IN THE SUPREME COURT 

### OF THE STATE OFMONTANA

IN THE MATTER OF S.L.M., a Youth IN THE MATTER OF S.T., a Youth Appeals From: District Court ofthe Eighteenth Judicial District, In and for the County of Gallatin, - 

### . ., '.A ,. 

## - t b,(

### ;(A The HonorableThomas A. OIson, Judgepresiding. ?\"-PCM,= GG '$4 3 t-. 01mo~~~~&

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### INTHE MATTER OF J.L.C., a Youth ( No. 96-220 

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# /' Appeal From: District Court ofthe TweIfth Gcf, In and for the County ofHill, The Honorable Job Warner, Judgepresiding.



### INTHE MATTER OF J.A.T., a Youth No. 96-546 IN THE MATTER OF L.D., aYouth No. 96-547 Appeals From: District Court ofthe Thirteenth JudiciaI District, In and for the County ofYellowstone, The Honorable Diane G,

### Ban, Judgepresiding,

COUNSEL OF RECORD: For Appellants: Daniel P. BuckIey (argued); Berg, Lilly, AndrioIo & TolIefsen, Bozeman, Montana (96-576) D.E. Pomery (argued), Attorney at Law, Bozeman, Montana (96-337) John Keith, Attorney at Law, Great Falls, Montana (96-220) Roberta A. Drew, YeIlowstone County Defender's Office, Billings, Montana (96-546 and -547) For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin (argued), Helena, Montana

Filed: Argued: November 6, 1997 Submitted: November 14, 1997

. Decided: December 30, 1997Justice 

### W. William Leaphart delivered the Opinion of the Court.

The appellants in these five appeals challenge the Extended Jurisdiction Prosecution Act, §§ 41-5-1601 through -1607, MCA, (EJPA) as being unconstitutional under the equal protection, due process and double jeopardy clauses of the United States and Montana constitutions, aswell as under Article 11, Section 15ofthe Montana Constitution. Although there are some factual differences inhow each prosecution evolved aswell as differences in the conclusions reached by the various District Courts, the constitutional issues presented encompass each ofthe appeals. Accordingly, we consolidate these appeals for purposes of

an opinion. Since we determine that the EJPA violates Article 11, Section 

### 4 (equal protection) ofthe Montana Constitution and Article 11, Section 15 (rights ofminors) ofthe Montana Constitution,weneed not address the doublejeopardy and due process challenges.

PROCEDURAL BACKGROUND OF EACH APPEAL I. In the Matter of S.L.M.. CauseNo. 96-576. Gallatin County: 

### TheYouth S.L.M. was charged withperjury and the criminal sale of dangerous drugs, both punishable as felonies if committedby an adult. The State alleged that S.M. sold $150 worth ofmarijuana to an undercover agent. At the time ofthe offense, S.M. was under the age of 18years. The State requested extended jurisdiction under the EJPA. The District Court held a hearing and granted extendedjurisdiction over the charge of criminal sale of dangerous drugs, but did not extendjurisdiction over the charge ofpe jury, an offense which 2is not enumerated for extended jurisdiction under the EJPA. At the disposition hearing, the Youth argued that the EJPA violates the equal protection, doublejeopardy, and due process guarantees ofthe Montana and United States constitutions. The District Court rejected the Youth's contentions and committed him to the Department of Corrections until he reaches the age of 19. The District Court then entered and stayed a Sentence and Judgment of 10 years on the charge of criminal sale of dangerous drugs. The Youth filed a motion for correction of sentence or reconsideration. Thatmotion was denied, and the Youth appealed to this Court.

11. In the Matter ofJ.L.C.. Cause No. 96-220. Hill County: The Youth J.L.C. was charged with negligent homicide 

### as the result of a car accident in which J.L.C. was driving a vehicle while under the influence of drugs and alcohol. The vehicle rolled, and one of the two passengers died from injuries received. J.L.C. was 17 years of age at the time ofthe incident. At the request of the county attorney, the District Court granted extended jurisdiction over the charge ofnegligent homicide. The Youth pled guilty to negligent homicide, and the court, by way of a juvenile disposition, placed the Youth on formal probation until he reaches the age of 21. In addition, under the EJPA, the court imposed an adult sentence committingthe Youth to the Department of Corrections for

a period of 5 years, suspended. The Youth filed a notice of appeal to this Court.111. 

