Matter of CH

No. 83-26

I'LJ T E SUPRELW COURT O THE STATE O F M N A A
H F OTN

1984

I N THE L A T R O F C. H. ,
M TE
A Youth u n d e r t h e a g e o f E i g h t e e n .

APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

J a c k s o n Law F i r m ; James A . R i c e , J r . argued,
H e l e n a , Montana

F o r Respondent :

Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Plontana
James S c h e i e r a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
Mike McGrath, County A t t o r n e y , H e l e n a , Montana

Submitted: J a n u a r y 1 0 , 1984

Decided: May 2 9 , 1984

Filed: '!hk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
C.H., a youth under the age of 18, appeals from two
orders of the Youth Court of Lewis and Clark County: (1) an
order adjudging her to be a delinquent youth and sending her
to Mountain View School for Girls for a 45-day
predispositional evaluation; and (2) an order placing her on
formal probation for one year. We affirm these orders of the
Youth Court.
The stipulated statement of the issue on appeal is:
Whether the Montana Youth Court Act, which allows a youth in
need of supervision, who has violated her probation, to be
adjudged a delinquent youth, is unconstitutional as a
violation of the due process, equal protection, and/or cruel
and unusual punishment provisions of the United States and
Montana Constitutions. Appellant asserts that a juvenile
status offender who violates the terms of her probation
should not be deemed a delinquent youth and subjected to
greater punishment for the same conduct that originally gave
the youth court authority to designate her a youth in need of
supervision.
On December 9, 1981, a deputy county attorney petitioned
the Lewis & Clark County Youth Court to declare C.H. a youth
in need of supervision for the offense of habitual truancy, a
violation of section 41-5-103(13)(c), MCA. C.H. was 14 years
old at the time. At the February 24, 1982 hearing, C.H.
admitted to having been truant from school. The youth court
ordered C.H. to attend all her high school classes, to attend
counseling sessions, to attend tutoring sessions with each
teacher, to follow certain procedures in case of absences,
and to be evaluated by a clinical psychologist. This order
also specified:
 ".. . that if C.. . .
has any unexcused absences
or in any way violates the terms and conditions of
this Order, she may be brought back to court for
further disposition; or in the alternative, the
Lewis and Clark County Attorney's office can file a
new Petition asking that she be declared a
delinquent youth." Consent Order, March 2, 1982.
C.H., her mother, her attorney and the deputy county attorney
expressly consented to and signed this order.
Six days later, the deputy county attorney informed the
court that C.H. had violated the consent order by failing to
attend school on March 3, 1984. The new petition alleged
that C.H. was a delinquent youth under the provisions of the
Montana Youth Court Act.
At the March 8, 1984 probable cause hearing on the
del-inquency petition, the school assistant principal
testified that C.H. had "not been at school one full day"
since the court order. After a full hearing on the merits,
the youth court ordered a predispositional evaluation. C.H.
was committed to Mountain View School for Girls for a period
of 45 days for the purpose of undergoing the evaluation.
After receipt of the evaluation and a supplemental
report to the court from a probation officer, a dispositional
hearing was held. In accordance with Mountain View's
recommendations, the court ordered C.H. placed on formal
probation for one year, subject to the following conditions:
"1) That the youth attend school at the Helena
Alternative School on a regular basis, with no
unexcused absences; and 2) that the conduct of the
youth be that of a law-abiding citizen and that
said youth shall obey all laws promulgated by
lawful authority."
Nothing in the record indicates that C.H. had any truancy or
other problems after this final order of December 16, 1982.
On the contrary, a report from her probation officer
indicates that C.H.'s attendance at the Alternative School
has been excellent.
 In In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18
L.Ed.2d 527, the United States Supreme Court set forth the
history and theory underlying the juvenile justice system and
commented on its constitutional problems as follows:
". . . The Juvenile Court movement began in this
country at the end of the last century. From the
juvenile court statute adopted in Illinois in 1899,
the system has spread to every State in the Union,
the District of Columbia, and Puerto Rico. The
constitutionality of Juvenile Court laws has been
sustained in over 40 jurisdictions against a
variety of attacks.
"The early reformers were appalled by adult
procedures and penalties, and by the fact that
children could be given long prison sentences and
mixed in jails with hardened criminals. They were
profoundly convinced that society's duty to the
child could not be confined by the concept of
justice alone. They believed that society's role
was not to ascertain whether the child was 'guilty'
or ' innocent,' but 'What is he, how has he become
what he is, and what had best be done in his
interest and in the interest of the state to save
him from a downward career. ' The child --
essentially good, as they saw it -- was to be made
'to feel that he is the object of [the state's]
care and solicitude,' not that he was under arrest
or on trial. The rules of criminal procedure were
therefore altogether inapplicable. The apparent
rigidities, technicalities, and harshness which
they observed in both substantive and procedural
criminal law were therefore to be discarded. The
idea of crime and punishment was to be abandoned.
The child was to be 'treated' and 'rehabilitated'
and the procedures, from apprehension through
institutionalization, were to be 'clinical' rather
than punitive." 387 U.S. at 14-3.6, 87 S.Ct. at
1437, 18 L.Ed.2d at 539.
Since juvenile courts were civil in nature, they were
not originally held to any of the constitutional safeguards
afforded to adults in criminal proceedings. Mudd, The
Constitution and Juvenile Delinquents, 32 Mont.L.Rev. 307,
308 (1971). As constitutional case law developed in this
area, substantive due process was afforded to juveniles. For
example in In re Gault, the U.S. Supreme Court held that a 15
year old was entitled to adequate notice, assistance of
counsel and the privilege against self-incrimination during
delinquency proceedings.
Today, one of the most hotly debated issues in the field
of juvenile justice is the proper scope of juvenile court
jurisdiction over noncriminal misbehavior, i.e., conduct that
is unlawful for juveniles but not for adults. See United
States Department of Justice, Standards for the
Administration of Juvenile Justice (1980) at 249.
"Children's conduct over which the juvenile court exercises
jurisdiction is commonly viewed as falling into two
categories: (1) delinquency -- conduct of juveniles which
would constitute a violation of a criminal statute if
committed by an adult, and (2) status offenses -- children's
behavior which would not be criminal if committed by an
adult." National Center for Juvenile Justice, Juvenile Court
Jurisdiction over Children's Conduct (1980) at 1. This
second category of "status offender" is the focus of national
debate generally and a primary issue of this case. "A status
offender is commonly defined as one whose acts are proscribed
solely because of his age. Runaways and school truants
account for the largest number of these youngsters.'' Quinn &

