              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      No.    91-543



KAREN SPARKS,                                    )
                                                 )
       Petitioner,                               )
                                                 )                    OPINION
       v.                                        )                      AND

BRAD JOHNSON, personally
and as City Judge of
                                                 )
                                                 )
                                                 )
                                                                      ORDER   I""'~ ~
                                                                                .~ l~,~
                                                                                            J ED
                                                                                     I,·    . ".........,/
WHITEFISH CITY COURT,                            )
                                                 )
       Respondent.                               )                                  FEB -               719921
                                                                                                 I'") I
                                                                                    _~ ~j      __)milh
                                                                              _.::;:;;;(. OF SUPREME COURT
                                                                                 s-rA1!;;: Of MONTANA



       This is an original proceeding arising out of a criminal theft

prosecution in the City Court of Whitefish, Montana.                            Petitioners

Karen Sparks, the defendant in that proceeding, and Jerry O'Neil
seek      declaratory      and   injunctive          relief,      including     a   writ                     of

mandamus.      They request this Court's declaration that O'Neil and

other non-attorneys similarly situated have the right, pursuant to

§§   25-31-601 and 37-61-210, MCA, to act as attorneys in Montana

courts of limited jurisdiction on a regular and recurring basis.
The Office of the Attorney General responded, as did Whitefish City
Judge Brad Johnson.

       The    petition       before     us       raises         the   question       of                lay
representation in Montana's courts of limited jurisdiction.                                   While

it   is     clear   that    Article     VII,         §   2(3)    of   the   1972      Montana

Constitution vests exclusive jurisdiction in this Court to make


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rules    governing       practice        in   all       Montana        courts,       we     have      not

heretofore       comprehensively          addressed            this     issue       which       now    is

arising wi th         increasing    frequency.                 Because        of    the   statewide

importance       and    implications          of       the    issue,     we    accept         original

jurisdiction of this petition pursuant to Article VII,                                    §     2(1) of

the 1972 Montana Constitution, and the procedures set forth in Rule

17 of the Montana Rules of Appellate Procedure, in order to provide

guidance on the question of lay representation to the courts of

limited jurisdiction throughout the state.

        The underlying facts upon which this proceeding is based are

not in dispute.           The Whitefish city Attorney filed a complaint

against Karen Sparks in Whitefish city Court for misdemeanor theft

pursuant    to    §     45-6-301,    MCA.              At    her   initial          appearance         on

September 18,          1991,    Sparks appeared and acknowledged that she

possessed a copy of the complaint and that she was aware an arrest

warrant had been issued.                 Sparks was informed of her right to

counsel and her right to a continuance so she could obtain counsel.

Sparks pled not guilty and requested a court-appointed attorney.

The court explained that it was not seeking confinement for Sparks
and,    therefore,       would not        provide            her wi th    a        court-appointed
attorney.        Sparks        persisted,          prompting       the    court        to     provide

defendant with an Affidavit/Request for Court Appointed Counsel
form.

        After Sparks'          repeated attempts to secure court-appointed

counsel,    the       court     issued    a    Memorandum          on    October          17,     1991,


                                                   2
concluding again that she was not entitled to court-appointed

counsel but could obtain private counsel.                  On or about October 21,

1991, Jerry O'Neil filed a notice of appearance in the Whitefish

City Court indicating that he would appear on behalf of defendant

Sparks.       The   court      subsequently       denied    O'Neil   the       right   to

represent Sparks         in City Court and a            jury trial      was set        for

November 7, 1991.

       The present petition was filed with this Court on November 8,

1991, seeking a stay of pending proceedings in the Whitefish City

Court, a declaratory judgment that O'Neil has the right under                           §§

25-31-601, MCA, and 37-61-210, MCA, to act as an attorney in the

justice and city courts of Montana,                  and related injunctive and

mandamus relief.         This Court stayed the underlying proceedings.

Additionally, Sparks requested that she be awarded her costs and

expenses pursuant to 42 u.s.c.              §   1988.   We do not address herein

Sparks'     request     for   costs   and       expenses pursuant    to    42    U. S . C.

§   1988.

       Standing is a threshold issue.              stoianoff v. State of Montana

(9th Cir. 1983), 695 F.2d 1214.                  Thus, we must determine at the
outset whether Jerry O'Neil has standing in the action before us.
We conclude that he does not.

       Although included as a            "petitioner" in the caption of the

petition to this Court, O'Neil essentially seeks to come before us

as a legal representative of Sparks.                O'Neil, an acknowledged lay

person      and   not   an    attorney    of     record,    possesses     no    legally


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                                                                        ..
recognized      relationship     to   Sparks;     therefore,      he   will     not   be

recognized by this Court in the conduct or disposition of the case.

Clinton v. Miller (1951),124 Mont. 463, 226 P.2d 487.                   We construe

this   action    to   be   a   pro    se    action   by   Karen    Sparks      seeking

representation by the person of her choice                   in the ci ty court

criminal proceeding in which she is a defendant.

       Sparks    contends      that   §     25-31-601,    MCA,    authorizes          lay

representation in criminal cases in Montana justices' courts.                         She

argues further that § 37-61-210, MCA, extends that right to lay

representation in criminal cases to city courts.                  We disagree.

       section 25-31-601, MCA, provides that" [p] arties in justice's

court may appear and act in person or by attorney; and any person,

except the constable by whom the                summons or       jury process was

served, may act as attorney."              The statute is found in Title 25 of

the Montana Code Annotated, entitled "Civil Procedure."                      Chapter 31

of that Title is "Procedure in Justices' Courts."

       section 25-31-601, MCA, is limited, by its plain language and

placement in the Montana codes, to civil litigation in justices'

courts.    It does not apply to criminal proceedings in those courts
or in other courts of limited jurisdiction.               The criminal procedure

statutes applicable to courts of limited jurisdiction, set forth in

Title 46, Chapter 17, parts 1 through 4, do not contain language

permitting representation by "any person."

