In Re Marten

No. 13833 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

IN RE: EUGENE H. MARTEN ORIGINAL PROCEEDING:

Counsel of Record: For Appellant: William Hutchison argued, Helena, Montana William J. Miele, Miles City, Montana For Respondent: Honorable A. B. Martin argued, District Judge, Miles City, Montana

Submitted: June 10, 1977

41 t7 1, Filed:

M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court:

This i s an o r i g i n a l proceeding by a 17 year old male youth seeking a w r i t of habeas corpus, supervisory c o n t r o l , o r other appropriate r e l i e f t o t e s t t h e l e g a l i t y of proceedings leading t o h i s d e t e n t i o n over a weekend i n May 1977, i n t h e j u v e n i l e p a r t of t h e Custer County j a i l i n Miles C i t y , Montana.

The t h r u s t of t h e youth's p e t i t i o n i s t h a t he was unlawf u l l y i n c a r c e r a t e d i n t h a t : (1) He was denied t h e a s s i s t a n c e of counsel, and (2) he was i n c a r c e r a t e d i n j a i l by f a i l u r e of t h e Youth Court judge t o follow t h e s t a t u t o r y procedures and requirements of t h e Montana Youth Court Act.

The p r i n c i p a l f a c t s concerning t h e youth a r e contained i n t h e r e p o r t of Donald P. Wright, youth probation o f f i c e r of t h e S i x t e e n t h J u d i c i a l ~ i s t r i c t ,t o t h e d i s t r i c t c o u r t and s e t o u t verbatim here:

" A t approximately 12:00 Noon, on t h e 20th day of May, 1977, Gene Marten, a 9outh under t h e age of eighteen y e a r s , was r e f e r r e d t o m charged with being e i n possession of s t o l e n property, 94-6-302(3C), of t h e Revised Code of Montana, 1947 a s amended, by t h e Rose- bud County S h e r i f f ' s Department. 11 Gene i s a seventeen year o l d youth who i s l i v i n g with t h e Lovells i n Forsyth. This home i s n o t a l i c e n s e d f o s t e r home. H i s f a t h e r , Eugene Marten, whose l a s t 'known residence was i n Great F a l l s , Montana, i s unavailable and I have n o t been a b l e t o c o n t a c t him t o d a t e . I contacted t h e Cascade County Probation Office and they were unable t o c o n t a c t M r . Marten, however, they d i d t a l k t o the boy's grandparents, who s t a t e d t h a t they believed t h a t M r . Marten had l e f t Great F a l l s .

"Mr. Dan Lovell s t a t e d t h a t Gene's f a t h e r was going t o be coming through t h e town of Forsyth sometime over t h i s weekend, and t h a t M r . Marten was going t o s t o p by t h e Lovell residence while i n Forsyth.

11 Gene Marten was under t h e supervision of t h e Children's Services O f f i c e i n Rosebud County u n t i l approximately one month ago. P r e s e n t l y , he has no l e g a l guardian i n Forsyth and t h e whereabouts of h i s f a t h e r a r e unknown.

"I b e l i e v e and it i s m opinion t h a t i t i s i n y Gene Marten's b e s t i n t e r e s t s t o be h e l d i n custody u n t i l such time a s a hearing can be h e l d before t h e D i s t r i c t Judge of t h e 16th J u d i c i a l D i s t r i c t Youth Court.

" A t noon today, when Gene was r e f e r r e d t o m y o f f i c e , t h e r e was no a v a i l a b l e space i n t h e j u v e n i l e p o r t i o n of t h e Rosebud County j a i l . The county a t t o r n e y , John Forsyth, and D i s t r i c t Judge A . B . Coa te were t i e d up i n a j u r y t r i a l and I t r a n s p o r t e d Gene Marten t o Miles C i t y , Montana under t h e a u t h o r i t y of t h e Montana Youth Court Act, Section 10-1212, t o be placed i n t h e j u v e n i l e p o r t i o n of t h e Custer County j a i l pending a p e t i t i o n being f i l e d and a subsequent hearing before the D i s t r i c t Youth Court Judge."