Hutchison, Status Offenders Should Be Removed from the
Juvenile Court, 7 Pepperdine L.Rev. 923, 926 (1980).
Montana's Youth Court Act is contained in Title 41,
Chapter 5, MCA. Under the Act, a status offender is
generally labeled a youth in need of supervision; and a
"criminal" offender is generally labeled a delinquent youth.
However, the youth court has discretion to regard a child who
commits delinquent acts, as a youth in need of supervision.
Section 41-5-103 (12), MCA defines a "delinquent youth"
as a youth:
 " (a) who has committed an offense which, if
committed by an adult, would constitute a criminal
offense ;
" (b) who, having been placed on probation as a
delinquent youth or a youth in need of supervision,
violates any condition of his probation."
Section 41-5-103 (13), MCA defines a "youth in need of
supervision" as a youth:
". . . who commits an offense prohibited by law
which, if committed by an adult, would not
constitute a criminal offense, including but not
limited to a youth who:
" (a) violates any Montana municipal or state law
regarding use of alcoholic beverages by minors;
"(b) habitually disobeys the reasonable and lawful
demands of his parents or guardian or is
ungovernable and beyond their control;
"(c) being subject to compulsory school
attendance, is habitually truant from school; or
"(dl has committed any of the acts of a delinquent
youth but whom the youth court in its discretion
chooses to regard as a youth in need of
supervision."
Subsections (a)- (c) define status offenses , including
truancy. Subsection (d) is the overlap provision, which
gives the youth court discretion to treat the more serious
misconduct of a delinquent youth, as the misbehavior of a
youth in need of supervision.
C.H. admitted to ha.bitua1 truancy, a violation of
section 41-5-103 (13)(c), MCA. She was designated a youth in
need of supervision and ordered to attend school. By failing
to attend school, she violated a condition of the court's
order, thereby falling within the definition of delinquent
youth contained in section 41-5-103 (12)(b), MCA.
The court adjudged her to be a delinquent youth and
ordered her to undergo a 45-day evaluation at Mountain View
prior to the dispositional hearing. Section 41-5-52 # e), MCA
permits the court to order such "evaluation that the court
.
A

