Wolf v. State

from the contract itself unless that docu- P.2d 1011 ambiguous ment is . . . 92 Idaho at In the Matter of the Interest of Steven 532, 446 P.2d at 901. See also Commercial Wolf, years age. child under 18 Corp. Credit v. Equip- ChisholmBros. Farm ment, 194, 96 Idaho (1974); 525 P.2d 976 WOLF, Appellant, Steven Pocatello, v. City Parks 91 Idaho P.2d 683 v. Idaho, Respondent. The STATE of

An examination of the contract in volved here and the por uncontroverted parties’

tions of the affidavits reveals an Rory In the Matter of the Interest of intent to parties, benefit a class of third Brooks, a child under 18 plaintiff which this is a member. There age. fore, the district court in granting erred which, defendant’s motion to dismiss be BROOKS, Rory Appellant, parties’ cause of the submission of affida v. vits and their consideration by the district court, was transformed into a motion for Idaho, Respondent. The STATE of 56; summary judgment. 12(b) I.R.C.P. Nos. 12634. Soltman, Cook v. 96 Idaho 525 P.2d 969 (1974). Although plaintiff did not move Supreme Court of Idaho. for a summary judgment, the district court to, empowered was nonetheless grant it. July 1978. Mitchell, University See Idaho State Rehearing Sept. Denied 724, 733, (1976); 552 P.2d Ranches, Shaub, Glenn Dale Inc. v. p. 1029, 1031, 587 n. Miller,

(1972); Wright A. C. & Federal Procedure,

Practice and Civil 2720 case, the circumstances of

Under court should have

district ruled as a matter plaintiff appellant

of law that was a third

party beneficiary of the contract and should granted plaintiff partial summary

judgment on the issue of its allegation of a party beneficiary However,

third contract.

we we emphasize that do not reach here or opinion

express any respect concerning the

issues defendant’s

breach of contract or the extent of recov

ery, any, plaintiff may if to which the

entitled under the terms of the' contract. are factual which the

Those issues district consider, fully they

court did not must

be resolved on remand. rehearing

Petition for denied. BISTLINE, JJ.,

McFADDEN and concur.

SHEPARD, J., DONALDSON, J., C. original

continue to adhere to their opin-

ions. McDevitt, McDevitt,

Charles F. Pursley & Webb, Boise, for appellants. Kidwell,

Wayne Gen., L. Atty. Lynn E. Thomas, Deputy Gen., Atty. Ler- David H. County Boise, oy, Atty., Ada Pros. re- spondent.

SHEPARD, Proceedings, Chief Justice. Juvenile 10 Idaho L.Rev. 153 Note, Age See also Problem is a appeal This consolidated from orders Court, Jurisdiction Juvenile 19 Vand. juvenile jurisdiction waiving as to appel- L.Rev. 837—49 Brooks, juveniles Wolf and who are lants concluded that each had shown an escalat- of committing degree and accused first ing propensity for activity. violent Each The effect the waiver murder. of orders is appellant previous juvenile adjudica- had may prosecute appellants that the State the tions in of record and the interval between We adults. affirm. the murder of which accused they are and Enrico murdered Flory One was on June petitions, the the filing appellants of had 3,1976, at which appellant time Brooks was participated together in two kid- rape and age Wolf years appellant 17 was 15 magistrate nappings. The also concluded age. Appellants charged were that had appellant respond each failed to to requesting that murder. Petitions the with rehabilitation, they emotionally that were juvenile jurisdiction appel- as to waiver mature, mentally they that could not charges in connection with these lants were benefit from facilities available in 9, September Separate filed on 1976. hear- they disrupt Idaho likely and that would to each were had ings appellant on the juveniles the in rehabilitation other those petitions. hearings waiver At each of those facilities. county prosecutor testified the that there alone, appellant magis- As Wolf the to probable cause to believe that ap- the 16-1806(l)(a) trate held that I.C. was in § pellants had committed the murder. The 16- conflict with I.C. 18-216. held Section magistrate § the cross-ex- 1806(l)(a) not did authorize the amine did attach on the determination jurisdiction over a who was be- probable setting, cause in the waiver hence, ages tween of 14 16 at the time of appellants’ permit- counsel was not the he prosecutor. the the act of which is accused. I.C. ted cross-examine however, Thereafter, 18-216, found authorizes the waiver of magistrate § jurisdiction over between cause. 14 ordering and 18. In Findings of fact and conclusions of law jurisdiction appellant over Wolf as a 15 in magistrate separate were entered old, year magistrate held that I.C. waiving juvenile jurisdiction. See orders controlling 18-216 was the statute. The § Gibbs, 908, 94 Idaho 500 209 v. P.2d State magistrate further held that I.C. 16- § magistrate concluded each (1972). The 1806(l)(a) limita- unconstitutional sociopath, anwas anti-social appellant on tion of the district court v. mentally incompetent. See State Const., 20; 5, relying Idaho Art. State § Powers, (1975), 96 Idaho 537 P.2d 1369 v. Idaho P.2d Lindsey, 78 300 491 denied, 423 96 S.Ct. 47 cert. U.S. 13; (1956); Const., Idaho Art. § Linn, (1976); 99 v. L.Ed.2d State 486 P.2d McCoy, State v. Idaho White, (1969); magis Idaho P.2d prognosis magistrate waiving for Those orders of the trate also concluded juvenile jurisdiction appealed were appellants was of each of the improvement mer- reaching district Without unsatisfactory the condition of court. and that its, court remanded the cause likely the district appellants would continue each of light of an inter- rendering proceedings for further appel beyond the of 21 between Idaho and Cali- beyond agreement state public dangerous lants transfer providing rehabilitative fornia jurisdiction for Juvenile age. juvenile treatment juveniles to California per when the terminates law treatment original magistrate’s orders facilities. I.C. 16-1805. See reaches son lack of ade- predicated part on the Schroeder, were Enforce Developments pro- in Idaho which quate facilities Standards of Parental and State ment security impliedly repealed both the maximum in which to vide extent that it was juveniles pro- violent and treatment confine inconsistent I.C. 18-216 and thus gave promise a realistic grams appellant waiver of as to Wolf juveniles. of such Under was the rehabilitation affirmed. agreement, the facilities in