Following t h e youth's t r a n s f e r t o Miles C i t y , t h e Youth Court judge, t h e Hon. A . B . Martin, h e l d a hearing, a t r a n s c r i p t of which i s before t h i s Court. I n the middle of t h i s hearing, an a t t o r n e y from Montana Legal Services appeared and requested t h e r i g h t " t o say something". The following i s a verbatim t r a n s c r i p t of what occurred following t h e appearance of t h e Legal Services a t t o r n e y a t t h e hearing:

"MR. MIELE: Your Honor, i f I could say something please.

"THE COURT : Well, I ' m going t o make an order and then 1'11 l e t you say i t .

"MR. PIIELE: I ' d l i k e t o say i t before t h e o r d e r , because I ' m s u r e i t ' s r e l e v a n t .

"THE COURT : I ' m going t o run t h i s and then you can say whatever you want t o . N w you prepare t h i s o r d e r , o J i m , and i t w i l l be t o t h i s e f f e c t .

"The Honorable Alfred B . Coate, p r e s i d i n g Youth Court Judge of Rosebud County, being elsewhere occupied on j u d i c i a l business, t h e w r i t t e n r e p o r t and sworn testimony of Don Wright, J u v e n i l e Probation O f f i c e r of Rosebud County, has submitted t o t h e undersigned Youth Court Judge of t h e S i x t e e n t h J u d i c i a l D i s t r i c t of Miles

C i t y , Montana, and i t appearing from s a i d r e p o r t t h a t the -- and t h e testimony submitted, t h a t

"1. There i s probable cause t o b e l i e v e t h a t s a i d j u v e n i l e has committed t h e offense of being i n posses- s i o n of s t o l e n property.

" 2 . That t h e p a r e n t s of s a i d c h i l d cannot be reached a t t h e present time, and t h a t t h e r e i s no home o r i n s t i t u t i o n i n which s a i d youth can temporarily be detained pending f u r t h e r proceedings,

"Now Therefore i t i s Ordered t h a t Donald P. Wright, a J u v e n i l e O f f i c e r , may take custody of s a i d j u v e n i l e and d e t a i n him i n t h e Custer County j a i l , pending t h e f i l i n g of a formal p e t i t i o n by t h e County Attorney of Rosebud County. Such d e t e n t i o n n o t t o exceed f i v e days, and t h e County Attorney s h a l l f o r t h w i t h f i l e s a i d formal petition.

"It I s Further Ordered, t h a t J . Dennis Corbin, a t t o r n e y of Miles C i t y , Montana, be appointed a s s a i d youth's a t t o r n e y , who w i l l a s soon a s reasonably p o s s i b l e , c o n t a c t s a i d youth and a t t e n d t o t h e p r o t e c t i o n of h i s legal rights.

"MR. MIELE: May I make a statement on the record?

"THE COURT: A l l right.

"MR. MIELE: F i r s t of a l l , Gene contacted m o f f i c e y yesterday i n regard t o t h e r e p r e s e n t a t i o n of Gene, and I have s t a t e d t o him t h a t I would r e p r e s e n t him. Second of a l l , i n regard t o t h e statement t h a t t h e r e i s no a v a i l a b l e home, I don't t h i n k t h a t i s e n t i r e l y a c c u r a t e . W have a worker h e r e from t h e Child Abuse P r o j e c t i n e Rosebud County, who could s t a t e t h a t t h e c h i l d has been l i v i n g i n a family home, t h a t t h e c h i l d has been t h e r e f o r some period of t i m e , and t h a t t h e person who i s i n charge of t h a t home, i s ready, w i l l i n g and a b l e t o come forward and give assurances i n accordance with RCM 10-1213, t h a t t h e c h i l d w i l l be present i n c o u r t on Monday, o r whatever time i s s e t f o r t h e hearing. Another matter which I d o n ' t know i f i t ' s l e g a l , b u t I question t h e e t h i c s of i t , i s t h e f a c t t h a t I t a l k e d t o M r . Wright t h i s morning, o r t h i s afternoon and t o l d him t h a t I was looking i n t o t h e f a c t t h a t t h e boy was i n j a i l , and t h a t I would be i n touch with him t h i s afternoon, and t h a t t h e r e i s a good chance t h a t I would b r i n g a habeas corpus p e t i t i o n before t h i s c o u r t t o have t h e boy l e t o u t , and I j u s t question t h e e t h i c s of him coming up h e r e without n o t i f y i n g m e when he knows t h a t I was representing t h e boy.