considers beneficial to the youth." Subsection
MCA permits the court to transfer legal custody of a
delinquent youth to the Department of Institutions. That
same subsection prohibits tra-nsfer of a youth in need of
supervision to a state youth correctional facility, such as
Mountain View. Standing alone, the youth court's procedure
of ordering a delinquent youth evaluated prior to making a
final disposition is statutorily proper. The problem here is

- C.H. became a "delinquent youth."
how
By continuing to be truant from school, the same status
offense that originally placed her within the jurisdiction of
the youth court, C.H. became subject to being adjudicated as
a delinquent youth. Her misconduct could be classified as
the status offense of truancy or as the delinquent act of
contempt of a court order. The Youth Court Act defines
truancy as a status offense only, but violation of a court
order may be deemed a status or delinquent offense. Sections
41-5-103 (13)(c) & (12) (b), MCA. Thus the Montana
Legislature has left resolution of this issue to be
determined on a case-by-case basis at the discretion of the
youth court.
This Court recognizes that there is a national trend to
exclude non-criminal conduct from the delinquency category of
juvenile offenses. In 1977, twenty-six states expressly
included some non-criminal conduct (status offenses) in the
delinquency category. In 1980, nineteen states expressly
included status-type conduct in the delinquency category.
National Center for Juvenile Justice. Juvenile Court
Jurisdiction over Children's Conduct (1980).
Montana is one of three states that permits violation of
a youth court order to be classified as either a delinquent
act or a status offense (Arizona, Illinois, Montana). In
eight states, such conduct is a delinquent offense (Colorado,
Florida, Kansas, Nevada, Ohio, Oklahoma, Texas, West
Virginia). In Montana, a youth in need of supervision-status
offender who violates a court order may be adjudicated
delinquent. Appellant asks this Court to restrict that option
on constitutional grounds.
I1

