Clemons v. State, 3--673A72

• Decision Date: 30 October 1974
• Docket Number: No. 3--673A72,3--673A72
• Citation: 317 N.E.2d 859,162 Ind.App. 50
• Parties: James B. CLEMONS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 859

317 N.E.2d 859

162 Ind.App. 50

James B. CLEMONS, Appellant, v. STATE of Indiana, Appellee.

No. 3--673A72.

Court of Appeals of Indiana, Third District.

Oct. 30, 1974.

Rehearing Denied Nov. 27, 1974.

James V. Tsoutsouris, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

James Clemons was seventeen years old when a delinquency petition charging him with first degree burglary, transportation of stolen property across the state line, and possession of false selective service registration cards was filed in juvenile court. A second petition was filed by the prosecutor requesting that James Clemons be waived from juvenile court jurisdiction so that he could be tried as an adult pursuant to I.C. 1971, 31--5--7--14 (Burns Code Ed.). After the waiver hearing, Clemons was waived by the juvenile court to the Porter Superior Court. Clemons pled guilty to a charge of third degree burglary and was sentenced to a term not to exceed one year on the Indiana State Farm. His appeal to this Court raises three issues:

Issue One: Is I.C.1971, 31--5--7--14 (Burns Code Ed.) unconstitutional for failure to provide standards for waiver?

Issue Two: Was Clemons denied procedural due process by the admission of hearsay at his waiver hearing?

Issue Three: Was there sufficient evidence to support the waiver order?

In our review of these three issues, we conclude that I.C. 1971, 31--5--7--14, supra, is not unconstitutional, that Clemons was accorded a fair hearing fulfilling the requirements of due process and that there was sufficient evidence to support the waiver order. We affirm.

I. Constitutionality

There is a strong presumption favoring the constitutionality of a statute. Cheaney v. State (1972), Ind., 285 N.E.2d 265, cert. denied 410 U.S. 991, 93 S.Ct. 1516, 36 L.Ed.2d 189 (1973); Hicks v. State (1967), 249 Ind. 24, 230 N.E.2d 757.

Clemons contends that I.C. 1971, 31--5--7--14 is void for vagueness in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 12 of the Indiana Constitution. He relies upon People v. Fields (1972), 388 Mich. 66, 199 N.W.2d 217 which held a statute similar to the Indiana waiver statute to be an unconstitutional delegation of legislative power to the judiciary.

There has been some confusion between the non-delegation doctrine and procedural due process. This is understandable since the standards requirement in delegation cases is evolving into a protection of the individual from arbitrary or discriminatory exercises of discretion. See People v. Fields (1974), 391 Mich. 206, 216 N.W.2d 51, aff'd on rehearing (dissenting opinion); Warren v. Marion County (1960), 222 Or. 307, 314, 353 P.2d 257, 261; Davis, Administrative Law Treatise § 2.00 (1970 Supp.). However, we have concluded that I.C. 1971, 31--5--7--14 does not violate either the non-delegation doctrine or the due process clause.

We will treat the delegation of legislative power challenge solely as a challenge to separation of powers under Article 3, § 1 and Article 4, § 1 of the Indiana Constitution. Although the non-delegation doctrine in Indiana prohibits the legislature from delegating its power to make law, the legislature can delegate power to determine facts or the state of things upon which the application of the law depends. Kryder v. State (1938), 214 Ind. 419, 424, 15 N.E.2d 386; City of Aurora v. Bryant (1960), 240 Ind. 492, 165 N.E.2d 141; Noble v. City of Warsaw (1973), Ind.App., 297 N.E.2d 916; 16 Am.Jur.2d Constitutional Law § 256 (1964). The challenged statute, I.C. 1971, 31--5--7--14 (Burns Code Ed.) provides:

'If a child fifteen (15) years of age or older is charged with an offense which would amount to a crime if committed by an adult, the judge, after full investigation, may waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such court may exercise the powers conferred upon the juvenile court in this act (31--5--7--1--31--5--7--25) in conducting and disposing of such case: Provided, That the judges of the juvenile courts of this state who shall waive the jurisdiction of such child as provided herein may at the time of the waiver fix a recognizance bond for the person to answer the charge in the court which would have jurisdiction of such offense if committed by an adult.'

As Justice DeBruler recognized in Atkins v. State (1972), Ind., 290 N.E.2d 441, the standards to be used by the juvenile judge in making the decision to either waive or retain jurisdiction are derived from the structure and purpose of the juvenile justice system itself. The overall purpose of the juvenile justice system is found in I.C. 1971, 31--5--7--1 (Burns Code Ed.) as follows:

'The purpose of this act (31--5--7--1--31--5--7--25) is to secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child's welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents.'

