NO. 81-80 

IN THE 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: NG 5 - 1981 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Edward C., petitioned for a writ of habeas corpus on 

behalf of his minor son, William E. The petition stemmed 

from an order of the Justice Court, Powell County, finding 

William guilty of illegal possession of alcohol and sentencing him to a $50 fine and ten days in the Powell County 

jail. 

William is a 17-year-old minor who lives in Deer Lodge, 

Montana. On January 30, 1981, he was arrested for illegal 

possession of alcohol, a misdemeanor. A citation was 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. He was 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 

that William was offered the opportunity to have his parents 

present. The minor defendant allegedly had already discussed 

the problem with his parents; he did not want them there, 

and he did not want counsel. According to the justice, 

William admitted possession of alcohol and wanted to plead 

guilty though he had been advised of the fine and jail time 

to be imposed. 

William was found guilty of illegal possession of 

alcohol and sentenced to a $50 fine and ten days in the 
county jail. The jail term was to be 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 all parties 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 in this case arises as a result of the concurrent jurisdiction over illegal possession 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 as provided in subsection (2), the 

court has exclusive original jurisdiction of all 

proceedings under the Montana Youth Court Act in 

which a youth is alleged to be a delinquent youth, 

a youth in need of supervision, or a youth in need 

of care or concerning any person under 21 years of 

age charged with having violated any law of the 

state or ordinance of any city or town other than a 

traffic or fish and game law prior to having become 

18 years of age. 

" (2) Justice, municipal, and city courts have 

concurrent jurisdiction with the youth court over 

all alcoholic 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 in his possession an alcoholic 

beverage, except that he does not commit the 

offense when in the course of his employment it is 

necessary to possess alcoholic beverages." 

The penalties pursuant to this statute are: 

"(2) A person convicted of the offense of possession 

of an intoxicating substance shall be fined not 

to exceed $50 or be imprisoned in the county jail 
for any term not to exceed 10 days, or both. If 

proceedings are held in the youth court, the preceding penalty does not apply, and the offender 

shall be treated as an alleged youth in need of 

supervision as defined in 41-5-103(13) . . ." 

In light of section 45-5-624, MCA, it is clear that the 

county attorney has sole discretion over which court shall 

hear illegal possession of alcohol violations. Difficulties 

arise because although a defendant's constitutional rights 

must be respected in each setting, waiver provisions are 

expressly stated for youth court and would seem to be at 

variance with those in justice court. 

Regarding the right to counsel in justice or municipal 

court, section 46-8-101, MCA, provides: 

"(1) Every defendant brought before the court 

must be informed by the court that it is his 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 that counsel will be furnished at state 

expense if he is unable to employ counsel. If the 

offense charged is a felony and if the defendant 

desires counsel and is unable to employ counsel, a 

court of record must assign counsel to defend him. 

"(3) If the offense charged is a misdemeanor and if 

the defendant desires counsel and is unable to employ 

counsel, a court of record in the interest of justice 

may assign counsel to defend him." 

Waiver of this right is allowable under section 46-8-102, 

MCA, which states that: 

"A defendant may waive his right to counsel, except 

that in all felony cases where the defendant is 

under 18 years of age, the defendant shall be 

represented by counsel at every stage of the proceedings following the filing of a petition under 

41-5-501." 

No express statutory guidelines exist in this statute 

delineating an effective waiver. This Court has held that 

to constitute an effective waiver, the waiver must be intelligently and knowingly given. State v. Schenk (1968), 151 

Mont. 493, 498, 444 P.2d 861, 863. In determining whether 

the waiver was intelligently given, a court must look at the 
particular facts of each case, as well as the background, 

experience and conduct of the defendant. In Re Jones' Petition (1963), 143 Mont. 19, 23, 386 P.2d 747, 750. These are 

the standards a justice or municipal court is governed by in 

accepting or rejecting a waiver of counsel. 

However, an examination of the Youth Court Act provision 

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 all proceedings following the filing of a 

petition alleging a delinquent youth or youth 

in need of supervision, the youth and the parents 

or guardian of the youth shall be advised by the 

court or, in the absence of the court, by its 

representative that the youth may be represented 

by counsel at all stages of the proceedings. - If 

counsel -- is not retained --- or if it appears that 

counsel will --- not be retained, counsel pshall be 

appointed -- for the youth unless the right to 

appointed counsel is waived -- by the youth -- and the 

parents or guardian. Neither the youth nor his 

parent orguardian may 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 6 months 

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 statute requires not only waiver by the youth -- but also 

-- by the parents - 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 to allow illegal possession 

of alcohol violations to be heard in justice or municipal 

courts, his action strips a minor of an additional protection 

or safeguard which 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 Court Act shall be interpreted 

and construed to effectuate the following express 

legislative purposes: 
"(4) to provide judicial procedures in which 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 this purpose was the additional requirement 

of parental waiver of the youth's right to counsel. Surely 

the legislature did not intend to grant a judicial safeguard 

to minors in one judicial setting and then preclude the 

application of such safeguard for the same crime charged in 

a different forum. Yet this would be the result if this 

Court refused to require parental waiver of the right to 

counsel in justice or municipal courts regarding illegal 

possession of alcohol violations. 

The concurrent jurisdiction of justice and municipal 

courts with youth courts of illegal possession of alcohol 

violations creates a situation whereby a county attorney has 

the power to determine a minor's rights. Such a situation 

is untenable in light of the express purposes of the Youth 

Court Act. Therefore, we hold that the waiver of right to 

counsel by William in the case at bar was ineffective. 

Parental waiver is necessary in justice or municipal courts 

where the youth court has concurrent jurisdiction. 

It is hereby ordered that the writ of habeas corpus be 

issued. The defendant's plea is vacated and the cause remanded to justice court for proceeding in accordance with 

this opinion.