Due process is defined as the constitutional guaranty
that no one shall be arbitrarily deprived of her life,
liberty or property. The essence of substantive due process
is that the State cannot use its police power to take
unreasonable, arbitrary or capricious action against an
individual. The guaranty of due process "demands only that
the law shall not be unreasonable, arbitrary or capricious,
and that the means selected shall have a real and substantial
relation to the object sought to be attained." Nebbia v. New
York (1934), 291 U.S. 502, 525, 54 S.Ct. 505, 510-11, 78
L.Ed. 940, 950.
Appellant contends that the Youth Court Act is
unconstitutional in that graduation of a youth in need of
supervision who violates a condition of her probation to the
status of delinquent youth is unreasonable, arbitrary and
capricious. She also claims that the State denied her
procedural due process by failing to give adequate notice
that her admission of truancy could later be used as the
basis of an adjudication of delinquency.
The State contends that the statutory scheme allows the
youth court to apply a more intensive rehabilitation plan to
a youth who is demonstrating serious lack of respect for the
law. Both parties agree that the primary purpose of the
Youth Court Act is rehabilitation and that rehabilitation of
youthful offenders is a legitimate state purpose. The
question here is whether the means chosen to achieve that
purpose violate due process guarantees.
In considering legislation in light of a substantive due
process claim, this Court subscribes to the rational basis
standard. The legislation will be upheld if the laws have a
reasonable relation to a proper legislative purpose. Linder
v. Smith (Mont. 19811, 629 P.2d 1187, 1192, 38 St.Rep. 912,
917. For due process purposes, the court's action does not
have to be the only alternative or even the best alternative
for the procedure to be reasonable and constitutional. See
Montana Wildlife Federation v. Sager (Mont. 1980) , 620 P. 2d
1189, 1198, 37 St.Rep. 1897, 1906.
The youth court's discretion to designative juvenile
offenders on an individual basis, as delinquent youths or
youths in need of supervision, is akin to its discretion to
waive jurisdiction based on the individual facts of the ca.se.
Section 41-5-206, MCA permits a youth court to transfer
jurisdiction over a delinquent youth to a district court. The
Act permits the court to waive jurisdiction over a youth who
requires treatment "beyond that afforded by juvenile
facilities." Section 41-5-206 (1)(d)(ii), MCA. Exercise of a
youth court's discretion to waive jurisdiction and to
transfer a juvenile to a criminal court has been repeatedly
upheld. See State v. Rodriguez (Mont. 1981), 628 P.2d 280,
38 St.Rep. 578; Lujan v. District Court of Fourth Judicial
District (1973), 161 Mont. 287, 505 P.2d 896. Substantive due
process does not require the youth court to treat a.11
juveniles charged with the same offense in an identical
manner.
Section 41-5-523 (1)(d), MCA prohibits placement of a
youth in need of supervision in a state youth correctional
facility. This prohibition is in line with the national
trend to segregate status offenders from youths who ha.ve
committed offenses that would be crimina.1 acts if committed
by an adult. Appellant relies on State ex rel. Harris v.
Calendine (W.Va. 1977), 233 S.E.2d 318 to support her
arguments that a truant should never be placed in a state
youth correctional facility and that such placement
unreasonable.
In Harris, a 16 year old boy was adjudged "a delinquent
child" for being truant from school for 50 days. The
juvenile court committed him to the custody of the
Commissioner of Public Institutions for assignment to the
State Industrial School for Boys. Harris was ordered to
attend school for nearly a year past the age of attendance
required by state law. The West Virginia Supreme Court was
concerned with incarceration of children for status offenses
such as truancy. It found unconstitutional stztutes that
permitted the juvenile court to classify and treat status
offenders in the same manner as criminal offenders:
". . .
insofar as they result in the commitment of
status offenders to secure, prison-like facilities
which also house children guilty of criminal
conduct, or needlessly subject status offenders to
the degra.dation and physical abuse of
incarceration." 233 S.E.2d at 325.
The Court held that the State must exhaust every reasonable
alternative to incarceration before committing a status
offender to a prison-like facility. The Court stated that
status offenders and juvenile criminal offenders could only
be housed and educated together "in shelter homes,
residential treatment centers, and other modern facilities .
. . where the atmosphere is characterized by love and concern

