required under chs. 801-807. Although no jury fees are required of a litigant who initiates a suit pursuant to chs. 801-807, Stats. 1979-80, sec. 799.21(3) (a) requires the small claims litigant to pay a $24 jury fee.
I assume, arguendo, that the majority is correct in stating that “the appropriate test for review of the classification of small claims litigants and those proceeding under chs. 801-807, Stats., is whether there is a rational basis for the classification.” Supra, p. 479. I recognize, however, that the right to a jury trial is guaranteed by the Wisconsin Constitution for “all cases at law without regard to the amount in controversy” and that I might take the position that the strict scrutiny test applies. I do not analyze the legislation to determine if the legislature has a “compelling justification,” because I conclude that the classification in the instant case does not satisfy the less rigorous rational basis test.3
*487I, like the majority, recognize that statutes are entitled to a presumption of constitutionality and that the burden is on the party challenging a legislative classification to demonstrate that it does not bear a rational relationship to a legitimate state purpose. The equal protection clause does not authorize this court to substitute its view of public policy for that of the elected members of the legislature, but it does require the court to probe beneath the claims of the government to determine if the constitutional “requirement of some rationality in the nature of the class singled out” has been met. James v. Strange, 407 U.S. 128, 140 (1972). As the United States Supreme Court has said, “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” Baxtrom v. Herold, 383 U.S. 107, 111 (1966). The rational basis standard for reviewing legislative classification is not “a toothless one.” Schweiker v. Wilson, 450 U.S. 221, 67 L. Ed. 186, 198 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 184 (1980) (Brennan, J., dissenting); Mathews v. Lucas, 427 U.S. 495, 510 (1976).4
*488In determining whether a legislative classification meets the rational basis test, “a court should ask, first, what the purposes of the statute are, and, second, whether the classification is rationally related to the achievement of those purposes.” United States Railroad Retirement Board, supra, 449 U.S. at 184 (Brennan, J., dissenting) .
Because the statute, and its legislative history are silent as to the legislative purpose, the majority hypothesizes two legitimate purposes which the majority says are effectuated by the legislature treating jury fees in small claims actions differently from jury fees in chs. 801-807 actions: (1) The imposition of the jury fee in small claims actions serves the legitimate state purpose of having the users of juries pay part of the added expense of jury trials; and (2) The imposition of a jury fee in small claims actions serves the legitimate state purpose of fostering a “summary disposition” for resolving small claims disputes.
Defraying the Expense of Jury Trials. The majority’s first hypothesized legitimate state purpose (or justification) for the imposition of a jury fee in small claims actions but not in chs. 801-807 actions is that the users of the jury in small claims court should defray part of the jury expense and that, by charging a separate fee for a jury, other litigants in small claims actions who do not use juries have the benefit of a low suit tax. As the majority explains, “a fair allocation of the court’s expenses was the basis for the separate assessment of the jury fee [in small claims actions].” Supra, p 480. In contrast, says the majority, in chs. 801-807 civil actions all litigants share the added expense of jury trials by paying higher suit taxes than paid in small claims court; *489the jury costs in chs. 801-807 actions are thus spread among all litigants whether or not they use the jury.
Certainly, having the litigant pay part of the added expense of a jury trial and keeping the costs of small claims actions as low as possible are legitimate state objectives. The question is whether the classification the legislature employs has rational relevance to the objectives. Or to state it in another way, the question is whether the objectives sought to be achieved constitute adequate justification for the classification. I conclude that the imposition of a jury fee in small claims jury trials only does not bear a rational relationship to the objectives hypothesized by the majority.
When parties in a small claims action request a jury, they pay the same suit tax as do the chs. 801-807 litigants. See sec. 799.21(3) (c), Stats., and majority opinion at page 473. Thus the small claims litigant who demands a jury shares, along with all other chs. 801-807 litigants, the increased costs of all jury trials via payment of the higher suit tax. Forcing the small claims litigant to pay a jury fee in addition to the higher suit tax imposes a greater burden on the small claims litigant who wants a jury trial than on the chs. 801-807 litigant who wants a jury trial. Yet the added expense of a jury trial in what started out as a small claims action is not greater than the added expense of a chs. 801-807 jury trial. The majority’s hypothesized justification for imposing on the small claims litigant the $24 fee for using a jury is thus not persuasive when the statutory scheme is analyzed.
