Brumley v. Charles R. Denney Juvenile Center of Snohomish County

• Decision Date: 26 February 1970
• Docket Number: No. 40590,40590
• Citation: 77 Wn.2d 702,466 P.2d 481
• Court: Washington Supreme Court
• Parties: Application for a Writ of Habeas Corpus of Genevieve Faye BRUMLEY, a minor, Appellant, v. CHARLES R. DENNEY JUVENILE CENTER OF SNOHOMISH COUNTY, Respondent.

Page 702

77 Wn.2d 702

466 P.2d 481

Application for a Writ of Habeas Corpus of Genevieve Faye BRUMLEY, a minor, Appellant, v. CHARLES R. DENNEY JUVENILE CENTER OF SNOHOMISH COUNTY, Respondent.

No. 40590.

Supreme Court of Washington, en Banc.

Feb. 26, 1970.

HAMILTON, Judge.

This is an appeal from a denial by the superior court of a petition for a writ of habeas corpus. The petition was filed on behalf of appellant, a minor, under commitment to the Department of Institutions based upon an adjudication of delinquency. At the time of the petition, appellant was being detained in the Snohomish County juvenile facility known as the Charles R. Denney Juvenile Center, located in Everett, Washington.

The appeal is here on a short record. One of the questions presented, relating to the payment of costs and attorney fees on behalf of an indigent appealing a superior court ruling in a habeas corpus proceeding, has been resolved by our decision in Honore v. Washington State Bd. of Prison Terms and Paroles, Wash., 466 P.2d 485 (1969). The remaining issue concerns itself with whether retroactive effect should be given to the rule enunciated in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that indigent juveniles be afforded appointed legal counsel to represent them in delinquency adjudicatory proceedings, absent an appropriate waiver.

The facts are undisputed. They reveal that appellant, now 17 years of age and the product of a broken home, has been a dependent ward of the juvenile court of Snohomish County since January 9, 1962. Her course since that time has been a troubled one and she has been under varied supervision. On December 12, 1966, after admitting she telephoned bomb threats to local schools on two occasions, she was adjudged a delinquent child. Present at the adjudicatory hearing, in addition to court personnel, were her natural parents, her welfare caseworker, a member of the juvenile probation staff, and an officer from the Everett Police Department. Appellant was not represented by an attorney, nor did the procedure then in effect provide for appointment of counsel to represent her at the hearing had she and her parents so wished and been unable to otherwise provide such representation.

Upon being adjudged a delinquent, and no doubt because of her previous history before the juvenile court and the inability of her parents to provide appropriate supervision, appellant was committed to the Department of Institutions and transferred to Echo Glen Children's Center. Her progress was satisfactory in that facility and she was paroled to Galland Hall, a girls' school, in Spokane, Washington, on February 21, 1968. Thereafter, during the month of June, 1968, appellant ran away from Galland Hall and returned to the Everett area. The juvenile authorities apprehended her and placed her in the juvenile center.

Counsel, retained by appellant's parents at a nominal sum, was granted permission to proceed in forma pauperis, and, on August 7, 1968, petitioned the superior court for a writ of habeas corpus. As grounds for the writ it was alleged that appellant was denied her right to appointed counsel at the delinquency hearing held on December 12, 1966.

At the threshold of our consideration of the question of whether the Gault right to counsel rule should be applied retroactively, we are met with appellant's contention that our decision in In re Lesperance, 72 Wash.2d 572, 434 P.2d 602 (1967), has answered the question in the affirmative.

In Lesperance, without advising her of her right to appointed counsel at the adjudicatory hearing, the juvenile court declared her to be delinquent. The hearing was held on April 14, 1967. She then made a timely application to this court for review by way of a writ of certiorari, which was granted. On May 15, 1967, 1 month after the adjudicatory hearing and while Miss Lesperance's cause was pending in this court, the decision in Gault was announced. We then held that the right to counsel rule of Gault was applicable, reversed the finding of delinquency and remanded the cause for further proceedings.