The Harris case is distinguishable on many points.
Unlike Gilbert Harris, C.H. had appeared before the juvenile
court prior to being adjudicated a delinquent youth. Not
only had C.H. previously appeared before the court, she
signed the order that she violated just days later. She was
transferred to Mountain View School for Girls for a 45-day
predispositional evaluation after violating the court order.
Unlike Harris, she was not confined for a period of years in
a youth correctional facility for the status offense of
truancy.
The most critical d.istinguishing factor and the fact on
which this case turns is C.H.'s violation of the March 2,
1982 consent order. The conditions of that order exceed the
statutory prohibition against truancy. Section 20-5-103 (1) ,
MCA compels school attenda.nce until the child's 16th birthda.y
or completion of the 8th grade, whichever occurs later. At
the time she was first brought before the youth court, C. H.
was a 14 year old high school student. In the consent order
of March 2, 1982, C.H. agreed to:
"2. ... attend all scheduled counseling sessions
provided by the school.
3. . ..fully participate in and cooperate with
the program put before her by Special Services.
.
114 . . . set up appointments with each teacher
for tutoring and . . .
attend all scheduled
tutoring sessions.
"5. In case of absence, the following procedures
shall be followed:
a. If C.H.. .
. is absent for one period, .
. . her mother, shall contact . . .
High
School.
b. If C.H. is absent for three periods, or
more, . ..
High School may send a nurse and a
school official to the family home.
c. If C.H. . . .
is absent for two days or
more, she shall bring a Doctor's excuse before
being re-admitted to the High School."
In addition, C.H. consented to being evaluated by a clinical
psychologist and to participating in family counseling with
her mother. These conditions of the consent order clearly
extend beyond the statutory duty to attend school.
 The assistant principal verified the violation of
condition 5(c) of the order by testifying that C.H. failed to
provide a doctor's excuse for her non-attendance. The
assistant principal also testified that she and a school
nurse had called the family home on a day when C.H. had
missed three periods of school without explaining the
absence. No one answered.
The youth court exercised its discretion, under section
41-5-103(12)(b), MCA, in designating C.H. a delinquent youth.
Where the order of a youth court has been violated and the
authority of the court has been treated with contempt, we do
not believe that the primary purpose of rehabilitation would
be served. by requiring the court to, in effect, ignore the
violation and treat the youth as though no violation had
occurred. Neither could that purpose be fulfilled by
restricting the youth court to only those forms of
supervision and control that existed prior to the act of
contempt for the court's authority. The youth court did not
act unreasonably, arbitrarily or capriciously in designating
C.H. a delinquent youth. Section 41-5-103(13)(d), MCA, which
authorized the court to designate C.H. as either a youth in
need of supervision or a delinquent youth, bears a reasonable
rela-tion to the legitimate state purpose of rehabilitating
youthful offenders.
Appellant also asserts that she was not given adequate
notice that her initial admission of truancy could later be
used as a basis for adjudging her a delinquent youth. We
find this argument to be without merit. The consent order
that formed the basis for the delinquency proceeding
stipulated that:
"IT IS FURTHER ORDERED, that if ...
[C.H.] in any
way violates the terms and conditions of this
order, . . .
the Lewis and Clark County Attorney's
 office can file a new Petition asking that she be
declared a delinquent youth."
This order was signed by the youth court judge, C.H., her
attorney, her mother and the deputy county attorney. The
above-quoted provision expressly notified C.H. that if she
failed to comply with the terms of the order, she might be
adjudged a delinquent youth.
We hold that the youth court's actions did not violate
procedural due process guarantees and that the Youth Court
Act does not violate substantive due process rights.
I11

The Fourteenth Amendment of the United States
Constitution and Art. 11, Sec. 4 of the 1972 Montana
Constitution guaranty equal protection of the laws to all
persons. The equal protection provisions of the federal and
state constitutions are similar and provide generally
equivalent but independent protections. Emery v. State
(1978), 177 Mont. 73, 580 P.2d 445, cert. den. 439 U.S. 874,