### In the 

### Matter of S.T..Cause No. 

### 96-337. Gallatin County: 

### S.T. was charged in Youth Court with eight offenses, including two burglaries. He admitted to having committed each ofthe offenses. The State filed a motion to 

### have the case designated an extendedjurisdiction prosecution. 

### S.T. challenged the 

### EJPA as unconstitutional under the double jeopardy clause, the due process clause and Article 

### 11, Section 15of the Montana Constitution. The District Court rejected the constitutional challenges and imposed ajuvenile disposition (chemical dependency treatment, random urinalysis and restitution) under 

## 5 41-5-523, 

### MCA, of the Youth Court Act as well as an adult sentence under 

## 5 46-18-201, 

### MCA (ten years to the Department of Corrections, stayed). Based upon 

### a report of probation violations, the State subsequently filed a request with the court to 

### impose the adult portion of the sentence. 

### S.T.was arrested pursuant to a bench warrant. After initially denying the violations, S.T. admitted the violations of probation. The court then imposed the sentence of 10 years with the Department of Corrections, suspended 

### 5 years, and imposed conditions for 

### the suspended portion of the sentence. 

### S.T. was credited with 91 days of incarceration served under the juvenile disposition.

IV. In the Matter ofJ.A.T.. Cause 

### No. 96-546. Yellowstone County and 

### In the Matter ofL.D.. Cause

### No. 96-547, Yellowstone County: 

### J.A.T. was charged in Youth Court with assault with a dangerous weapon and misdemeanor theft. The State requested extended jurisdiction for the charge of assault,J.A.T. admitted the allegations

### in thepetition and proceeded to challengethe constitutionality of the EJPA. The court ordered J.A.T. committed to the Department of Corrections until the age of 19. The court stayed the commitmenton condition that J.A.T. continue to reside with his grandfather and attend school. The court held the adult portion of the sentence in abeyance pending a ruling on the Youth's motion challenging the constitutionality of the EJPA. Subsequently, the State filed a petition charging the Youth with possessing drug paraphernalia and,on that basis, soughtto revoke theprior suspension ofcommitment. J.A.T admitted the allegations, and the court placed him on probation for one year. In a separate matter, in November of 1995, the State charged L.D. with being a delinquent youth for committing deliberate homicide. The State later amended its petition to charge negligenthomicide as an alternatecharge. L.D. admittedto the charge ofnegligent homicide, but challenged the constitutionality of the EJPA. The court declared L.D. a delinquent youth and committed him to the Department of Corrections until age 19. The court took the issue ofwhether to designate the case as one for extended jurisdiction under advisement. On July 19, 

### 1996, the court issued a consolidated order in both L.D. and J.A.T. declaring thc EJPA unconstitutional on double jeopardy, due process and equal protection grounds. The State appeals from that decision.

### ISSUES PRESENTED 1. Does the 

### EJPA violate the equal protection clauses of the United States Constitution andorthe Montana Constitution? 

### 2. Does the 

### EJPA violate the provisions 

### of Article 

### 11, Section 15 of the Montana Constitution? 3. Does the EJPA violate the double jeopardy clauses 

### of the United States Constitution and/or the Montana Constitution? 

### 4. Does the 

### EJPA violate 

### the due process clauses ofthe United States Constitution and/or the Montana Constitution?



### DISCUSSION I. Overview ofthe Extended Jurisdiction Prosecution Act 

### In 1995,the legislature substantially revised the Montana Youth Court Act, including amendingthe Declaration ofPurpose to effectuate the following purpose: to prevent and reduce youth delinquency through immediate, consistent, enforceable, and avoidable consequences ofyouths' actions and to establish a program of supervision, care, rehabilitation, detention, competency development, community protection, and, in appropriate cases, restitution as ordered by the youth court[.] Section 41-5-102(2), 

### MCA (1995). As part of the broad 1995 revision of the Youth Court Act, the 

### EJPA was enacted. The 

### EJPA is now codified at Title 41, Chapter 5, Part 16,MCA. Although the youths hereinwere all sentenced under the 

### EJPA as it was enacted in 1995,the 1997 legislature amended the EJPA to provide for more procedural due process in revocation of stay proceedings. ij 41-5-1605, MCA. If the State were to initiate revocation of stay proceedings against any ofthe appellants, the 1997 amendmentswould inure to their benefit. However, for purposes ofour equal protection analysis, the sentencing provisions ofthe Act remain the same in that they still provide for imposition of an adult sentence in addition to a juvenile disposition. Accordingly, we will referto the Act as amended and codifiedatTitle45, Chapter 5, Part 16, MCA. A youth court case may be designatedan "extended jurisdiction juvenile prosecution" when the offender is at least 14years of age, the county attorney requests that the case be designated an extendedjurisdiction juvenile prosecution, a hearing is held, and the youth court designates the case as such. Section 41-5-1602, MCA. If, after a hearing, the county attorney has shown by clear and convincing evidencethat designating the case an extended jurisdiction prosecution serves the public safety, the youth court may so designate. Section 41-5-1603(3), MCA. A case may also fallunder the EJPA ifthe youth is alleged to have committed one or

more ofthe offenses listed under ij 41-5-206, MCA, and the county attorney designates the

case as 

### an extended jurisdiction prosecution. Section41-5-1602(1)(b),MCA. The casc may also fall under the EJPA ifthe youth was at least 12years of age, allegedly committed an offensewhich, ifcommitted by an adult, would be punishable as a felony, and allegedlyuseda firearm 

