*1 specific statutory authorization, awarded absent statute in question here provides such authorization. RCW 4.84.170.2 The provide statute was for such amended lia- bility in 1959.
The judgment of the trial its award of costs is affirmed.
Stafford, Wright, Brachtenbach, Horowitz, Dolliver, JJ., J. Tem., Pro concur. Hicks, Ryan, May 14, Reconsideration denied 1979. 45782. En Banc. March
[No. 1979.] Petitioner, v. Michael A. Washington, State Respondent. Lawley, provides 2RCW 4.84.170 as follows: state, prosecuted "In all actions name and for the or in use brought any against county, and аction the state name for the use of any county, appeals supreme appeals or and on all to the court or the court of brought by any county, state in all actions either the state or county state or shall be liable costs in the same case and to the same extent private parties." (Italics ours.) *2 Attorney, Bayley, Prosecuting Christopher T. Deputies, McKay Miller, for Michael D. and Steven S. petitioner. Seattle-King County Publiс Defender,
Mark Leemon of respondent. Prosecuting Attorney County, Herron, Pierce Don Blumberg, Deputy, Meath, Donald Steve G. Richard Scott, amici curiae. issue this case is whether J. The sole Brachtenbach, juvenile charged under the Jus- with an offense Juvenile constitutionally 13.40, Act RCW entitled to
tice comprehensive jury part revision provides: trial. RCW 13.40 is of a 13.04.021(2) justice system. juvenile jury." juvenile without a in the court shall be tried "Cases jury right to a hold is not a constitutionаl We that there which the trial court trial under our statutes and reverse contrary. held 16-year-old respondent was
The facts are the. robbery. charged, by second-degree information, with He jury trial; that he was the trial court held demanded a entitled to such a trial. Hopp, 263, 265-68, P.2d
In 73 Wn.2d Estes (1968), require jury process trials due did we held that
under the former juvenile act. The essence of the defend- argument ant's is that 1977 juvenile act altered the law's focus from conсern for treatment and rehabilitation of juvenile imposition punishment according to the Therefore, offense and the record of the juvenile. defendant argues, proceedings the nature of prosecution entitling part to a trial due under the Fourteenth coupled Amendment with the sixth amendment the United Constitu- States tion and article section 22 of our state constitution. A comparison the 1977 Act Juvenile Justice with the prior juvenile no law leaves doubt the legislature has substantially restructured manner See New Code (1978) Juvenile offenders are to treated. (Family Section, Law Continuing Legal Education Com- mission, Association). Washington However, State Bar pivotal question is whether the proceedings are so akin to an prosecution adult criminal the constitu- necessary. tional to a To determine that *3 we general issue must examine the new scheme the act apply a contrоlling Supreme United States Court case. It is true the place empha- 1977 act does different upon prior activity sis the criminal of the juvenile. For it to example, provides juvenile for the be accountable for behavior, his or her criminal and it does mandate that there crime, shall be punishment age, with commensurate the history and criminal juvenile offender. RCW 13.40- .010(2)(c) (d).
Standing alone legislative pur these declarations to pose might seem indiсate an to juve intent convert the nile into procedures traditional adult criminal proceedings. However, there we why legis are three reasons believe the accuse, did not juveniles lature intend to treat and sentence the same adult offenders.
First, legislature may well determined that behavior, accountability the prior criminal criminal activity and with punishment age, commensurate crime and rehabilitate, history does as much to сorrect and philosophy youth prior as does direct an errant the individ- characteristics focusing upon particular prior compared approach, juvenile. ual Whether for this court more is not effective philosophy potentially dealing problem, was social legislature decide. The exper- within peculiar to which do not lie the solutions a considered deci- has made judges. legislature tise of than the one appropriate act more sion that this heretofore. has not succeeded merely
Second, more than fact has done legislature exam- juvenile for the offender. For punishment mandate 13.40.010(2) (f) provide it purpose declares a ple, RCW treatment, custody necessary supervision (j) specific in subdivision there is refer- offenders. Likewise dealing with the punishment, ence to treatment or both juvenile. part community supervision Counsеling 13.40.020(3)(d). provided which is for in RCW Accused range full of constitutional juveniles provided their wit- rights attorney, to an to confront such as the nesses, sup- privilege against self-incrimination RCW 13.40.140. pression illegally evidence obtained. disposition While act does set certain determinate standards, judge expressly it reserves if the disposition to alter an otherwise mandated impose would an excessive disposition court finds that such 13.40.020(12) and RCW on penalty juvenile. 13.40.160. empow- hearing, the court disposition
Further at evi- all relevant and material ered to receive and consider (1) prosecutor from the including recommendations dence (2) arguments information and juvenile, and counsel for the counsel, (3) predisposition and their parties offered (4) his or her from the reports and statements *4 Additionally, the court guardian or custodian. parent, circumstances. mitigating aggravating both consider RCW 13.40.150. still limited to of a аn institution juvenile
Commitment 72.05 to RCW pursuant juvenile to facilities established 13.40.020(9). 72.16 through 72.20. RCW at Looking those referenced statutes we find again emphasis upon interest, welfare and rehabilitation of the individual child. For example, RCW 72.05.010 refers to providing certain facilities and services which will best serve the welfare the child society. RCW 72.05.130 refers programs treatment, guidance Likewise, and rehabilitation. reformation, 72.19.060 a policy establishes training and rehabilitation.
