*1 Rich Ronald M. A.2d [216 266]
Special Term at Woodstock December J., Shangraw, Barney Keyser, C. Present: JJ.
O’Brien, Supr. J.
Opinion January Filed
Peter Forbes Langrock petitioner. Connarn, General, for the State. Attorney
John Barney, J. Since March now petitioner, eighteen old, has been confined years the House of Correction executive order, sentence or without conviction for a seeks He release crime.- temporary from that and associated habeas corpus,
through stem- all but from restraint State Hospital, confinement Waterbury in June, Weeks School him to ordering ming and an ad litem he was He has both a when fourteen. *2 interests before Court. his representing attorney the raised here are two: issues stipulation, By Franklin Municipal Was the commitment the original Court, as a dated June, acting valid? the School to the House Was transfer from the Weeks Executive 5 March valid? Correction, under Order of the issue In connection with the first it is conceded agreed had had no the guardian appointed no counsel and was never informed of counsel. matter a for Franklin
The court began petition the the state’s had contri- county by attorney alleging buted to the fourteen school friend en- year a old delinquency stealing the friend to couraging larceny by commit causing petty a sum of held from that friend’s own A money parents. custodian, attended the his mother who was his boy, June the state’s and various court (the parents divorced), attorney, personnel. At that time had in- the in hand the the judge report of Welfare, of the Social vestigation by representative Department as authorized The by V.S.A. summons for the hearing gave §613. notice to all whom was served been upon that such a had report filed with the on 1962. This recited May report boy’s environment, to his personal history situation and respect family school behavior. Commitment relationships, and Weeks previous School for remainder of his followed. minority House of Correction at Windsor March transfer to the on later His School, behavior Weeks from his done 5, 1965, derived which of V.S.A. provides: under of a sentence school in execution confined such A person school and is good such not of the regulations who does obey from to the house of transferred such school deportment, for the remaind- the written order correction, governor, upon such or until time as the term, governor bymay his original er of school, in section him such as provided return order written title. 416 of order disclose that he ran away
The contents of executive twice, occasion, reaching car Weeks School on each once stealing Canada York State. As consequence, and once to New going in an he for further care subject order declares that is no fit longer is detrimental school, and that his training presence open com- welfare of Weeks School and Since he was its charges. mitted to Weeks School duration his com- for the minority, mitment to he term, the House of Correction was for same unless was sooner lawfully discharged. has
The for the State of Vermont theory Atl. In re Hook 95 Vt. clearly been enunciated. already 138; Charles 730; In re Gomez 113 Vt. entire ton 114 Vt. It is a proceeding A.2d 628. protective child, concerned with the welfare of the and is not ly punitive. of the criminal and laws procedures supersede provisions minors conflict with the authorizations of the affecting statutes. relates inquiry proper §627. not his or innocence as a child, guilt criminal offender. Brigh *3 316, ton v. 114 44 supra 332, Vt. A.2d 628.
This has approach accep- found problems widespread tance since the establishment the first in Chicago 1899. and McGee Court 17 Ala. McLaughlin Procedure” “Juvenile R.L. 226 enthusiasm for such (1965). Early summary proceedings, 33 as authorized led some authorize by jurisdictions to and action so as to hearings summary on the See verge arbitrary. Paulsen “The Court and The 597, Law” 11 607- L. R. Wayne 611-16. 8, Voices to be raised in began con- protest, that reminding run siderations due process than may deeper specific law, related requirements to criminal and that to dispense with the latter does not the fundamental justify violating requirements a fair See 5 “Evidence” hearing. Wigmore (3rd Ed. 1940). re 409, In Md. 194 Cromwell 232 A.2d Some courts have turned to constitutional standards for criminal trials as applicable others have proceedings, applied the standards of civil pro- and still others have been ceedings, liberal, more allowing hearsay evidence See freely, example. Annotation A. generally 43 L. R. 2d
The issues are not settled. The contentions sides clearly on both have received dramatic See Holmes Pa. presentation. 379 Appeal, 599, 109 523. Certain A.2d conclusions relevant before to the matter dis- valid, properly A juvenile however. proceeding us do seem criminal relating requirements formal constitutional with pense 668. In Morin, 518, 521, 68 95 N. H. A.2d Petition
proceedings.
ato jury
to the
right
did so with respect
re Gomez
of the proceedings
the conception
based upon
trial.
justification
author-
as
an
of the parens patriae
and
exercise
being
as non-criminal
state,
proceeding.
it
making
essentially custody
ity
is its
Dotson,
P.