Judge Dykman, writing for the court of appeals, recognized that the jury trial of a small claims action is the same as a jury trial in an action commenced under chs. 801-807 and concluded that there is no rational justification for the legislature charging a fee for a jury trial in *490one type of action but not charging in the other. Judge Dykman summarized the court’s conclusion as follows:
“From the point at which a small claims litigant asks for a jury trial, his case is treated as though the action had initially been commenced as a proceeding under chs. 801 to 807, Stats. The costs of administering a jury trial are no greater in a case which began as a small claims action than they are in a case that was initiated under chs. 801 to 807. The same records must be kept. The same personnel must be employed. The same number of jurors must be paid. There is no greater burden to the state in providing a jury in small claims actions than there is in providing a jury in non-small claims actions. We can think of no legitimate state objective that is served by this legislative classification.” (Notes omitted.)
To support its conclusion that there is a rational relationship between the classification and the objectives, the majority relies on State v. Graf, 72 Wis. 2d 179, 183, 240 N.W.2d 387 (1976). The majority’s reliance on Graf is misplaced. Graf dealt with the issue of whether the equal protection clause is violated by the legislature imposing a larger suit tax in jury cases than in non-jury cases and requiring prepayment of this larger suit tax in jury cases but not in non-jury cases. Graf dealt with a legislative classification of jury and non-jury trials. The Graf court concluded that the disparate length of trial time and preparation time in jury trials as compared with non-jury trials justified assessment of a higher suit tax in jury trials than in non-jury trials. The Graf case did not reach the issue of whether equal protection is violated by the imposition of jury fees in a chs. 801-807 action which began in small claims and not in the other chs. 801-807 actions.
Distinguishing between small claims actions and other civil actions may be reasonable for certain purposes, but in the context of the existing statutes the distinction as *491to jury fees has no relevance to the purposes set forth by the majority.
“Summary Disposition.” The majority’s second hypothesized legitimate state objective (or justification) for the imposition of a jury fee in small claims actions but not in chs. 801-807 actions is that the jury fee promotes the legislative objective of providing a “summary procedure” for resolving small claims disputes.
The majority describes the trial of a small claims action as “summary in nature,” a “summary disposition,” and a “summary procedure,” which does not provide for “discovery, motions before and after verdict, pretrial conferences and other proceedings which absorb a large amount of the valuable court time.” Supra, pp. 481-483. Though the majority never defines the word “summary,” the majority apparently believes that a trial in a small claims action is summary in the sense that it is a quick, informal, and inexpensive proceeding. Supra, pp. 481-483. A jury trial in small claims court, according to the majority, would obstruct the “summary disposition” because a jury trial is time consuming, requires stricter adherence to the rules of evidence, and is expensive for the litigants. The majority concludes that imposition of a jury fee in a small claims action is a means of “insuring the sincerity of the party requesting a jury trial [and thus serves] the legislative objective of providing a summary procedure for resolving small claims.” Supra, p. 481. The majority apparently reasons that the jury fee discourages “insincere” requests for a jury thereby increasing the likelihood of trial to the court and trial to the court in a small claims action is, according to the majority, a “summary disposition.”
I believe the majority is mistaken in characterizing a trial to the court in a small claims action as “summary.” If the trial to the court in a small claims action is not “summary,” then fostering “summary disposition” or *492“summary procedure” in small claims actions cannot be the objective of or justification for the challenged classification.
The majority’s characterization of a trial to the court in a small claims action as “summary” does not comport with the Wisconsin statutes.® The majority correctly notes that the 1949 creation of the small claims court allowed for a summary disposition of small claims. The 1949 legislature specifically provided that “the practice and procedure of said small claims court shall be summary in its nature,” sec. 254.07(1) (a), Stats. 1949. The judge of the small claims court was specifically empowered “to make such rules governing the practice and procedure . . . . as he may deem advisable to facilitate the disposition of matters coming before the court.” Sec. 254.07(1) (c), Stats. 1949. The majority fails to point out, however, that in the 1961 court reorganization, the legislature eliminated the 1949 small claims court and established a new small claims procedure for small claims type actions in county court. Under the 1961 pro*493cedure, which is the basis of our present ch. 799 small claims procedure, the trial in a small claims action is no longer summary in nature. Boden, Wisconsin Small Claims Practice Under Ch. 299; A Discussion and Some Suggestions, 47 Marq. L. Rev. 38, 40, 48-50 (1963). Since 1961 the statutes expressly state that circuit court practice applies to small claims actions unless the small claims statute provides otherwise. The 1961 Small Claims Procedure Act did not, to any substantial extent, simplify the trial of small claims disputes; it simplified such matters as the summons, service, pleadings, entry of judgment, etc. See Ch. 299, Stats. 1961. As Dean Bo-den’s article points out, as of 1961 the major differences between the trial of a small claims action and the trial in circuit court relate to the selection of six- and twelve-person juries and the waiver of a jury.