When a statute is challenged on equal protection
grounds, the first step is to identify the classes involved
and determine whether the classes are similarly situated.
The cla.sses involved in this challenge to the Youth Court Act
are "youths in need of supervision" and "delinquent youths,"
who have violated a youth court order. Since both classes are
composed of youths who have committed the same act, the
classes are similarly situated for equal protection purposes.
In order to determine which standard of review applies
to the challenged legislation, we next determine whether a
suspect classification is involved. A suspect class is one
"saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such
a position of political powerlessness as to command
extraordinary protection from the majoritarian political
process." San Antonio School District v. Rodriguez (1973),
411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40.
Youthful contemners who have been deemed delinquent youths do
not constitute a suspect class for purposes of equal
protection.
Next we define the nature of the individual interest
affected. A careful inquiry is required into "the nature of
the individual interest affected, the extent to which it is
affected, the rationality of the connection between
legislative means and purpose [and] the existence of
alternative means for effectuating the purpose . . ."
Bearden v. Georgia (1983), U.S. , 103 S.Ct. 2064,
2069, 76 L.Ed.2d 221, 229, quoting Willims v. Illinois
(1970), 399 U.S. 235, 260, 90 S.Ct. 2018, 26 L.Ed.2d 586
(Harlan, J. , concurring) .
Appellant contends that physical liberty is a
fundamental right. She argues that institutionalization of a
truant status offender constitutes an infringement upon that
fundamental right, which must be protected absent a
compelling state interest. Appellant further asserts that
section 41-5-103(12), MCA is unconstitutional in that it
authorizes the youth court to reclassify, as a delinquent
youth, a youth in need of supervision who has violated a
court order. She argues that this classification option
violates equal protection guarantees in that the court may
treat youths in the same class, i.e. youthful contemners,
differently .
"The Equal Protection Clause was intended as a
restriction on state legislative action inconsistent with
elemental constitutional premises." Plyler v. Doe (1982),
457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799.
The principal purpose of the equal protection clauses of the
federal and Montana constitutions is to insure that persons
are not the subject of arbitrary and discriminative state
action. Godfrey v. Mont. State Fish & Game Com'n (Mont.
1981), 631 P.2d 1265, 1267, 38 St.Rep. 661, 663. To protect
against such arbitrary and discriminative state action,
certain unarticulated rights are acknowledged to be inclusive
in other enumerated constitutional guarantees. For example,
the rights of association and privacy, the right to be
presumed innocent, a criminal defendant's right to be judged

by a sta-ndard of proof beyond a reasonable doubt, and the
right to travel appear nowhere in the Constitution or Bill of
Rights. Yet these important, unarticulated rights have
nonetheless been found worthy of constitutional protection.
Fundamental rights, even though not expressly guaranteed,
have been recognized by the United States Supreme Court as
indispensable to the enjoyment of rights explicitly defined.
Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555,

100 S.Ct. 2814, 65 L.Ed.2d 973.
The United States Supreme Court has not elevated
physical liberty to the status of a fundamental right. The
Supreme Courts of California and Washington have chosen to do
so in cases where the maximum sentence imposed on juveniles
far exceeded the standard maximum for adults who committed
the same offense. See State v. Rice (Wa. 1982), 655 ~ . 2 d
1145, People v. Olivas (Ca. 1976), 551 P.2d 375. The
Washington Supreme Court reasoned that:
". . . The Supreme Court of the United States has
recognized as fundamental the right to vote,
freedom of expression, and the right to
procreation. None of these rights have any meaning
in the absence of liberty, the freedom from
physical restraint. Accordingly, we recognize the
 individual's interest in liberty is a fundamental
right for the purpose.of equal protection analysis.
"Therefore, the appropriate standard of review to
be applied in this case is the strict scrutiny
test." Rice, 655 P.2d at 1154 (citations omitted).
A variety of equal protection tests other than strict
scrutiny has been applisd in cases where infringement of
physical liberty was claimed by adults. ~cGinnisv. Royster
(1973), 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (rational
basis test); O'Conner v. Donaldson (1975), 422 U.S. 563,
574-76, 95 S.Ct. . 2486, 45 L.Ed.2d 396 (unenuciated, but
stricter than rational basis standard); Bearden v. Georgia