Finally, a jury trial is not mandated the United Supreme States Court's interpretation the federal con 545, stitution. In McKeiver v. (1971), 29 L. Ed. Ct. 2d S. the court stated: "we conclude that trial by jury court's adju dicative stage constitutional requirement." Before reaching that conclusion the court six reviewed of its prior juvenile rights cases. The summarized its holdings those cases and included two points page at 533 which are to us: persuasive
Some of the requirements constitutional attendant upon the state criminal trial equal application to that part of the state proceeding adjudicative Among rights nature. to appropriate these are notice, counsel, to confrontation and to cross-exami- nation, Included, also, privilege and the self-incrimination. beyond proof
is the standard of a reason- able doubt.
Those required rights provided our statute. court then point made the that: however, Court, all yet has not said that rights con-
stitutionally аssured adult accused of crime also are to be enforced or made available to the delinquency Indeed, proceeding. specifically Court going refrained from that far:
"We do not mean this to indicate that the hear- ing require- be held must conform with all of the ments of a criminal or even the usual hearing; administrative but we do hold that the hear- ing up must measure to the essentials due ” and fair treatment. *5 Smith, Turning Point Juvenile See omitted.) (Citations Essеntial?, L. 2 J. Juv. Jury Really Trials Justice: Are The Last Pennsylvania: McKeiver (1977); Ketcham, L. Adjudications?, Word on Juvenile Court 57 Cornell Rev. (1972). 561, 562-66 philos summary, legislature changed
In soci addressing personal methodology ophy and offenders, it has not converted but etal problems totally atmosphere into a criminal offense the procedure We find an adult criminal offense scenario. comparable to as to supra, McKeiver v. controlling to be strin a more adopt the federal constitution and decline constitution. Because Juvenile rule under our state gent of due Act to the "essentials up Justice of 1977 measures necessary juvenile adjudica process," jury trials are tory proceedings. court is reversed. holding
The the trial JJ., C.J., and Stafford, Dolliver, Hicks, Utter, concur. charged J. was (dissenting) respondent
Rosellini, —The the crime of by filed Court with Superior information arraignment, his he moved robbery degree. the second At 13.04.021(2) that RCW be declared unconstitutional by Superior The Court jury. the case decided applied correctly the section is invalid as judge ruled that In that conclusion was my respondent. opinion, United States and of the constitutions of the by mandated this state. pro- 6 of United States Constitution
Amendment vides: enjoy shall prosecutions,
In all criminal accused impartial trial, speedy the crime shall have been and district wherein the state committed, . . be informed of the nature . and to аccusation; with the wit- to be confronted cause of the him; compulsory to have nesses obtaining favor, in his and to witnesses assist- ance of counsel for defense.
(Italics mine). new juvenile frankly court act recognizes the adjudi- cation proceeding as one which it is to be ascertained whether crime has been committed. Punishment is to be imposed prescribed by All rights the statute. enu- merated Amendment save the to trial jury, are accorded the accused. Washington Constitution provides: *6 right by inviolate,
The of trial shall remain but may provide the legislature for a of .number less record, in than twelve not . . . courts of Const, (amendment 1, 10) in 21. And 22 art. section § article, same the have people declared that prosecutions criminal accused the shall have the [i]n right appear counsel, to and defend in person, by to demand the nature cause of the accusation against him, thereof, tо in copy testify behalf, have a to own face, to meet him witnesses face to to have compulsory process to of compel attendance wit- behalf, nesses his own to a speedy by have trial impartial jury of the which county the offense is to have to charged in been committed the right appeal . . . all cases: all of
Again, rights, by jury, these save is trial 13.40.100, .140, See accorded under .230. the act. a jury expressly The is denied the 13.04.021(2). juvenile under RCW majority legislative takes that position this justified holdings denial under the of the United States 528, Court in Supreme McKeiver (1971), L. 2d Ct. 29 Ed. 91 S. 1976 and of this court (1968). Hopp, Estes v. Wn.2d P.2d Both of 205 substantially those cases were decided under statutes dif- legislature ferent from that which the this state adopted in 1977. The character of former distinguishing this state's statute, Pennsylvania which statute was consid- Court, by ered the United was that Supreme States brought which and the factors offender focus was on the That court, prin- on his offense. him rather than before legislature, the 1977 act. abandoned ciple been validity and the it for which deemed sufficient reasons has determined I propose question, do are offenders society respect goals the court attention of system in which the best served committed, than rather which was on the focused offense set goals it. The committed upon the child who has legislature declares forth RCW 13.40.010. There capable having pri- system it its intent to establish for, accountability responding responsibility and mary offenders, chap- in that youthful as defined needs of for their ter, turn, be held accountable youths, to be: chapter is stated offenses. The purpose behavior; (a) criminal citizenry from Protect (b) juveniles accused whether determining Provide for chapter; have committed offenses defined (c) for his or her Make the offender accountable bеhavior; (d) age, commensurate with the punishment Provide offender; crime, history and criminal (e) alleged to have juveniles Provide due offense; committed an *7 treatment, custody
(f) necessary supervision, and Provide offenders; for juvenile offenders the of handling Provide for
(g) safety; consistent with communities whenever crime; of (h) victims Provide restitution to for the (i) goals opera- effective standards and Develop juve- tion, components of all funding, and evaluation аnd at the state system and related services nile justice levels; local and what types to determine policy Provide for a clear
(j) treatment, both, and or punishment, shall receive offenders courts, limitations jurisdictional to determine institutions, community services. prescribed 13.40.160,
Punishments in imposition include the periods determinate of confine- ment institutions the state.