In 1977 a major revision of chapter 799 was enacted to provide for a more simple trial procedure so that individuals could use the small claims procedure more easily and without counsel.6 The legislature provided that in counties with a population between 100,000 and 500,000 — of which there are six in the state — a court *494commissioner may be appointed to decide small claims actions; in Milwaukee county, a commissioner must be appointed to hear small claims matters. Secs. 799.206, 799.207, 757.68(1) (b), 757.695, Stats. 1979-80. Under the 1977 amendments, if the small claims trial is before the court commissioner, there is a simplified and summary type of trial. The legislature has specifically prescribed that “the court commissioner may consider all relevant information and the proceedings shall not be governed by the rules of evidence.” Sec. 799.207 (1) (c), Stats. 1979-80. Even if the commissioner hears and decides the case, the legislature has, however, carefully preserved the right to a trial of the small claims matter either to the court or by a jury. The court commissioner must instruct the parties and give them a form allowing them, after the commissioner renders a decision, to demand a new trial on all issues before the court or a jury. Secs. 799.207(2) (b), (3), (4), (5), 799.21, Stats. 1979-80.
Thus as of 1981 the trial in a small claims action whether to the court or by jury is governed by the general rules of practice and procedure applicable in circuit court unless a specific statute provides otherwise; and few statutes provide otherwise. Thus sec. 814.025, Stats. 1979-80, relating to frivolous actions, applies to small claims court. Hessenius v. Schmidt, 102 Wis. 2d 697, 702, 307 N.W.2d 232 (1981). Ch. 804, relating to depositions and discovery, and chs. 901 through 911, the rules of evidence, apply to small claims trials whether to the court or by the jury'. Sec. 911.01(2), (4)(d), Stats. 1979-80.
Chapter 799, even after the 1977 amendments, still represents what Dean Boden characterizes as “a compromise between two schools of thought on the subject of small claims handling: (1) the advocates of a thoroughly informal, almost administrative type process; and (2) *495the proponents of an essentially judicial approach with exceptions to circuit court practice as dictated by necessity.” Boden, supra 47 Marq. L. Rev. at 40. The “compromise small claims procedure” the Wisconsin legislature adopted in 1961 is essentially that the informal administrative type process is used in the pleading stage of the small claims action while the formal judicial approach (with a few exceptions) is used in the trial stage of the small claims action. After the pleading stage, a small claims action and a ch. 801-807 action are, for purposes relevant to this case, the same under the Wisconsin statutes. Thus the parties are entitled to the same type of trial whether or not the action was initiated under the small claims procedure. In talking about summary disposition and summary procedure, the majority fails to recognize the distinction between the pleading stage and trial stage of a small claims action, a distinction clearly embodied in the small claims statutes.
In 1981, unlike in 1949 when the small claims court was created, the practice and procedure in the trial of a small claims action is not “summary in its nature,” as the majority would lead us to believe. A request for a jury changes the nature of the small claims trial in much the same way as such a request would change the nature of the trial of a chs. 801-807 civil action" .1 recognize that generally a trial to the court takes less time and may be “more relaxed” than a trial by jury, but a trial to the court is not “summary in nature” in small claims actions any more than it is summary in nature in a chs. 801-807 action.7
*496When the classification of small claims litigants demanding jury trials, as opposed to chs. 801-807 litigants demanding jury trials, is viewed in light of the overall scheme of the small claims statutes, it is not conceivable that the purpose of the classification was to promote “summary disposition” of small claims trials. As previously pointed out, a small claims trial to the court is not summary in nature. A court cannot hypothesize objectives of or justifications for a legislative classification in a vacuum. The court must at a minimum consider the legislative scheme in which that classification is embodied in determining the objectives of the legislature.