### in the commission ofthe offense. Section 41-5-1602(I)(b),MCA. Additionally, the case may be designated an extended jurisdiction prosecution if, after a hearing on the motion to transfer the case for prosecution in district court under 

### 3 41-5-206, MCA, the youth court designates the case an extended jurisdiction prosecution. Section 41-5- 1602(l)(c),MCA. After the case is designated an extended jurisdiction prosecution, the case proceeds to an adjudicatory hearing as provided in 

### $ 41-5-1502, MCA. If the youth admits to committing, or is adjudicated to have committed, an offense which would be a felony if committed by an adult, the youth court must impose one or more ofthe juvenile dispositions under $ 41-5-1512, MCA, and any sentence which could be imposed on an adult offender ofthe same offense. The statute expressly provides that execution ofthe sentence imposed "mustbe stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense." Section 41-5-1604(1)(b), MCA. If the court is subsequently informed that any condition ofthe disposition has been violated, orifit is alleged that the youth has committedanew offense, the court may, without notice, order the youth be taken into custody. Section 41-5-1605(1), MCA. The district court must then notify the youth, in writing, ofthe reasons alleged for revocation ofthe stay. Section 41-5-1605(1), MCA. Ifthe youth challenges the reasons for the revocation, the court must hold a hearing at which the youth is entitledto notice, an opportunity to be heard, right to counsel, and theright to cross-examine witnesses. Section 

### 41-5- l605(2), 

### MCA. If, after the hearing, the court finds by a preponderance of the evidence that the conditions of the stay have been violated or that the youth has committed a new offense, the court shall provide a written statement of the reasons for the revocation and shall: 1) continue the stay and place the youth on probation;

### 2) impose one ormore dispositionsunder 

## $54 1-5-1512or 

## - 1513,

### MCA, ifthe youth 

### is under age 18;or 3) subject to 

### $54 1 -5-206(6) and (7), MCA, order execution of the sentence imposed under 

## 5 41-5-16O4(l)(b), 

### MCA. Section 41-5-l6OS(2)(b),

### MCA, Upon revocation and disposition, the youth court shall transferthe case to the district court. Section 4 1-5-l605(3), MCA. Upon transfer, the offender's extended jurisdiction juvenile status is terminated, and the youth court jurisdiction is terminated, Section 41-5-

1605(3), MCA. Ongoing supervisionofthe offenderis with the Department of Corrections rather than with the youth court's juvenile probation services. Section 4 1-5-1605(3),MCA.

11. Standine The State contends that certain of the youths lack standing to challenge the constitutionality ofthe 

### EJPA. The youths contend that the EJPA violates equal protection by subjecting them to a Ionger period of incarceration than that permitted for an adult offender, The State points out, however, that the aduIt portion of the sentence is only tiggered ifthe youth violates the terms of 

### hisjuvenile disposition and the stay 

### ofthe adult sentence 

### is revoked. Those youths who have not had the stay revoked have not beenadversely affected 

### by imposition of 

### an adult sentence and thus, the State contends, lack standing. 

### We conclude that the youths, each of whom have been sentenced under the EJPA, have standing to challenge its provisions. We recently addressed the question of standing 

### in Gryczan v. State (Mont. 1997),942 P.2d 112, 

### 54 St.Rep. 699. We reiterated the criteria for determining standing: 1) the complaining party must clearly allege past, present or threatened injury to aproperty orcivil right; and 2)the alkged injurymustbe distinguishable fiorn the injury to the public generally,but need not be exclusive to the compIaining party. Gryczan, 942 P.2dat 117. Gryczan involved a constitutional challenge by sixhomosexuals (the respondents) to the statutory prohibition on deviate sexual conduct, &g 

## 5 45-5-505, 

### MCA. The 

### State contended that because the statute had never been enforced against consenting adults, there was no "threatened injury" and, thus, 

### no standing. Fryczan, 942 P.2d at 116. This Court, despite the fact that the respondentshad not been arrested or prosecuted, held that they were precisely the individuak the statute was designed to impact. Gyczan, 942 

### P.2d at 119, Furthermore, we noted that nothing prevented a county attorney from exercising his or her discretion and choosing to prosecute. Since the legislature had not disavowed the statute, we concluded that the respondents "suffer a legitimate and realistic fear of criminal prosecution along with other psychological harms. Respondents are precisely the individuals against whom the statute 

### is intended to operate. This is sufficientto give Respondents standingto challenge the constitutionafityofthe statute." 

