No. 13833 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN RE: EUGENE H. MARTEN 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Appellant: 

William Hutchison argued, Helena, Montana 

William J. Miele, Miles City, Montana 

For Respondent : 

Honorable A. B. Martin argued, District Judge, 

Miles City, Montana 

Submitted: June 10, 1977 

41 t7 1, 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

This is an original proceeding by a 17 year old male 

youth seeking a writ of habeas corpus, supervisory control, 

or other appropriate relief to test the legality of proceedings leading to his detention over a weekend in May 1977, 

in the juvenile part of the Custer County jail in Miles City, 

Montana. 

The thrust of the youth's petition is that he was unlawfully incarcerated in that: (1) He was denied the assistance 

of counsel, and (2) he was incarcerated in jail by failure 

of the Youth Court judge to follow the statutory procedures 

and requirements of the Montana Youth Court Act. 

The principal facts concerning the youth are contained 

in the report of Donald P. Wright, youth probation officer of 

the Sixteenth Judicial ~istrict, to the district court and 

set out verbatim here: 

"At approximately 12:00 Noon, on the 20th day of 

May, 1977, Gene Marten, a 9outh under the age of 

eighteen years, was referred to me charged with being 

in possession of stolen property, 94-6-302(3C), of the 

Revised Code of Montana, 1947 as amended, by the Rosebud County Sheriff's Department. 

11 Gene is a seventeen year old youth who is living 

with the Lovells in Forsyth. This home is not a 

licensed foster home. His father, Eugene Marten, whose 

last 'known residence was in Great Falls, Montana, is 

unavailable and I have not been able to contact him to 

date. I contacted the Cascade County Probation Office 

and they were unable to contact Mr. Marten, however, 

they did talk to the boy's grandparents, who stated 

that they believed that Mr. Marten had left Great Falls. 

"Mr. Dan Lovell stated that Gene's father was going 

to be coming through the town of Forsyth sometime over 

this weekend, and that Mr. Marten was going to stop by 

the Lovell residence while in Forsyth. 
11 Gene Marten was under the supervision of the 

Children's Services Office in Rosebud County until 

approximately one month ago. Presently, he has no 

legal guardian in Forsyth and the whereabouts of his 

father are unknown. 

"I believe and it is my opinion that it is in 

Gene Marten's best interests to be held in custody 

until such time as a hearing can be held before the 

District Judge of the 16th Judicial District Youth 

Court. 

"At noon today, when Gene was referred to my 

office, there was no available space in the juvenile 

portion of the Rosebud County jail. The county 

attorney, John Forsyth, and District Judge A.B. Coa te 

were tied up in a jury trial and I transported Gene 

Marten to Miles City, Montana under the authority of 

the Montana Youth Court Act, Section 10-1212, to be 

placed in the juvenile portion of the Custer County 

jail pending a petition being filed and a subsequent 

hearing before the District Youth Court Judge." 

Following the youth's transfer to Miles City, the Youth 

Court judge, the Hon. A.B. Martin, held a hearing, a transcript 

of which is before this Court. In the middle of this hearing, 

an attorney from Montana Legal Services appeared and requested 

the right "to say something". The following is a verbatim 

transcript of what occurred following the appearance of the 

Legal Services attorney at the hearing: 

"MR. MIELE: Your Honor, if I could say something 

please. 

"THE COURT : Well, I'm going to make an order and 

then 1'11 let you say it. 

"MR. PIIELE: I'd like to say it before the order, 

because I'm sure it's relevant. 

"THE COURT : I 'm going to run this and then you can 

say whatever you want to. Now you prepare this order, 

Jim, and it will be to this effect. 

"The Honorable Alfred B. Coate, presiding Youth 

Court Judge of Rosebud County, being elsewhere occupied 

on judicial business, the written report and sworn 

testimony of Don Wright, Juvenile Probation Officer of 

Rosebud County, has submitted to the undersigned Youth 

Court Judge of the Sixteenth Judicial District of Miles 
City, Montana, and it appearing from said report 

that the -- and the testimony submitted, that 

"1. There is probable cause to believe that said 

juvenile has committed the offense of being in possession of stolen property. 