"THE COURT: He advised m t h a t you had t a l k e d w i t h e him, s o I know about t h a t , and I have appointed an a t t o r n e y f o r him, and i f you want t o t a l k t o h i s a t t o r n e y go ahead.

"MR. MIELE: I s the Court i n t e r e s t e d i n hearing any of the testimony t h a t we can o f f e r ?

"THE COURT: No, I ' m not. That's i t , the order i s signed. You prepare t h a t order forthwith and you w i l l see t h a t he g e t s a copy.

"MR. WRIGHT : Yes, Your Honor.

"THE COURT: And you make a copy of the minutes and send it over, i f you can, with Don Wright when he r e t u r n s , and then w e ' l l l e t Judge Coate handle t h i s thing, and I imagine it w i l l be handled Monday.

"MR. WRIGHT: Yes, Your Honor.

"THE COURT : And i f anyone e l s e wants t o appear, w e ' l l l e t Judge Coate handle i t .

"MR. WRIGHT: Your Honor, the home t h a t t h e boy has been staying i n , i s not a licensed f o s t e r home, and the same portion of t h e youth court s t a t u t e s t a t e d by M r . Miele, a l s o s t a t e s t h a t the boy s h a l l or w i l l be held i n a home authorized by the Court, i f t h e r e i s no parents or guardian present, and t h i s was not a licensed f o s t e r home.

"MR. MIELE: I might point out 10-1212, where i t s t a t e s t h a t i f the c h i l d has no parent, guardian o r other person a b l e t o provide supervision and c a r e f o r him and r e t u r n him t o t h e court when required, and I don't see any requirement of a licensed home.

"THE COURT: Well you seem t o overlook the f a c t t h a t the Juvenile Court and the Juvenile Officers a r e attending t o the i n t e r e s t of t h i s c h i l d , a s well a s t h a t of society. Furthermore, the Court has taken the necessary a c t i o n t o p r o t e c t the l e g a l r i g h t s of t h i s boy, and I think t h a t i s a l l t h a t i s necessary."

O M y 23, 1977, Montana Legal Services Association f i l e d n a

an o r i g i n a l proceeding i n t h i s Court f o r a w r i t of habeas corpus, supervisory c o n t r o l o r other appropriate r e l i e f accompanied by a f f i d a v i t s of Daniel Lovell, Eugene Herman Marten, the youth involved, Marsha McDede and William J. Miele, the Legal Services attorney, together with a b r i e f i n support of the p e t i t i o n .

This Court ordered an adversary hearing. P r i o r t o the adversary hearing, Judge Martin f i l e d h i s response t o the p e t i -t i o n which we s e t f o r t h verbatim:

"The response ordered by t h e Supreme Court t o t h e p e t i t i o n f o r w r i t of habeas corpus o r o t h e r appropriate r e l i e f f i l e d i n t h e above e n t i t l e d matter i s herewith submitted i n n a r r a t i v e form without argu- ment. What i s s a i d i s m r e c o l l e c t i o n of events y leading up t o t h e peremptory order f o r temporary deten- t i o n of the youth.

" M r . Donald Wright who i s t h e r e s i d e n t j u v e n i l e o f f i c e r of Rosebud County came t o m o f f i c e on Friday y afternoon, May 20, 1977, explaining t h a t he had a problem which Judge Coate o r t h e County Attorney could n o t a c t upon because they were p r e s e n t l y occupied with a jury t r i a l . To t h e b e s t of m r e c o l l e c t i o n M r . Wright y gave t h e following background.