### Gryczan, 942 P.2d at 120. The threat of injury to the youths herein is even more apparent than that to the 

### respondents in Gryczan. There is no

### question but that 

### the youths are among the individuals against whom the EJPA is directed. Further, the youths have not only been prosecuted, but have also been sentenced under the 

### EJPA. Although the adult sentences of some of the youths may be presently stayed on the condition that they comply with their juvenile dispositions, they suffer a "legitimate and realistic" fear that the adult sentence will be imposed should they violate the disposition. We conclude that the youths, regardless of whether their stays have been lifted, have standingto challenge the constitutionality of the 

### EJPA on equal protection grounds.



### 111. Does the 

### EJPA violate the equal protection clauses of the United States Constitution andlor the Montana Constitution andthe rights ofminors under Article 11, Section 15 ofthe Montana Constitution? Resolution ofthis issue involves a question of constitutional law. Accordingly, 

### we review to determine whether the court's interpretation of the law is correct. State v. Schnittgen (19961,277 Mont. 291,295,922 P.2d 500, 503. Equal protection challenges to legislation are reviewed under one of three different levels 

### of scrutiny. When the legislation 

### in question infringes upon a fundamental right or discriminates against a suspect class, we employ the most stringent standard, strict scrutiny."Strict scrutiny has been limited to those instances when either a fundamental right has been infringed or a suspect classification has been established. Strict scrutiny requires the government to show a compelling state interest for its action." Davis v. Union Pacific Railroad Co. (Mont. 1997), 937 P.2d 27, 3 1, 54 %.Rep. 328, 331. If the right in question has its origin in the Montana Constitution, but is not found in the Declaration of Rights, we employ a middle-tier scrutiny. Butte Community Union v. Lewis (1986), 219 Mont. 426,434,712 P.2d 1309, 1313. Middle-tier scrutiny requires the State to demonstrate that its classification is reasonable and that its interest in the classificationis greater than that of the individual's interestin the right infringed. 

### Lewis,712 P.2d at 1314. If the right in question is not hndamental and does not warrant middle-tier scrutiny,

we review under a rational basis test. This test requires the government to show that the objectiveofthe statuteis legitimateand bears arational relationshipto the classificationused by the legislature. Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 744 P.2d 895. In addressing an equalprotection challenge, we first identify the classes involved and determine whether they are similarly situated. The two classes involved in the present appeals are: 1) juveniles who are sentencedas adults under the EJPA; and 2) adults who are sentencedfor committing the same offenseas the juveniles. Since both classes are composed ofpersons who have committed the same act and who are sentenced "as adults," the classes

are similarly situated for equal protection purposes.We next determinewhethera suspect classification is involved. 

### A suspect class is one "saddled with such disabilities, or subjected to such a history of purposchl unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez (1973), 41 1U.S. 1,28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16,40. A classification between juvenile and adult offenders is a distinction based upon age. We have followed the United States Supreme Court in holdingthat a sentencing distinctionbased upon age is not a suspect classificationrequiring strict scrutiny. MatterofWood (1989),236 Mont. 118, 125, 768 P.2d 1370, 1375. We then defme the nature ofthe individual interest affected; is it a fundamental right triggering a strict scrutiny analysis? The youths argue that imposition of an adult sentence in addition to a juvenile disposition is an infringement upon their physical liberty and that physical liberty is a fimdamental right. This question was answered in Matter 

### of C.H. (1984),210 Mont. 184,683P.2d 93 1. 

### C.H. contended that placing a truant status offender in an institution for a 45-day predispositional evaluation was an infringement upon the fundamental right ofphysical liberty, a right which must be protected absent a compelling state interest. Matter of C.H., 683 P.2d at 938. She also contended that 

## 3 41-5-103(12), MCA, is unconstitutional in that it authorizes the youth court to reclassify a youth in need of supervision who has violated a court order as a delinquent youth. Matter of 

### C.H., 683P.2d at 938. She contended that this classification violated equal protection guarantees by allowing the court to treat youths in the same class, i.e., youthful conternnors, differently. While physical liberty is not specifically guaranteed under either the United States Constitution or the Montana Constitution,we noted in Matter of C.H., 683 P.2d at 940, that the concept of "liberty" is very much a part of our state constitution. The preamble to the Montana Constitution states in part: "We the people ofMontana