"2. That the parents of said child cannot be 

reached at the present time, and that there is no 

home or institution in which said youth can temporarily 

be detained pending further proceedings, 

"Now Therefore it is Ordered that Donald P. Wright, 

a Juvenile Officer, may take custody of said juvenile 

and detain him in the Custer County jail, pending the 

filing of a formal petition by the County Attorney of 

Rosebud County. Such detention not to exceed five days, 

and the County Attorney shall forthwith file said formal 

petition. 

"It Is Further Ordered, that J. Dennis Corbin, 

attorney of Miles City, Montana, be appointed as said 

youth's attorney, who will as soon as reasonably possible, 

contact said youth and attend to the protection of his 

legal rights. 

"MR. MIELE: May I make a statement on the record? 

"THE COURT: All right. 

"MR. MIELE: First of all, Gene contacted my office 

yesterday in regard to the representation of Gene, and 

I have stated to him that I would represent him. Second 

of all, in regard to the statement that there is no 

available home, I don't think that is entirely accurate. 

We have a worker here from the Child Abuse Project in 

Rosebud County, who could state that the child has been 

living in a family home, that the child has been there 

for some period of time, and that the person who is in 

charge of that home, is ready, willing and able to come 

forward and give assurances in accordance with RCM 10-1213, 

that the child will be present in court on Monday, or 

whatever time is set for the hearing. Another matter 

which I don't know if it's legal, but I question the ethics 

of it, is the fact that I talked to Mr. Wright this 

morning, or this afternoon and told him that I was looking 

into the fact that the boy was in jail, and that I would be 

in touch with him this afternoon, and that there is a good 

chance that I would bring a habeas corpus petition before 

this court to have the boy let out, and I just question 

the ethics of him coming up here without notifying me when 

he knows that I was representing the boy. 

"THE COURT: He advised me that you had talked with 

him, so I know about that, and I have appointed an 

attorney for him, and if you want to talk to his attorney 

go ahead. 
"MR. MIELE: Is the Court interested in hearing any 

of the testimony that we can offer? 

"THE COURT: No, I'm not. That's it, the order 

is signed. You prepare that order forthwith and you 

will see that he gets a copy. 

"MR. WRIGHT : Yes, Your Honor. 

"THE COURT: And you make a copy of the minutes 

and send it over, if you can, with Don Wright when he 

returns, and then we'll let Judge Coate handle this 

thing, and I imagine it will be handled Monday. 

"MR. WRIGHT: Yes, Your Honor. 

"THE COURT : And if anyone else wants to appear, 

we'll let Judge Coate handle it. 

"MR. WRIGHT: Your Honor, the home that the boy has 

been staying in, is not a licensed foster home, and 

the same portion of the youth court statute stated by 

Mr. Miele, also states that the boy shall or will be 

held in a home authorized by the Court, if there is no 

parents or guardian present, and this was not a licensed 

foster home. 

"MR. MIELE: I might point out 10-1212, where it 

states that if the child has no parent, guardian or 

other person able to provide supervision and care for 

him and return him to the court when required, and 

I don't see any requirement of a licensed home. 

"THE COURT: Well you seem to overlook the fact 

that the Juvenile Court and the Juvenile Officers are 

attending to the interest of this child, as well as 

that of society. Furthermore, the Court has taken 

the necessary action to protect the legal rights of 

this boy, and I think that is all that is necessary." 

On May 23, 1977, Montana Legal Services Association filed 

an original proceeding in this Court for a writ of habeas corpus, 

supervisory control or other appropriate relief accompanied by 

affidavits of Daniel Lovell, Eugene Herman Marten, the youth 

involved, Marsha McDede and William J. Miele, the Legal Services 

attorney, together with a brief in support of the petition. 

This Court ordered an adversary hearing. Prior to the 

adversary hearing, Judge Martin filed his response to the petition which we set forth verbatim: 
"The response ordered by the Supreme Court to 

the petition for writ of habeas corpus or other 

appropriate relief filed in the above entitled matter 

is herewith submitted in narrative form without argument. What is said is my recollection of events 

leading up to the peremptory order for temporary detention of the youth. 