Although I conclude that a small claims trial to the court is not “summary in nature” and that the classification of small claims litigants with regard to jury fees cannot be justified on the ground of promoting “summary disposition” in small claims trials, I in no way mean to imply that I do not favor a more informal, less expensive, and faster system for the trial of small claims disputes. However, if we are to have such a system in Wisconsin, the legislature must enact it. It is not the role of this court to impose its view of what is good public policy by identifying a legislative purpose that is clearly not supported by the existing statutes.
I conclude that the legislative objective of the jury fee is not, as the majority claims, to increase the likelihood of a “summary disposition” of small claims trials. The only conceivable legislative objective of the jury fee in the context of the existing statutes is to discourage trial by jury in small claims actions. In the case at bar, the effect of the classification is the purpose of the classification and the purpose is not a legitimate state objective. *497In La Bowe v. Balthazor, 180 Wis. 419, 193 N.W. 244 (1923), this court clearly stated that it is not a legitimate state objective to discourage jury trials in cases involving minor sums of money. The court said:
“The municipal court was created, no doubt, for the laudable purpose of taking care of minor cases involving less than $1,000 efficiently and economically, and it was quite clearly the intention of the legislature to impose the high jury fee in order to discourage trials by jury. The public policy of the state, however, is determined by the constitution so far as jury trials are concerned, and the legislature is not permitted to circumvent the constitutional provision in order to even secure a better public policy. That can only be done by constitutional amendment. Manifestly, the municipal court will deal with the poorer classes of litigants, but these litigants are entitled to the same rights and privileges under the constitution as those of larger possessions.” Balthazor, 180 Wis. at 423, 193 N.W. at 246.
The legislature cannot impose burdens on the constitutionally guaranteed right to a jury trial when the burdens fall peculiarly and without rational justification on selected litigants.
I conclude, as did the court of appeals, that there is no conceivable legitimate state objective which is rationally served by the legislature’s classification. I would hold, as did the court of appeals, that the sec. 799.21(3) requirement that small claims litigants pay jury fees violates the equal protection clauses of the federal and state constitutions. I therefore dissent.
I am authorized to state that Chief Justice Bruce F. Beilfuss and Justice Nathan S. Heffernan join in this dissent.
Ch. 299 has been renumbered ch. 799. I refer to ch. 799 of the 1979-80 statutes, instead of to ch. 299 of the 1977 statutes as does the majority.
Sec. 799.21(3), Stats. 1979-80, provides:
“(3) Trial by jury, (a) Any party may, upon payment of the fees specified in par. (c), file a written demand for trial by *485jury. If no party demands a trial by jury, the right to trial by jury is waived forever. In eviction actions, the demand shall be filed at or before the time of joinder of issue; in all other actions within 20 days thereafter.
“(b) In counties establishing at least one part-time or full-time court commissioner position under s. 757.68(1) (b), except in eviction actions which shall be governed by par. (a), demand for trial by jury shall be made at the time a demand for trial is filed. If the party requesting a trial does not request a jury trial, any other party may request a jury trial by filing such request, with the court and mailing copies to all other parties within 15 days from the date of mailing of the demand for trial or the date on which personal notice of demand is given, whichever is applicable. If no party demands a trial by jury, the right to trial by jury is waived forever. The fees specified in par. (c) shall be paid when the demand for a trial by jury is filed.
“(c) The fee for a jury is $24, plus an additional amount as suit tax which will result in a suit tax payment of the amount which would have been payable had the action been commenced under chs. 801 to 807 and additional clerk’s fees of $6.”
While there are jury fees in certain non-small claims actions, see sec. 800.04(1) (d), Stats. 1979-80 (municipal court jury fees) and sec. 345.43(1), Stats. 1979-80 (traffic case jury fees), as the majority states at page 482, “there are no additional fees required if a jury is demanded” in a chs. 801-807 action.
A litigant in a small claims or other action may pay the cost of one day’s jury fees under sec. 814.51, Stats. 1979-80, which provides:
“814.51 Jury fees; discretion of court. The court shall have discretionary authority in any civil or criminal action or proceeding triable by jury to assess the entire cost of one day’s juror fees for a jury, including all mileage costs, against either the plaintiff or .defendant or to divide the cost and assess the cost against both plaintiff and defendant, or additional parties plaintiff or defendant, if a jury demand has been made in any case and if a jury demand is later withdrawn within 2 business days prior to the time set by the court for the commencement of the *486trial. The party assessed shall be required to make payment to the clerk of circuit court within a prescribed period and the payment thereof shall be enforced by contempt proceedings.”
