                                                                                            June 3 2014


                                          DA 13-0314

                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 148



IN THE MATTER OF:

E.G.,

         A Youth.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Dawson, Cause No. DJ 08-001
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                        Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
                        Attorney General, Helena, Montana

                        Olivia Norlin-Rieger, Dawson County Attorney, Marvin Howe, Deputy
                        County Attorney, Glendive, Montana



                                                    Submitted on Briefs: April 30, 2014
                                                               Decided: June 3, 2014


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath Delivered the Opinion of the Court.

¶1     E.G., a delinquent youth now an adult, appeals from the District Court’s order and

judgment revoking his suspended sentence for probation violations and committing him to

the Department of Corrections until age 25. E.G. contends that the District Court lacked

subject matter jurisdiction to revoke his suspended sentence because the case against him

was improperly transferred from Youth Court.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶2     In 2008, when E.G. was age 15, the State petitioned to have him declared a delinquent

youth. He was accused of offenses that, if committed by an adult, would constitute sexual

intercourse without consent, three incidents of assault with a weapon, and intimidation. He

admitted to two instances of assault and to intimidation and the other accusations were

dismissed. The Youth Court found E.G. to be delinquent and ordered that he be committed

to the Department of Corrections until age 18.

¶3     E.G. appealed to this Court, which reversed and remanded for reconsideration of

several issues not involved in the current proceeding. Matter of E.G., 2009 MT 404N. A

Youth Court commitment order entered after remand stated that the Youth Court would

retain jurisdiction until E.G. was 21 and would consider transfer of the case to District Court.

E.G. turned 18 in October 2010 and shortly thereafter the State filed a motion in Youth

Court to transfer supervisory control over E.G. to the District Court. The Youth Court

conducted a hearing on the motion on November 8, 2010. E.G. appeared with his attorney

and expressly consented to the transfer to District Court, acknowledging that his ongoing

treatment needs would benefit from moving to adult supervision.

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¶4     At the November 2010 hearing, the Court inquired whether E.G.’s parents had

received notice of the proceeding as provided in § 41-5-208(2), MCA. The parents lived out

of state and E.G. did not know if any such notice had been provided. The parties and the

Court discussed notifying E.G.’s parents and re-convening the hearing if they wished to

participate. The record does not reflect whether any such notice was provided or, if so, the

parents’ response. E.G. stated that he wanted to proceed with the hearing.

¶5     On December 7, 2010, the Youth Court entered an order granting the motion to

transfer the supervision of E.G. to District Court. The Youth Court found that E.G. did not

contest the transfer and that it was necessary to ensure E.G.’s compliance with the conditions

of probation. The order further provided that E.G. would remain under the jurisdiction of the

District Court until he was age 25, but that he could be released from supervision earlier

upon recommendation of his probation officer and compliance with all conditions.

¶6     On October 24, 2012, the State filed a petition in District Court to revoke E.G.’s

suspended sentence based upon violations of his conditions of probation. E.G. subsequently

admitted several of the violations and the remainder were dismissed. On March 13, 2013,

the District Court sentenced E.G. to the Montana Department of Corrections until age 25,

with no time suspended.

¶7     E.G. appeals. He contends that the District Court lacked jurisdiction to revoke his

probation and sentence in 2010 because his parents did not receive notice of the hearing on

the motion to transfer supervision of his probation from Youth Court to District Court.

                               STANDARD OF REVIEW



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¶8     Determination of subject matter jurisdiction is a question of law that this Court

reviews to determine whether the district court had authority to act. Green v. Gerber, 2013

MT 35, ¶ 12, 369 Mont. 20, 303 P.3d 729.

                                       DISCUSSION

¶9     The youth court has original jurisdiction over cases involving persons under age 18.

State v. Andersen-Conway, 2007 MT 281, ¶ 15, 339 Mont. 439, 171 P.3d 678.

Section 41-5-208, MCA, provides that a youth court may upon motion transfer jurisdiction

of a case to the district court and “order the transfer of supervisory responsibility from

juvenile probation services to adult probation services.” Section 41-5-208(1), MCA. The

youth court must hold a hearing before ordering transfer and must give notice of the hearing

to the youth, the youth’s counsel, and the youth’s parents or guardian. Section 41-5-208(2),

MCA. The youth has the right to counsel, to be heard, to present witnesses and evidence, to

cross-examine witnesses, and to a written statement of the evidence and reasons supporting

the transfer. Section 41-5-208(2), MCA. The State and the youth may stipulate to the

transfer. Anderson-Conway, ¶ 16.