"Mr. Donald Wright who is the resident juvenile 

officer of Rosebud County came to my office on Friday 

afternoon, May 20, 1977, explaining that he had a 

problem which Judge Coate or the County Attorney could 

not act upon because they were presently occupied with 

a jury trial. To the best of my recollection Mr. Wright 

gave the following background. 

 he father and mather of the Marten boy had been 

divorced in Idaho. The father had been awarded custody 

of the children but had subsequently been deprived by 

court order of the two younger children because of abuse 

and neglect. In some manner not clear to me, Eugene 

Marten was taken under the wing of a federal agency which 

Mr. Wright referred to as 'Childrens Service.' I had 

never heard of this agency and was advised that it was 

a federally funded agency which was being tested in 

selected communities throughout the United States . Apparently it duplicates or augments the service provided by the State of Montana for abused and neglected 

children, but acts independently from the Montana Department of Social and Rehabilitation Services. I note 

from affidavits of petitioner that the official title 

of the agency is '~osebud County Northern Cheyenne 

Child Abuse and Neglect Project . ' 

"The Marten youth was placed in a foster home by 

the Agency in Forsyth, Montana, but declined to follow 

the rules and regulations imposed by that home. Because of the differences he was having with his foster 

parents, he moved into a home of a friend by the name 

of Dan Lovell. This move was given the after the fact 

blessing of the agency. It was during this period of 

his residency that the stolen tires and wheels were found 

in his possession. Mr. Wright, in my opinion, rightfully 

took the position that with the apparent criminal violation, 

the juvenile probation department should take control 

of the situation. It was also his position that the 

Lovell home was not a licensed foster home and under the 

circumstances described by him, was not a suitable home 

for detention of the boy pending further investigation 

and hearing on the youth's detention. It was to this home 

that Mr. Miele believed the youth should be returned. 

"Mr. Wright made an effort to contact the youth's 

father. He had called the juvenile probation office in 

Great Falls, who in turn contacted the youth's grandparents who did not know where the father was, but 

believed he had gone 'somewhere east' looking for a job. 
"With this information I directed Mr. Wright to 

file a written report stating in substance what 

he had related, together with a request to file a 

petition alleging juvenile delinquency. He was 

then to return with the youth and give oral testimony. This was done but during the course of the 

testimony, Mr. Miele came striding into the office 

with a train of attendants who stood in the doorway 

while Mr. Miele gave the appearance of wanting to 

interrupt. I said nothing and as Mr. Miele listened he started shaking his head, pulling his beard, 

turning one direction, then the other, and looking 

back at the people behind him whose smiles implied 

they understood Mr. Miele ' s dilemma. 

"My irritation with this display was aggravated 

by accounts of previous confrontations that Mr. 

Miele had had with the juvenile probation officers. 

As related by Mr. Butz, Mr. Miele, on one occasion 

stormed uninvited into the juvenile probation off ice 

and in an imperious manner issued ultimatums as to 

what the officers could or could not do. This confrontation reached the point that they were ready to 

bodily eject Mr. Miele from the office. 

"On another occasion Mr. Wright was attempting 

to explain to Mr. Miele, Mr. Wright's handling of a 

certain juvenile. Mr. Miele insolently swung around 

and sat with his back to Mr. Wright. 

"I have the greatest confidence in Mr. Wright. 

He is not combative and goes about his work in a 

quiet and thorough manner. If Mr. Miele would appear 

as a friend, rather than a dictator, the court and its 

juvenile officers would respond accordingly. 

"I observed when the Marten youth appeared that 

he was a mature 17 year old youth. The juvenile 

detention quarters of the Custer County Jail was 

constructed about three years ago and adequate quarters 

are available for the detention and supervision of 

juveniles. After ordering that he be confined, I 

directed Mr. Wright to see that the court appointed 

counsel was immediately put in touch with the boy, 

which I am advised was prmptly done. 

"Considering the totality of the circumstances, 

the court and its juvenile officers acted within the 

spirit and the letter of the law." 

Accompanying the district court's response was the affidavit 

of the youth probation officer, with a copy of his report to 

the court attached. 

Another affidavit of the youth, together with a copy of 

Judge Coate's order transferring the case to Lewis and Clark 

County was attached. 
Petitioner sets forth two issues for this Court's consideration: 

1. Did the Youth Court err in denying the assistance 

of available counsel to the youth in the predetention hearing 

before Judge Martin? 