he f a t h e r and mather of t h e Marten boy had been divorced i n Idaho. The f a t h e r had been awarded custody of t h e c h i l d r e n but had subsequently been deprived by c o u r t order of t h e two younger c h i l d r e n because of abuse and n e g l e c t . I n some manner n o t c l e a r t o me, Eugene Marten was taken under t h e wing of a f e d e r a l agency which M r . Wright r e f e r r e d t o a s 'Childrens Service.' I had never heard of t h i s agency and was advised t h a t i t was a f e d e r a l l y funded agency which was being t e s t e d i n s e l e c t e d communities throughout t h e United S t a t e s . Apparently it d u p l i c a t e s o r augments t h e s e r v i c e pro- vided by t h e S t a t e of Montana f o r abused and neglected c h i l d r e n , b u t a c t s independently from t h e Montana De- partment of S o c i a l and R e h a b i l i t a t i o n Services. I n o t e from a f f i d a v i t s of p e t i t i o n e r t h a t t h e o f f i c i a l t i t l e of t h e agency i s ' ~ o s e b u dCounty Northern Cheyenne Child Abuse and Neglect P r o j e c t ' . "The Marten youth was placed i n a f o s t e r home by t h e Agency i n Forsyth, Montana, b u t declined t o follow t h e r u l e s and r e g u l a t i o n s imposed by t h a t home. Be- cause of the d i f f e r e n c e s he was having with h i s f o s t e r p a r e n t s , he moved i n t o a home of a f r i e n d by t h e name of Dan Lovell. This move was given t h e a f t e r t h e f a c t b l e s s i n g of t h e agency. I t was during t h i s period of h i s residency t h a t t h e s t o l e n t i r e s and wheels were found i n h i s possession. M r . Wright, i n m opinion, r i g h t f u l l y y took t h e p o s i t i o n t h a t with t h e apparent c r i m i n a l v i o l a t i o n , t h e j u v e n i l e probation department should take c o n t r o l of t h e s i t u a t i o n . I t was a l s o h i s p o s i t i o n t h a t t h e Lovell home w a s n o t a licensed f o s t e r home and under t h e circumstances described by him, was not a s u i t a b l e home f o r d e t e n t i o n of t h e boy pending f u r t h e r i n v e s t i g a t i o n and hearing on t h e youth's d e t e n t i o n . I t was t o t h i s home t h a t M r . Miele believed t h e youth should be returned.

"Mr. Wright made an e f f o r t t o c o n t a c t the youth's f a t h e r . He had c a l l e d t h e j u v e n i l e probation o f f i c e i n Great F a l l s , who i n t u r n contacted t h e youth's grand- p a r e n t s who d i d n o t know where t h e f a t h e r was, b u t believed he had gone 'somewhere e a s t ' looking f o r a job.

"With t h i s information I d i r e c t e d M r . Wright t o f i l e a w r i t t e n r e p o r t s t a t i n g i n substance what he had r e l a t e d , t o g e t h e r with a r e q u e s t t o f i l e a p e t i t i o n a l l e g i n g j u v e n i l e delinquency. He was then t o r e t u r n with t h e youth and give o r a l t e s t i - mony. This was done but during t h e course of t h e testimony, M r . Miele came s t r i d i n g i n t o the o f f i c e with a t r a i n of a t t e n d a n t s who stood i n the doorway while M r . Miele gave t h e appearance of wanting t o i n t e r r u p t . I s a i d nothing and a s M r . Miele l i s - tened he s t a r t e d shaking h i s head, p u l l i n g h i s beard, t u r n i n g one d i r e c t i o n , then t h e o t h e r , and looking back a t t h e people behind him whose smiles implied they understood M r . Miele ' s dilemma.

" y i r r i t a t i o n with t h i s d i s p l a y was aggravated M by accounts of previous confrontations t h a t M r . Miele had had w i t h t h e j u v e n i l e probation o f f i c e r s . A s r e l a t e d by M r . Butz, M r . Miele, on one occasion stormed uninvited i n t o t h e j u v e n i l e probation o f f i c e and i n an imperious manner issued ultimatums a s t o what t h e o f f i c e r s could o r could n o t do. This con- f r o n t a t i o n reached t h e p o i n t t h a t they were ready t o bodily e j e c t M r . Miele from t h e o f f i c e .

"On another occasion M r . Wright was attempting t o explain t o M r . Miele, M r . Wright's handling of a c e r t a i n juvenile. M r . Miele i n s o l e n t l y swung around and s a t with h i s back t o M r . Wright.