That the right to a Jury can be regulated, however, does not mean, as the majority would have us believe, that it is not a fundamental right or that the strict scrutiny test, i.e. that a classification may be justified only by strong governmental interests, does not apply. Tribe, American Constitutional Law sec. 16-6 (1978).
It should also be noted, however, that the seventh amendment federal right to jury trial differs from that guaranteed by the Wisconsin Constitution and that the federal right to a jury trial in *487civil actions is not considered “fundamental” with respect to the states. See Palko v. Connecticut, 302 U.S. 319, 324 (1937); Richie v. Badger State Mutual Casualty Co., 22 Wis. 2d 133, 143, 125 N.W.2d 381 (1963).
This court and the United States Supreme Court have used numerous formulations for the rational basis test and have afforded different degrees of deference to the legislature. See U.S. Railroad Retirement v. Fritz, 449 U.S. 166 (1981); Schweiker v. Wilson, 450 U.S. 221, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981); Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980); Marmolejo v. DILHR, 92 Wis. 2d 674, 682, 285 N.W.2d 650 (1979); State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 321, 240 N.W.2d 626 (1976); Harris v. Kelley, 70 Wis. 2d 242, 251, 234 N.W.2d 628 (1975); Tribe, American Constitutional Law, Ch. 16 (1978); Gunther, Forward: In Search of Evolving Doctrines on a Changing Court: A Model for a Newer Equal Protection, 86 *488Harv. L. Rev. 1 (1972); Gunther, Constitutional Law, Cases and Materials Ch. 10 (10th ed. 1980).
Although advocates of the small claims court wanted to establish a court to resolve minor disputes among individuals, the small claims court in Wisconsin, as in other states, is apparently dominated by businesses and collection agencies and the small claims courts have not proved successful in providing speedy, inexpensive justice for individuals with minor disputes. See Bernstine, An Empirical Study of the Dane County Small Claims Court (L.L.M. Thesis, U. of W. Law School 1976); Poe, Landlord-Tenant Use of Selected Small Claims Courts in Wisconsin, A Report to the Wisconsin Department of Agriculture, Trade and Consumer Protection (A Report by the Center for Public Representation, Peb. 1979); Wis. Citizens Study Committee on Judicial Organization, Court Availability Subcommittee Report, 160-167, 177 (Oct. 1972); Purdum, Examining the Claims of a Small Claims Court: A Florida Case Study, 66 Judicature 26 (1981); Steele, The Historical Context of Small Claims Courts, 1981 A.B.F. Res. J. 293; Meyers, The Pro Se Small Claims Court in Chicago: Justice for the “Little Guy’’?, 72 Nw. U.L. Rev. 947 (1978).
Ch. 345, Laws of 1977. For an analysis of the small claims court and of ch. 345, Laws of 1977, see the following documents in the files of the Wisconsin Legislative Council, 147 North, State Capitol, Madison, Wisconsin, relating to Ch. 345, Laws of 1977: Analysis by the Legislative Reference Bureau to 1977 S.B. 467; Wis. Legisl. Council Staff Memorandum from Dan Fernbach, Senior Staff Attorney, to Speaker Edward Jackamonis re Ch. 345, Laws of 1977, dated May 24, 1978; Statement of the Milwaukee Junior Bar Association in support of 1977 S.B. 467 dated March 3, 1978; Statement of James D. Jeffries, Assistant Attorney General, Wisconsin Department of Justice, dated August 25, 1977, before the Senate Judiciary and Consumer Affairs Committee in support of 1977 S.B. 467; Statement of Liz Allen of the Governor’s Council for Consumer Affairs dated August 25, 1977, before the Senate Judiciary and Consumer Affairs Committee in support of 1977 S.B. 467.
When judges in trials of small claims actions “relax the rules at trial,” they find themselves in the uncomfortable position of adhering to that which some view as the spirit of the small claims procedure act and of not adhering to that which is the letter of the small claims procedure statutes. The judge sitting in small claims court may wind up reversed if he or she adheres to the spirit of the law or reversed if he or she adheres to the letter of *496the law. See Littleton v. Langlois, 37 Wis. 2d 360, 165 N.W.2d 150 (1967). There has been significant criticism of the operation of the small claims court, see authorities cited in note 5 swpra, but no solution has been divined.