(1983)I U.S. , 103 S.Ct. 2064, 76 L.Ed.2d 221
("careful inquiry" without "pigeon-hole analysis," enhanced
scrutiny).
In Plyler v. Doe (1982), 457 U.S. 202, 102 S.Ct. 2382,
72 L.Ed.2d 786 (reh. den. 458 U.S. 1131, 103 S.Ct. 14, 73
L.Ed.2d 1401), the Court distinguished strict scrutiny from
the "intermediate" scrutiny applied to substantial interests
that do not rise to the level of fundamental rights.
"The Equal Protection Clause was intended as a
restriction on state legislative action
inconsistent with elemental constitutional
premises. Thus we have treated as presumptively
invidious those classifications that disadvantage a
'suspect class, ' or that impinge upon the exercise
of a 'fundamental right.' With respect to such
classifications, it is appropriate to enforce the
mandate of equal protection by requiring the State
to demonstrate that its classification has been
precisely tailored to serve as a compelling
governmental interest. In addition, we have
recognized that certain forms of legislative
classification, while not facially invidious,
nonetheless give rise to recurring constitutional
difficulties; in these limited circumstances we
have sought the assurance that the classification
reflects a reasoned judgment consistent with the
ideal of equal protection by inquiring whether it
may fairly be viewed as furthering a substantial
interest of the State." 457 U.S. at 217-18, 102
S.Ct. at 2394-95, 72 L.Ed.2d at 799-800.
Because the United States Supreme Court has not ruled on the
issue of whether a juvenile's physical liberty is a
fundamental right, subject to constitutional protection and
strict scrutiny equal protection analysis, we look to the
1972 Constitution of the State of Montana.
The preamble to the Montana Constitution states in part:
"We the people of Montana . . . desiring . . . to
secure the blessings of liberty . . . do ordain and
establish this constitution."
Article I1 is the Declaration of Rights. Article 11, Sec. 3
states in part:
"All persons are born free and have certain
inalienable rights. They include the rights . ..
of . . . enjoying and defending their lives and
liberties . . ."
Article 11, Sec. 4, the equal protection clause, states in
pertinent part:
"The dignity of the human being is inviolable. No
person shall be denied the equal protection of the
laws. "
Article 11, Sec. 17, the due process clause, states:
"No person shall be deprived of life, liberty, or
property without due process of law."
Reading the preamble and these sections of our
constitution together, we hold that under the Montana
Constitution physical liberty is a fundamental right, without
which other constitutionally guaranteed rights would have
little meaning. We conclude that the deprivation of the
physical liberty of C.H. for a period of 45 days is
sufficient to constitute an infringement upon her right of
physical liberty. Having addressed the nature of the right
affected and the extent to which it was affected, our next
step is to determine whether there is a compelling state
interest sufficient to warrant such an infringement.
In contrast to the federal constitution, the Montana
Constitution specifically compares the rights of children
with those of adults. It recognizes that the State's
interest in protecting children may conflict with their
fundamental rights. Article 11, Sec. 15 provides:
"The rights of persons under 18 years of age shall
include . . .
all the fundamental rights of this
Article unless specifically precluded by laws which
enhance the protection of such persons."
The comments of the Bill of Rights Committee, which proposed
adoption of this section, indicate intent to extend
fundamental rights to children and to afford constitutional
protection to those rights with that one exception.
"The committee adopted, with one dissenting vote,
this statement explicitly recognizing that persons
under the age of majority have all the fundamental
rights of the Declaration of Rights. The only
exceptions permitted to this recognition are in
cases in which rights are infringed by laws
designed a.nd operating to enhance the protection
for such persons. The committee took this action
of 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'
under the due process clause of the Fourteenth
Amendment, the Supreme Court has not ruled in their
favor under the equal protection clause of that
same amendment. What this means is that 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. - -is the - - of the committee ~ r o ~ o s a l :
This - - crux + L