the interstate From the decisions of the district court juveniles to which Idaho could be California affirming orders waiving ju- security offer both maximum transferred jurisdiction, venile appeals these result. ju- treatment for violent confinement and appellant assigns Each as error magis- veniles. ruling trate’s permitting prosecutor testify as to the existence of Following remand district being subject to cross-examination. court, magistrate considered that alter appellant assigns Each also as error original native but reaffirmed his waiver of alleged failure magistrate’s division gave jurisdiction orders and two reasons of the recognize district court to appel- magistrate emphasized therefor. lants have a to rehabilitative treat- appellants’ unsatisfactory prognosis for re juveniles. ment as Each appellant assigns and the probability they habilitation the order waiving juvenile jurisdiction as dangerous beyond remain of 21 at Appellant error. Wolf asserts the order they which time would be released from waiving juvenile jurisdiction as to himself juvenile confinement. Additionally, as erroneous since he was 15 at the time of magistrate expressed concern that Califor alleged murder. Finally, Wolf assigns to accept appellants, nia could refuse magistrate’s as error the grant refusal to a return them to days could Idaho on 15 continuance so he might seek a writ of agreement notice or cancel the entire on 30 prohibition in the district court which would notice. days Should of these contin prohibit magistrate from conducting occur, gencies problem inadequa of the proceedings. the waiver juvenile of Idaho cy again facilities would YRA, posed. We note that under the I. 16-1806(7), juvenile jurisdiction once I.C. § exercised, longer it is no possible is to trans We question turn first to the juvenile fer prosecution. adult necessity finding probable cause as an Gibbs, supra. juvenile Once a ad element of the hearing. While a made, judication is jeopardy double at jurisdictions number of require do proba a preclude taches to adult criminal prosecu finding conjunction ble cause with the Jones, Breed v. 421 tion. U.S. process, Rudstein, S.Ct. waiver Jeopardy Double (1975). 44 L.Ed.2d 346 Therefore it is in Juvenile Proceedings, 14 William Mary& possible juvenile L.Rev., to commit a (1972), Idaho does not. and. the event that fails then unique We are not position. our Breed v. jurisdiction. Jones, transfer him to adult n.16, Whiteb U.S. 95 S.Ct. Batey, read & Transfer Between (1975). Courts: 44 L.Ed.2d 346 As to a distinction Proposals of the Juvenile Justice requirement Standards on the showing probable Project, offenses, 63 Va.L.Rev. cause depending upon type of see Institute of Judicial Administration and magistrate From those orders of the reaf- American Bar Ass’n Joint Comm’n on Juve juve- firming previous waiving orders Standards, nile Justice Transfer Between jurisdiction, appeals nile were taken to the 2.2(A)(1) Courts (Proposed 1976). Draft § district court. The district court affirmed appellant as to in a opinion. Brooks brief probable The function of a cause determi- appel- The district court also affirmed as to nation at stage the waiver is not clear. It Wolf, doing rejected lant in so appear duplicitous would even to be since a magistrate’s constitutional conclusions re- prompt will receive a determina- Rather, garding I.C. 16-1806. the district question tion of that regardless of how the court found that I.C. 16-1806 had been waiver might issue be resolved. When a (footnote 420 U.S. at jurisdiction, an adult 95 S.Ct. waives juvenile court omitted). hear- preliminary conduct a must still deter- cause must be probable at which by the standard of Ger- Measured hand, if the 51. On other mined. I.C.R. proceedings magistrate before the stein not order court does constitutionally the instant case were waived, cause determination probable by sufficient. The determination to whether juvenile court as made probable was the existence of juvenile petition. on the proceed and how to justify cause to transfer to the court. adult While considera- 17 and 20. various I.J.R. That could be on hear determination based incorpora- arguably militate tions say and need tested not be cross-exami cause standard at probable tion Note, Sending nation confrontation. required by hearing, such .is Accused to an Juvenile Adult Criminal or federal constitutions. either Analysis, A Due Process 42 Brook Court: lyn L.Rev. however, argued, It note, magistrate did in fact make We parenthetically, that sec 16-1806, proba 8(b) case inquiry in this and found tion the new I.C. § cause legislature, mur appellants amended the 1977 authorizes ble cause to believe consider “whether the Whether or not a court to Flory. Enrico dered ag offense was committed in an inquiry constitutionally violent, mandated, gressive, premeditated or wilful consid be contended that manner.” Since this statute was enacted require fundamental fairness erations of Flory, post after the murder of Mr. the ex given opportunity be that accused facto clauses of the Idaho federal con those evi present cross-examine who to prohibit applying stitutions us from it to We against disagree. them. dence caution, however, appeals. We that these more than probable cause did no adju new statute does not authorize an appellants were accused establish that beyond dication or determination of facts The nature of the accusation is of murder. the existence of cause believe to for the court to consider a relevant factor particular that crime committed and deciding jurisdic or not to waive whether particular juvenile that a committed it. It Ferris, 222 P.2d In Kan. 563 tion. re merely authorizes the trial court to consider (1977). Assuming, deciding, but not 1046 aggravation bearing circumstances in as necessary to establish that fact it is that question juvenile jurisdic whether standard, we are not should be A determination tion retained. right, as appellants that had convinced scope exceeds narrow could re asserted, that the witness to confrontation with jeopardy in the sult attachment double inculpated who them es themselves in an plea proceedings and a bar to prosecu cross-examine the nor to murder Jones, v. 421 adult court. Breed U.S. Pugh, in Gerstein v. 420 U.S. As stated tor. 346 44 L.Ed.2d (1975): 95 S.Ct. L.Ed.2d S.Ct. proba is whether The sole issue there II. detaining per cause for the arrested ble This Both proceedings. appellants contend pending son further Rehabilitation Act confers on them a reliably determined Youth issue can be statutory right rehabilitative treatment hearing. The standard to adversary argument juveniles. reject stan We that for arrest. That as (cid:127)the same as unqualified appellants sus have an probable cause believe the dard — juveniles. I.C. a crime —traditional treatment pect §§ has committed by a in a 18-216 make it clear not all chron magistrate has decided ly been juveniles hearsay ological age will receive treatment nonadversary proceeding on pro ap juveniles. has While treatment testimony, written and the Court proof. youthful per- divert grams formal modes are intended to proved these sons dangerous public from association hardened crimi- main if released at thereby nals and abort 21 and incipient interim each likely would tendencies, we supplied disrupt juveniles. the criteria in State rehabilitation of other Gibbs, supported These are supra, cognizance findings v. take of the fact the record. Our decision in young persons Gibbs furnished susceptible that some are not notice that findings of that nature would warrant programs rehabilitation waiver. The magistrate’s findings in themselves, pub- such would not benefit instant case are a blend of the first and they lic be age 21, to which must released at criteria, third but the fact that there was juveniles undergoing or other treatment borrowing from both criteria is not error they and with whom confined. since our decision in Gibbsdoes not demand States, Kent Neither v. United 383 U.S. rigid adherence to an inflexible formula. (1966), S.Ct. 16 L.Ed.2d 84 nor any object is rigidify Our not to the discre- other case to which we have been cited decision; tionary rather, it is to supports appellants’ proposition. absolutist guide the sound exercise that discre- tion in to implement order the legislative III. purpose protect process the waiver Gibbs, supra, In we an infirmity. from constitutional the following guid nounced criteria for the n. n. 500 P.2d at 217 36. ance in determining courts waiv findings adequately er questions: met the criteria of Gibbs and we find no ordinarily Jurisdiction is waived when error. (1) acquired the defendant has such a We turn now appellant Wolf’s degree of emotional or maturity mental assertion that the district court erred in he receptive is not to rehabilitative affirming the waiver order since Wolf was children; designed (2) programs al- less than 16 at the time he immature, though defendant is allegedly committed the argu murder. His has prior disturbance eluded exhaustive ment based on the language of I.C. existing ju- efforts at correction through 16-1806(l)(a) he § asserts forbids the programs; (3) venile or the defendant is prosecution a person of between 14 and 16 treated, be might immature and but the years of age for a crime. difficulty of likely nature to render dangerous public, him to the if released prior statehood, Since to in one form or twenty-one, another, age at or to disrupt legislature the reha- has enacted stat- pro- of other children in utes similar to I.C. 18-201. Until 1972 § bilitation gram prior to his provided: release. These of 18-201 § areas Persons provide capable consensus flexible but definite of committing crimes. jurisdiction. persons —All criteria for waiver of capable Each are of commit- crimes, ting requires criterion that the poten- child’s except those belonging to tial for rehabilitation be evaluated in following classes: 1. Children under present of his state terms of development age years, of fourteen the absence facilities, availability and the of programs proof of clear that at the time of commit- capable and personnel them, of providing ting effec- charged against act they wrongfulness. tive and individualized knew its treatment. (footnotes at Idaho 500 P.2d at 217 Said of I.C. 18-201 was eliminated § § omitted. (see and I.C. was 18-216 enacted Ch. 31 § Sess.Laws)