"I have t h e g r e a t e s t confidence i n M r . Wright. He i s n o t combative and goes about h i s work i n a q u i e t and thorough manner. I f M r . Miele would appear a s a f r i e n d , r a t h e r than a d i c t a t o r , t h e c o u r t and i t s j u v e n i l e o f f i c e r s would respond accordingly.

"I observed when t h e Marten youth appeared t h a t he was a mature 17 year o l d youth. The j u v e n i l e d e t e n t i o n q u a r t e r s of t h e Custer County J a i l was constructed about t h r e e years ago and adequate q u a r t e r s a r e a v a i l a b l e f o r t h e d e t e n t i o n and supervision of j u v e n i l e s . A f t e r ordering t h a t he be confined, I d i r e c t e d M r . Wright t o s e e t h a t t h e c o u r t appointed counsel was immediately put i n touch with t h e boy, which I am advised was prmptly done.

"Considering t h e t o t a l i t y of t h e circumstances, t h e c o u r t and i t s j u v e n i l e o f f i c e r s a c t e d within t h e s p i r i t and t h e l e t t e r of t h e law."

Accompanying the d i s t r i c t c o u r t ' s response was t h e a f f i d a v i t of t h e youth probation o f f i c e r , with a copy of h i s r e p o r t t o the c o u r t attached.

Another a f f i d a v i t of t h e youth, t o g e t h e r with a copy of Judge Coate's order t r a n s f e r r i n g t h e case t o Lewis and Clark County was attached.

P e t i t i o n e r s e t s f o r t h two i s s u e s f o r t h i s Court's consideration:

1. Did t h e Youth Court e r r i n denying t h e a s s i s t a n c e

of a v a i l a b l e counsel t o t h e youth i n t h e predetention hearing before Judge Martin?

2. Did t h e Youth Court f a i l t o follow t h e s t a t u t o r y requirements and procedures of the Montana Youth Court Act i n ordering t h e prehearing d e t e n t i o n of Eugene Marten i n t h e Custer County j a i l ?

A t t h e o u t s e t , we a r e confronted with a contention t h e i s s u e s r a i s e d i n t h i s proceeding a r e moot a s t h e youth i s no longer i n c a r c e r a t e d and i s l i v i n g with t h e Love11 family i n Forsyth. While i t may be t r u e a w r i t of habeas corpus i s no longer a v a i l a b l e t o t e s t t h e l e g a l i t y of t h e youth's confinement, t h e a p p l i c a t i o n f o r supervisory c o n t r o l t o t e s t t h e l e g a l i t y of t h e proceedings leading t o such confinement i s by no means moot. To deny review i s tantamount t o depriving p e t i t i o n e r of t h e r f g h t t o any r e l i e f .

I n h i s f i r s t i s s u e p e t i t i o n e r a l l e g e s t h e Youth Court e r r e d i n denying t h e a s s i s t a n c e of a v a i l a b l e counsel t o him i n a predetention hearing. He d i r e c t s our a t t e n t i o n t o one of t h e express purposes of t h e Montana Youth Court Act:

" (4) t o provide j u d i c i a l procedures i n which t h e p a r t i e s a r e assured a f a i r hearing and recog- n i t i o n and enforcement of t h e i r c o n s t i t u t i o n a l and s t a t u t o r y r i g h t s . " Section 10-1202(4), R.C.M. 1947.

W hold t h e f a c t s of t h i s case do n o t demonstrate a e

v i o l a t i o n of t h i s s t a t u t e . I n i t i a l l y , t h e r e i s considerable doubt a s t o t h e s t a t u s of William J. Miele, t h e Legal Services a t t o r n e y , i n representing t h e youth a t t h e time he appeared during t h e progress of t h e hearing before t h e Youth Court judge. The a f f i d a v i t of t h e youth probation o f f i c e r i n d i -c a t e s t h a t upon taking t h e youth i n t o custody, t h e youth s t a t e d t h a t he was n o t represented by counsel i n response t o a question by t h e youth probation o f f i c e r . The a f f i d a v i t of M r . Miele i n d i c a t e s t h a t on t h e day before t h e youth was taken i n t o custody, t h e youth contacted him and asked him t o r e p r e s e n t him i f c r i m i n a l charges were f i l e d a g a i n s t him f o r possession of s t o l e n property and "I t o l d Eugene t h a t I would do s o i f he was unable t o o b t a i n another attorney." (Emphasis added.) It appears from t h e a f f i d a v i t of Daniel Love11 t h a t he was t h e moving f o r c e behind securing M r . M i e l e ' s s e r v i c e s i n r e p r e s e n t i n g the youth. While i t i s t r u e t h e r e a r e o t h e r a f f i d a v i t s and statements t h a t i n d i c a t e M r . Miele was repres e n t i n g t h e youth, they do no more than c r e a t e some doubt a s t o M r . Miele's s t a t u s a t t h e time he entered t h e hearing then i n progress.