### . . .desiring.



### . .to secure the blessings of liberty 

## . . . do ordain and establish this constitution." Further, Article 11, Section 

### 3 statesin part: "All persons areborn free and have certain inalienable rights. They include 

## . . .the rights of.



### . .enjoying and defending their lives and liberties



### .. .." Article 11, Section 17,the due process clause, states: "No person shallbe deprived of life, liberty, or property without due process of law." In Matter of C.H., 683 P.2d at 940,we concluded: "Reading the preamble and these sections of our constitution together, we hold that under the Montana Constitution physical liberty is a fundamentalright, without which other constitutionally guaranteed rights would have little meaning." We then analyzed the interplay between the guarantee of equal protection and Article 11, Section 15's guarantee to minors of all the fundamental rights of Article I1 unless specifically precluded by laws which enhance the protection of such persons. We held that "a juvenile's right to physical liberty must bc balanced against her right tobe supervised, cared for and rehabilitated." Matter of C.H., 683 P.2d at 

### 941.We determined that two compelling state interests justified classifying a youth as a delinquent youth or a youth in need of supervision, depending upon the circumstances. The two compelling state purposes were: 1)to rehabilitate youthful offenders by providing for their care, protection and wholesome mental development before they become adult criminals; and 2) to substitute aprogram of supervision, care and rehabilitation and remove the element ofretribution from the punishment ofa youth who has violated the law. mr ofC.H., 683P.2d at941. "Theyouth court's statutory authority to classify contempt ofcourt, depending upon the circumstances of the case, permits the court to fashion an appropriate, individual rehabilitation plan for each youthful contemn[o]r." 

### Matterof 683 P.2d at 941. 

### In the present appeals, the EJPA's imposition of 

### an adult sentence in addition to 

### a juvenile disposition infringes on thejuvenile's physical liberty, which is a fundamental right. As in Matter of

### C.H., 683 P.2d at 941, we must therefore apply a strict scrutiny analysis and determine whether there is a compelling state interest sufficient to justify such an infringement andwhether such an infringement is consistent with the mandates ofArticle 11, Section 15 ofthe Montana Constitution. Article 11, Section 15 provides: Rights ofpersons not adults. The rights ofpersons under 18 years of age shall include, but not be limited to, all the fundamental rights ofthis Article unless specifically precluded by laws which enhance the protections of such persons.This section must be read 

### in conjunction with the guarantee of equal protection found in Article 11, Section 4. The report of the Bill of Rights Committee of the Constitutional Convention indicates that one of the primary purposes of Article 11, Section 15 was to remedy the factthat minors had not been accorded full recognition under the equal protection clause ofthe United States Constitution. The Bill ofRights Committee's Comments are as follows: The committee took this action in recognition of the fact that young people have not been held to possess basic civil rights. Although it has been held that they are "persons"underthe due process clause ofthe Fourteenth Amendment, the Supreme Court has not ruled in their favor under the equal protection clause of that same amendment.What this means isthat persons under the age of majority have been accorded certain specific rights which are felt to be 

### a part of due process. However, the broad outline of the kinds of rights young people possess does not yet exist. This is the crux ofthe committee proposal: to recognize that persons under the age ofmajority have the sameprotections from governmental and majoritarian abuses as do adults. In such cases where the protection of the special status of minors demands it, exceptions can be made on clear showing that such protection is being enhanced. Montana Constitutional Convention, Vol. 

### I1 at 635-36. Clearly under Article 11, Section 15,minors are afforded full recognition under the equal protection clause and enjoy all the fundamental rights of an adult under Article 11. Furthermore, if the legislature seeks to carve exceptions to this guarantee, it must not only showacompelling stateinterestbut must also showthat the exception is designedto enhance the rights ofminors. In Matter ofC.H,, 683 P.2d at 941, we held that the state had a compelling interest in removing the element of retribution and instead rehabilitating youths before they becameadult offenders. At the time 

### Matterwas decided, the stated purpose of the Youth Court Act was "to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the youth court." Section 41-5-102(2), MCA (1983). However, the purposes of the Youth Court Act have since been considerably broadened. As ofthe 1995amendments,the Declaration ofPurposenow states the following goals: [T]o prevent and reduceyouth delinquency through an immediate, consistent, enforceable,and avoidable consequences of youths' actions and to establish a program of supervision, care, rehabilitation, 

### detention, competency development, communityprotection, and, in appropriate cases, restitution as ordered by the youth court[.] Section 41-5-102(2), MCA (1995) (emphasis added). As compared to the pre-1995 Declaration of Purpose, the Act now espouses much more preventative, if not punitive, goals; that is, the Act now seeks to prevent delinquency through imposition of enforceable and immediate consequences and to establish programs ofdetention and communityprotection. The State asserts that the EJPA was designed by the legislatureto address the rising tide of juvenile criminal conduct in Montana and dispel the notion held by some juveniles that their criminal conduct holds no consequences for them. The EJPA, as noted by the State,gives the courts "a bigger stick to help keep kids in line--to let them know their crimes are serious and this is their last chanceto cooperate." Obviously, it is no longer accurate to reason, as we did in Matter of C.H., 683 P.2d at 941, that YouthCourt Act infringementsupon ajuvenile's physical liberty are legitimate nieans of enhancing their protection. Indeed, in requiringthe court to impose an adult sentence in addition to the juvenile disposition, the EJPA goes beyond mere rehabilitation and injects the specter of retribution. Our holding in Matter of C.H. is thus distinguishable on that basis. Alljuveniles subject to the EJPA are at risk of serving an adult sentence in addition to theirjuvenile disposition. Thus, the EJPA, on its face, violates the equal protection clause of Article 11, Section 10 by treating EJPA offenders more harshly than their adult counterparts. The 