       Sparks' further contention that lay representation in criminal

proceedings is extended to city courts by virtue of § 37-61-210,


                                            4
MCA, is also incorrect, even aside from our conclusion above that

Montana law does      not authorize lay representation          in criminal

proceedings in justices' courts.

        section 37-61-210, MCA, is entitled "penalty for practicing

without license" and provides that "[i]f any person practices law

in any court, except a justice's court or a city court, without

having received a license as attorney and counselor, he is guilty

of a contempt of court."        Sparks' reliance on   §   37-61-210, MCA, as

authority for legal representation by "any person" in a criminal

proceeding in city court, is erroneous.          Both the plain language

and the placement of       §   37-61-210, MCA, in the Licensing part of

Title    37   (entitled   "Professions    and Occupations"),     Chapter   61

(entitled "Attorneys at Law") of the Montana Code Annotated make it

clear that it is a licensing and penalty statute.            It does not, by

its terms, authorize practice in either justices' or city courts;

it merely alludes to, and exempts from penalty, such practice as

may be authorized by other statutes. Therefore, we conclude that

only such practice before courts of limited jurisdiction as is

specifically authorized by existing statute or Court rule can be
undertaken by lay people.

        Sparks' reliance on a past Order of this Court in a case to

which she was not a party is also to no avail.               Orders without

accompanying opinions have no precedential value from case to case,

but pertain only to the circumstances of the action involved.              20

Am.Jur.2d, Courts § 189.


                                      5
       Sparks' final contention is that          §    25-31-601, MCA, authorizes

lay representation of parties in courts of limited jurisdiction on

a regular and recurring basis.             While this is a case of first

impression in Montana, statutes similar to                §   25-31-601, MCA, have
been addressed in other states and held applicable only to a "one

time" representation of a party in a justice or magistrate court.

       state ex reI. Freison v. Isner (W.Va. 1981), 285 S.E.2d 641,

invol ved a     collection agency appearing              in magistrate court on

behalf of petitioner's creditors through its nonlawyer manager.

The court found that the statute authorizing appearances by lay
persons    in   civil   litigation    did       not    permit       the   unauthorized

practice of law, but anticipated the representation of a party by

a nonlawyer on a "casual, non-recurring, non-pay basis as a means

of assisting the party pro se."         Freison, 285 S.E. 2d at 655.                  The

Freison court concluded that the West Virginia law,                         similar to

Montana's, provides only for "an isolated or casual appearance by

a    non-lawyer friend or relative of a                party to proceedings             in

magistrate court. . •       "    Freison, 285 S.E.2d at 654.

       Similarly,   the   Supreme     Court      of    Iowa     held      that   a   bill
collector who attempted to bring suit in                      justice court as          an
assignee of his various clients was prohibited from doing so.                         Bump
v.    Barnett   (Iowa   1944),   16   N.W.2d      579.        The    Iowa    court,     in
referring to a statute much like            §   25-31-601, MCA, stated that:

       The salutary purpose of the statute may not thus be
       perverted to encourage the growth of a class of "justice
       court lawyers," unfettered by the rules that bind
       licensed attorneys and without training in law and

                                       6
        ethics.

Bump, 16 N.W.2d at 582-583.              The Iowa court concluded that the

bill collector was engaged in the illegal practice of law by his

repeated representations in justice court.

        We agree with the reasoning of the West Virginia and Iowa

courts.         section 25-31-601, MCA, was not intended to permit the

unauthorized practice of law; the intent is to enable a friend or

relative        to    assist   and   speak       on    behalf   of   a    party   at    one

proceeding.          We hold that the statute is a "one-time only" grant of

a privilege in justices' court civil proceedings.                            Further, we

extend this specific privilege to civil proceedings in city courts

pursuant to our constitutional authority to make rules governing

practice for all Montana courts.

        Finally, even if the underlying proceeding in Whitefish City

Court were a civil one, it is clear that O'Neil's representation of

Sparks would not be permissible.                      We take judicial notice that

0' Neil    attempted to represent at                  least one other person in a

criminal action in a court of limited jurisdiction.                            See Jerry

O'Neil and Clark Albertson v. Dale E. Gifford, Order No. 88-145,
April     25,    1988.     We also note that petitioner's brief herein
provides a list of O'Neil's "clients."                      Neither O'Neil nor any
other     lay     person   has   authority        to    represent        "clients"     on   a

recurring basis in courts of limited jurisdiction.                        Such recurring

representation constitutes the unauthorized practice of law.

        Nothing herein impacts on the "student practice rule" at the


                                             7
University of Montana School of Law.     Under this rule, students who

have completed two years of law school are supervised by a licensed

attorney and perform legal activities in Montana courts.

     IT IS THEREFORE ORDERED that the Petition herein,        and all

relief requested therein, is denied and dismissed.

     IT IS FURTHER ORDERED that the stay of further proceedings in

City of Whitefish v. Karen Sparks is hereby lifted.
                      1'-4
     DATED this   t   ""'---day of February, 1992.




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