2. Did the Youth Court fail to follow the statutory 

requirements and procedures of the Montana Youth Court Act 

in ordering the prehearing detention of Eugene Marten in the 

Custer County jail? 

At the outset, we are confronted with a contention the 

issues raised in this proceeding are moot as the youth is no 

longer incarcerated and is living with the Love11 family in 

Forsyth. While it may be true a writ of habeas corpus is no 

longer available to test the legality of the youth's confinement, the application for supervisory control to test the 

legality of the proceedings leading to such confinement is by 

no means moot. To deny review is tantamount to depriving 

petitioner of the rfght to any relief. 

In his first issue petitioner alleges the Youth Court 

erred in denying the assistance of available counsel to him 

in a predetention hearing. He directs our attention to one 

of the express purposes of the Montana Youth Court Act: 

" (4) to provide judicial procedures in which 

the parties are assured a fair hearing and recognition and enforcement of their constitutional 

and statutory rights." Section 10-1202(4), R.C.M. 

1947. 

We hold the facts of this case do not demonstrate a 

violation of this statute. Initially, there is considerable 

doubt as to the status of William J. Miele, the Legal Services 
attorney, in representing the youth at the time he appeared 

during the progress of the hearing before the Youth Court 

judge. The affidavit of the youth probation officer indicates that upon taking the youth into custody, the youth 

stated that he was not represented by counsel in response to 

a question by the youth probation officer. The affidavit of 

Mr. Miele indicates that on the day before the youth was taken 

into custody, the youth contacted him and asked him to represent 

him if criminal charges were filed against him for possession 

of stolen property and "I told Eugene that I would do so 

if he was unable to obtain another attorney." (Emphasis added.) 

It appears from the affidavit of Daniel Love11 that he was 

the moving force behind securing Mr. Miele's services in 

representing the youth. While it is true there are other 

affidavits and statements that indicate Mr. Miele was representing the youth, they do no more than create some doubt as 

to Mr. Miele's status at the time he entered the hearing then 

in progress. 

Under the facts here, we hold there was no proven violation 

of the Montana Youth Court Act. We perceive no requirement 

in the Act that a predetention hearing be held under all circumstances. The Act simply requires the following circumstances 

to exist to authorize detention: 

"A youth taken into custody shall not be detained 

prior to the hearing on the petition except when: 

his detention or care is required to protect the 

person or property of others or of the youth; he 

may abscond or be removed from the jurisdiction of 

the court; he has no parent, guardian, or other 

person able to provide supervision and care for him 

and return him to the court when required; or an 

order for his detention has been made by the court 

pursuant to this act." Section 10-1212, R.C.M. 1947. 
These requirements were clearly met by information developed 

from the youth probation officer under oath and his written 

report to the court followed by an order of the Youth Court 

for the youth's detention. 

The second issue for review is whether the Youth Court 

failed to follow the statutory procedures and requirements of 

the Montana Youth Court Act in holding the youth in detention 

over the weekend prior to hearing the charges against him. 

Petitioner points out the declared purpose of the Youth 

Court Act is to retain the youth in a family environment 

whenever possible, separating the youth from his parents only 

for the welfare of the youth or the safety and protection of 

the community. Section 10-1202(3), R.C.M. 1947. Petitioner 

also points out that this Court has heretofore set out the 

following criteria for separating a youth from his family enviranmnt: 

(1) necessary for the welfare of the youth, or (2) the safety 

or protection of the community. In the Matter of Zip Geary, 

Mont . , 562 P.2d 821, 34 St.Rep. 218 (1977). 

In our view, Geary is distinguishable and inapplicable 

on the basis that there, unlike here, the youth was being separated 

from his parents. Additionally, here the district court made 

an express finding "there is no home or institution in which 

said youth can be temporarily detained pending further proceedings" 

and the youth probation officer ' s report indicated the youth, 

in his opinion, might abscond if not detained. 

In summary, we are of the opinion the Montana Youth Court 

Act does not require a judge to hold a predetention hearing 

in every case; that the judge did so here is a matter within 

his discretion. While it can be argued that the Youth Court 
judge should have listened to Miele prior to entry of the 

order for prehearing detention, it appears that in view 

of Mr. Miele's questionable status as the youth's attorney 

the Youth Court judge was not compelled to do so. The predetention hearing developed a strong factual basis for detention of the youth in the juvenile facility in the Custer 

County jail under section 10-1212, R.C.M. 1947. 