### EJPA aIso violates Article 11, Section 15 by reducing, rather than enhancing, ajuvenile's rights as compared to an adult's. The State, relying solely on its contention that age is not a suspect classification, does not address the fundamental right analysis and has not suggested any compelling state interest to justify the EJPA's infringement on the fundamental right ofphysical liberty. Whilethe Statehas a clear interest in deterring serious juvenile crime and while it can, within the limits of equal protection, further this interest by increasingthe sanctionsimposed uponjuveniles, it has no compelling state interest in treating them as adults and restricting their physical liberty beyond the restrictions which are imposed upon an adult for the same offense. As an example, one ofthe appealsbeforeus, Matter ofJ.L.C., Cause No. 96-220,Hill County, involves a 17-year-oldyouth who pled guilty to one count ofnegligent homicide,

aviolation of $45-5-104,MCA. Pursuantto the EJPA,J.L.C. received a juvenile disposition committinghim to formal probation until age 21 plus an adult sentence of 5 years with theDepartment of Corrections, suspended on the condition that he comply with the probation until age 21. Thus, while the "adult" portion of his sentence is only 5 years, the total sentence with both juvenile and adult aspects combined could equal 9 years, nearly twice as long as the 5-year adult sentence under similar circun~stances.Clearly, although the law purports to treat J.L.C. as an "adult," he is treated differently than an adult and in such a manner that his rights are lessened rather than enhanced, as mandated by Article 11, Section 15. Thus, the EJPA, both on its face and as appliedto J.L.C., violates equal protection under Article 11, Section 4 and aminor's rights to enhanced protection under Article 11, Section 15 ofthe Montana Constitution. In addition to Matter of C.H., 683 P.2d at 931, discussed above, we have twice addressedequalprotection challengesto the different treatment ofoffenders based upon age. As the following analysis indicates, we find both ofthese decisions distinguishable. A. Our Decision in Matter of Wood: In Matter of Wood (1989), 236 Mont. 118,768P.2d 1370, we addressed an equal protection challenge by a 16-year-old youth to the process whereby jurisdiction over his homicide case was mandatorily transferred from youth court to district court. The Youth Court Act, 

### 4 41-5-206(l)(a)(i), MCA, provided that a youth aged 12years or older who had committed deliberate homicide or mitigated deliberate homicide may be transferred, after a hearing,to district court. Wood contendedthat, as a 16-year-old, he was entitledto the same due process (i.e., a hearing) as ayounger person and that 

## 4 41-5-206(3), MCA, denied equalprotection when it provided that youths I6 years or older who have allegedly committed deliberate homicide must be transferred to district court, without any requirement of a hearing. Matter of Wood, 768 P.2d at 1372. We held that procedural due process is not a hndamental right nor is age a suspect class requiring strict scrutiny. Matter ofWood, 768 P.2d at 1375. We applied the rational basis test and concluded that treatment as ajuvenile is not an inherent right, that the legislature may restrict or qualify that right, and that the legislative classification based upon age and gravity ofthe offense was rationally related to the legitimate state objective ofdetening homicides committed by teenagers and protecting society from these violent offenders. Matter ofWood, 768 P.2d at 1376. 

### Matterof 768P.2d at 1370,is distinguishablefrom the case

### sub judice. Matter of Wood involves the right to procedural due process, which we held is not a hndamental right. In this case, the appellants are challenging the actual loss of physical liberty, in addition to challenging the process by which sentence is imposed. As we stated earlier, physical liberty is a fundamentalright requiring strict scrutiny. Also, Matter ofWood, 768 P.2d at 1374-76,involved the transfer statute, $41-5-206,

### MCA, and an alleged right to be treated as ajuvenile. The present appeals involvethe EJPA, which while purporting to treat juveniles as adults in fact treats them more harshly than adults under similar circumstances. Our decision in Matter ofWood is thus not controlling of the issues presented herein.