In the case providing: § instant found of appellants emotionally that each and Criminal juveniles trial of barred —Ex- mentally prognosis mature and that the ceptions Hearing —Jurisdictional —Trans- appellant each under available re- probate fer of defendant to court.—1. A programs habilitation was unsatisfactory. person tried or shall convicted He that each likely also found re- (a) of an offense if at the of time petition after investigation full to the offense charged constitute

conduct hearing, may jurisdiction the court waive (14) years of than fourteen he less the Youth Act of conduct under Rehabilitation over (b) or at the time age; child and order that the child be he was held constitute the offense charged to proceedings (a) when: (14) for adult criminal more than less than fourteen nor to have committed an 1. A child act (17) years age, of unless: seventeen years he or she became sixteen of after jurisdiction no over of this state has be a crime which would if committed age Chapter to Title pursuant him * * * adult; by an Code; having jur- or 2. The court Idaho Chapter Title to pursuant isdiction learned trial court with admirable The Code, waiving Idaho has entered an order stated: restraint consenting institu- legislature apparent It has proceedings against him. tion of criminal doing what grips with it is not come to recognized of legislative history I.C. area and that it has two deem the We in the same field change operating to show an intent to statutes 18-216 § Therefore one must inconsistent. at- law which at times authorized the are common at tempt to arrive a rational conclusion young of a child as prosecution for crime legis- an state of arising out of irrational law years age. common seven age enactment. was that infants under lative rule incapable conclusivelypresumed were seven legislature note further that to date We crime; seven fourteen those between acted to its error and only recognized has rebuttably presumed incapable; and were state of of the irrational remove one-half presumptively capa- were those 14 over has I.C. again since it amended the law 204, p. ble. 43 Infants 528-29. C.J.S. § specify how waiver in 1977 to legislative enactment in effect only as shall be conducted but proceedings to the instant case applicable time of and Rather age. years to a child of fifteen prosecution clearly permitted criminal as an faced in problem be obviously the same years. child over adult as to a be faced in the future this case were requirements placed upon Additional years of age. child of 14 child ability try and convict a over nevertheless, must, bring attempt We of 14 in that “the court resulting from order of the chaos some out pursuant Chapter having jurisdiction statutory the two language the literal Code,” must entered Title the clear intent enactments. We hold that consenting waiving order qf enactment I.C. legislature proceedings. institution of gained 18-216 and its antecedents sought in its wisdom has legislature the mini- was to define language the literal statutory the intent implement to above could be tried for age at which a child mum 14 or the of over be a child of that as if he offense and convicted of criminal has adult if an order been as an prosecuted as 14 specified an adult. That were juvenile jurisdiction and waiving waiving juris- entered if order been entered an has of “criminal consenting to the institution of consenting diction and to the institution by As him. noted the against proceedings” We hold proceedings against him. court, legislation implementing such trial were antecedents 16-1806 its § 1955 and carried first enacted in statutory provi- to implement intended the up the same form to essentially through an error sions of I.C. 18-216 and obvious § case at bar. See at issue the time We reason- agree was committed. with the prior present in its Gardner, 16-1806 Hayes § I.C. v. ing of the trial court that issue in the case at At the time at (1972), forms. recog- 95 Idaho 504 810 P.2d part pertinent provided bar it operative be nized I.C. 18-216 to § within resolving statute in whether child of Waiver and transfer to filing (1) meaning of a of the Youth Rehabilitation After other courts.—

483 Admittedly, specifically be as an adult. district court disagreed Act could tried discrepancy not consider the be- Hayes did ruling magistrate with the of court that pointed two out here statutes tween legislative of enactment I.C. 16-1806 § 17 Hayes the involved was since in legislative constituted an unconstitutional age. years of judicial invasion govern- of branch of holdings ment under the of v. State Lind- holding precise our on the We do not rest sey, (1956) 300 P.2d 491 reasoning of district court wherein he McCoy, v. Idaho the two were in opined that since statutes conflict, We expressing enactment was the best refrain from latest an legislative opinion holding to intent. See Jordan on that guide magistrate Pearce, 429 P.2d 419 rejection Idaho it by of the district The trial court reasoned that since I.C. court. holding Since our is reached on oth- 18-216 enacted in 1972 was latest grounds, unnecessary § er it is to consider and legislative thereby indication of intent and express opinion upon that constitutional provisions repealed conflicting impliedly question. 16-18Q6(l)(a). Being I.C. faced with of § Appellant assigns Wolf as error 16-1806(l)(a) argument that I.C. had § part the refusal on the to thereby became been amended in legislative permit appellant order a continuance statement of intent to the latest resolving prohibition between seek a writ of used in the conflict district be statutes, opined prohibited the two district court which would have the mag the 1976 amendment to I.C. proceeding § istrate from with the waiver age provi- with the had not been concerned hearing. grant The decision to or deny so waiver, only expanding with sions continuance within the sound discretion crimes for which waiver could or- Richardson, the magistrate. State v. agree dered. We with his factual view of (1973) denied, 511 P.2d 263 cert. 1976 amendment of I.C. 16-1806 and 414 U.S. S.Ct. L.Ed.2d 117 point by out buttressed the state- (1974). We note further appellant has purpose legislation ment of attached said no pointed prejudice resulting from the to, legislative which reveals the intent denial the continuance and that an alter amendment, juvenile juris- allow waivers of prohibition sought native writ in this previous- diction for misdemeanors wherein Although Court and denied. the cause is regard were ly waivers allowed stage at the determining validity still alleged felonies. Said of intent statement waiver, proceed order of exhaustive legislative ignorance of the further reveals taken ings place both at the district statutory previously state of the law then court level and here. The record demon it. and Documents enacted See Archives thorough protection strates appellant’s Legislature, Legislative the 1976 Idaho stages vigorous rights all and capa Council, Purpose, Bill Senate Statement presenting many ble counsel and varied ar No. 1421. guments and theories which were thorough stated, agree while we with the As above ly considered the lower courts. characterization of the 1976 district court’s affirmed. Orders 16-1806, legislative of I.C. we amendment See, holding our on that basis. do not rest J., McFADDEN, SCOGGIN, J. Pro State, however, Department of Parks v. Tern., concur. of Water Administra- Department Idaho tion, 440, (1974); 96 Idaho 530 P.2d 924 Justice, DONALDSON, dissenting. Employment Security Agency v. Joint Class part majority I dissent Dist., 384, A School 88 Idaho 400 P.2d 377 ' opinion jurisdiction which allows to be (1965). But also see v. Leonard Constr. Co. waived Wolf. The for defendant ma- Commission, rel. ex State Tax 96 jority two states that there are inconsistent 893, Idaho 539 P.2d 246 484 age juris- amendment was to I.C. was at which 16-1806 and governing §

