NO. 81-80 INTHE SUPREME COURT OF THE STATE OF MONTANA 1381

EDWARD C., Guardian Ad Litem of WILLIAM E., a Minor, Petitioner and Appellant,

DAVID J. COLLIXGS, Sheriff of Powell County, Montana, Respondent and Respondent.

ORIGIXAL PROCEEDING:

Counsel of Record:

For Appellant: McCaffery and Peterson, Butte, Montana

For Respondent: 

## &*j& Ted L. Mizner, County ~ttorney; ?madI Montana

Submitted on Brief: April 23, 1981

Dec2ded: August 5, 1981

Filed:

## NG5

# - 1981Mr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court.

Edward C., petitioned for a 

### writof habeas corpus on behalf of hisminor son, William E. The petition stemmed from an order of the Justice Court, Powell County, finding William guiltyof illegalpossession of alcohol and sentencing him to a $50 fine and ten days in the Powell County jail.William 

### isa 17-year-old minor who lives inDeer Lodge, Montana. On January 30, 1981, he 

### was arrested for illegal possession of alcohol, a misdemeanor. A citationwas issued, and William was ordered to appear in the Powell County Justice Court, Deer Lodge, Montana. William appeared before the justice court on February 3, 1981. Hewas unaccompanied by parent or counsel. William

was read his rights including his right to counsel. Petitioner asserts the minor was not advised that his parents could or should be present. Additionally, petitioner alleges that William requested the right to speak with his father, but such request was denied after William admitted to possession of two cans of beer. By affidavit, the presiding justice of the peace stated thatWilliam was offered the opportunity tohave his parents present. The minor defendant allegedly had already discussed the problem with his parents; he did not want them there, and he did notwant counsel. According to the justice, William admitted possession of alcohol and wanted toplead guilty though he had been advised of the fine and jail time tobe imposed. William was found guilty of illegalpossession of alcohol and sentenced to a $50 fine and ten days inthecounty jail. The jail 

### termwas tobe satisfied by serving five consecutive weekends, beginning at

### 4:00 p.m. of each Friday and ending at

### 4:00 p.m. each Sunday. William began serving the sentence, during the weekends of February 6-8 and 13-15, 1981, whereupon the sentence was suspended by agreement of allparties until the matter could be heard and decided by this Court. The issue presented to this Court 

### is: Whether William E. effectively waived his constitutional right to counsel in the justice court? The issue inthis case arises as 

### a result of the concurrentjurisdiction over illegalpossession of alcohol violations granted to youth courts and to justice, municipal, or city courts. Section 41-5-203, MCA, Montana Youth Court Act, provides that: 

### "(1)Except asprovided in subsection (2), the court has exclusive original jurisdiction of all proceedings under the Montana Youth CourtAct in which a youth 

### isalleged to be a delinquent youth, a youth inneed of supervision, or a youth inneed of care or concerning any person under 21years of age charged with having violated any law of the stateor ordinance of any cityor town other than a traffic or fishand game law prior to having become 18 years of age. 

### "(2) Justice, municipal, and city courts have concurrent jurisdiction with the youth court over allalcoholic beverage violations alleged to have been committed by a youth." Possession of alcohol 

### is an offense pursuant to section 45-5-624, MCA, which provides: 

### "(1)

# . . . A person under the age of 19 commits the offense of possession of an intoxicating substance if he knowingly has inhis possession an alcoholic beverage, except thathe does not commit the offense when inthe course of his employment 

### it 

### is necessary topossess alcoholic beverages." The penalties pursuant to this statuteare: "(2)A person convicted of the offense of possession of an intoxicating substance shall be fined not to exceed $50 orbe imprisoned inthe county jailfor any term not to exceed 10 days, or both. If proceedings areheld inthe youth court, the preceding penalty does not apply, and the offender shallbe treated as an alleged youth inneed of supervision asdefined in41-5-103(13) 

# . . ." In light of section 45-5-624, MCA, it 

### is clear that the county attorney has solediscretion over which court shall hear illegal possession of alcohol violations. Difficulties arisebecause although a defendant's constitutional rights must be respected ineach setting, waiver provisions are expressly stated for youth court and would 

### seem to be at variance with those injustice court. Regarding the right to counsel injustice or municipal court, section 46-8-101, MCA, provides: "(1) Every defendant brought before the court must be informed by the court that 

