State in Interest of Banks

• Decision Date: 02 July 1981
• Docket Number: No. 81-K-0712,81-K-0712
• Parties: STATE of Louisiana In the Interest Of Kenneth BANKS.
• Court: Louisiana Supreme Court

Page 690

402 So.2d 690

STATE of Louisiana In the Interest Of Kenneth BANKS.

No. 81-K-0712.

Supreme Court of Louisiana.

July 2, 1981.

Rehearing Denied Sept. 4, 1981.

Concurring Opinion Sept. 9, 1981.

Affirming order La.App., --- So.2d ---.

Frank J. Saia, Baton Rouge, Kathleen Stewart Richey, Asst. Public Defender, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Tyronne Gibbs, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiffs-respondents.

DIXON, Chief Justice.

Kenneth Banks was adjudicated delinquent because of an aggravated battery, R.S. 14:34, he had committed when he was sixteen. Banks struck another boy in the face with a two by four breaking the victim's upper and lower jaw bones. At the dispositional hearing held January 14, 1981 the juvenile judge ordered that Banks be committed to the Department of Corrections until January 24, 1982, his eighteenth birthday.

Defense counsel orally entered a motion for appeal. Additionally, she moved for suspension of the effect of the judgment of disposition and for the setting of bond pending appeal. The juvenile judge denied these motions, apparently relying upon the discretion vested in him by C.J.P. 103, which provides:

"The effect of a judgment of disposition shall not be suspended by an appeal unless the trial court or the court of appeal directs otherwise."

Banks then sought relief from the First Circuit on the theory that La.Const. art. I, § 18 guarantees juveniles bail pending appeal of their juvenile delinquency adjudication. The First Circuit found that section to be inapplicable to juvenile delinquency adjudications because of art. V, § 19 which directs the legislature to enact special juvenile procedures on "(t)he determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday ..." (Emphasis added). The Court of Appeal reasoned that art. V, § 19, a special provision for juveniles, controls over art. I, § 18, which is general in nature. The First Circuit found C.J.P. 103 to be a permissible legislative response to the constitutional mandate of art. V, § 19. Therefore, the juvenile judge's action taken pursuant to that statute was affirmed. State in the Interest of Banks, --- So.2d ---- (La.App. 1st Cir. 1981). This court granted writs to assess the juvenile's contention that his state and federal constitutional rights have been violated by the juvenile judge's action. State in the Interest of Banks, 397 So.2d 800 (La. 1981).

THE STATE CLAIMS

Banks maintains that the 1921 Constitution guaranteed bail to juveniles and that the redactors of the 1974 Constitution incorporated this right into art. I, § 18 which provides:

"Excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great. After conviction and before sentencing, a person shall be bailable if the maximum sentence which may be imposed is imprisonment for five years or less; and the judge may grant bail if the maximum sentence which may be imposed is imprisonment exceeding five years. After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years."

The primary support for relator's statement regarding the 1921 Constitution is drawn from State v. Franklin, 202 La. 439, 12 So.2d 211 (1943), in which it was held that the 1921 Constitution guarantees to juveniles the right to bail pending their juvenile delinquency adjudications. When that case is read in isolation, it does tend to support the conclusion that the 1921 Constitution intended to accord juveniles bail. Nonetheless, the constitutional provisions were silent on the issue, and the jurisprudence interpreting these provisions, when read as a whole, do not provide consistent support for relator's proposition.

The bail provision of the 1921 Constitution, La.Const. of 1921, art. I, § 12, is very similar to the bail provision of the current constitution, La.Const. art. I, § 18. Neither constitutional provision expressly denies juveniles the right to bail, yet each provision is couched in language indicating that it is intended to apply only to criminal prosecutions.

The juvenile provisions of the 1921 Constitution differ significantly from the current constitution's juvenile provisions. The prior constitution, in addition to providing more detail, distinguished between juvenile procedures applicable to Orleans Parish, La.Const. of 1921, art. VII, §§ 95-96, and those applicable to the other parishes in the state, La.Const. of 1921, art. VII, §§ 52-54.

The 1921 Constitution

The cases addressing the issue of the juvenile's right to bail under the 1921 Constitution should be separated into those cases dealing with the juvenile's right to bail pending the delinquency adjudication, and those cases addressing the issue of the juvenile's right to bail pending appeal of the delinquency determination.