statutes waived, and then holds that can be effective March 1976. Both before and diction 18-216, jurisdiction to amendment, which allows I.C. after Wolf could not be § Wolf, must control for waived be adult. tried conflict. as legislative history As much can come was at the time the crime Wolf fifteen enactments, from later Immaculate Heart 18-216, in Idaho Code § was committed. School, Mary High Anderson, Inc. v. Code, criminal trial of bars the the Criminal (1974), 526 P.2d 831 the legisla- passed in 1972 This section was juveniles. ture considered I.C. 16-1806 control- § per- the criminal trial of outright and bars ling age statute for the limit for waiver. It also bars the trial fourteen. sons under In 1977 I.C. 16-1806 amended to § through seventeen persons age fourteen for waiver lower the minimum from sixteen has waived the court unless to fifteen. 1977 Idaho Sess.Laws 427. Title 16 of the Idaho Ch. pursuant clear, legislative history is all If the at Code. say the conflict must be resolved to (YRA), Act I.C. Youth Rehabilitation for those permitted waiver was under seq., specifically et addresses that 16-1801 § sixteen. provi- The YRA contains the waiver issue. language reasonably “When which is sus- I.C. 16-1806. Previous to sion in § of two in a ceptible constructions used jurisdiction to be I.C. 16-1806 allowed penal ordinarily law that construction persons for between sixteen and waived which is more favorable the offender years the trial of felo- eighteen adopted.” will be [citations omitted]. 1976 the statute amended nies. In The defendant entitled to benefit limit also deleting eighteen year reasonable doubt as to the true every felony deleting requirement. Ida- interpretation of words or the construc- 821. ho Sess.Laws in a language tion of used statute. be waived in the Wolf Jurisdiction cannot 77, 79, Smith, People v. 44 Cal.2d 279 P.2d Specific statutes several reasons. case for general more statutes. govern over must State, v. Cal.2d Rose I feel the statutes should read Because be specific the more stat- (1942). The YRA is Wolf, over to bar the waiver of jurisdiction. Ida- dealing with ute I do address other issues1 requires waiver to be Code § ho majority opinion which the raises. requirements of pursuant ordered 16-1806, in waiver cannot which case I.C. § BISTLINE, Justice, dissenting. someone under sixteen. be ordered State, v. I. Wolf No. 12633 give effect Statutory construction rules 3,1976, prosecut- September deputy On the legislature. enactment of the latest ing attorney petition filed an amended Pearce, 91 Idaho 429 P.2d 419 v. Jordan Wolf, alleging court1 Steven Davidson, (1967); State child the age under had commit- Sands, (1957); IA generally see C. P.2d 211 Idaho, County, ted an offense within Ada 23.09 Statutory Construction § Sutherland purview within brought which Wolf 1972). legislature In this case (4th ed. (YRA). Act the Youth Rehabilitation previous- issue in the last addressed alleged was murder in the first delet- offense 1976 amendment which ly mentioned 18-4001. The degree, limit. That as defined I.C. eighteen-year-old ed the clarity juvenile jurisdiction, protection, equal For due the court of are also serious 1. There post problems be either the district court or the process, facto with allow and ex thereof, detriment division referred to as construed statute juvenile court. The district court did not exer- defendant Wolf. jurisdiction, appellate. original The cise petition in was filed division. charge offense, laws is a alleged to have been committed formal of the crime was a 3, 1976, trial, and, alleged Wolf to formal if on June and was conviction results trial, juve- punishment with other from the then or in concert three com- acted a adjudicatory pulsory removal for time any hearing, to from contact niles. Prior society. to offenses are denomi- moved the court waive Such the State crimes, nated jurisdiction and Wolf and the offenders are de- pro- order A nominated criminals. Public records are against in criminal court. ceeded made such of events. But from the earli- repre- had which hearing was Wolf est times children of certain ages have by the office of the Public Defender sented been deemed our law to court, incapable be not- County. The of Ada of crime. And in recent times children of withstanding that at the time of Wolf ages certain have been removed from the age, offense was but 15 of alleged provided normal treatments for crimes and that he be ordered waived and criminals. This has part been in an in criminal against as adult proceeded of because a doubt toas the capacity of appeal Wolf’s of the waiver or- court. On children to entertain the vicious will court, order the district der to an which is essential element of crime in appeal this Court and further to affirmed jurisprudence, our greater but much followed. part of because a belief that the interests brought record2 very sparse On the society of are best served by a solicitous Court, we do observe that at time this training care and of those children shown Wolf was then within petition was filed by circumstances be in of need such prior of of the Act reason purview care training. and These concepts in re- alleging that he had committed petitions spect to children have evolved into elabo- offenses, charges of kid- to-wit: two other rate systems procedure. of In the event rape, which and one of forcible napping a child commits an offense against adjudicatory he had admitted in offenses law, the state assumes a position par- hearing on dispositional A these hearings. patriae ens cares the child. Such filing of the charges was held after a one is not crime, accused not tried degree petition, murder instant first crime, for a crime, not convicted of a Department committed to the Wolf was criminal, deemed be a punished Welfare, locally Health and detained so criminal, public and no is record made proceed- as to available for alleged his offense. In he effect ing, outcome of which is now before us. exempt from the criminal law. appeal on It is Wolf’s contention system Such a for child offenders is trying the State from him age precludes his provided by our Juvenile Court Act. alleged of Enri- as an for the murder adult That applies persons act eigh- under stated, Flory. Conversely co he insists teen years that, of age. provides It requires processed he be as a any person whenever gives an officer of Act, purview within the the Juvenile Court information that a helped, to be that he must be treated and child is within act, the provisions of the eventually, reaching years, on investigation shall be a “pe- made and any all constraints which released tition”, warranted, if filed. Summons applied any him for might otherwise be person issued to the having custody of of Enri- implication established death the child. The child be taken and philosophy co A reminder Flory. kept custody by the Board Public brought helpful: about Act which Hearing pub- Welfare. is had but not by our provided normal treatment lic. court may place child on against probation offenders its him society commit to the Board of arguments record is not furnished with of counsel 2. This Court statements place proceedings appeal presentation took at the waiver the court district transcript hearing. We have been furnished court. 486 charge the parental duty named Welfare or to certain and to direct his

Public schools, disposition custody and assume his “Make such further restraint. law may provided by child as of the 120, 126, Sharp, 563, In re 15 Idaho 96 P. deem to be best may as the court and Gibbs, 564 See also 94 of the child.” the best interests 908, 912, (1972); 500 P.2d 213 Court, 47, Hewlett v. Probate States, U.S.App.D.C. v. United Pee (1959) (foot- 49-50, 274 F.2d omitted).3 legislature ment was because passed is not statute confers “the 18-216 § criminal has its jurisdiction only recognized on our courts. error and acted to juvenile contrary, entirely prohibitive it the remove one-half irrational state of On nature, barring any jurisdiction majority such in rec- the law.” The then proceeds to ognition of deference to the exclusive render the 1977 enactment a nullity by placed jurisdiction juvenile holding in the courts. that the minimum age has always 16, and not legisla- been 14 as the 26 parallels The California Penal Code § supposed ture mistakenly adopted when it in declaring that children over I.C. § the 1977 amendment attempting to lower capable committing presumed 14 are By that age to 15. so an construing enact- Nonetheless, the California crimes. Su- ment legislature, of the Idaho the Court juvenile has ruled that the preme Court turns its back “the principle cardinal juris- state courts of that retain exclusive provision that a statutory will not be de- ages children the diction over between of 14 prived reasonable, potency of its if a alter- and 16: possible.” native construction State v. court exclusive juvenile exercises Gibbs, 908, 911, 209, 94 Idaho 212 with all jurisdiction respect to minors un- (1972). 16; age may der the not transfer I would juvenile hold the court and (In to an court. such a case adult re the district concluding court erred in R., 855, supra, Gladys 1 Cal.3d 83 juvenile jurisdiction over year the 15 old Cal.Rptr. 127). If P.2d a minor Wolf could be waived in I see no age, is 16 or the court contention, merit in the State’s successfully jurisdiction, still exclusive original retains court, made in that I.C. 16- case may some under circum- 1806 is an judi- unconstitutional invasion stances be transferred adult court. powers. cial not the Had State raised such Superior City T. N. v.G. Court of & Co. of a contention its juve- effort to Francisco, 767, 783, San Cal.3d 94 Cal. fly nile court in the face of a clear Rptr. P.2d legislative prohibition against waiving its ignoring It is clear intent of jurisdiction, controversy this whole as to legislature indeed, only by Idaho hold- — which statute should control would not have body ing that to be in “error” —that developed present into its pro- unwarranted majority able to reach a different conclu- portions. case. Clearly, legislature sion in this prior decisions of this have Court has told the criminal of this courts state to age assumed that provisions of I.C. keep juveniles hands off all under age wholly § 16-1806 are controlling as when clear, years. Equally they of 14 are to may waive its exclusive juveniles maintain hands off over age jurisdiction. Hayes Gardner, v. they of 14 unless are presented with an 137, 504 (1972); Gibbs, P.2d 810 State v. order from the whereby 500 P.2d 209 In addition latter court’s pursu- is waived to this authority, I would hold provisions ant to the of I.C. 16-1806. It is juvenile court’s order waiving its exclusive legislature true that could have easily Wolf over cannot stand because prosecutions barred criminal against ju- all procedural process failure of due 18; just veniles under it could as easily issue, the trial on that for the reasons set have permitted prosecutions forth in my dissent in companion case against anyone over 14. It chose neither of Brooks v. State. but, instead, course left degree a desirable flexibility minimum at which I suggested, success, also might ordered. In that age that although argued these two cases were legislature was 16. In saw fit to Court, at the same time such lower the minimum waiver to 15 years. sum total of the consolidation which was According to the majority, the 1977 amend- then ordered and is not now appropriate. Wolf, nor of the fact explains my filing separate of two Steven This separate The is- first opinions petition charging degree in two actions. Brooks with yet juveniles sues are not at all identical. two other murder named murder, which other charged in the same State, No. 12634 II. Brooks juveniles may two not also have represented by public defender.4 been 3,1976, deputy prosecut- September On petition an amended ing attorney filed appeared Brooks was detained Brooks, alleging Rory that a juvenile court again court before the on counsel years, of 18 had com- child under the September 1976. The appointed day, the County, an offense within Ada mitted and, objection, sought prosecution alleged brought offense Brooks with- which peti- on the obtained continuance purview in the of the Youth Rehabilitation the four grounds tion on the that one of offense was murder Act. The only recently re- juveniles charged had degree, allegedly by committed the first counsel, “plea negotiations tained and others, juveniles, all on Brooks and three The court underway are in the matter.” already Brooks was under June 1976. hear- dispositional with the proceeded then the court at the the of rape petitions. ing kidnapping on the petition was degree time the first murder brought record hearing part This is a filed, having adjudicatory hearing at an considered as up appeal on and cannot be charged petitions to two which admitted of fact that it took irrelevant in view charge and one of kidnapping him with pre- very judge who place before the same these dispositional hearing on rape. His eight days la- hearing at the waiver sided been heard at petitions yet had not latter ter. peti- murder filing time of the the rec- The court asked for and received (degree murder Mention of the first tion. officer, probation of Brooks’ ommendations with a in connection petition was made on previously worked with Brooks who had that he for Brooks motion of then counsel prior to his probation a six-month informal Apparently allowed to withdraw. be rape, and kidnapping, involvement in the private hired counsel of Brooks had mother period on the of petitions. murder Based funds, when stating so run out of and had probation only, impression her the informal autho- asked her. The court Her was that Brooks “is rehabilitatable.” of Brooks’ counsel the withdrawal rized was: recommendation statement the mother’s requested. On of custody That he be turned over to the get together have to she would Welfare with the recommen- Health and defender, of the firm then a member public placed appropriate he in an dation that be being present, contract having that help institution that could care for of the moth- indigency established court him with whatever needs he seems public defender to be appointed the er and strongly time. I would rec- have at this A continuance was Brooks. counsel placed ommend that he not be allow the firm member in order to granted place as Wolf. I feel that same Steve familiar with the to become present then would rehabilitation there be no at all on was not consulted Brooks case. placed together. were Rory’s part they if counsel. Nor does the of appointment probation The court’s file contained part concern on the of reflect record report reports of Dr. Ei- court, attorney, or of officer’s prosecuting senbeiss, Hey-, and of Dr. counsel, psychologist, the office of appointed newly rend, psychiatrist, reports which were ar- already represent- defender was public issue, though Concededly any not an the Court should not be has not conflict in interest obvious, appeal. It and such awareness on this oblivious raised as an issue been intensify diligence perus- however, seem, our coun- should at least that assistance of charge impaired in connection with the claims greatly the record where could be sel multiple. error which have been made. are Even and the accused is murder resulting defense dice prosecution yet gued change another making their recommendations to counsel counsel. court concluded that Brooks court. The appeal decision simply that a Department with the placed should review adequately record demon- transported to the and Welfare and Health strated that the findings Anthony, Training Center at St. un- Youth Brooks should stand trial adult were September, were by the 27th he less supported by the evidence. toAs the error insti- placed by Health Welfare some assigned in the presentation testimo- outside Idaho. In view of the tution ny prosecutor, of the deputy I however, hearing, Brooks pending have briefly above, alluded the district ordered to remain at the Ada County court held: jail. As announced the time Septem- The waiver was held on argument oral was held on the appeal, probation again ber 23. officer testi- the method used to prosecutive show as the witness called on fied behalf of merit necessary meets standards. present- prosecuting attorney Brooks. The On Court, further appeal to this Brooks testimony of