### it ishis right to have counsel before proceeding and must be asked if he desires the aid of counsel. "(2) The defendant, if charged with a felony, must be advised thatcounsel 

### willbe furnished atstate expense if he 

### isunable toemploy counsel. If the offense charged 

### is a felony and if the defendant desires counsel and 

### isunable to employ counsel, a court of record must assign counsel to defend him. "(3) If the offense charged 

### isa misdemeanor and if the defendant desires counsel and 

### isunable to employ counsel, a court of record in the interestof justice may assign counsel to defend him." Waiver of thisright 

### is allowable under section 46-8-102, MCA, which states that: "A defendant may waive his right to counsel, except that inallfelony cases where the defendant 

### is under 18years of age, the defendant shallbe represented by counsel atevery stage of the proceedings following the filing of a petition under 41-5-501." No express statutory guidelines existin this statute delineating an effectivewaiver. This Court has held that to constitute an effectivewaiver, the waiver must be intelligently and knowingly given. Statev. Schenk (1968), 151 Mont. 493, 498, 444 P.2d 861, 863. Indetermining whether the waiver was intelligently given, a courtmust look attheparticular facts of each case, aswell as the background, experience and conduct of the defendant. In Re Jones' Petition (1963), 143Mont. 19, 23, 386 P.2d 747, 750. These are the standards a justice or municipal court 

### isgoverned by in accepting or rejecting a waiver of counsel. However, an examination of the Youth Court Actprovision establishing right to counsel and waiver thereof discloses a marked difference from the above justice and municipal court provisions. Section 41-5-511, MCA, provides that: "In allproceedings following the filing of a petition alleging a delinquent youth or youth inneed of supervision, the youth and the parents or guardian of the youth shallbe advised by the courtor, inthe absence of the court, by 

### its representative that the youth may be represented by counsel atall stages of the proceedings. 

### - If counsel 

### -- isnot retained or if 

### it appears that 

### --- counsel 

### willnot be retained, counsel shallbe 

### --- pappointed 

### -- for the youth unless the right to appointed counsel 

### iswaived 

### -- by the youth 

### -- and the parents or guardian. Neither the youth nor his parent orguardianmay waive counsel after a petition has been filed if commitment to a state correctional facility or to the department of institutions for a period of more than 6months may result from adjudication." (Emphasis added.) Under this section an express provision governing the waiver of the right to counsel 

### is included within the statute. This statuterequires not only waiver by the youth 

## -- but also by theparents or guardian of the youth. Therefore, in 

### -- - youth court, a waiver must be intelligently and understandingly given by both minor and parent or guardian. When a county attorney chooses toallow illegal possession of alcohol violations tobe heard injustice ormunicipal courts, his action stripsa minor of an additional protection

or safeguardwhich the legislature expressly granted to such minors, 

### i.e., waiver by the parents or guardian. Section 41-5-102, MCA, declares that: "The Montana Youth CourtAct shallbe interpreted and construed to effectuate the following express legislativepurposes:"(4) toprovide judicial procedures inwhich the parties are assured a fair hearing and recognition and enforcement of their constitutional and statutory rights.

### " One of the express judicial procedures adopted by the legislature to effect thispurpose was the additional requirement of parental waiver of the youth's right tocounsel. Surely the legislature did not intend to grant a judicial safeguard tominors inone judicial setting and then preclude the application of such safeguard for the same crime charged in

a different forum. Yet thiswould be the result if this Court refused to require parental waiver of the right to counsel injustice or municipal courts regarding illegal possession of alcohol violations. The concurrent jurisdiction of justice and municipal courtswith youth courts of illegal possession of alcohol violations creates a situationwhereby a county attorney has the power to determine a minor's rights. Such a situation 

### isuntenable in lightof the express purposes of the Youth Court Act. Therefore, 

### we hold that the waiver of right to counsel by William inthe case 

### atbar 

### was ineffective. Parental waiver 

### isnecessary injustice ormunicipal courts where the youth courthas concurrent jurisdiction. It 

### ishereby ordered that the

### writof habeas corpus be issued. The defendant's plea 

### isvacated and the cause 

### remanded tojustice court for proceeding inaccordance with thisopinion.