877. That
891, 895;
46 Cal.
2d
of the requirement
nature
nature is
recognized
per-
child or children involved
that both the
33 V.S.A. §606
control
before
brought
son
be
custody
their
having
Children,
A.2d
In re McMahon
court concerned.
hear-
the attendance at the
case,
this was accomplished
mother,
person
his natural
as
ing
petitioner’s
child.
and control of the
having custody
cases
out
for criminal
injunction
the constitutional
carry
Failure
likewise
advised of their
to counsel is
right
that
requiring
parties
means to
jurisdiction.
say
fatal
This is
not
not have counsel. Chief
Kenison has succinct-
that parties may
Justice
Poulin,
issue
N. H.
in his
opinion
of that
ly disposed
in that
counsel for a
could
It was held
case that
party
to counsel. Dealing as to invalidate the whole as a claim of such substance we Mears, find it reaches such stature. Vt. cannot Garcia, 27; In re Cal. 665. As is App. A.2d Columbia, in Swann v. District there is out pointed is, is, So as the shortcoming. no constitutional as long proceeding concerned the welfare of the nature child, to the of essential requirements and conforms due *4 find in a defect failure to inform we will process, too, of that he, ward the State counsel. the potential employ Paulsen, “Fairness Offender” 41 See to Minn. R. 568-73, Anno. A. L. R. 2d 698.
The also contends that he was entitled guardian to essence, litem think In ad at the We- not. hearing. guardianship The issue involved in the whether very proceeding. question was natural or remain with his mother as guardian should v. of transferred to the State Vermont as parens patriae. 332. supra, with the court to juvenile appoint guard It was discretionary to, in addition or place ian for the for the proceedings of, mother, fit, under if he saw the authority petitioner’s are directed 33 V.S.A. V.S.A. The mandatory provisions §606. §678 to juvenile to criminal The whole is proceedings. design crime, making avoid the under sixteen with a juvenile charging there addition, of 33 V.S.A. application inappropriate. §678 in that section be an the general nothing declaring exception to, declare of 33 referred which provisions previously shall provisions supersede provisions juvenile law and laws Nothing minors it. affecting conflicting has been made here to show abuse of discretion on appear Brisson, court in this State part connection. v. Vt. substance, are, said, as we have defects of concerned with jin view of the courts large responsibility given judges to act to further the juveniles them, welfare of before we appearing must out that our failure point to find defects substance the ab sence of counsel or ad litem in this case does not mean that can be there case where failure to other one or the provide would amount to such a defect. These must not be so summary that fail to measure they to the minimum up essentials of substantive due In re Anonymous 798; N. Y. process. S. 2d Paulsen, “The Law,” Court The R.L. supra, Wayne 597, 609 (1965). The breadth of the deal court’s juveniles is matched breadth corresponding responsibility Mears, protect minor’s interests. In re 137; Vt. supra, Dotson, 46 Cal. supra, P. of the whole validity its ad- system dependent upon herence to its protective, Gomez, rather than its penal aspects. with formal constitutional dispensing can safeguards justified so not, as the long sense, in .any criminal. The must statutory purposes not be belied its procedures. The House Correction is defined as follows:
There is established state at Windsor a hereby at the prison thereof to be known as the house of correction for department *5 men and reformation of men, for the punishment, employment who are convicted of misdemeanors. from
Confinement in a institution will convert the penal criminal crim juvenile to observance of constitutional require the Reid, 649-51, inal White v. F. also safeguards. Supp. Ketcham, F. Armon W. Associate Judge Judge Supp. non-criminal D. C. has said that Washington, Juvenile American “is the backbone of the of all aspect legal constitutionality If, court after such a legislation. juvenile proceeding, can, act of an executive trans by officer, discretionary servitude, ferred ato the entire claim place penal patriae’ of ‘parens in Coleman becomes hypocritical mockery.” Judge, quoted “The Constitutional 50 Women Rights Delinquent” n Lawyers action on to out that such (1964), goes point Journal confines a in a institution been found person without penal having of a crime. guilty