ed the Doctors Eisenbeiss and pursues assignment the same of error: subjected who were to cross-ex- Heyrend, by counsel for Brooks. A county amination The Juvenile Court in erred not allow- official, witness, prosecution called as a tes- ing the Sixth right Amendment con- Department the of Health tified and right frontation and of cross-examination the type lacked of facilities which Welfare respect probable issue of required believed in the doctors were order cause and the merit of the peti- State’s treat only to confine and Brooks. The oth-' tion alleging Murder in Degree the First deputy prosecut- er witness called was the and the District Court failing erred in ing attorney presenting then and there the recognize such error. against case Brooks. His testimony, admit- This assignment of error is aof most seri- objection ted over and with no cross-exami- and, ous sustained, nature if necessitates a permitted, nation went to the issue the reversal of the waiver order. Such claim of prosecutive charges merit of the the peti- in error procedure flows from the the tion. The court concluded that Brooks juvenile court authorized in the allowing benefit, not nor public, by could could the deputy prosecuting attorney to at testify him, retaining juvenile jurisdiction over and and in de- precluding stated that would be waived. fense any counsel from cross-examination. fact, Findings of conclusions lawof and exacting An procedure review of that 30, 1976, were order entered on November in prosecution’s order. At the close of the waiving and (cid:127) presentation at the waiver hearing, relinquishing Brooks “to adult criminal prosecution moved follows: proceedings.” further ap- Brooks Honor, Your at this time the State would pealed the waiver decision to the district have would, no further witnesses. We court, argument presented where on again, under provided citations in 12, 1977, with April the court announcing Kent vs. The United States pro- entry that would sustain the of the waiv- posed Idaho Juvenile Rules the Idaho opinion er order. A written followed on Rules of Criminal Procedure Ju- and the 2, 1977. In the May interim between the they venile Rules as are now in the Idaho of the waiver entry order and the district Statute and the statutes it, concerning again expe- court’s affirmance of Brooks YRA, we a would move to have change myself rienced of counsel when the office in sworn the nature of public probable defender was contract let out a cause proceeding different Again, prosecutive to a firm. record does merit for the any not indicate' concern as to Brooks’ seriousness of crime and for— matter the possible preju- wishes or whether crime is of personal a or —of personal than it is proper- a nature rather don’t feel to cross examine is crime was ty committed available. probable This cause hearing —whether aggressive violent and wilful manner. being conducted at this today time here being made part the record response evidenced that a simi- court’s proceeding, of this being conducted approved had request lar been made juvenile’s here with both the counsel and previous day the Wolf waiver hear- present court. So I feel at ing: this time again the Court will rule that at then, right, All I’ll THE COURT: this time sufficient cause has ruling on that matter I make the same petition been shown for the that has al- The Court will yesterday. made conduct ready Court, been filed with the then, portion hearing, this as a being petition the amended of September type hearing. 3rd, 1976. And Court will permit sworn, what prosecutor fol- cross examination of the Prosecuting testimony: totality lows is the Attorney point. time, Honor, your At this At the outset there appear does not to be complaint petition propose a any reason why prosecutor should upon against Rory Brooks based elected to follow such a questionable proce- co-conspirators; of two one statements dure. The district court made almost that present at the time of the al- who was same observation: and one who was in the leged offense I was frankly by troubled the fact that part in that immediate area took attorney in the case testified it. I in- activity. Those statements poor think that is a—is a procedure and Rory wilfully plan- Brooks as criminate one which not should—should occur in the robbery and death of Enrico ning the type future. It the is of situation where being by plac- The death caused Flory. first an attorney testify should not in a Mr. face Flory’s pillow over lawsuit he’s handling that normally. him. The motive for the asphyxiating second, And in this there’s nothing case as was mon- robbery alleged and murder peculiarly known that attorney from were taken that ey; certain monies not been presented by could have County. in Ada That this Boise residence if investigating officer. But even it were in a the four wilful manner done raised, I think don’t it would be—would in the statements juveniles incriminated reversal; constitute a basis for and as alleged to and was co-conspirators indicated, problem you’ve is not with 3rd, 1976. At on June happened that; is procedure with the itself. Honor, time, your in point rest, ques- are further if there no prosecutor was to testify Yet the allowed as Court. said, tions to what others had absent their state- ments, any and absent reason whatever for objection his both to counsel voiced Defense producing the makers those state- usurpation of the role of prosecutor’s ments. court’s refusal allow witnesses and the clearly and The court

cross-examination. inquiry, mandated the above as- Our which had succinctly stated the reasons error, signment of concerns whether this which the chal- ruling allowed prompted procedure complied with the statutes of lenged procedure: hearing Idaho which such waiver it violated stat- ruling regulated, on this whether those the same going