¶10    In the present case the State moved to transfer supervision of E.G to District Court

and the Youth Court held a hearing. E.G.’s parents did not receive notice of the motion or

hearing, but E.G. stated that he wanted to proceed. He stated that he agreed to the transfer to

adult probation because it would be beneficial to him. On appeal E.G. now contends that the

lack of notice to his parents deprived the Youth Court of jurisdiction to transfer his case.

¶11    Jurisdiction is “the court’s fundamental authority to hear and adjudicate cases or

proceedings.” Matter of A.D.B., 2013 MT 167, ¶ 54, 370 Mont. 422, 305 P.3d 739; Lorang v.

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Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192 P.3d 186. Jurisdiction encompasses a

court’s adjudicatory authority and may delineate classes of cases (subject matter jurisdiction)

or persons (personal jurisdiction) that are subject to the court’s authority. Elseiver v.

Muchnick, 599 U.S. 154, 160-161, 130 S. Ct. 1237, 1243 (2010). Lack of personal

jurisdiction over an individual does not deprive the court of subject matter jurisdiction.

Matter of B.F., 2004 MT 61, ¶ 18, 320 Mont. 261, 87 P.3d 427. Jurisdiction of the district

courts in Montana is established by the Montana Constitution. Mont. Const. art. VII, § 4

(district courts have “original jurisdiction in all criminal cases amounting to felony and all

civil matters and cases at law and in equity.”); BNSF v. Cringle, 2010 MT 290, ¶ 15, 359

Mont. 20, 247 P.3d 706. The Montana Youth Court Act provides that youth courts have

original jurisdiction over cases involving persons under the age of 18. Section 41-5-203(1),

MCA; Matter of J.A., 2011 MT 132, ¶ 8, 361 Mont. 16, 255 P.3d 150.

¶12    Statutory time and notice prescriptions applicable to various proceedings are different

from jurisdictional provisions that delineate the cases that fall within a court’s subject matter

adjudicatory authority. Cringle, ¶ 17. Filing deadlines or notice requirements enacted by the

Legislature do not affect a court’s fundamental subject matter jurisdiction, and the

Legislature does not deprive courts of subject matter jurisdiction when it enacts filing or

notice deadlines. Green, ¶ 24; Matter of A.D.B., ¶ 54; Cringle, ¶¶ 13, 15. A party’s assertion

that statutory notice and hearing opportunities were not provided raises a question of due

process, not jurisdiction. Watson v. West, 2011 MT 57, ¶ 23, 360 Mont. 9, 250 P.3d 845;

Steab v. Luna, 2010 MT 125, ¶ 24, 356 Mont. 372, 233 P.3d 351. A party who properly

raises an issue regarding statutory notice or time requirements may expect them to be applied

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regularly and consistently, Cringle, ¶ 18, but due process issues can be waived. State v.

Lindsey, 2011 MT 46, ¶¶ 18-21, 359 Mont. 362, 249 P.3d 491.

¶13    These principles clearly apply to the parental notice requirement in § 41-5-208, MCA.

While the statute imposes several requirements, including a requirement for parental

notification (“shall”), the Legislature did not designate parental notification as a

jurisdictional requirement.     Compare, for example, § 41-5-205, MCA, designating

circumstances under which youth court “jurisdiction terminates.” Matter of J.A., ¶ 9. The

Legislature’s failure to designate a particular notice requirement as jurisdictional is important

in determining whether the requirement should be construed as jurisdictional. Matter of

B.F., ¶ 19; Davis v. State, 2008 MT 226, ¶ 21, 344 Mont. 300, 187 P.3d 654 (statutory time

limit for filing petition for postconviction relief did not specifically diminish the court’s

jurisdiction). The parental notice requirement of § 41-5-208, MCA, does not withdraw,

circumscribe, limit or affect the Youth Court’s jurisdiction over the issue of transferring

supervision of E.G. to the District Court. Cringle, ¶ 20.

¶14    E.G. was an adult and was represented by counsel at the time of the transfer

proceeding. Nothing in § 41-5-208, MCA, prohibited him from determining that it was in

his interest to proceed with the transfer hearing, as he did in this case, in the absence of

satisfaction of the parental notification requirement.

¶15    E.G. does not raise any other issue concerning the transfer of supervision to District

Court or concerning the revocation of his probation or his sentence. He does not argue that

his rights were compromised or that he was injured in any way by the lack of parental



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notification. Matter of B.F., ¶ 16 (mother in guardianship proceeding was not injured by

deficiencies in statutorily-required notice to children’s father).

¶16    The District Court is affirmed.


                                                   /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




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