The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.

History

Sources

1972 Montana Constitutional Convention Commission Study

Article II, Section 15 is unique to the 1972 Montana Constitution. The U.S. Constitution contains no such similar individual right, and the Declaration of Rights of the 1889 Montana Constitution was silent on the rights of minors.Rick Applegate, Bill of Rights Study 301 (Const. Conv. Study No. 10, 1972).

In preparation for the 1972 Montana Constitutional Convention, the 1971 legislature established the Montana Constitutional Convention Commission.Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide, 9(2001). Among other things, the Commission was tasked with conducting studies and research for the new constitution, and assembling information to present to the Convention delegates and various Committees without making recommendations.Id. A group of researchers produced roughly 2,300 pages of reports—or Commission studies—covering the topics addressed in the constitution, from the environment to taxation to legislative government.Id. at 11 The Bill of Rights Committee, charged with drafting the new Declaration of Rights contained in Article II, relied heavily on the Commission study authored by Rick Applegate. In his study of individual rights, Applegate examined those rights contained in the Declaration of Rights of the 1889 Constitution, and looked to other state and territorial constitutions for guidance. He also explored three entirely new rights, including the rights of persons under the age of majority.Rick Applegate, Bill of Rights Study 301 (Const. Conv. Study No. 10, 1972).

To begin the discussion of the rights of persons under the age of majority, Applegate acknowledged that "no area of the law is in greater flux than that of kids' legal rights."Id. "The problem," he wrote, "is not that there are conflicting court decisions on the rights of persons under the age of majority--that is true of other areas of civil liberties law--but that there is not even a broad outline of the types of rights young people possess." Id. The rights-of-minors provision was made possible because the Convention—and the Commission studies used there—served as a "'little laboratory'" as the initiator of new rights."Id. The chapter of the study on the rights of minors drew from the increasing activity in the arena of juvenile law, both nation- and state-wide, in collating the information for what was to become Article II, Section 15.Rick Applegate, Bill of Rights Study 301–05 (Const. Conv. Study No. 10, 1972) In particular, the study focussed on recent U.S. Supreme Court decisions concerning the rights of minors in two contexts: the juvenile court system and schools. Id.

Tinker v. Des Moines Cmty. Sch. Dist. and Students' Rights

The study noted the importance of the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Cmty. Sch. Dist.,393 U.S. 503 (1969). to the evolving body of law on the rights of minors. In Tinker, three junior high and high school students were suspended for wearing black arm bands to school in protest of the Vietnam War.Id. at 504. On certiorari, the United State Supreme Court held that children, as “persons” under the United States Constitution, possess constitutional rights, including the freedom of speech and freedom expression, which they do not simply shed at the schoolhouse gate.Id. at 506. The study quoted Justice Fortas' majority opinion in Tinker: "[Students] are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state."Applegate at 302, citing Tinker, 393 U.S. at 511.

In the wake of Tinker—and often citing to it—students across the country brought challenges to school codes and regulations.Applegate at 302. One such area subject to frequent litigation, referenced directly in the Commission study, was the constitutionality of school codes proscribing student hair length.Id. Courts diverged in their holdings on the issue of hair length, but generally based their holdings on whether the hair style was shown to disrupt the school environment and educational process.Id. On the eve of the Convention, a Montana federal district court upheld a Hamilton High School hair code and the suspension of a student who had violated it.Id.

In re Gault and Juvenile Justice

The Commission study discussed the then-recent line of U.S. Supreme Court decisions incrementally extending to youth in conflict with the law some of the constitutional safeguards afforded adults. Historically, the study noted, juveniles in violation of the law were not "generally protected by constitutional standards of fairness and due process of law."Applegate at 301. In the years leading up to the Convention, the U.S. Supreme Court handed down a line of decisions concerning the constitutional rights of minors in conflict with the law. The study directly cites three of these decisions: Kent v. United States383 U.S. 541 (1966)., In re Gault387 U.S. 1 (1967)., and In re Winship397 U.S. 358 (1970)..