We hold the Youth Court judge did not violate the 

provisions of the Montana Youth Court Act in ordering detention 

of the youth under the circumstances involved in this case. 

This opinion shall cats:: a declaratory judgment 

concerning the rights and remedies of the petitioner under the 

circumstances of this case. 

We - Concur: 

&ie f Jus ti 

Justices. 
Mr. Justice Daniel J. Shea dissenting: 

As an abstract conclusion, I agree with the basic conclusion 

of the majority that the Youth Court is not required to give a youth 

a predetention hearing under all circumstances. But I cannot accept 

this conclusion applying to the facts of this case. 

In this case the Youth Court did hold a predetention hearing. 

However, it was devoid of those procedural rights which usually go 

with a hearing. In essence, all the Youth Court did was accept the 

affidavit of the probation officer and his testimony concerning the 

youth and used this as a basis for jailing the youth for a period of 

not to exceed five days pending further juvenile proceedings. The 

probation officer was not cross-examined, the youth was denied the 

right to have anyone testify in his behalf, and he was effectively 

denied the right to an attorney at the hearing. The effect of this 

Court's decision is two-fold. First, a Youth Court is not required 

to hold a hearing. Second, even if a Youth Court does hold a hearing, there are no procedural requirements to make it a meaningful 

hearing. 

Once the Youth Court judge chose to hold a predetention 

hearing, he committed himself, I believe, to holding a meaningful 

hearing. This would include the right of the youth to call witnesses in his behalf, to cross-examine witnesses, and to have a 

lawyer represent him. 

Concerning the right to an attorney, the majority opinion 

makes much of the fact that the status of Mr. Miele as the youth's 

attorney was in doubt. The majority states the youth told the probation officer he did not have an attorney and that attorney Miele 

himself never directly represented to the court that he represented 

the Marten youth. If there was doubt, it was doubt caused by the 

probation officer and the court. 
The probation officer knew attorney Miele was involved in 

the case and could well be representing the Marten youth. While 

still in Forsyth (Rosebud County), attorney Miele called the probation officer and told him he might be filing a habeas corpus petition 

in an attempt to get the youth released. Shortly thereafter, without 

notifying the attorney, the probation officer took the youth to 

Miles City (Custer County) some 45 miles from Forsyth. The probation 

officer might have had the best of intentions toward the youth in 

taking him to Miles City, but he should have notified the attorney 

of his intentions. When the attorney learned that the youth had 

been taken to Miles City, he was understandably concerned, and he, 

along with a social worker, immediately drove to Miles City. When 

they arrived they met an antagonistic judge and probation officer 

who had no intention of letting the attorney or social worker participate in the hearing. 

The record clearly shows the court was not interested in 

what attorney Miele or the social worker had to say concerning 

whether the Marten youth could safely be released from custody 

pending the filing of a juvenile delinquency petition. These people traveled more than 45 miles, absolutely to no avail. 

When attorney Miele asked to be heard the least the Youth 

Court could have done was to stop proceedings to allow a determination of whether attorney Miele was authorized to and did in fact 

represent the Marten youth. Furthermore, the Youth Court could 

then also have been informed that the social worker was available 

to testify to the home situation of the Marten youth and that there 

was a home where the youth could stay pending further proceedings 

on a delinquency petition. 

Concerning the attitude of attorney Miele, this Court relies 

on the response filed in this Court to the youth's petition for a 

writ of supervisory control. I fail to see that it has any value 
in proving that Miele's attitude was wrong. The trial judge's 

statements in this regard show that any information he had concerning 

attorney Miele was hearsay evidence related to him through the probation officers. While the record shows that attorney Miele and 

the probation officers have had previous confrontations, there is 

no way we can conclude that attorney Miele was in the wrong. Is it 

possible that the real problem is the attitude not of attorney Miele 

but that of the Youth Court and probation officer? Could it be 

that the court and probation officers would allow attorney Miele 

to represent youths only if he did it their way? 

In summary I do not feel that this Court should put its 

stamp of approval on the hearing that was conducted in this case.