Bail Pending Adjudication

As previously mentioned, Banks relies upon the case of State v. Franklin, supra, as establishing that the 1921 Constitution afforded juveniles the right to bail. That case involved the issue of the juvenile's right to bail pending adjudication, and did not purport to decide whether a juvenile is entitled to bail pending appeal. The juvenile in Franklin had been denied bail pending adjudication because of a statute granting the trial judge discretion in placing the child pending the delinquency adjudication. The juvenile contended that he was entitled to bail by virtue of art. I, § 12 of the Constitution's Bill of Rights.

After reviewing the constitutional provision setting up the juvenile courts, this court found that "this provision of the Constitution does not contain any language indicating that it was ever the intention of the framers of the Constitution to abrogate the constitutional right to bail pending trial." 202 La. at 443, 12 So.2d at 213. Thus, the court found that the 1921 Constitution intended to afford juveniles the same right to bail pending the delinquency adjudication as it accorded to defendants pending their criminal trial.

Bail Pending Appeal

As previously mentioned, Orleans Parish was governed by juvenile procedures which differed from those applicable to the rest of the state. Prior to 1944, one such difference was that the Orleans Parish provision provided that "appeals shall not suspend the judgment of said court." La.Const. of 1921, art. VII, § 96 (as it appeared prior to 1944 La. Acts, No. 322 (adopted November 7, 1944)). The provision dealing with appeals from other parishes was silent on whether such appeals were to be suspensive. La.Const. of 1921, art. VII, § 52 (repealed by 1948 La. Acts, No. 539 (adopted November 2, 1948)).

The first case to address the issue of the juvenile's right to bail pending appeal was State v. Clark, 186 La. 655, 173 So. 137 (1937). That case involved an appeal from a delinquency adjudication in Orleans Parish. The juvenile contended that the provision disallowing suspensive appeals was in conflict with the 1921 Constitution's guarantee of bail pending appeal.

The court noted that the state constitution's Bill of Rights provided general laws which would govern unless there were a special law on the subject. The court reasoned that the constitutional provision dealing with Orleans Parish was such a special law. Thus, the special provision would prevail over the general law embodied in the Bill of Rights.

The Clark opinion did not involve the issue of the rights of juveniles from parishes other that Orleans to bail pending appeal. However, the inference from Clark is that those juveniles would be entitled to a suspensive appeal and to bail pending that appeal since there were no special provisions governing their appeals.¹

The Clark approach was not followed in the case which subsequently addressed the issue of whether juveniles from the rest of the state are entitled to bail pending appeal. In State v. McDonald, 206 La. 732, 20 So.2d 6 (1944), the juvenile argued that, whereas the constitutional provision dealing with Orleans Parish denied the right to suspensive appeal, no such restriction was placed on appeals from other parishes. The McDonald court rejected this argument without addressing either the issue of the applicability of the right to bail provision in the Bill of Rights, or the Clark and Franklin opinions. Rather, the court found McDonald's argument to be unpersuasive:

"... Neither the constitutional article nor the statutory provision sets forth that such an appeal shall suspend the execution of the judgment of the juvenile court, and not having so provided they can not be enlarged by implication to have that effect." Id. at 739, 20 So.2d at 9.

Although criticized for its methodology, the McDonald result was approved by the commentators writing at that time. Bennett, The Work of the Louisiana Supreme Court for the 1944-1945 Term Criminal Law and Procedure, 6 La.L.Rev. 644, 673 n. 117 (1946); Jackson, The Right to Bail and Suspensive Appeal in the Louisiana Juvenile Courts, 20 Tul.L.Rev. 363, 377 (1946).

The day after McDonald was decided, the constitutional provision dealing with Orleans Parish juvenile courts was amended to provide:

"... appeal shall not discharge the child from the custody of the Juvenile Court or of the person, institution, or agency to whose care such child may be committed by the Juvenile Court, unless the Supreme Court shall so order." 1944 La.Acts, No. 322, amending La.Const. of 1921, art. VII, § 96 (adopted November 7, 1944).

Four years later, the constitutional provision dealing with juvenile courts for the rest of the state was amended...