In Kent, a 16-year-old boy was arrested in connection with a rape and armed robbery.383 U.S. at 543. Police interrogated the boy for 7 hours that day, and again the following day. Id. at 544. The boy was detained for almost a week at a home for children without arraignment or a determination by a judicial officer that probable cause for his detention existed.Id. at 544–45. The boy’s mother retained counsel, who filed motions with the Juvenile Court for a hearing on the question of waiver of its jurisdiction, arguing that his client was suitable for rehabilitation under the auspices of the Juvenile Court.Id. That court declined to rule on the motions, hold a hearing, or confer with the boy, his parents, or his attorney, and waived jurisdiction without making findings or providing a reason.Id. at 546. The boy was ultimately convicted.Id. at 546. After several appeals, the U.S. Supreme Court accepted certiorari and held that a juvenile court’s waiver of exclusive jurisdiction over a youth charged with a criminal offense requires basic due process, including a hearing with assistance of counsel.Id. at 561–62.

Following Kent, the U.S. Supreme Court in 1967 handed down its landmark decision in In re Gault.387 U.S. 1 In Gault, a 15-year-old boy was taken into police custody and committed to the Arizona State Industrial School until his 21st birthday for making lewd phone calls to his neighbor.Id. at 4. In reversing, the Court held that minors in delinquency proceedings are entitled to certain due process protections, including the right to counsel, timely notice of charges, the right to remain silent, and the right to confrontation and cross-examination of witnesses.Id. at 11. Such protections constitute "essentials of due process and fair treatment."Id. at 26. "[T]he condition of being a boy,” the Court remarked, “does not justify a kangaroo court.”Id. at 28.

In 1970, the Court held in In re Winship that "proof beyond a reasonable doubt is among the 'essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult."397 U.S. at 359. The New York Family Court's erred in relying on a preponderance of the evidence standard in adjudicating a 12-year-old boy delinquent.Id. at 368.

Additional Sources

In addition to court decisions, the Commission study drew from a variety of primary and secondary sources in laying the groundwork for Article II, Section 15.Applegate, 301–05 These sources included law review articles, and a collection of essays titled, "The Rights of Americans: What They Are– What They Should Be." Also cited by the Commission study was "Up Against the Law: The Legal Rights of People Under 21," a layman's pocket guide to juvenile rights in the United States at the time, as well as a report from the 1970 White House Conference on Children. The study also had its finger on the pulse of the ideas and opinions of Montana citizen and special interest groups.Id. at 304–05. The study cited three separate proposals for a rights-of-minors provision advanced by individuals and youth service organizations alike.Id.

Conclusion

Despite recent guidance from case law, academia, and other governmental and citizen-led groups, the study noted that there were still many unresolved questions concerning juvenile rights.Applegate at 303. The Commission study concluded with the following observation: In the final analysis, the main question is not whether the rights of young persons under the age of majority are identical with those of adults. As the recent White House Conference on Children reported to the President, the issue is "how the limits of adult control may be drawn so as not to infringe on the child's right to grow in freedom in accordance with the spirit of civil liberties embodied in the Constitution."Id. at 305.. As the Commission study reveals, Article II, Section 15 was borne out of development in the area of juvenile law and growing attention, on both national and state fronts, to the rights of juveniles.Id." at 301–05.

Drafting

Delegate Proposals

Delegate Proposal No. 65 (Monroe): Those under the age of majority are persons. Such persons have the right to that emotional, social, physical, educational, and moral environment necessary to attain their full potential. In accordance with this statement of principle, the rights of persons under the age of majority shall include, but not be limited to, all the fundamental rights of a Montana person, except where specifically precluded by law and the demands of a proper parent-child relationship.<ref name="test">1 Mont. Const. Convention 166 (Jan. 29, 1972).

Delegate Proposal No. 87 (Foster): The rights of persons under the age of majority shall include, but not to be limited to, all the rights of a Montana person.1 Mont. Const. Convention 199 (Feb. 2, 1972).

Committee Proposals

Bill of Rights Committee: Section 15. Rights of Persons Under the Age of Majority. The rights of persons under the age of majority shall include, but not be limited to, all fundamental rights of this article except where specifically precluded by laws which enhance the protection for such persons.

The Bill of Rights Committee included this proposal as section 15 of the proposed Declaration of Rights, with one member dissenting. Not contained in the 1889 Constitution, the proposed section 15 constituted one of the "new safeguards" the Committee added to the Declaration of rights "to meet the changing circumstances of contemporary life."2 Mont. Const. Convention 618 (Feb. 22, 1972).

The Bill of Rights Committee commented on its reasoning for including section 15: "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' 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 part of due process. However, the broad outline of the kinds of rights young people possess does not yet exist." The Committee noted the "crux" of its proposal: "to recognize that persons under the age of majority have the same protections from majoritarian abuses as do adults." 2 Mont. Const. Convention 635-34 (Feb 22, 1972).

