Lead Opinion
This is an appeal by the state of Minnesota from an order of Hennepin County Juvenile Court Judge Lindsay G. Arthur, filed June 6, 1978, vacating his order of May 30, 1978, and reinstating his order filed May 8,
On March 20, 1978, the juvenile court referee found probable cause to believe that defendant had committed several offenses, including two aggravated robberies, aggravated assault, attempted aggravated robbery, possession of a dangerous weapon, assault, and attempted escape from a juvenile center. At the time these offenses were allegedly committed by defendant, he was 14 years old. The record also indicates that, on numerous occasions in the past, defendant was involved in other crimes and offenses and that he had absconded from detention at various times.
At the hearing on the state’s reference motion, sevеral witnesses testified that defendant’s acts were dangerous to the public, but that he is amenable to rehabilitation. The testimony also indicated that because of his young age and tendency to abscond, most existing juvenile rehabilitation programs are not suitable for him. As a consequence, a specially tailored program was proposed whereby he would be placed in a securеd setting for up to 9 months, then would be returned home or put into a transitional facility and monitored a specified minimum number of hours a week for another 6 months. The program as a whole might last for 18 months.
After the hearing, the referee concluded that defendant is prone to aggressive, violent offenses and is a runner; however, feasible combined programs exist for successfully treating the defendant, while prоviding adequate protective safeguards for public safety. As a result, the referee determined that the motion for reference should be denied.
The juvenile court judge approved the reсommendation, and the order was filed on May 8th. The prosecution then appealed to the juvenile court judge to set aside those findings, which he did on May 30th and which resulted in an order that the defendant be tried as an adult. Defendant then requested an opportunity and was allowed to present oral argument. On June 2,1978, after the oral argument but before a decision was made, this court decided In re Welfare of C. W. S.,
The questions presented on appeal are:
1. Does this court lack jurisdiction to hear this case because the state failed to appeal to this court within 30 days from the filing of the order of the juvenile court judge approving the referee’s findings аnd recommendation?
2. Was the referee’s denial of the reference motion clearly erroneous?
Defendant raises the threshold issue that this appeal must be dismissed as untimely because the stаte failed to appeal within 30 days after the filing on May 8th of the juvenile court judge’s order approving the recommendation to deny the reference motion.
The C. W. S. case, relevant statutes, and Rules of Civil Appellate Procedure are instructive in resolving this issue. In C. W. S., the state appealed to the juvenile court judge before he entered a final order concerning the referee’s findings and rеcommendation to dismiss the petition to have the juvenile declared a delinquent. This court granted the juvenile’s request for a writ of prohibition, concluding that the state had no authority to request the juvenilе court judge to review the referee’s determination.
Minn.St. 260.031, subd. 4, provides:
“The minor and his parents, guardians, or custodians are entitled to a hearing by the judge of the juvenile court if, within three days after receiving notice of the findings of the referee, thеy file a request with the court for a hearing. The court may allow such a hearing at any time.”
Since the state is not among those statutorily entitled to a hearing before the juvenile court judge, it could not аppeal to the juvenile court judge. Rather, the state was compelled to rely on the more general provision allowing “persons aggrieved” to appeal the juvenile court’s final оrder to this court.
Under Minn.St. 260.291, the state must appeal to this court within 30 days after the filing of the appealable order. The time for appealing commenced on May 8, 1976. The stаte appealed on June 15th, about a week after the time for appealing had expired.
Under the Rules of Civil Appellate Procedure, Rule 102 permits this court to suspend the rules for “good cause,” but it excepts from that prerogative Rule 126.02. The latter deals with the extension or limitation of time and appears to control here. It provides:
“The Supreme Court for good cause shоwn may by order extend or shorten the time prescribed by these rules or by its order for doing any act, and may permit an act to be done after the expiration of such time if the failure to act was excusable under the circumstances; but the Supreme Court may not extend or shorten the time for service of a notice of appeal or the time prescribed by law for securing a review of an order of an administrative agency, bоard, commission or officer, except as specifically authorized by law.” (Italics supplied.)
Thus, based on the C. W. S. case, relevant statutory provisions, and the Rules of Civil Appellate Procedure, we declinе to accept jurisdiction in this situation.
Although we do not accept jurisdiction here because the appeal was not timely, we want to indicate our position concerning limitations on this cоurt’s jurisdiction to hear cases and to express our concern over the state’s inability to appeal to the juvenile court from the referee’s findings and recommendation.
We seriously question whеthér this court’s jurisdiction to hear suits on appeal may be denied by the legislature. The Judiciary Article of the Minnesota Constitution, art. 6, § 2, states, in part:
“ * * * [The Supreme Court] shail have original jurisdiction in such remedial cases as may be presсribed by law, and appellate jurisdiction in all cases, but there shall be no trial by jury in said court.” (Italics supplied.)
In In re Appeal of O’Rourke,
“They plainly do not hold, in any event, that the legislature may by regulation dеny to this court its constitutionally independent appellate authority to review*337 whatever this court deems mandated in the interests of justice.”2 300 Minn. 175 ,220 N.W.2d 821 .
We affirm our right to take jurisdiction in those situations where in the interеsts of justice the merits should be heard. Thus, although the relevant statutory provisions, case law, or Rules of Civil Appellate Procedure might otherwise preclude appellate review becausе the appeal is not timely, we nevertheless could accept jurisdiction if the interests of justice so warrant. Based on the record and arguments of counsel, we believe that the interests of justiсe do not warrant our accepting jurisdiction here.
We also want to express our concern respecting the state’s inability to appeal to the juvenile court judge from the referee’s determinations. Under Minn.St. 260.031, subd. 4, only the minor and certain specified others are entitled to a hearing by the juvenile court judge on the referee’s recommendation; the statute does not entitle the state to such a hearing. This is troubling in part because the referee’s conclusions are only advisory until confirmed by an order of the juvenile court. See, Minn.St. 260.031, subd. 5. Similarly, after the juvenile court’s final order confirming the dеtermination of the referee, the state is without power to seek rehearing in juvenile court. Expediency and the need to conserve the time of this court dictate that the state should have the right to request that the juvenile court judge review both the recommendation of the referee and the juvene court’s confirmation of that recommendation. Given these compelling justifications, wе believe the legislature should consider amending the statute.
Appeal dismissed.
Notes
. Minn.St. 260.291, subd. 1, states in part: “An appeal may be taken by the aggrieved person from a final order affecting a substantial right of the aggrieved persоn, including but not limited to an order adjudging a child to be dependent, neglected, neglected and in foster care, delinquent, or a juvenile traffic offender. The appeal shall be taken within 30 days of the filing of the appealable order.”
. We noted by way of footnote but expressed no view concerning whether the legislature may create a substantive right by statute and, as part of that right, circumscribе the adjudication of the right more narrowly than in other cases, subject to due process. In re Appeal of O’Rourke,
Concurrence Opinion
(concurring specialty)-
Although I dissented in the controlling case of In re Welfare of C. W. S.,
Concurrence Opinion
(concurring specialty).
I join in the specialty concurring opinion of Justice Peterson for the same reasons.