### B. Our Decision 

### in Matter of

### C.S.: We addressed an equal protection challenge to the disparate application ofsentencing laws to minors as compared to adults in Matter of C.S. (1984), 210 Mont. 144, 687 P.2d 57. At the age of 15,

### C.S. was adjudged a delinquent youth for having committed the offense of violation 

### of privacy in communication, a misdemeanor as provided in 

## 5 45-8-2 13,

### MCA. Matter of 

### C.S., 687 

### P:2d at 

### 58. At the dispositional hearing, 

### C.S. was committed to the Department of Institutions until age 

### 21, unless the Department deemed an earlier release appropriate. Thus, the maximum amount oftime 

### C.S. could have spent in the custody 

### ofthe Department was six years. Matter of 

### C.S., 687 P.2d at 58. This was considerably longer than the six-month maximum to which an adult couldbe sentenced for 

### committingthe same offense. For that reason, 

### C.S. argued that her term 

### of commitment vioIated the equal protection clause. Matter 

### of

### C.S., 687 P,2d at 58. We concluded that adults and minors are not similarly situated with respect to Montana's sentencing laws for three reasons. Matter 

### of 

### C.S., 687 P.2d at 59. The three reasons propounded were: 

### 1) 

### ajuvenile commitment is different from a criminal conviction because, given the stated policy 

### of the Youth Court Act in 1984, a juvenile commitment is strictly for rehabilitation, not retribution; 2) 

### in contrast to an adult, the liberty interests of 

### a minor are subject to reasonable regulation by the State under the doctrine ofparens patriae; and 3) otherjurisdictions have employed theparens patriae doctrine under similar youth court acts. Matter ofC.S., 687 P.2d at 59.Our decision in Matter of C.S., 687 P.2d at 57, predates the adoption of the EJPA. After review of the EJPA and the revised Youth Court Act, we conclude that the three distinctions drawn in Matter ofC.S. between minors and adults do not apply in the context ofthese acts. As stated above in our discussion of Matter of C.H., given the new breadth of purpose ofthe Youth Court Act and the adult sentencing provisions of the EJPA, it is no longer accurate to state, as we did in Matter of C.S., 687 P.2d at 59, that a Youth Court disposition is "strictly for rehabilitation, not retribution." Our holding in Matter of 

### C.S. is thus distinguishable on that basis. Furthermore, where the offender is sanctioned with an "adult" sentence, asunder the EJF'A, we cannot rely on the doctrine ofparenspatriaeto distinguishbetween the treatment ofjuveniles and adults. Parens patriae traditionally refers to the role of the State as sovereign or guardian ofpersons who are under a legal disability, such asjuveniles--"the principle that the state must care for those who cannot take care of themselves, such as minors who lack proper care and custody from their parents." 

### BLACK'S LAW DICTIONARY 1114(6th ed. 1990). Where, asunder the 

### EJPA, the offender is no longer sentenced solely as a juvenile, but as an adult as well, the doctrine's paternalistic rationale no longer applies. Finally, the doctrine ofparenspatriae must be applied consistently with Article 11, Section 15 of the Montana Constitution which provides: "The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights ofthis Article unless specifically precluded by laws which enhance the protection of such persons."(Emphasis added.) 

### In light of this clear constitutional guarantee, ajuvenile enjoys all the rights and privileges of an adult unless the law at issue affords more, not less, protection to thejuvenile. Our decision in Matter of C.S., 687 P.2d at 57, did not address the provisions of Article 11, Section 15 and does not conflict with our conclusion that infringement of an EJPA offender's liberty for a longer period of time than an adult under like circumstances does not enhance the juvenile's rights. CONCLUSION Under the framework of the EJPA, ajuvenile receives ajuvenile disposition plus an adult sentence. Ifthejuvenile violates the terms of the juvenile disposition,it is possible for the youth to serve a longer term of detention or imprisonment than an adult who has committed the same offense. The Statehas not shown a compelling interest to be advanced by this unequal treatment of similarly situated persons, nor has it shown that the EJPA provides juveniles with increased, rather than decreased, protection under the law. Therefore,we hold that the EJPA violates Article 11, Section4 (equalprotection) and Article 11, Section 15(rights ofminors). Although the Youth Court Act, including the EJPA, is subjectto a severability clause, our holdingthat the EJPA violates Article 11, Sections 4 and 15ofthe Montana Constitution goes to the heart ofthe EPA. That is, thc EJPA's impositionofan adult scntcncc in addition to thejuvenile dispositionis necessary to the integrity of the EJPA and was the inducement to its enactment. Accordingly, the remaining provisions of the EJPA cannot be saved

### through application of the severability clause. 

### &Montana Auto. Ass'n 

### v. Greely (1981), 193 Mont. 378, 399,632 P.2d 300, 3 11. 

### Although ourequal protection analysisdiffers considerably from that ofthe Thirteenth Judicial District Court in Matter ofL.D. and Matter ofJ.A.T., that court nonethelessreached the right result. We affirm district court decisions which are correct regardless ofthe court's reasoning in reachingthe decision. Clark v. 

