INTHE SUPREME COURT OF THE STATE OF MONTANA NO. 84-502

INTHE MATTER OF: T.L.G. and M.E.H., Youths.

ORDER DENYING WRIT AND OPINION 

### f&m~ OF @UPREMECOURT L~~~AX GE BilhsnTANA The State of Montana, acting through the County Attorney's office of Butte-Silver Bow, Montana, has made application to this Court seeking a writ of supervisory control, a writ of prohibition, or other appropriate writ, against the Youth Court of the Second Judicial Distri.ct of the State of Montana, inand fortheCounty of SilverBow. The writ sought would in effect overrule the Youth Court's order of November 13, 1984, denying the State's motion to arrest proceedings in two cases pending in the Youth Court involving T.L.G. and M.E.H. The youths are facing charges in the Youth Court that each is a delinquent youth in that each had committed three counts of deliberate homicide, that T.L.G. had committed robbery by accountability, and that M.E.H. had committed robbery, all felonies. T.L.G. is fourteen years of age, having been born on January 16, 1970. M.E.H. is fifteen years of age, having been born

on March 1, 1969. The purpose of the State in moving to arrest proceedings in the Youth Court was to further move that the youths be transferred tocriminal courtunder 5 41-5-206, MCA. That statute, however, requires that before such charges may be transferred to the criminal court, the youth charged musthave been sixteen years of age or more at the time of the conduct alleged tobe unlawful. In making the application, the State contends in effect that the sixteen-year-old requirement for transfer has the effect of placing in the Youth Court total iurisdictionover all criminal casesamounting to a fel.onyif theyouth charged is less than sixteenyears old and that such statutory provision is in con£l.i.ctwith Art. VII, Sec. 4(1)

## ,Montana Constitution 1972. We set out in full the constitutional provision in question: "Section 4. District court jurisdiction. (1) The district court has original iurisdiction in all criminal cases amounting to felony and all civilmatters and cases at law and in equity. 

# ... "(3) Other courts ma.yhave jurisdiction of criminal cases not amounting to felony and such jurisdiction concurrent with that of the district court as may be provided.by law.

### " The State contends that the provisions of the 1972 Montana Constitution gives t.heDistrict Court original jurisdiction in all criminal cases amounting to a felony,and that und-erthe decision of this Court in State ex re].. Ell-iotv. District Court (Mont. 1984), 684 P.2d 481, 

### 41 St.Rep. 1184,

an individual under the age of sixteen is legally caps-ble of committing a felony. We have concluded that the State is not entitled to relief by supervisory control,writ of prohibition, or other writ for twoprincipal reasons: (1)the term "original iurisdiction" as used in Art. VII, Sec. 4, of the 1372 Montana Consti.tution should not be interpreted to mean exclusive

### -jurisdiction;and (2) in any 

### event, wher; the 

### Youth Court acts, it is theDistrict Court acting in that capacity. If the term "original jurisdiction," as used in the Constitution,meant "exclusive original jurisdiction,"as the State here assumes, itwouldmean, of course,that the ].egislaturewould have no power to provide for the prosecution of

a 

### crime amounting to a felony in any other forum but 

### a DistrictCourt. Courtshave notgiven the term "original jurisdiction" such a narrow construction. Thequestionhas a-risen in several cases interpreting the term "original jurisdiction" found in the Civil Rights Act in 42U.S.C. § 

### 1983. For example, in Brown v. Pitchess (Cal. 1975), 119 Cal..Rptr. 204,

"Unless Congress confers exclusive jurisdiction on federal courts, state courts competent to exercise it have concurrent jurisdiction to enforce federal law in civil actions. [Citingauthority.] "Section 1983doesnot itself address the question of jurisdiction. The jurisdictional provision governing section 1983--28 United States Code section 1343(3)--confers 'original jurisdiction' on the federal district courts. The phrase 'original jurisdiction' means the power to entertain cases in the first instance,asdistinguished from appellate jurisdiction; it does not mean exclusive iurisdiction. [Citingauthority.] When intending to confer exclusive, aswell as original, jurisdiction on the federal district courts,Congress is quite capable of making itself understood. For example, section 1338(a) of title 28 of the United States Code provides: 

### 'The 

### - district courts sha.11 have original iurisdiction of any civil action arising under any Act of Congress relating to - 

### patents, plant variety protection, copyrightsand trademarks. Such jurisdiction shall be exclusive of the courts of the sta-tes inpatent, plant variety protection and copyright cases.'" In 

### accord see, Sanchez v. Attorney General (N.M. 

### 1979), 598 P.2d 1170; Will-iamsv. Greene (N.C. 19781, 243 S.E.2d 156.We determine that nothing in the language of the Constitution using the term "original jurisdiction," without additional language showing that such jurisdiction is to be exclusive, prevents the prosecution of youths as delinquents under the Youth Court Act in cases amounting to felony. Nothing that this Court said in State ex rel. Elliot v. District Court, supra, conflicts with that determination. The second reason that. we determine that the state constitution is not offended by the prosecution of felonies in the Youth Court is that it appears obvious that the Youth Court,when it acts in jurisdiction, is acting as a District Court.Section 41-5-201, MCA, provides that each judicial district of the state shall have at least one judge of the Youth Court. It further provides that in multi-judge judicial districts the judges shall by court rule designate one of their number to act as a Youth Court judge in each county of the c?istrict. The legislature encourages continuity of serviceas to the appointed Youth Court judge. Id. InYouth Court cases, however, the legislature has provided for "exclusive original jurisdiction,"saying: "41-5-203. Juridiction of the court. 

### -- Except as provided in subsection (2) the courthas exclusive original jurisdiction of all proceedings under the Montana Youth Court Act in which a youth is alleged to be a delinquent youth 

# .

# .." The exceptionnoted in 5 41-5-203,MCA, relates to concurrent jurisdiction in justice, municipal and city courts with respect to alcoholic beverage violations and traffic or fish and game lawviol.ations,and has no applicationhere. The constitutional framersrecognized.that the Legislature might enact lawswhich enhance theprotection of personsnot adults. In Art. 11, Sec. 15, 1972 Mont. Const., it provided that the rights of persons under eighteen years of age include all the fundamental rights granted by the Constitution unless specifically precluded by laws "which enhance the protection of suchpersons." In accordance with these view, IT IS HEREBY ORDEFED that the application of the State in this cause for 2 writ of supervisorycontrol, writ ofprohibition or other appropriate writbe DENIED and the application isdismissed. The Clerk of this Court shall serve copies of this order and opinionupon counsel of record for theparties, and upon the Youth Court of the Second JudicialDistrict. i% DATED this - day of December, 19f!4.

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# 4,IXJ

,! k

# ,, , Justice 

# B

h7e concur:

- Chief Justice

Justice Frank R. Morrison, Jr., has authorized a statement that he concurs with the foregoing result but would deny the application for reason that a fifteen-year-old youth cannot be charged with a felony during the time he or she is a youth. Since a felony charge cannot be filed, the constitutional provision given 

### the District Court jurisdiction 

### of felonieshas no application.