I’m make accepted stan- utes and the constitutional in other yesterday as I did matter fair- right procedural process due Certainly the dards hearing. waiver State, resisting in this appeal, vital is ness. The is not cross-examination majority does the the United does contend—as the Idaho and granted by both However, hearing opinion probable no cause States constitutions. —that waiving a juvenile before required I stage proceeding, probable cause In By recognizing arguing, court. contrary, prob- thus no into finding cause able probable required cause the need for a determination is at a Idaho, hearing, hearing majority of a waiver waiver opin- essential element itself more in tune with the states: shows ion the State does in this area than developing law probable The function of a determi- cause Supreme As the opinion. Alaska majority stage nation at the waiver is not clear. has stated: Court appear It duplicitous would even to be waiver, court juvenile the children’s since a will receive a justify prompt To find, evidence, question regardless on sufficient determination of that judge must cause is established at the of how “probable might issue be re- believing that the child com- solved. hearing for charged he was act which

mitted the short, In majority per- because what the committed by and which if petition judicial ceives as economy, juvenile can be crime and the would constitute a an adult waived any into adult deter- pro- amendable to treatment child is not having mination ever been made as to . youth .” vided under [Alaska’s act] whether committed, a crime has even been omitted] [Citation much less there cause to State, 504 P.2d P. H. v. believe it. committed The ma- v. District of Fourth Lujan Court jority Accord sees no need for court to District, 161 Mont. duplicate Judicial State, B. 549 P.2d 94 (1973); D. G. will receive after waiver— manner, (Okl.Cr.1976). In like A.B.A. in adult court. Project, Standards its Juvenile Justice The notion that judicial considerations of entitled, document Stan- recently released economy prevail juvenile’s can over the to Transfer Between Courts Relating dards process to due soundly rejected Standards) states (hereinafter cited Jones, Breed v. 421 U.S. 95 S.Ct. essential findings” which are “necessary 1779, 1789, (1975): 44 L.Ed.2d 346 hearing: To the extent evidence concerning Necessary findings 2.2 relevant, offense is considered waive its A. The should that, it may be in those cases where finding: upon rejected, transfer is considered and some exists to probable 1. that cause be- added burden will be imposed juve- in the juvenile lieve has committed the that nile by courts reason of duplicative pro- juvenile class one offense in the ceedings. petition; and Moreover, judicial of considerations by clear convincing 2. and evi- economy actually weigh heavily in favor of juvenile proper person dence the is not a providing probable a cause determination at juvenile be court.5 handled hearing. the waiver The A.B.A. was faced accompanying the with a proposal juvenile The official comment that the court sim- logic require- ply basic prosecutor’s text notes the “assume the allega- factual tions,” question ment: and “only address of juvenile whether proper person a is a for juvenile in of presumption The favor juvenile handling.” rejected court It be jurisdiction should overcome proposal on precisely grounds judicial of juvenile cases. A only in extreme economy: against probable whom cause cannot be not be considered an ex- procedure

found should Such a would lead wasted juvenile treme case. effort. into a Inquiry whether is offense,” juvenile impris- is 5. A “class one defined in sentence for adults or would be death Delinquency twenty the Juvenile and Sanctions vol- onment for life a term in excess Project years. ume of Justice the Juvenile Standards offense for as a criminal which maximum cern in the proper person court han- instant cause not is with pre-tri-' thorough al dling must be careful and to be detention. Today our concern is with a meaningful. inquiry juvenile’s objection That is useless if to lack of procedural probable cause will bar subse- due process picked lack of when he is from the proceeding, ju- whether criminal or quent delinquents, ranks of placed to be important economy is an trial for his very venile. Judicial life. very Gerstein has likely is little objective. application Probable cause to be in this case.7 in all proceedings juve- in waiver factor argument State, and of courts, applicable regardless nile too, Brooks, must be light considered in statutory provisions. holdings of the United Supreme States Standards, Commentary Court, v. supra, States, in Kent Standards United 383 U.S. .6 (1966) 2.2 86 S.Ct. 16 L.Ed.2d 84 and Jones, Breed v. 421 U.S. 95 S.Ct. above, As mentioned it (1975), 44 L.Ed.2d 346 holding and the contention that cause State’s Gibbs, this Court v. State within an requirement dispensed could 500 P.2d 209 This Court is Rather, hearing. waiver decisions, prior overruled, bound its until procedure adopted at the maintains that surely by applicable it is bound deci- requirement: hearing satisfied Supreme sions of Court the United (prosecu- position It was the the State States, cannot overrule. tor) hearings repeated at on the both some place The State does reliance on hearings sworn record in both Kent, saying that “a careful review of that prosecuting attorney statement case suggests that no confrontation concerning prosecutive merit enunciated that case.” This is not at will be upon what based remarkable, all as that was there an safeguards for the un- sufficient process issue. due issue there was a used in the process der hearing claim was invalid (Emphasis supplied) in this case. hearing, there had in fact been because no urges prosecutor’s posi- that the The State representation by counsel ren- had been Pugh, supported by Gerstein tion dered ineffective. As set forth (1975), 43 L.Ed.2d U.S. 95 S.Ct. brief, the Supreme State’s in Kent Court particular, the statement therein did say: to “adhere that Court continue whether, We do not consider on the mer- judicial that a prior holding the Court’s transferred; its, Kent should have'been prerequisite prosecution not a ” place system but there is no in our of law by information. U.S. at S.Ct. reaching a result of such tremendous true, supplied) It is (Emphasis consequences ceremony majori- notes and as the —without properly the State hearing, without effective assistance of Gerstein stands also for acknowledges ty counsel, without a statement of reasons. showing proposition, States, 554, 86 justify pre-trial to deten- Kent v. United 383 at sufficient U.S. cause product regard of an 1053. With be the adver- S.Ct. at the waiver need not tion itself, Supreme hearing one in which strict rules of Court went on hearing nor sary However, our con- to say: observed. evidence are prosecutor po- practical when the can lead to tive inflate the Additional considerations hearing charge jeopardizing that the waiver itself tential the conclusion determining probable Forcing proper the case bargain waiver. forum charged: regard precise crime under such circumstances is unfair. cause with Id. finding Requiring at hearing encourages reliable factual waiver 7. See our in Struve v. discussion Gerstein prosecutor. prosecutori- allegations by A Wilcox, (1978), P.2d 99 Idaho 579 1188 overreaching plea al tactic for State, 24 and Jacobsen 99 Idaho 577 P.2d bargaining treatment as an is to threaten particularly effec- adult. That threat can investigation hearing” pri- duct “a full by not mean

We do indicate Gibbs, jurisdiction. hearing waiving or to to be held must conform provision 215. This requirements all of the of a criminal trial at at was then silent as to what or even of the usual administrative hear- the Idaho Code investigational hearing was re- ing; hearing type but we do hold that direction, quired.8 of due For this Court immedi- up must measure to the essentials Supreme where the ately and fair treatment. Pee v. Unit- turned to Kent process States, 47, 50, 274 Court had also a statute which U.S.App.D.C. ed addressed jurisdic- in which states “the circumstances F.2d fore this Court which followed close on the heels of required allel been construed in (Supp.IV, D.C.Code added.) Id. fense which if committed amount punishable by waive tion of such offenses held for trial under the adult. The Idaho Code then der a child held for criminal The court prior over is adult, which would be a Procedural due an adult. after when: at If a child sixteen a. a child sixteen 16-1806 —Transfer charged Washington, D. C. judge may, hearing or jurisdiction and order such child us to full court which would have 1965). jurisdiction provisions. to a having 11-914, (1961) (Emphasis added.) with an offense investigation pass upon death or life S.Ct. was likewise the felony child in Gibbs. That to have committed an act waive (Emphasis added.) Kent, provides: after full process felony become years at 1057. charged ^[16] if to other courts. —1. provided: in the case of an statute, regular procedure Idaho’s committed if committed now 11-1553 years at a imprisonment, eighteen investigation, which would with an of- proceedings an adult is which had (Emphasis statutory issue be- decision, jurisdic- or older and or- Kent, par- ^[18] required to be “read in the context of con- stitutional preme Court stated that due concluded that which to reach a waiver decision. and the assistance of counsel.” Id. at cient to that it assumed statute tion tended to have considerable latitude within McQuade wrote for this Court state standards trial Court’s S.Ct. at 1053. At another Supreme Court’s authoritative construction trict determining vitally important ty-first birthday; but if convicted in dis- diction is a statutory rights With Kent well in tative care and treatment until his twen- under Y.R.A. Gary might have nile rather than as an adult. dispositions reveals teen tant Court declared that “the waiver two S.Ct. In Kent v. United States the Supreme process may under charges. court he decision as to waiver.” 383 S.Ct. at 1055. satisfy be waived and the child held for principles relating adult is that to treatment as a and fairness.” allowed in the penitentiary on each of at 1050. The ‘critically important’ juvenile.” procedural regularity “the basic requirements of might This difference procedures, been govern efficacy only by that the mind, be sentenced to fif- subject the statute was Supreme place, but it does not Id. at to due court was in- Chief Justice in this magistrate’s most to rehabili- If retained in Gibbs: Still, Juvenile the Su- possible process U.S. impor- action Court suffi- juris- juve- case, Gibbs, Court, speaking In a unanimous decision to waive in this case McQuade, through Chief Justice embraced “critically was important” in the sense principles the of law enunciated in Kent. by Supreme denoted Court. As ex- First, observed that pressed Kent, Gibbs Court I.C. in such a decision must requires to con- culminate from proceedings § which “satis- amended, Laws,