- recognize that persons under the age of majorit
To
have the same protections from-governmental
- - - a
n:
majoritarian abuses as do adults. - - In such cases
where the protection - - special status of
oT the
'
minors demands it, exceptions - - - - on clear
can be made
showing - - protection - being enhanced."
that suih is
Committee Report, Vol. 11, 634-36 (1971-72)
(emphasis added) .
Although no such provision exists in the federal
constitution, the United States Supreme Court has recognized
three reasons justifying the conclusion that constitutional
rights of children cannot be equated with those of adults.
The Supreme Court has recognized that the interests of minors
and adults are quantitatively different because of the
particular vulnerability of children, their inability to make
critical decisions in an informed, mature manner, and the
importance of the parental role in child rearing. See
 baa
Bellotti v. Baird (19791, 443 U.S. W , 99 S.Ct. 3035, 61
L.Ed.2d 797 (reh. den. 444 U.S. 887, 100 S.Ct. 185, 62 L.Ed.2d
121) . Likewise, we hold that a juvenile's right to physical
liberty must be balanced against her right to be supervised,
cared for and rehabilitated. This is precisely what the
drafters of the 1972 Montana Constitution had in mind when
they explicitly recognized that persons under 18 years of age
would enjoy the same fundamental rights as adults, unless
exceptions were made for their own protection.
The statutory power of the youth court to classify a
juvenile as a delinquent youth or a youth in need of
supervision, depending upon the individual circumstances of
the case, reflects two legitimate, compelling state purposes:
(1) to rehabilitate youthful offenders by providing for their
care, protection and wholesome mental development before they
become adult criminals, and (2) to substitute a program of
supervision, care and rehabilitation and remove the element
of retribution from a youth who has violated the law. The
youth court's statutory authority to classify contempt of
court, depending upon the circumstances of the case, permits
the court to fashion an appropriate, individual
rehabilitation plan for each youthful contemner.
As noted in In the Matter of Geary (1977), 172 Mont.
204, 209, 562 P.2d 821, 824, the fact that a youth has been
adjudged a delinquent youth "usually demonstrates the need
for stronger and wiser authority than has been exercised by
the parents . . ." In the initial petition in this case,
both C.H. and her mother agreed to follow a specific set of
school standards. Both the mother and C.H. were unable to
abide by these standards. The authorities are to be
commended for responding immediately when it became apparent
that C.H. and her mother were unable to abide by the court's
requirements. The youth court's immediate response to an
apparent inability in the home indicates the type of
4
supervisory responsibility need"ed to rehabilitate the youth.
As a result of the obvious need, which could not be met
by the mother and C.H. herself, the court was required to
determine what next should be done. Because C.H. violated
conditions of the court order so soon after her express
agreement to abide by its conditions, it was appropriate for
the court to conclude that she was a delinquent youth. In
order to determine which rehabilitation alternative would be
most appropriate in C.H.'s case, the court ordered commitment
for a 45-day evaluation. This 45-day period was not an
unreasonable period of time in order to secure a
predispositional evaluation. The youth court followed the
recommendations of the evaluation in the final disposition
order. The record indicates that C.H. has completed a
successful school year.
Upon these facts, we hold that the power of the youth
court to classify the contempt of court misconduct of
juvenile offenders on a case-by-case basis does not vio1at:e
equal protection guarantees.
IV

Like the first two constitutional challenges,
appellant's assertion that the Act violates the prohibition
against cruel and unusual punishment is premised upon the
erroneous assumption that she was merely a truant, status
offender at the time she was adjudged a delinquent youth. In
fact, she was a contemner. She had violated the court'ls
order, in addition to committing a status offense.
The standard as to what constitutes cruel and unusual
punishment tends to change as social norms change and society
becomes more enlightened. A sentence within statutory limits
is presumed not to be cruel and unusual punishment. State .v.
Austad (Mont. 1982), 641 P.2d 1373, 39 St.Rep. 356.
Section 41-5-522 (2), MCA directs the court to order a
predispositional report in writing by a probation 0ffice.r.
It also authorizes the court to have the youth examined and
the results of the examination included in the
predispositional report. Section 41-5-523 (1)(e), MCA
authorizes the court to order such "evaluation that the court
considers beneficial to the youth. " Neither statute
specifies a time limitation in which the evaluation must be
completed.
Here, C.H. was ordered to undergo a 45-day evaluation.
Thereafter, she was placed on formal probation for a period
of one year. She was allowed to live at home while attending
school during this probationary period. The terms of these
two orders fall within the purview of sections 41-5-522 (:2)
and 41-5-523 (1) (e), MCA. The record reflects that C.H.
actually benefitted from the youth court's supervision and
individualized rehabilitation plan.
We hold that the youth court's orders, committing C.H.
to Mountain View for a 45-day predispositional evaluation and
placing her on formal probation for one year, do not
constitute cruel and unusual punishment.
We affirm the orders of the youth court.
W e concur:

%&.&
C h i e f Justice
$c&Jw