The Bill of Rights Committee also commented on the scope of section 15's exception: "The only exceptions permitted to this recognition are in cases in which rights are infringed by laws designed and operating to enhance the protection for such persons." The Committee noted a standard for when the exception should apply: "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." 2 Mont. Const. Convention 635-34 (Feb 22, 1972).

Committee on Style, Drafting, Transition and Submission: Section 15. Rights of Persons Not Adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.

The Committee on Style, Drafting, Transition and Submission submitted slight revisions to the title and content of Section 15, which reflect its current form. 2 Mont. Const. Convention 964 (March 13, 1972). The Committee explained its revisions: "The title and content were changed to accord with the substance of Section 14."2 Mont. Const. Convention 967 (March 13, 1972). Section 14 refers to "Adult Rights" and "person[s] 18 years of of age or older," and the revised, current form of Section 15 uses comparable language.2 Mont. Const. Convention 970 (March 13, 1972).

The Committee on Style, Drafting, Transition and Submission made no additional revisions in its Final Report for Consideration. 2 Mont. Const. Convention 1039 (March 22, 1972).

Floor Debate

Delegate Monroe moved the Committee of the Whole to adopt the Bill of Rights Committee's proposal for Section 15 and stated its purpose: "What this section is attempting to do is help young people reach their full potential. Where juveniles have rights at this time, we certainly want to make sure that those rights and privileges are retained; and whatever rights and privileges might be given to them in the future, we also want to protect them. But we do not want them to lose any rights that any other Montana citizen has, and this is specifically what this particular section is attempting to do. We hope that it would enhance the proper parent-child relation—the family unit." Delegate Monroe concluded: "It seems to me that Montana can be the leader among states in recognizing the rights of people under the age of majority."5 Mont. Const. Convention, Verbatim Transcr. 1749-50 (March 8, 1972).

Delegates Rygg asked Delegate Monroe to clarify his position: I'm just wondering—I read this and I still wonder. Could you give me an example of what we're doing? Just one concrete example so that I could find out just what you're trying to do?" Delegate Monroe responded with a personal anecdote about being arrested in Butte as a minor: "There I was . . . sitting in the jail of Butte. Now I didn't know what I was sitting there for, and in this instance I did not know the nature or the cause of any of the accusations that were being brought against me. I didn't know anything, and there I was incarcerated. I was not able to make a phone call or anything. And that would be just one small example." Delegate Monroe added: "There's certainly examples of where children's rights are not afforded them in child-abuse cases, for example. I've got a file here; the Montana Advisory Counsel on Children and Youth has compiled documentation of specific instances where a child's—or rights of children and youth are just nonexistent, really."5 Mont. Const. Convention, Verbatim Transcr. 1751 (March 8, 1972).

Delegate Brown questioned the necessity and purpose of Section 15: "I don't see, really, the purpose of this article, even after the explanation. This Bill of Rights covers all people, and it doesn't say only those over the age of majority or those over 65 or anything else; it covers all people . . . I really don't see where this serves any useful purpose." Delegate Dahood responded: "There is a constitutional controversy throughout this land as to whether or not the basic protections of the Bill of Rights shall be applied to those persons who are not adults, with respect to arrest, detention and trial. We are not, in this situation, affecting in any way the relationship of parent and child or of guardian and ward." Delegate Dahood specified: "There are instances . . . where these abuses do take place by many of our juvenile authorities thinking that persons under the age of 18 . . . are not entitled to the basic rights that are accorded the adult citizen in a court of record. For example, there are situations where there are unlawful and unwarranted detentions. There are abuses with respect to young boys and young girls. Searches and Seizures take place that violate the basic concept under our Bill of Rights. Hearings are held under circumstances where a true defense opportunity is not provided." Delegate Dahood also expressed concern that unlawful arrest of minors blemishes their records and counts against them as adults.5 Mont. Const. Convention, Verbatim Transcr. 1751-52 (March 8, 1972).

Adoption

On delegate Monroe's motion, the Committee of the Whole Adopted the Bill of Rights Committee's proposal for Section 15, with 76 delegates voting aye and 11 voting no.V Mont. Const. Convention, Verbatim Transcr. 1752-53 (March 8, 1972). On final adoption of Section 15, as revised, the convention adopted Section 15 with 83 delegates voting aye and 13 voting no.7 Mont. Const. Convention, Verbatim Transcr. 2642-43 (March 8, 1972).