8. It has since been 1977 Idaho Sess. ch. 165. fy requirements process basic of due Court in Gibbs pains was at to caution that * * * fairness, well as as hearing adjudicatory should take place statutory requirement investiga- of a ‘full being where waiver was sought thereby— ” foreseeing tion.’ Supreme result the U. S. Jones, Court was to in reach Breed v. supra, Id., at (Em- Idaho 500 P.2d at 215. namely, that jeopardy attaches once such a short, added.) it responsi- In is the phasis hearing place takes assumed, Court courts, —the bility of state course, a matter of proper that the function discretionary waiver when statutes juvenile was to reach a “deter- respective jurisdictions subject- are their public mination of whether a offense had challenge, constitutional fashion ed to [to] been committed and there whether controlling criteria. probable cause to believe Gary com- [Gibbs] 916,500 at 217. The necessity Id. at P.2d it.” mitted Id. at P.2d at 215. construction in to an authoritative order a affording Without such minimum of due validity sparsely of our preserve worded process, the Gibbs court could not up- was so obvious that it was waiver statute constitutionality held the of what was then recognition: accorded but footnote I.C. 16-1806. § object rigidify is not to the discre- Our (1) The remaining issues are two: Does decision; rather, tionary waiver is to procedural due process right include the in guide the sound exercise of discre- to demand testimony legislative implement order tion in to at hearing a waiver come from first-hand process the waiver purpose protect and to witnesses or may hearsay it be the recapitu- infirmity. constitutional lation of a deputy prosecuting attorney; (Emphasis added.) The clear and Id. n.36. (2) if the latter is acceptable, then is holding of Gibbs is identical to unequivocal there a in Brooks’ to counsel examine waiver both Kent: The statute as- the one purported give witness who to requires procedural process. due sumes only “evidence” inculpating Brooks in the Legislature provided, by way of The 1977 alleged Flory? murder of Enrico statute, or for waiver the criteria standards The answers are readily available. In only which until then had been hearings proceedings, person may no be de- pro- this After supplied by Court Gibbs. prived life liberty process or due of juris- that on motion viding process law. Procedural due is required setting an order should be entered diction Constitution, the Idaho art. § certain, for a time and date down a by the Fourteenth Amendment to Unit- “shall court was directed order ed States Constitution. We have recog- complete investigation a full ” nized here Idaho that probable cause alleged . circumstances of the offense . person, trial, detain a pending only shall S.L.1977, 16-1806(3) I.C. amended be a upon finding cause based Furthermore, p. ch. 428. upon evidence. substantial Where show- court, considering or whether not right-to-detain probable cause is all exclusive over the waive its required, that is our criminal rules allow for “whether the was directed to consider child the finding hearsay, to be based upon pro- ag- was committed in an alleged offense vided that “there is a substantial basis for violent, premeditated, willful gressive, believing hearsay source (b). 16-1806(8)(a) These I.C. & manner.” then, magistrate may credible.” Even amendments, yet though enacted at the require personal appearances of witnesses hearing, parallel Brooks’ time of for magistral examination. I.C.R. Rule criticism in Gibbs of Court’s Brooks, however, there had been “a review proceeding sought merely of the offenses and a as whether description proba- there ble vague previous already reference to offenses.” 94 cause to detain him. He was Rather, at 217. While the detained. the review was deter- testimony pure was hearsay, hearsay was cause to mine whether there and, if a crime had been committed by alleged believe to Brooks’ accusations accom- so, person whether Brooks was the Rory have, then, We plices. anomaly the it. who had committed Such a determina- testimony prosecutor’s hearsay the suffices hearing element of tion forms a basic a in a to establish situation if purpose which had for its to determine direct itself testimony where the would not tossed into the main- Brooks should be have sufficed: and be stream of the adult criminal world exists log- There no substantial reason or suggest put very on trial for his life. To justify compelling juve- ic which would could rest second that the determination on face and rigors nile to the the conse- the who is testimony very person hand from preliminary phases quences of an engaged competitive enterprise in the of prosecution upon adult criminal the un- prosecution is abhorrent to notions of due an testimony accomplice corroborated process and fundamental fairness. The when cannot be over he bound for trial or suggestion soundly rejected by the ultimately solely upon convicted that evi- Appeals Court of Criminal of Oklahoma un- Therefore, dence. the burden of requir- present der facts almost identical State to come at the forth certifi- case: necessary cation with the corrob- called two prosecutor witnesses: certainly outweighed orative evidence is appellant’s maturity first testified about potential by consequences stigma and intelligence; the second testified may juvenile which befall a who is certi- juve- previous about his contacts with the fied upon testimony uncorroborated justice system amenability nile his to who accomplice of an cannot be system. rehabilitation within that The over for trial bound or convicted when nature of the circumstances which led to has the State no evidence corroborative appellant’s being brought before the accomplice’s testimony. only court in this case were alluded to during proceedings. prose- once S., (Okl.Cr. Matter of J. cutor, evidence, at the close his amade 1976). ruling not place Such does an repeating statement to the court bare upon prosecution, unreasonable burden allegation petition made in the ini- for, as the same court went to say: juvenile tiated the case. In that state- certainly, preclude justice will not prosecutor ment also informed being served appropriate in- court of the names of the who witnesses reliability stances when the and trustwor- support would be called the factual accomplice’s thiness testimony is allegation juvenile should be certified by corroborated guilt evidence to stand trial as an adult. The prosecutor consequences befall thereof the de- states, also “I believe we could make a individual, serving either being prima (Tr.59) representa- facia case.” A or adult. prosecutor tion made Juve- hold, therefore, Id. I would proce- Judge nile that sufficient evidence exists adopted by dure court in per- to connect al- to the crime mitting prosecutor testify as to the leged, soundly repre- however based that hearsay accusations Brooks’ be, ac- sup- sentation is insufficient complices, was insufficient port establish finding Judge the Juvenile prosecutive probable cause and merit. amounted to a violation rights of Brooks’ under the Idaho Constitu- State, D. G. (Okl.Cr. B. v. P.2d tion under the waiver statutes 1976). authoritatively construed this Court procedure unfairness em- in Gibbs. ployed compounded below is further when one looks to the content of the we prosecutor’s Finally, question must address the testimony. prosecutor’s Not was the or not deprived whether Brooks juvenile may any per- assistance of counsel and G. The examine