Miss Lesperance's proceeding had not been finalized when Gault was announced. Rather, it was before this court on direct review at that time. While the statutes dealing with juvenile delinquency and dependency proceedings do not, with one exception not pertinent here, specifically provide for an appeal, appellate review by certiorari is granted as a matter of course if a petition is timely filed. Miss Lesperance and her parents pursued such a course. In the present proceeding, neither appellant nor her parents sought such a review. Appellant's delinquency adjudication insofar as direct appellate review be concerned, then, became final before the Gault rules were proclaimed. We do not, therefore, regard Lesperance as dispositive of the question as to whether the pertinent Gault rule is wholly retroactive. Cf. In re Whittington, 391 U.S. 341, 88 S.Ct. 1507, 20 L.Ed.2d 625 (1968), (per curiam); In re Creek, 243 A.2d 49 (D.C.App.1968).

Several other state appellate courts have faced the issue now under consideration or issues closely analogous. The following state courts have held that Gault did not retroactively apply to declination or transfer hearings designed to determine whether the juvenile should face charges as an adult, which hearings were held prior to May 15, 1967. Eyman v. Superior Court, 9 Ariz.App. 6, 448 P.2d 878 (1969); In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615 (1967); State v. Steinhauer, 216 So.2d 214 (Fla.1968); Workman v. Commonwealth, 429 S.W.2d 374 (Ky.1968), (see also Smith v. Commonwealth, 412 S.W.2d 256 (Ky.), cert. denied, 389 U.S. 873, 88 S.Ct. 162, 19 L.Ed.2d 155 (1967)); Hammer v. State, 3 Md.App. 96, 238 A.2d 567 (1968), (see also State v. Hance, 2 Md.App. 162, 233 A.2d 326 (1967)); Cradle v. Peyton, 208 Va. 243, 156 S.E.2d 874 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2296, 20 L.Ed.2d 1407 (1968). One court held Gault was retroactively applicable to a transfer hearing. Summers v. State, 248 Ind. 534, 227 N.E.2d 680, opinion superseded, 248 Ind. 551, 230 N.E.2d 320 (1967).

Insofar as our research reveals, the following state courts have held Gault retrospectively applicable to adjudicatory hearings declaring a juvenile to be a delinquent where the hearings were held prior to May 15, 1967. Application of Billie, 103 Ariz. 16, 436 P.2d 130 (1968); Marsden v. Commonwealth, 352 Mass. 564, 227 N.E.2d 1 (1967); State in re J.M., 103 N.J.Super. 88, 246 A.2d 536 (1968); State ex rel. LaFollette v. Circuit Court, 37 Wis.2d 329, 155 N.W.2d 141 (1967). Two courts have held Gault was not retroactively applicable under such circumstances. Sult v. Weber, 210 So.2d 739 (Fla.App.4th Dist. 1968); Richardson v. State ex rel. Milton, 219 So.2d 77 (Fla.App.3d Dist. 1969). (See, however, State v. Steinhauer, Supra.)

It would serve little purpose to review the opinions cited. Suffice it to say that in several of the opinions little if any express rationale appears. And further, in the absence of a clear mandate one way or the other from the United States Supreme Court, we are obliged to decide the issue ourselves.

As a prelude to our consideration of the issue, we pause to note that implicit in the Gault decision, despite the fact that the decision was itself a retroactive one, is recognition of the fact that new procedural rules, foreign to the almost universal concept of juvenile court practices, were being announced. Indeed, to say the least, the doctrine promulgated in Gault is substantially more far reaching and revolutionary than the rules announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which the United States Supreme Court held to be prospective in application. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Furthermore, it is fitting to observe that the concept of assistance of counsel in the technical intricacies of a criminal trial--pointed to in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)--presents a substantially different complexion when transposed into the traditionally informed atmosphere of a juvenile court proceeding where, for the most part, parents, as well as the court, are more concerned with the correction of an erring child than with engaging in a heated and adversary contest.

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), established the principle that new federal constitutional rules of procedure may be limited to prospective application if the situation warrants such treatment. Since that decision, the court has had many occasions to consider the retroactivity problem with respect to various rules. The most extended discussions, in addition to that in Linkletter, appear in the following cases: Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed. 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).

The doctrine announced in these cases may be summarized in the following fashion: Whether a new constitutional rule is to be limited...