Ratification

1972 Official Text with Explanation

"New provision giving children all of the rights that adults have unless a law meant to protect children prohibits their enjoyment of the right."The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet) 6.

Documentary History of the Ratification of the Montana Constitution

Neely Collectionavailable at: http://www.umt.edu/law/library/montanaconstitution/default.php.

Gerard Neely edited the "Con Con Newsletter" during the constitutional convention. The March 10, 1972 edition included statements about Section 15's exception: "The exception to the extension of rights to minors is where the laws 'enhance the protection of such persons.' The provision will, if adopted, open many fertile fields of litigation because of the current treatment minors receive under the law. A law that enhances the protection for such a person is not necessarily the same as a law which specifically precludes certain rights for an individual under legal age. The problem of hair length will immediately arise. Under certain court cases, minors have simply not been accorded to wear their hair the same length as adults may wish to. Are such judicial rulings for the enhancement of protection for such persons? Probably not. Another problem is that minors currently are liable for punishment for more offenses than adults: disobedience, curfew, undesirable associations, wearing armbands, critical published statements. What of these? It is instructional at this point to quote Mr. Applegate in his treatise for the Bill of Rights Committee: 'In the final analysis, the main question is not whether the rights of young persons under the age of majority are identical with those of adults . . . the issue is 'how the limits of control may be drawn so as not to infringe on the child's right to grow in freedom in accordance with the spirit of civil liberties embodied in the constitution."Con Con Newsletter, The Bill of Rights: Analysis 6-7 (ed. Gerard Neely March 10, 1972).

Campbell Collectionavailable at: http://www.umt.edu/law/library/montanaconstitution/default.php.

Neely also authored "A Critical look: Montana's New Constitution," published in 1972. The pamphlet included an analysis of Sections 14 and 15: "The effect of the provisions will eventually be felt in three basic areas: public office, criminal law, and school supervision . . . Current school regulations concerning dress codes, hair length, and the freedom to publish critical opinions of school administrators would be clearly unconstitutional unless specific legislation were passed by the legislature in these areas. Juvenile courts have theoretically been designed to be a more flexible and lenient system of justice than that applicable to adults. Juvenile law is based on the assumption that minors need special treatment with respect to the courts. Accordingly, the public confrontation of lawyers, a trial, and punishment for the guilty is often different. This will only continue if specific laws denying minors certain rights—such as a jury trial—are passed."Gerard Neely, A Critical Look: Montana's New Constitution 5 (1972)..

Professor Richard Roeder authored a summary of the Constitution, which was inserted into many Montana newspapers and explained Section 15 as: "extend[ing] to those under 18 the procedural safeguards and rights extended adults. [Section15] stresses that when society proceeds on the assumption that minors need special treatment in the legal process it must also be careful not to abridge other rights."Richard Roeder, 1972 Montana Constitution Newspaper Supplement 2.

During the convention, the Great Falls Tribune published an article highlighting section 15: "For members of the [Bill of Rights] committee headed by Wade Dahood, Anaconda, the special hearing . . . marked a continuation of a discussion started Saturday. At that time, the committee was asked to recommend language giving young people all the rights of older Montanans. 'This has been done in other cases such as race and sex,' was the way Frank R. Sennett deputy state social services director put it, when the subject first came up. 'To include constitutional rights in Montana's document for children and youth is consistent with past action taken nationally and on the state level.'"J.D. Holmes, Basic Rights Considered for Children, Youth, Great Falls Tribune 11 (Feb. 1, 1972).

Interpretation

Under the Montana Constitution, “[t]he rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of [Article II of the Montana Constitution] unless specifically precluded by laws which enhance the protection of such persons”. Mont. Const. art. II, § 15.

Further, Montana children have additional rights given to them by the legislature. These rights include the right to have the child’s best interests considered in any parenting action. Mont. Code Ann. § 40-4-227(1)(c) (LexisNexis, Lexis Advance through the 2017 regular session, 65th Legislature and the November 2017 Special Session). A child’s right to a parent should only be terminated if a parent’s conduct is contrary to the parent-child relationship. Id. at (2)(a). Rights cannot be removed without due process of law. In re Custody & Parental Rights of A.P., 2007 MT 297, ¶ 18, 340 Mont. 39, 172 P.3d 105.