Thus, under I.C. 1971, 31--5--7--14, the juvenile court judge must determine if the child is 15 years or older, if he is charged with an offense which would amount to a crime if committed by an adult, and if waiver will serve the child's welfare and the best interests of the state. This is not lawmaking; it is an exercise of judicial discretion. We note that the Supreme Courts of Kansas, Massachusetts, Nevada and New Mexico have declared similar broad standards sufficient to overcome an unconstitutional delegation challenge. State ex rel. Londerholm v. Owens (1966), 197 Kan. 212, 416 P.2d 259; In re Juvenile (1974), Mass., 306 N.E.2d 822; Lewis v. State (1970), 86 Nev. 889, 478 P.2d 168; ¹ State v. Doyal (1955), 59 N.M. 454, 286 P.2d 306 (recently reaffirmed in State v. Jimenez (1972), 84 N.M. 335, 503 P.2d 315). ² Only People v. Fields, supra, has held the Michigan waiver statute to be an unconstitutional delegation. In In re Juvenile, supra, 306 N.E.2d at 827 n. 7, the Supreme Court of Massachusetts expressly refused to follow the Fields case. The Fields opinion has been criticized. Note, Constitutional Law--Juvenile Waiver Statute--Delegation of Legislative Power to Judiciary, 1973 Wis.L.Rev. 259. ³

We also refuse to follow the Fields case. We conclude that I.C. 1971, 31--5--7--14 does not delegate legislative authority to the judiciary.

The second constitutional argument by Clemons is that the lack of precise standards in I.C. 1971, 31--5--7--14 results in a denial of due process in two ways: (1) the standards provided are so vague as to allow arbitrary, capricious or discriminatory decision-making and (2) the standards are so unclear that the juvenile cannot effectively prepare for the waiver hearing. ⁴ We hold that the standard for 'the child's welfare and the best interests of the state' expressed in I.C. 1971, 31--5--7--1 is a sufficient guideline to save I.C. 1971, 31--5--7--14 from being void on its face for vagueness. Similar general standards have been upheld in other jurisdictions answering attacks on their waiver statutes for being unconstitutionally vague. See Briggs v. United States (1955), 96 U.S.App.D.C. 392, 226 F.2d 350; L. v. Superior Court of Los Angeles County (1972), 7 Cal.3rd 592, 102 Cal.Rptr. 850, 498 P.2d 1098; Sherfield v. State (Okl.Cr.1973), 511 P.2d 598; In re Correia (1968), 104 R.I. 251, 243 A.2d 759; In re Salas (1974), Utah, 520 P.2d 874; In re F.R.W. (1973), 61 Wis.2d 193, 212 N.W.2d 130, cert. denied, 416 U.S. 974, 94 S.Ct. 2000, 40 L.Ed.2d 563 (1974). As the Supreme Court of Wisconsin stated in In re F.R.W., supra, 212 N.W.2d at 139, citing Miller v. Quatsoe (E.D.Wis.1971), 332 F.Supp. 1269, 1275:

"Unlike a typical criminal action, a juvenile waiver proceeding vests the judge with a wide amount of discretion in making his determination. In his decision making, the juvenile judge does not simply deal with a specific factual incident in the accused's life as does a criminal court judge, but rather the juvenile judge must consider the juvenile's past, his future, his mind, and his acts and then balance these factors against the safety, needs and demands of society. . . .."

See also, Kent v. United States (1966), 383 U.S. 541, 552, 86 S.Ct. 1045, 16 L.Ed.2d 84. The Legislature has recognized the inherent difficulty in identifying the varied merit-factors to be considered by the juvenile court judge and the need for a consideration of each case on its own merit-factors.

The juvenile is protected from arbitrary, capricious or discriminatory decision-making by the safeguards enunciated in Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320; Atkins v. State (1972), Ind., 290 N.E.2d 441 and Kent v. United States, supra. Both Kent v. United States and Summers v. State, supra, recognize the necessity that a waiver order be accompanied by a statement of the reasons for the waiver order of sufficient specificity to permit meaningful review. Atkins v. State, supra, recognizes a presumption in favor of disposing of juvenile matters within the juvenile system. If the reasons given for waiver do not explicitly justify the waiver order in light of 'the child's welfare and the best interests of the state' then such waiver order would be reversed on appeal. Appellate review has long been recognized as a check upon discretionary decision-making. Ritter v. Ritter (1839), 5 Blackf. (Ind.) 81.

The standard for 'the child's welfare and the best interests of the state' is sufficient notice to the juvenile to enable preparation for the waiver hearing. Summers v. State, supra, specifically gives the juvenile the right to present evidence of any circumstances that would entitle him...