In provisions legislature these it has made clear that it is longer no aim primary justicе of the juvenile sys- tem to attend to child, the welfare of offending but acts, rather to render him accountable for his to punish him, and to society's serve demand for retribution. While the punishment prescribed may well be less than that imposed upon offending offense, adults for the it same nev- ertheless involves the case of respondent loss liberty. No longer the child protected is from public's (RCW scrutiny 13.04.270(l)(a)). of his "criminal" record Furthermore, hearings concеrning court offenses (RCW 13.40.140(6)). are made presumptively public No is longer punishment geared fit the needs of child, rather is it related to the seriousness of the (RCW offense. Provision made for consecutive sentences 13.40.180) and even community pun- service intended as (RCW 13.40.020(2)). Thus, ishment system been converted from one which ostensibly was or designed was protect rehabilitate the child to which is designed one protect society. The present act focuses uрon pur- poses which are generally served adult criminal law. Estes Hopp, supra at 265-66, court,
This said: Since the of the first court adoption act Illinois, the state of concept juvenile courts child who has been that a has committed a criminal offense, wayward, incorrigible, who is or ungovernable, as recognized "delinquent" subject be to treat- rehabilitation, a system probation ment under rather and the than a criminal. The focus is on the offender court, him brought factors before the on than rather his offense. 13.04.095, found principle
This was former RCW which provided:
When delinquent child shall found to be dependent, within the meaning chapter, this *8 custody, care, or commit- such order for the shall make the interest child's welfare of the child as the ment require [s]. state present code, is directed consider the court Under the relating solely aggravating mitigating to the and factors history" of the and the "criminal nature of the offensе system 13.40.150(2)(h)-(j)- is one offender. RCW prosecution. Supreme States, McKeiver Court of the United Pennsylvania, supra, opinion plurality a found in its that right policy dictated that the number considerations juvenile proceed- jury trial should not be accorded a system impose ing. It that to a trial on the was said remedy greatly strengthen nor its its defects would fact-finding function, should be free and that State high promise experiment of the to achieve the plurality oрined importantly, concept. Most fully proceeding might into adver- a sary remake effectively prospect of an end the idealistic protective proceeding.1 intimate, informal, I not think it our function to decide whether do necessary system's trial is order to correct the defects right a trial facilitates whether the denial of the to such handling problems legislative court's system. given that the which is under It is obvious juveniles present our would not under law constitution adversary process fully proceeding "remake" the into a prospect effectively intimate, infor- end the idealistic already "proceeding". protective been done mal, by This fully adversary process legislature. and, It is believe, United such, and, I that of the our constitution Association, Bar American 1The Institute Judicial Administration Summary Analysis, Justice: A joint project, Standards Juvenile their respondent provide by suggested jurisdiction law that that each should by jury adjudication proceedings, where he has denied a trial demand lawyers petition. appear judges allegations who con It would arguments guided convincing policy project find those ducted the did not plurality Ed. 2d 91 S. in McKeiver v. 29 L. (1971). Ct. 1976 States demand afforded the *9 trial by jury. Brennan,
Justice in concurring conclusion of the in v. majority McKeiver supra, said proceedings Pennsylvania under the statute were not crim- inal in nature. He recognized nevertheless the need for a procedure that would serve purpose jury of a of —that in fundamental finding. fairness fact He thought juvenile could by obtain that focusing fairness upon attention conduct of his case. Justice Brennan consistently then reached the conclusion that the Penn- sylvania permitted statutes which attendance of press juvenile at hearings provided safeguards sufficient for fair- ness, statute, but that the North Carolina which either рer- mitted required or exclusion of the general public from trials, adequate protection did not afford and that a trial was constitutionally required such under a stat- ute. Justice the plurality Harlan concurred with on the sole ground that Sixth opinion rights Amendment do not apply to the states.
