IN THE SUPREME COURT OF THE STATE OF MONTANA 

KAREN SPARKS, 

Petitioner, 

v. 

BRAD JOHNSON, personally 

and as City Judge of 

WHITEFISH CITY COURT, 

Respondent. 

No. 91-543 

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OPINION 

AND 

ORDER I""'~ ~ J .~ l~ ,~ ED 

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FEB - 719921 

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_.::;:;;;(. OF SUPREME COURT 

s-rA1!;;: Of MONTANA 

This is an original proceeding arising out of a criminal theft 

prosecution in the City Court of Whitefish, Montana. Petitioners 

Karen Sparks, the defendant in that proceeding, and Jerry O'Neil 

seek declaratory and injunctive relief, including a writ of 

mandamus. They request this Court's declaration that O'Neil and 

other non-attorneys similarly situated have the right, pursuant to 

§§ 25-31-601 and 37-61-210, MCA, to act as attorneys in Montana 

courts of limited jurisdiction on a regular and recurring basis. 

The Office of the Attorney General responded, as did Whitefish City 

Judge Brad Johnson. 

The petition before us raises the question of lay 

representation in Montana's courts of limited jurisdiction. While 

it is clear that Article VII, § 2(3) of the 1972 Montana 

Constitution vests exclusive jurisdiction in this Court to make 

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rules governing practice in all Montana courts, we have not 

heretofore comprehensively addressed this issue which now is 

arising wi th increasing frequency. Because of the statewide 

importance and implications of the issue, we accept original 

jurisdiction of this petition pursuant to Article VII, § 2(1) of 

the 1972 Montana Constitution, and the procedures set forth in Rule 

17 of the Montana Rules of Appellate Procedure, in order to provide 

guidance on the question of lay representation to the courts of 

limited jurisdiction throughout the state. 

The underlying facts upon which this proceeding is based are 

not in dispute. The Whitefish city Attorney filed a complaint 

against Karen Sparks in Whitefish city Court for misdemeanor theft 

pursuant to § 45-6-301, MCA. At her initial appearance on 

September 18, 1991, Sparks appeared and acknowledged that she 

possessed a copy of the complaint and that she was aware an arrest 

warrant had been issued. Sparks was informed of her right to 

counsel and her right to a continuance so she could obtain counsel. 

Sparks pled not guilty and requested a court-appointed attorney. 

The court explained that it was not seeking confinement for Sparks 

and, therefore, would not provide her wi th a court-appointed 

attorney. Sparks persisted, prompting the court to provide 

defendant with an Affidavit/Request for Court Appointed Counsel 

form. 

After Sparks' repeated attempts to secure court-appointed 

counsel, the court issued a Memorandum on October 17, 1991, 

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concluding again that she was not entitled to court-appointed 

counsel but could obtain private counsel. On or about October 21, 

1991, Jerry O'Neil filed a notice of appearance in the Whitefish 

City Court indicating that he would appear on behalf of defendant 

Sparks. The court subsequently denied O'Neil the right to 

represent Sparks in City Court and a jury trial was set for 

November 7, 1991. 

The present petition was filed with this Court on November 8, 

1991, seeking a stay of pending proceedings in the Whitefish City 

Court, a declaratory judgment that O'Neil has the right under §§ 

25-31-601, MCA, and 37-61-210, MCA, to act as an attorney in the 

justice and city courts of Montana, and related injunctive and 

mandamus relief. This Court stayed the underlying proceedings. 

Additionally, Sparks requested that she be awarded her costs and 

expenses pursuant to 42 u.s.c. § 1988. We do not address herein 

Sparks' request for costs and expenses pursuant to 42 U. S . C. 

§ 1988. 

Standing is a threshold issue. stoianoff v. State of Montana 

(9th Cir. 1983), 695 F.2d 1214. Thus, we must determine at the 

outset whether Jerry O'Neil has standing in the action before us. 

We conclude that he does not. 

Although included as a "petitioner" in the caption of the 

petition to this Court, O'Neil essentially seeks to come before us 

as a legal representative of Sparks. O'Neil, an acknowledged lay 

person and not an attorney of record, possesses no legally 

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recognized relationship to Sparks; therefore, he will not be 

recognized by this Court in the conduct or disposition of the case. 

Clinton v. Miller (1951),124 Mont. 463, 226 P.2d 487. We construe 

this action to be a pro se action by Karen Sparks seeking 

representation by the person of her choice in the ci ty court 

criminal proceeding in which she is a defendant. 

Sparks contends that § 25-31-601, MCA, authorizes lay 

representation in criminal cases in Montana justices' courts. She 

argues further that § 37-61-210, MCA, extends that right to lay 

representation in criminal cases to city courts. We disagree. 

section 25-31-601, MCA, provides that" [p] arties in justice's 

court may appear and act in person or by attorney; and any person, 

except the constable by whom the summons or jury process was 

served, may act as attorney." The statute is found in Title 25 of 

the Montana Code Annotated, entitled "Civil Procedure." Chapter 31 

of that Title is "Procedure in Justices' Courts." 

section 25-31-601, MCA, is limited, by its plain language and 

placement in the Montana codes, to civil litigation in justices' 

courts. It does not apply to criminal proceedings in those courts 

or in other courts of limited jurisdiction. The criminal procedure 

statutes applicable to courts of limited jurisdiction, set forth in 

Title 46, Chapter 17, parts 1 through 4, do not contain language 

permitting representation by "any person." 