right to effective his accusers. The right to confront prepared any report concerning son who Court, Supreme discussing United States juvenile presented which is at .in investigation” requirements of the the “full hearing. waiver statute, juvenile D.C. waiver announced: presented H. All evidence at place system is no in our of law for there hearing should be under oath tremendous con- reaching a result of such subject to cross-examination. sequences ceremony without —without Standards, supra, 2.2. Standard hearing, without effective assistance of true, undoubtedly suggested by It is counsel, without a statement of reasons. State, rights addressed above justice that a court of It is inconceivable applicable to a detention are not adults, respect to a dealing with with hearing. rights Nevertheless such do issue, in this man- proceed similar preliminary hearings obtain Idaho at extraordinary if socie- would be ner. It where a determines whether a children, as re- special concern for ty’s crime has been committed and whether Juve- the District of Columbia’s flected in reason to believe that the accused there is Act, procedure. permitted this nile Court hearings, it. At such may have committed it does not. We hold that and, participate for the accused do counsel States, v. at Kent United 383 U.S. by right, are entitled to cross-examine the of the As to the content at 1054. S.Ct. prosecution’s witnesses. Stockwell State, juvenile right has a that a requirement (1977).9 573 P.2d 116 counsel, the Su- assistance the effective say: had this preme Court provided is true that Brooks was While it meaningless illu- rights are These —an hearing, juvenile the waiver counsel for sion, given counsel is mockery —unless rulings were such that counsel court’s to function. opportunity might stayed home. In that as well have by counsel is right representation might spared themselves way, they grudging It is not a formality. yet being present frustration of It is requirement. to a ritualistic gesture right to the two being denied the examine justice. essence of co-conspirators allegedly gave who at 1057. Brooks, 86 S.Ct. U.S. inculpating statements and denied deputy right also the to cross-examine the do not rights insure that these In order to attorney as to for his prosecuting the basis Juvenile meaningless, the A.B.A.’s become did, believing, hearsay if he statements Project the fol- specifies Justice Standards all, who, co-conspirators, of the two after of the waiv- components essential lowing as counsel, were private with the advice of hearing: er bargain- willing plea and did enter into attorney should prosecuting E. The attorney worth his ing. There is no trial proving the burden bear heyday who could not have had a salt to believe cause exists situation as that. It is not that such a juvenile of- a class one committed has missing witnesses missing statements prop- is not a that the fense true. Nor is it that juvenile might absolutely not be by the to be handled person er for certain have cross-examination would court. testimony, or weaknesses in their revealed the waiv- may contest F. The untenability prose- have revealed challenging, producing er motion integri- vouching evi- cutor’s situation challenge, tending to evidence co-murder- veracity of two attorney. ty and prosecuting dence legislature require That sees the child’s waiver that an and statutes 9. Our Constitution being felony hearing fundamental placed of even more trial for a cannot be accused importance the fact is evidenced from information after or on an indictment corresponding provision in there is no preliminary This constitutional examination. context. preliminary be waived. can to a complete ers. Rather it is a breakdown of which never be legally established as judicial system, something having place. and that taken cannot tolerate and Court should not process lacking, Procedural due and the perpetrate. waiver decision should be reversed for a Brooks, hearing new on that like issue. Taking the child out of the Kent, may languish jail be destined to is, Supreme as the Court of the United until he twenty-one while the Idaho Kent, remarked in a result of tre- States inevitably courts11 and the federal courts consequences. mendous Those conse- determine one after the other he whether quences staggering are indeed where the process has received the constitutional due is that proposal placed child be on trial all, bad, good, to which the innocent for his life.10 All of which say is not to guilty and the are alike entitled. How should Brooks not have been transferred to provided much better to have it in the first say adult court —but is to that he instance. should not have been transferred a deci- sion based on evidence which did not sub-

stantially Flory even establish that Enrico murdered,

had been or that Brooks was a

perpetrator of that crime. It is not incon-

ceivable that Brooks is waived today out of

juvenile court to stand trial for a murder importance” magistrate division, court, 10. The “critical of the outcome of then back to district hearing here, eventually cannot be overestimated: argued where it was convincing juve- September year There is evidence most a full after the time personnel, judges nile court and the them- charged that Brooks and Wolf were der, with mur- selves, regard waiver of hearing sought prosecution’s and a on the may the most severe sanction that posed by be im- pursue decision to them as adults. court. Not is the going adopt If this Court is not a rule juvenile exposed probability of severe delay, which will eliminate some of the punishment, confidentiality but the and indi- legislature intervening. should consider If viduality juvenile proceedings is re- magistrates preside hearings, are to at waiver placed by publicity and the normative why they not, and I see no reason should there law; concepts penal acquires the child appeal Magis- should be a direct to this Court. public which, arrest record even if he is ac- regularly trates decide controversies of the quitted, will inhibit his rehabilitation because nature, most serious such as is a waiver hear- opprobrium by pro- attached thereto ing, any involving or matter the best interests spective employers, adult, if convicted as an and welfare of children. may past the child ty-first birthday; be detained well his twen- Additionally, legislature having by he lose certain civil rights disqualified public put amendment employ- to I.C. § an end Moreover, any typical dispute ment. prison, if sent to a as to adult whether the offense likely subjected physi- he is inquired to be must be hearing, into at the waiver cal, sexual, inmates, and even abuse older investiga- should enter into a full likely and his chances for rehabilitation are tion and understanding with the significantly. to decrease ordered, where judge waiver is some other Schomhorst, The Waiver of Juvenile Court Jur- magistrate preside pro- will in further criminal Revisited, isdiction: Kent 43 Ind. L.J. 586- ceedings. only required, It is as noted in Breed Jones, supra, prior waiver hear- case, place

11. In this there anything the initial must not decision was made take court, adjudicatory division of nature hearing. the district of an appealed court, to the district remanded to notes In recognition of the fact that there who, might juveniles be some for various act, delinquent child first such Idaho’s reasons, should not be treated as delinquent gradually present which evolved our respect in crimes allegedly children com- Act, passed Rehabilitation Youth mitted, legislature provided for the Ailshie, speaking Justice 1905. In 1908 waiving juvenile jurisdiction. prob- of Court, said: perplexing lem the other of the members go into a discussion of this We shall is caused I.C. 18-216 of § question, or into extended considera- outright criminal code. This statute bars of the distinction between this act tion juveniles age criminal trials of under the purposes provisions and and that and its equally proceed- it bars years; spirit of the criminal law. general of the ings against juveniles age in the bracket of all so exten- questions These been juve- through years, unless years exhaustively lucidly and con- sively, jurisdic- nile court has waived its exclusive by many so courts sidered and discussed age group by comply- tion of those in that we shall content years within recent that YRA, provisions of the I.C. ing with some of the with a citation of ourselves effective at the 16-1806. In and § premise our citation may authorities. We Flory, murder of I.C. time of authorities, however, general by a 16-1806, was amended to allow waiver for is clearly that this statute statement not less than 16. juveniles under statute in its nature. penal criminal or a minors prevent is rather purpose Its 18-216 of the provisions I.C. § prosecution sixteen from under the in conflict with criminal code are not at all charges of misdemean- conviction on YRA, and provisions of the I.C. 16-1806. ors, respect to relieve them and in that agreed by to be all who have now It seems prosecutions odium of criminal from the opinions controversy, in this includ- written object Its is to confer punishments. and and district upon the child and a benefit both court’s judge, that surrounding the community way exclusive; juveniles over elevating in- and more child with better given declare a training educating and fluences and parens patriae amenable to the child not citizenship, good Act, him in the direction philosophy thereupon yield saving society him to thereby up prosecution that child as an adult useful citizen to adding good Clearly the state’s criminal courts. it was This, too, is done for community. ex- legislative consensus entitled, time when he is not 16-1806, minor at a that a child under pressed I.C. § law or the laws of by natural either should remain in the freedom, rather land, ju- to his absolute court. The jurisdiction of the —but subject he to the re- time when simply at a venile court was not authorized a natural custody of either falling straint and waive of a child below ap- legally age. any way constituted I guardian or fail to see he owes obedi- the co- guardian simple proposition to whom is confounded pointed this law the 18-216 of the criminal subjection. Under existence of I.C. § ence and I.C. dis- It must be remembered state, being, time assumes to code. for the of Idaho. are similar to those of Columbia District The statutes

Case Details

Case Name: Wolf v. State

Court Name: Idaho Supreme Court

Date Published: Jul 27, 1978

Citation: 583 P.2d 1011

Docket Number: 12633, 12634

Court Abbreviation: Idaho