It if publicity seems me that were all was required trial, a juries assure fair then would not be needed however, people, case. The have decreed that to a fairness, is an a requirement essential as is public trial.
Justice Douglas wrote a dissent which Justices Black Marshall concurred. He a recalled dissent written Brainard, Justice Black the case DeBacker 28, (1969), L. Ed. 2d 90 S. Ct. which the lat- ter said had that he could see no basis whatsoever allowing rights certain constitutional contained the Sixth yet denying Amendment to the accused him a trial, which, said, surely a right as he one of the aspects justice fundamental in the English- world. quoted approval Justice also with speaking Douglas from opinion Judge Family written DeCiantis of the Island, in Providence, Court In the Rhode a case entitled McCloud, January Judge Matter decided 1971. experience the real traumatic concluded that DeCiantis had being feeling is the without due of incarceration adds: deprived rights. of basic He fairly he been dealt child who feels that
"The possible merely speedily as as expediently Many оf for rehabilitation. prospect will be a better the court come from children who come before the broken low symptom homes, they often suffer from ghettos; from the self-esteem; frequently and their behavior inadequacy. Trau-
of their own feelings only accen- rights matic tuate problem. of denial of basic experiences to the past deprivation and contribute Thus, general accept- societal attitude of to the same person entitled ance protection beginning as an adult be the true process." rehabilitative *10 528, 562, 29 L. Ed. 2d v. Pennsylvania,
McKeiver (1971). Douglas reproduced 1976 this 91 S. Ct. Justice very in opinion appendix to dissent. impressive of which judge disposed policy arguments Rhode Island the juveniles right had the to against according been leveled cumbersome, jury jury trial. That the is more more formal, judge more than trial before a expensive a said: Judge one such DeCiantis argument. expediency, suggesting
In very argument fact the "supermarket" "assembly-line" justice or one jury trials. granting in favor of arguments most forceful By granting would, trial, the to a we right the fact, judge in from the protecting be the accused cases, judge move the the pressure who is under to a many enough provide time. It will too safeguard against cases and not be may prejudiced the who judge be minority prejudiced or who against group a him of some before because juvenile brought the by judge. occurrence which was heard same past judges, court criticisms that There have been caseload, carefully weigh do not hearing of their because the evidence ings. mine whether proceed- in adjudicatory phase of the deter- phase judge It this that must during has been established fact the evidence that the accused committed beyond a reasonable doubt of the merit of petition. Regardless in the alleged the acts criticisms, these they impaired have the belief of the juveniles, of the bar and the opportu- nity justice court. Granting juve- nile the demand that facts determined a the will strengthen the faith of all parties concerned
juvenile system.
McKeiver, at 565-66. argument that allow trials would cause
accumulation cases in backlog juvenile court was of, disposed also judge out that pointing juris- those dictions which jury trials have been pеrmitted, either statutes, under holdings actual incidence exceedingly cases, such trials has been low—in most less than percent juvenile cases tried.
Policy arguments are interesting no doubt a concern who people responsible the constitutions under which we function. I do not think they should our bearing material on decision here. The fact is people have declared both federal and state they by jury constitutions hold the of trial essen- system tial to the justice maintenance of criminal punishes only proven guilty beyond those who are reasonable doubt. The jury brings together persons qualifications whose and bias have been examined both who prosecution and defense and have been found accept- by both; 12 persons previous able who have had no expo- alleged sure facts of the case and can therefore approach the with some detachment. Unlike the question inevitably who judge many acquired has tried cases *11 attitudes, a new experi- some settled involved which encounter quite ence different from that its members everyday they the solem- life. Admonished nity duty, they to focus their expected of their can curiosity upon the with an interest and a attention evidence find it difficult to consis- experienced judge tently muster. The the conscience represents may not community, single judgе role which a be able perform. reserved repeatedly people expressly
Because themselves, I think it ill-behooves trial to right own con- to their according withhold that courts to funda- by our right guaranteed It efficacy. ceptions protect documents, duty it our and one which mental preserve. 13.04.021(2) denies to every accused. people belongs have declared holding it unconsti- I would sustain tutional.
Wright JJ., Rosellini, J. Horowitz, concur with April denied 1979. Reconsideration January 45143. En Banc. [No. 1979.] Story, Respondent, v. Delmon Edward R. al, Appellants. Anderson,
L. et