It is therefore essential to the constitutional of our validity procedures to connect power it to punitive proceeding in the criminal sense be The rehabilitative removed. offered caretaking for constitutional exchange protections must real, not mere is, Otherwise the verbiage. in the words of exchange Paulsen, counterfeit, Professor Paulsen “Fairness to the Of fender” 41 Minn. 547, 576 R. (1957). To this end we hold that transfer from Weeks School institution must penal be founded criminal upon a prosecution conviction attended constitutional guarantees appropriate such a proceeding. Transfers under the can be made consitutionally under such circumstances. This did not occur this case and must be corrected a return of the petition er Weeks School. that, recalcitrant School inmates recognize although Weeks are not transferred the House of Correction en-
usually without criminal, in behavior as chargeable nevertheless this gaging ruling administrative' and will impose disciplinary on the institu- problems however, involved. is fundamental, tions It that solutions these standards. must meet problems is discharged present Petition dismissed. Superintendent and remanded to the confinement School, who is commanded to receive on the .authority the Weeks him the mittimus issued Franklin county dated June J. I in the C. Concurring. agree to be rather than But juvenile courts designed protective penal. *6 of relieve the humanitarian the Court Act does not concept Juvenile a juvenile commitment from the fundamental demands of due process. assistance In the the the of present proceedings right litem, has counsel, ad of an competent informed acting the that been observed. indication carefully Yet there has been no juvenile delinquent, in found which the proceedings, the resulted in undue Indeed there challenge is advantage. mere absence context, of In this I concur finding delinquency. that the an counsel explanation the of the to assistance right in not result the denial does of due of law. process deal- in that the system It one of the anomalies of is on statute imposes the with children under sixteen ling years age, is called upon The court itself the duties of a guardian. must safe- but it it, the child before not the welfare of protect six- a child than of less his as well. guard legal removing rights accused, and the stigma guilt, teen from the of one years posture court the task of preserving the statute on imposes — child demands, the welfare of delicate balance between two due of the law. and right equal process protection fundamental I laudable act and the objectives that the of the agree due are incompatible. requirements procedural process Poulin, combination of 100 N. H. A. 673. But this court calls duties and of the juvenile functions to the assigned judge considerations. to devote attention to both upon scrupulous .him it is view record of Accordingly, my called more than the for should be something of what took must establish the facts. minutes It place. Charleston, should 316, 331, v. 44 A. It Brighton Hook, also adjudication is sound law. appear Atl. 730. As to of the this, Department report Social Welfare has no force as evidence trial the case. v. The record should Vt. at supra demonstrate that the less than conducted. fairly Anything Y. E. Fitzgerald, N. 155 N. arbitrary power. child, his
Should it the interest of the natural parents, appear should conflict, that of the state are in a for the child special guardian Where or designated. procedural complications be, involved, the. of all heard the assistance right parties of counsel should be The observance of in the observed. of the record transcript judicial should be part referred into Section 603. views, I resort to to state these separate concurring opinion I record, believe without an will adequate beset constantly objections. Such vulnerability neither consistent with of the statute best purpose nor the high interest of juvenile, whether he be or delinquent dependent See Paulsen, child. Fairness to the Offender neglected (1957); Mack, the main L. (cited Minn. opinion), Rev. Harv. Rev. (1909).
Rose Adams Leonard Barcomb A. [216 2d 648] Term, December J., Barney Key ser, Shangraw, Present: C- JJ.
Opinion February 1, Filed