Under t h e f a c t s h e r e , w e hold t h e r e was no proven v i o l a t i o n

of t h e Montana Youth Court Act. W perceive no requirement e

i n t h e Act t h a t a predetention hearing be h e l d under a l l circumstances. The Act simply r e q u i r e s t h e following circumstances t o e x i s t t o a u t h o r i z e detention:

"A youth taken i n t o custody s h a l l n o t be detained p r i o r t o t h e hearing on t h e p e t i t i o n except when: h i s d e t e n t i o n o r c a r e i s required t o p r o t e c t t h e person o r property of o t h e r s o r of t h e youth; he may abscond o r be removed from t h e j u r i s d i c t i o n of t h e c o u r t ; he has no p a r e n t , guardian, o r o t h e r person a b l e t o provide supervision and c a r e f o r him and r e t u r n him t o t h e c o u r t when required; o r an o r d e r f o r h i s d e t e n t i o n has been made by t h e c o u r t pursuant t o t h i s a c t . " Section 10-1212, R.C.M. 1947.

These requirements were c l e a r l y met by information developed from t h e youth probation o f f i c e r under oath and h i s w r i t t e n r e p o r t t o t h e c o u r t followed by an order of t h e Youth Court f o r t h e youth's d e t e n t i o n .

The second i s s u e f o r review i s whether t h e Youth Court f a i l e d t o follow t h e s t a t u t o r y procedures and requirements of t h e Montana Youth Court Act i n holding t h e youth i n d e t e n t i o n over t h e weekend p r i o r t o hearing t h e charges a g a i n s t him.

P e t i t i o n e r p o i n t s out t h e declared purpose of t h e Youth Court Act i s t o r e t a i n t h e youth i n a family environment whenever p o s s i b l e , s e p a r a t i n g t h e youth from h i s p a r e n t s only f o r t h e welfare of t h e youth o r t h e s a f e t y and p r o t e c t i o n of t h e community. Section 10-1202(3), R.C.M. 1947. Petitioner a l s o p o i n t s out t h a t t h i s Court has h e r e t o f o r e s e t out t h e following c r i t e r i a f o r s e p a r a t i n g a youth from h i s family enviranmnt: (1) necessary f o r t h e welfare of t h e youth, o r (2) t h e s a f e t y o r p r o t e c t i o n of t h e community. I n t h e Matter of Zip Geary,

Mont . , 562 P.2d 821, 34 St.Rep. 218 (1977).

I n our view, Geary i s d i s t i n g u i s h a b l e and i n a p p l i c a b l e on t h e b a s i s t h a t t h e r e , u n l i k e h e r e , t h e youth was being separated from h i s parents. Additionally, h e r e t h e d i s t r i c t c o u r t made an express f i n d i n g "there i s no home o r i n s t i t u t i o n i n which s a i d youth can be temporarily detained pending f u r t h e r proceedings" and t h e youth probation o f f i c e r ' s r e p o r t i n d i c a t e d t h e youth, i n h i s opinion, might abscond i f n o t detained.

I n summary, we a r e of t h e opinion t h e Montana Youth Court Act does n o t r e q u i r e a judge t o hold a predetention hearing i n every case; t h a t t h e judge d i d so here i s a matter within h i s discretion. While i t can be argued t h a t t h e Youth Court judge should have l i s t e n e d t o Miele p r i o r t o e n t r y of t h e o r d e r f o r prehearing d e t e n t i o n , i t appears t h a t i n view of M r . Miele's questionable s t a t u s a s t h e youth's a t t o r n e y t h e Youth Court judge was n o t compelled t o do so. The pred e t e n t i o n hearing developed a strong f a c t u a l b a s i s f o r det e n t i o n of t h e youth i n t h e j u v e n i l e f a c i l i t y i n t h e Custer County j a i l under s e c t i o n 10-1212, R.C.M. 1947.