### Eagle Systems,Inc. (1996), 279 Mont. 279,927 P.2d 995. Accordingly, we affirm the District Court's decision that the EJPA is unconstitutional. The Hill County Matter ofJ.L.C., the Gallatin County Matter of S.L.M. and the Gallatin County Matter of S.T. are remanded to those District Courts for further proceedings consistent with this opinion.

We concur: 

# A

Justices 24Justice Teny N. Trieweiler specially concurring. 

### I concur withthe majority's conclusionthatthe Extended Jurisdiction Prosecution Act, found at 

## $9 41-5-1 101to -1 105, MCA (1995),is unconstitutional. However, I conclude that it violates the prohibition against double jeopardy found at Article 11, Section 25, of the Montana Constitution,by imposing multiple punishments for the same offense. Therefore, I would not reach the issue of whether it violates the youths' constitutional right to equal protection pursuant to Article 11, Sections 4 and 15, ofthe Montana Constitution. Section 41-5-1 104, MCA (1995), clearly provides for multiple punishments for the same offense. That section specifies that: If ayouth in an extended jurisdiction prosecution pleads guilty to or is found guilty ofan offense described in 41-5-1 102(1)(b),the court shall: (a) Impose one or morejuvenile dispositions under 41-5-523; and (b) Impose an adult criminal sentence, the execution ofwhich must be stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense. If the youth violates the conditions ofthe stay or commits a new offense, the adult criminal sentence must be executed as provided in 41-5-1 105. (Emphasis added.) Section 41-5-1 104(a), MCA (1995), provides for imposition of those punishments established by the Youth Court Act. Subsection (b) provides for the concurrent imposition of an adult sentence which, although stayed, can be enforced at a later date. The State contendsthat pursuant to our decisionin 

### State v. 

### Zabawa (1996), 279 Mont. 307, 928 P.2d 151, and the United States Supreme Court's decision in 

### Missouri v. Hunter (1983),459 U.S. 359, 103 S. Ct. 673,74 

### L. Ed. 2d 535, cumulative punishments for a singleoffense do not violate the double jeopardy clauses of either the Fifth Amendment to the United States Constitution,or Article 11, Section 25, ofthe Montana Constitution. While that may be the interpretation attached to the Federal Constitution by the United States Supreme Court, 

### I would not follow that reasoning when applying our own constitutional prohibition against doublejeopardy for the reasons stated in Justice Leaphart's dissent to the Zabawa decision. As this Court noted in State 

### v. Johnson (1986), 

### 22 1Mont. 503, 5 13, 719 P.2d 1248, 1254, "states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterpartsto state constitutions." Furthermore, as statedby Justice Leaphart inhis dissent to this Court's Zabawa decision: 

### I would decline to adopt the United States SupremeCourt's interpretation of the "multiple punishment" element ofthe DoubleJeopardy Clause inMissouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535. Instead, I interpret the doublejeopardy clause ofArticle 11, Section 25 ofthe Montana Constitution, asproviding substantive protection against multiple punishments irrespective of any legislative enactments.



### . 

## . . [W]e do a grave disservice to the framers of the Montana Constitution when wehold that a constitutionalprovision means nothing more than what the legislativebranch intends it to mean. Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Contrary to this Court's characterization of the issue, the question is not whether Article 11, Section 25 of the Montana Constitution provides "greater protection" 

### from double punishment than does the Fifth Amendment, the question is whether itprovides any protection independently ofwhat the legislature chooses to provide.

### . 

## . . The double jeopardy clause in Article 11, Section 25, limits the power of all branches of government, including the legislature. Whether the legislature intends multiple punishments or not, as a matter of state constitutionallaw, suchcumulative punishment is proscribed under the double jeopardy clause. 

### Zabawa, 279 Mont. at 323-26, 928 P.2d at 161-63 (Leaphart, J., dissenting). We have previously recognized that the Fifth Amendment to the United States Constitutionprotects againstmultiple punishments for the same offense, and that Montana's correspondingright providesthe same protection. See 

### State v.Nelson (1996), 275 Mont. 86, 90,910P.2d 247,250. The Extended Jurisdiction Prosecution Act clearly provides multiple punishments for the same offense. It defies all principles of a constitutional system of government to suggest that the Legislature defines it own constitutional parameters. Therefore, based on the reasoning in the dissent to 

### Zabawa, 

### I would conclude that the Extended JurisdictionProsecution Act violates theprohibition against double jeopardy in the Montana Constitution and is unenforceable. For these reasons,

### I concur with theresult ofthe majority opinion, but express noview regarding the reasoning for the majority opinion.