Sparks' further contention that lay representation in criminal 

proceedings is extended to city courts by virtue of § 37-61-210, 

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MCA, is also incorrect, even aside from our conclusion above that 

Montana law does not authorize lay representation in criminal 

proceedings in justices' courts. 

section 37-61-210, MCA, is entitled "penalty for practicing 

without license" and provides that "[i]f any person practices law 

in any court, except a justice's court or a city court, without 

having received a license as attorney and counselor, he is guilty 

of a contempt of court." Sparks' reliance on § 37-61-210, MCA, as 

authority for legal representation by "any person" in a criminal 

proceeding in city court, is erroneous. Both the plain language 

and the placement of § 37-61-210, MCA, in the Licensing part of 

Title 37 (entitled "Professions and Occupations"), Chapter 61 

(entitled "Attorneys at Law") of the Montana Code Annotated make it 

clear that it is a licensing and penalty statute. It does not, by 

its terms, authorize practice in either justices' or city courts; 

it merely alludes to, and exempts from penalty, such practice as 

may be authorized by other statutes. Therefore, we conclude that 

only such practice before courts of limited jurisdiction as is 

specifically authorized by existing statute or Court rule can be 

undertaken by lay people. 

Sparks' reliance on a past Order of this Court in a case to 

which she was not a party is also to no avail. Orders without 

accompanying opinions have no precedential value from case to case, 

but pertain only to the circumstances of the action involved. 20 

Am.Jur.2d, Courts § 189. 

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Sparks' final contention is that § 25-31-601, MCA, authorizes 

lay representation of parties in courts of limited jurisdiction on 

a regular and recurring basis. While this is a case of first 

impression in Montana, statutes similar to § 25-31-601, MCA, have 

been addressed in other states and held applicable only to a "one 

time" representation of a party in a justice or magistrate court. 

state ex reI. Freison v. Isner (W.Va. 1981), 285 S.E.2d 641, 

invol ved a collection agency appearing in magistrate court on 

behalf of petitioner's creditors through its nonlawyer manager. 

The court found that the statute authorizing appearances by lay 

persons in civil litigation did not permit the unauthorized 

practice of law, but anticipated the representation of a party by 

a nonlawyer on a "casual, non-recurring, non-pay basis as a means 

of assisting the party pro se." Freison, 285 S.E. 2d at 655. The 

Freison court concluded that the West Virginia law, similar to 

Montana's, provides only for "an isolated or casual appearance by 

a non-lawyer friend or relative of a party to proceedings in 

magistrate court. . • " Freison, 285 S.E.2d at 654. 

Similarly, the Supreme Court of Iowa held that a bill 

collector who attempted to bring suit in justice court as an 

assignee of his various clients was prohibited from doing so. Bump 

v. Barnett (Iowa 1944), 16 N.W.2d 579. The Iowa court, in 

referring to a statute much like § 25-31-601, MCA, stated that: 

The salutary purpose of the statute may not thus be 

perverted to encourage the growth of a class of "justice 

court lawyers," unfettered by the rules that bind 

licensed attorneys and without training in law and 

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ethics. 

Bump, 16 N.W.2d at 582-583. The Iowa court concluded that the 

bill collector was engaged in the illegal practice of law by his 

repeated representations in justice court. 

We agree with the reasoning of the West Virginia and Iowa 

courts. section 25-31-601, MCA, was not intended to permit the 

unauthorized practice of law; the intent is to enable a friend or 

relative to assist and speak on behalf of a party at one 

proceeding. We hold that the statute is a "one-time only" grant of 

a privilege in justices' court civil proceedings. Further, we 

extend this specific privilege to civil proceedings in city courts 

pursuant to our constitutional authority to make rules governing 

practice for all Montana courts. 

Finally, even if the underlying proceeding in Whitefish City 

Court were a civil one, it is clear that O'Neil's representation of 

Sparks would not be permissible. We take judicial notice that 

0' Neil attempted to represent at least one other person in a 

criminal action in a court of limited jurisdiction. See Jerry 

O'Neil and Clark Albertson v. Dale E. Gifford, Order No. 88-145, 

April 25, 1988. We also note that petitioner's brief herein 

provides a list of O'Neil's "clients." Neither O'Neil nor any 

other lay person has authority to represent "clients" on a 

recurring basis in courts of limited jurisdiction. Such recurring 

representation constitutes the unauthorized practice of law. 

Nothing herein impacts on the "student practice rule" at the 

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University of Montana School of Law. Under this rule, students who 

have completed two years of law school are supervised by a licensed 

attorney and perform legal activities in Montana courts. 

IT IS THEREFORE ORDERED that the Petition herein, and all 

relief requested therein, is denied and dismissed. 

IT IS FURTHER ORDERED that the stay of further proceedings in 

City of Whitefish v. Karen Sparks is hereby lifted. 

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DATED this t ""'---day of February, 1992. 

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