The Montana Supreme Court has determined that the rights of the child are analyzed the same as if the right was afforded to an adult with one addition. See In re S.L.M., 287 Mont. 23, 951 P.2d 1365 (1997)(Equal protection analysis for a child); State v. E.M.R., 2013 MT 3, ¶ 22, 368 Mont. 179, 292 P.3d 451(Right to a jury analysis for a child). For the legislature to carve out an exception to a child’s rights under the Montana Constitution, the legislature must show a compelling state interest and the exception is designed to enhance the rights of the child. State v. Strong, 2009 MT 65, ¶ 19, 349 Mont. 417, 203 P.3d 848. In cases involving children, a compelling state interest includes “furtherance of the best interests of a child by assuring the maximum opportunities for the love, guidance, and support of both natural parents.” Collie v. Pirkle (In re M.C.), 2015 MT 57, ¶ 13, 378 Mont. 305, 343 P.3d 569; (quoting In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276, 1280 (1986)).

In re S.L.M.

Strict Scrutiny?

In S.L.M. In re S.L.M., 951 P.2d 1365 (Mont. 1997), Montana's Supreme Court held "Clearly under Article II, Section 15, minors are afforded full recognition under the equal protection clause and enjoy all the fundamental rights of an adult under Article II. Furthermore, if the legislature seeks to carve exceptions to this guarantee, it must not only show a compelling state interest but must also show that the exception is designed to enhance the rights of minors." In re S.L.M., 951 P.2 at 1373 However, before the Court iterates this test, it determines that a compelling state interest in S.L.M.'s case was necessary because S.L.M.'s physical liberty was being infringed, and a violation of physical liberty requires a compelling state interest. In re S.L.M., 951 P.2d at 1372. Immediately following this determination, the Court states "we must therefore apply a strict scrutiny analysis and determine whether such an infringement is consistent with the mandates of Article II, Section 15 of Montana's Constitution." In re S.L.M., 951 P.2d 1365 at 1372. Therefore, although it appears that the Court has mandated strict scrutiny for violations of Article II, Section 15, this only applies in cases where other fundamental rights which require strict scrutiny are implicated.

This, however, does not mean that Strict Scrutiny is the wrong test for Article II, Section 15 either. Fundamental rights under Article II are entitled to strict scrutiny. Gryczan v. State, 942 P.2d 112, 122 (Mont. 1997). And, Section 15's text requires that children have all of the same "fundamental rights" of Article II. Therefore, it is likely that Strict Scrutiny would be the appropriate test, and the Court has not said otherwise.

Enhancing the Rights of Minors

In S.L.M., Montana's Supreme Court held "Clearly under Article II, Section 15, minors are afforded full recognition under the equal protection clause and enjoy all the fundamental rights of an adult under Article II. Furthermore, if the legislature seeks to carve exceptions to this guarantee, it must not only show a compelling state interest but must also show that the exception is designed to enhance the rights of minors. In re S.L.M., 951 P.2 at 1373 This second part of the Court's test for remedying violations of Section 15 is inconsistent with the text of Article II. Where S.L.M. says "enhancing the rights of minors," Section 15 states enhancing the "protections" of minors. The Court in S.L.M. made this word swap immediately after quoting the comments of the Bill of Right's Committee. However, no where in the comments does the Committee switch the words "rights" and "protections." In re S.L.M., 951 P.2d at 1373 (quoting Montana Constitutional Convention, Vol. II at 635-636). Thus, there is a word discrepancy in the Court's interpretation of the requirements of Section 15.

In Conjunction with Equal Protection

The Court also held in S.L.M. that Section 15 "must be read in conjunction with the guarantee of equal protection found in Article II, Section 4." In re S.L.M., 951 P.2d 1365 at 1374. The Court holds this because the Bill of Rights Committee indicated that equal protection was a primary purpose of Section 15. In re S.L.M., 951 P.2d 1365 at 1374 (quoting Montana Constitutional Convention, Vol. II at 635-36).

It is notable, however, that the Bill of Rights Committee also cited due process in it's comment, but the court has not held that due process must be read alongside Section 15. In re S.L.M., 951 P.2d 1365 at 1374 (quoting Montana Constitutional Convention, Vol. II at 635-36). Likewise, the comment cited by the court specifically stated that Section 15 was needed because children had not been afforded equal protection under the equal protection clause, In re S.L.M., 951 P.2d 1365 at 1374 (quoting Montana Constitutional Convention, Vol. II at 635-36). dismissing the power of that clause to protect children.

Commentary