447 F.2d 596 (9th Cir. 1971), 25522, Kinney v. Lenon

Docket Nº:25522.
Citation:447 F.2d 596
Party Name:Paul David KINNEY, a minor child, by and through his natural parents and next friends, William Kinney and Pauline Kinney, and all other persons similarly situated, Plaintiffs-Appellants, v. Harlow F. LENON, in his capacity as Judge of the Circuit Court of the State of Oregon for the County of Multnomah, et al., Defendants-Appellees.
Case Date:August 13, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 596

447 F.2d 596 (9th Cir. 1971)

Paul David KINNEY, a minor child, by and through his natural parents and next friends, William Kinney and Pauline Kinney, and all other persons similarly situated, Plaintiffs-Appellants,


Harlow F. LENON, in his capacity as Judge of the Circuit Court of the State of Oregon for the County of Multnomah, et al., Defendants-Appellees.

No. 25522.

United States Court of Appeals, Ninth Circuit.

Aug. 13, 1971

Rehearing Denied Oct. 13, 1971.

Page 597

John H. Clough (argued), Joseph C. Morehead, Portland, Or., for plaintiffs-appellants.

Elizabeth Preston, Deputy Dist. Atty., Multnomah County (argued), George A. Van Homisslea, Dist. Atty., Portland, Or., Lee Johnson, Or. Atty. Gen., Salem, Or., for defendants-appellees.

Before BARNES, BROWNING and TRASK, Circuit Judges.

TRASK, Circuit Judge:

The plaintiff, a juvenile, through his parents appeals from a judgment of the district court dismissing his class action which sought to convene a three-judge court, 28 U.S.C. § 2281, for the purpose of declaring an Oregon Statute unconstitutional. The statute was Oregon Revised Statutes Section 419.583 which declared that provisions regarding bail in criminal cases should not be applicable to children. He also sought a writ of habeas corpus, 28 U.S.C. § 2241, to obtain his release from the custody of juvenile authorities and invoked the provisions of: (1) 28 U.S.C. § 1343 (jurisdiction of district courts over conspiracy actions brought under 42 U.S.C. § 1985); (2) 42 U.S.C. § 1983 (violation of civil rights); and (3) 28 U.S.C. § 2201 (declaratory judgments). Into this potpourri he finally blends the claims for alleged violation of his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and various similar Oregon constitutional provisions.

The incident giving rise to this complexity of claims began when this 17-year-old youth was charged on February 18, 1970, in the Juvenile Department of the Circuit Court of Multnomah County, Oregon, with having committed two acts of violence: extortion, and assault and battery. He was placed in the juvenile detention home. A motion for his release was denied by the Juvenile Referee on February 19, 1970, at a detention hearing. On February 20, while the state proceedings were pending, the complaint herein was filed in the United States District Court against the judge of the Circuit Court of Multnomah County before whom this case was to be heard, all Circuit Court judges similarly situated, and the juvenile authorities. A Motion to Dismiss challenged the complaint and on March 2 a hearing was held, but no testimony taken. The district court granted the Motion to Dismiss. The request to convene a statutory three-judge court was rejected because no substantial federal question was presented by the complaint. Other requests for interim relief including the application for a writ of habeas corpus, were also denied. This appeal was thereupon taken on March 5.

In the meantime, back at the county, the appellants' brief tells us that on April 3 the extortion charge which was the sole basis for appellant's detention was dismissed upon motion of the county attorney, and appellant was tried before the Circuit Court of the County on the charge of assault and battery, found

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guilty and placed on probation. Brief for appellants at 7. With respect to the failure to pursue the proceedings in the state courts, appellant asserts:

'Appellant's state court juvenile case does not lend itself to an appeal for many reasons, and, further, an appeal of that finding would in no way determine or correct this invidious deprivation of appellant's constitutional rights.' Id.


Although the action of the trial court on the Motion to Dismiss appellants' complaint is somewhat unclear, the parties have both assumed for purposes of appeal that the court's action was an order of dismissal of the action without leave to amend. If leave to amend could be implied, which is doubtful, brief for Appellants, App. at A-6, the appellants chose to stand on their complaint.