W hold t h e Youth Court judge d i d n o t v i o l a t e t h e e

provisions of t h e Montana Youth Court Act i n ordering d e t e n t i o n of t h e youth under t h e circumstances involved i n t h i s c a s e .

This opinion s h a l l cats:: a d e c l a r a t o r y judgment concerning t h e r i g h t s and remedies of t h e p e t i t i o n e r under t h e circumstances of t h i s case.

- W Concur: e

&ie f J u s t i Justices. Mr. Justice Daniel J. Shea dissenting:

As an abstract conclusion, I agree with the basic conclusion of the majority that the Youth Court is not required to give a youth

a predetention hearing under all circumstances. But I cannot accept this conclusion applying to the facts of this case.

In this case the Youth Court did hold a predetention hearing. However, it was devoid of those procedural rights which usually go with a hearing. In essence, all the Youth Court did was accept the

affidavit of the probation officer and his testimony concerning the

youth and used this as a basis for jailing the youth for a period of not to exceed five days pending further juvenile proceedings. The

probation officer was not cross-examined, the youth was denied the right to have anyone testify in his behalf, and he was effectively denied the right to an attorney at the hearing. The effect of this Court's decision is two-fold. First, a Youth Court is not required to hold a hearing. Second, even if a Youth Court does hold a hear-

ing, there are no procedural requirements to make it a meaningful hearing. Once the Youth Court judge chose to hold a predetention

hearing, he committed himself, I believe, to holding a meaningful hearing. This would include the right of the youth to call wit- nesses in his behalf, to cross-examine witnesses, and to have a lawyer represent him. Concerning the right to an attorney, the majority opinion

makes much of the fact that the status of Mr. Miele as the youth's attorney was in doubt. The majority states the youth told the pro-

bation officer he did not have an attorney and that attorney Miele himself never directly represented to the court that he represented

the Marten youth. If there was doubt, it was doubt caused by the probation officer and the court.

The probation officer knew attorney Miele was involved in the case and could well be representing the Marten youth. While

still in Forsyth (Rosebud County), attorney Miele called the proba- tion officer and told him he might be filing a habeas corpus petition in an attempt to get the youth released. Shortly thereafter, without notifying the attorney, the probation officer took the youth to Miles City (Custer County) some 45 miles from Forsyth. The probation

officer might have had the best of intentions toward the youth in taking him to Miles City, but he should have notified the attorney of his intentions. When the attorney learned that the youth had been taken to Miles City, he was understandably concerned, and he, along with a social worker, immediately drove to Miles City. When

they arrived they met an antagonistic judge and probation officer who had no intention of letting the attorney or social worker par- ticipate in the hearing. The record clearly shows the court was not interested in

what attorney Miele or the social worker had to say concerning

whether the Marten youth could safely be released from custody pending the filing of a juvenile delinquency petition. These peo- ple traveled more than 45 miles, absolutely to no avail.

When attorney Miele asked to be heard the least the Youth Court could have done was to stop proceedings to allow a determina-

tion of whether attorney Miele was authorized to and did in fact represent the Marten youth. Furthermore, the Youth Court could then also have been informed that the social worker was available to testify to the home situation of the Marten youth and that there was a home where the youth could stay pending further proceedings

on a delinquency petition. Concerning the attitude of attorney Miele, this Court relies

on the response filed in this Court to the youth's petition for a writ of supervisory control. I fail to see that it has any value

in proving that Miele's attitude was wrong. The trial judge's

statements in this regard show that any information he had concerning attorney Miele was hearsay evidence related to him through the pro- bation officers. While the record shows that attorney Miele and

the probation officers have had previous confrontations, there is no way we can conclude that attorney Miele was in the wrong. Is it

possible that the real problem is the attitude not of attorney Miele but that of the Youth Court and probation officer? Could it be that the court and probation officers would allow attorney Miele to represent youths only if he did it their way?

In summary I do not feel that this Court should put its stamp of approval on the hearing that was conducted in this case.