The court made it clear that the application for a three-judge court was denied because the complaint did not present a substantial federal constitutional question. Habeas corpus relief was denied and the complaint was dismissed without further explanation. As to the latter action since the Motion to Dismiss was predicated upon Fed.R.Civ.P. 12(b)(6), the appellants would have been entitled to amend. Bonanno v. Thomas, 309 F.2d 320 (9th Cir.1962); Sidebotham v. Robison, 216 F.2d 816 (9th Cir.1954). In their brief they assert that an amended complaint was filed on the morning of the day of the district court hearing. The judge, however, in rendering his oral decision stated that 'your amended complaint isn't here.' Appellants made no response to the court's comment.

Appellants have not asserted the right to file an amended complaint as a ground for appeal and we do not further consider it.


The principal thrust of appellants' argument is to establish the right of this juvenile to be released on bail. The first reason advanced is that Ore.Rev.Stat. § 419.583 (1969), 1 which specifically denies the right to bail to juveniles, is unconstitutional.

An injunction is sought restraining the enforcement of this statute against the defendant juvenile, and a three-judge court is requested for the purpose of making the declaration as required by 28 U.S.C. § 2281.

The complaint sufficiently sets out the claimed constitutional inadequacies of the Oregon bail statute for juveniles. It is asserted that the statute is in violation of both the Constitution of the United States and the Constitution of the State of Oregon. 2

The complaint also alleges, albeit in formal conclusory sentences, that there is no adequate remedy at law and that the plaintiffs will suffer immediate and irreparable harm.

The right to be admitted to bail is a vital part of the system of administration of justice in adult cases. The Constitution protects its citizens against excessive bail. 3

The supreme Court has interpreted the Federal Rules of Criminal Procedure as providing that a person arrested for a noncapital offense 'shall' be admitted to bail, commenting that:

'This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.' Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951).

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The Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152, liberalizes and makes more flexible the conditions upon which a person charged with crime in non-capital cases may be released prior to trial. 4

Appellants rely heavily on In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for support in their contention that the Oregon statute in question is unconstitutional. Yet, however sweeping the language of the Court there, it was careful to point out that it decided only the due process application to a particular set of facts. 387 U.S. at 13, 87 S.Ct. 1428.

It pointed out that the distinction in treatment between adults and minors accused of wrongdoing has been recognized in every state and that the constitutionality of Juvenile Court laws has been sustained in over forty jurisdictions against a variety of attacks. 387 U.S. at 14-15, 87 S.Ct. 1428. In pointing to the differences between juvenile and adult handling of wrongdoers, specific mention is made of bail.

'In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury.' 387 U.S. at 14, 87 S.Ct. at 1436.

We note that under the Federal Juvenile Delinquency Act, bail for minors is made discretionary with the judge. 18 U.S.C. § 5035. 5

The precise question here has not been decided. Contrary to the district court view, we believe that the statute may present substantial constitutional questions. See also Trimble v. Stone, 187 F.Supp. 483, 485-86 (D.D.C.1960). It was upon the basis of lack of substantiality of the federal constitutional question that the trial judge denied the application for a three-judge court. We would concur with him on the decision but would base our judgment upon a different reason. As will appear hereafter, that reason is based upon decisions of the United States Supreme Court which were not available to the district court at the time of its decision.

As we have pointed out, appellants' complaint alleges the guaranties of the right to bail, to due process and to equal privileges and immunities existing in the Oregon Constitution as well as in that of the United States Constitution. At the date of the filing of these

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proceedings in the District Court of the United States, proceedings were being conducted in the state court. The District Court of Multnomah county had before it the undetermined charges against this child for extortion and for assault and battery. There was no allegation in the complaint that there was or had been or would be any harassment of this youth by the state courts or that he would not receive even-handed justice in the courts of the state. The complaint before the United States District Court was filed February 20 and heard March 2. The petition before the juvenile department of the state court was filed February 18 and tried April 3, and resulted in a finding of guilt of assault and battery with the extortion charges dismissed on motion of the district attorney. Appellants argue that the state court juvenile case 'Does not lend itself to an appeal for many reasons and, further, an appeal of that finding would in no way determine or correct this invidious deprivation of appellants' constitutional rights.' Brief for...

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