O-- H-- v. French

• Decision Date: 31 December 1973
• Docket Number: No. KCD,KCD
• Parties: In the Matter of O_ _ H_ _, a minor, by M_ _ H_ _, his Mother, Petitioner, v. Ray F. FRENCH, Superintendent, Missouri Intermediate Reformatory, Respondent. 26783.
• Court: Missouri Court of Appeals

Page 269

504 S.W.2d 269

In the Matter of O_ _ H_ _, a minor, by M_ _ H_ _,

his Mother, Petitioner,

v.

Ray F. FRENCH, Superintendent, Missouri Intermediate

Reformatory, Respondent.

No. KCD 26783.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

T. E. Lauer, National Juvenile Law Center, St. Louis, for petitioner.

Preston Dean, Asst. Atty. Gen., Ray F. French, Superintendent, Missouri Intermediate Reformatory Jefferson City, for respondent.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, WASSERSTROM and SOMERVILLE, JJ.

WASSERSTROM, Judge.

The mother of O_ _ H_ _, a juvenile, petitioned directly to this Court for his release from the Missouri Intermediate Reformatory at Algoa, Missouri. Pursuant to a writ issued by this Court, respondent made a return, the petitioner filed a reply, the parties entered into a stipulation of facts, and the case was fully submitted on written briefs and oral argument.

Subsequently, the Attorney General filed a 'Notice of Release' advising that O_ _ H_ _ has been released from the Missouri Intermediate Reformatory and has been placed in after-care status by the State Board of Training Schools. At the same time, the Attorney General stated that '(t)he respondent herein does not oppose the determination of this case even though the petitioner is no longer in custody since the respondent believes that this case presents issues which are of great importance and which may arise again'. Under these circumstances, this Court in the exercise of its discretion will not dismiss these proceedings on the grounds of mootness. Boone v. Danforth, 463 S.W.2d 825, 829 (Mo. banc 1971); cf. In re C_ _ F_ _ B_ _, 497 S.W.2d 831, l.c. 834 (Mo.App.1973).

The record here shows that after an earlier commitment to the State Board of Training Schools which was terminated by a parole, O_ _ H_ _ was again committed to the custody of the Training School at Boonville, Missouri on November 13, 1972, by an order of the Juvenile Court of the City of St. Louis. On December 29, 1972, a riot took place at the Boonville Training School, as to which the staff determined that O_ _ was a leader. Because of this and other previous incidents, the board voted on February 17, 1973, to institute proceedings under § 219.230, RSMo 1969, V.A.M.S., for the transfer of O_ _ to the custody of the Department of Corrections. Pursuant to that determination, a motion was filed in the Juvenile Court at St. Louis, and that court held a hearing on the motion on April 25, 1973. Based upon the results of that hearing, the Juvenile Court found that O_ _ had been repeatedly disruptive of the rehabilitation and training programs; that he constituted a threat to the safety and integrity of the training school, its personnel and its inmates; that there was no suitable place other than the Department of Corrections for his confinement; that his conduct was not the result of a mental problem requiring hospitalization; and therefore, the court ordered that he be transferred to the care of the Department of Corrections to be dealt with in accordance with a program of treatment 'to be established' and supervised by the Board of Training Schools in cooperation with the Department of Corrections. O_ _ was received by the Department of Corrections under that order on May 3, 1973, and he was immediately placed in the Algoa Reformatory.

The petition filed in this Court and the briefs in support thereof urge numerous grounds for finding the confinement to be illegal, which can be consolidated and summarized as follows: 1) That the statute under which this transfer was made, § 219.230, is unconstitutional because it authorizes imprisonment of a juvenile without the protections which are given to adult inmates who can be incarcerated at the Algoa Reformatory only after due prosecution under the criminal laws and procedures. Petitioner claims that this results in a denial of due process, of equal protection of the laws, of right to trial by jury, of the right to be proceeded against by indictment and information, and constitutes the imposition of cruel and unusual punishment. 2) That there has not been a compliance with the statutory requirements of § 219.230, for the reason that the Board of Training Schools and the Department of Corrections have not provided 'a program of treatment and rehabilitation' within the meaning of the legislative intention. 3) That O_ _ H_ _ has been denied due process of law because the criteria provided in the statute for transfer to the Department of Corrections are unduly vague. 4) That the procedure followed before the Juvenile Court in connection with this transfer was defective in certain specified respects.

I

Before commencing consideration of petitioner's contentions, disposition must be made of a challenge by the respondent to the jurisdiction of this court to hear this original proceeding. Respondent challenges the jurisdiction herein on the theory that § 532.030, RSMo 1969, V.A.M.S. and Rule 91.59 V.A.M.R. require an application for habeas corpus be made in the first instance to the judge of the circuit court of the county in which the alleged wrongful confinement is occurring. Respondent's argument is fallacious, because the statute and the rule upon which he relies apply only in a situation where the person detained is 'in custody on a charge of crime or misdemeanor'. That is not the situation here, since juvenile delinquency is not a criminal charge.

Attention is also called to Rule 84.22 which requires generally that no original remedial writ shall be issued by an appellate court where adequate relief can be granted by a lower court; but that rule specifically excepts from the operation thereof applications for habeas corpus.

II

Petitioner's principal argument in this case is that it is unfair and constitutionally invalid to incarcerate O_ _ H_ _ in an adult penal institution without according to him the full panoply of the many protections provided to persons accused of criminal offenses. Some of those protections, especially trial by jury, are held not to be necessary in juvenile proceedings, the reason given being that juvenile proceedings are not criminal in nature and have as their objective not punishment, but rather, treatment and rehabilitation. If instead of the promised treatment and rehabilitation, the State does in fact subject the juvenile to punishment by imprisoning him in a regular penal institution, then he will have been deprived of constitutional rights under false pretenses. Stated another way, the juvenile will be deprived of the quid pro quo in exchange for which he was required to surrender constitutional protections.

This argument presents a serious and vexing problem in a situation where a juvenile is either committed originally by a juvenile court to an ordinary adult penal institution or where the juvenile is originally committed to a juvenile training school and thereafter is transferred to an ordinary adult penal institution. Cases involving those situations have been presented in numerous cases throughout the country, and the courts have reached conflicting results. The cases on the subject are collected in Pyfer, 'The Juvenile's Right to Receive Treatment', 6 Fam.L.Q. 279, l.c. 286, and in 16 St.L.U.L.J. 479 l.c. 486. A number of the cases adopt the basic argument advanced by the petitioner in the instant case. Among the decisions so holding are White v. Reid, 125 F.Supp. 647 (D.C.Dist. of Col., 1954); White v. Reid, 126 F.Supp. 867 (D.C.Dist. of Col., 1954); United States ex rel. Stinnett v. Hegstrom, 178 F.Supp. 17 (D.C.Conn., 1959); Baker v. Hamilton, 345 F.Supp. 345 (D.C.Ky., 1972); In re Rich, 125 Vt. 373, 216 A.2d 266 (1966); State ex rel. Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259 (1966); Inmates of Boys' Training School v. Affleck, 346 F.Supp. 1354 (D.C.R.I., 1972). On the other hand, as many or more cases do permit transfers of this type. Among cases so holding are Harwood v. State ex rel. Pillars, 184 Tenn. 515, 201 S.W.2d 672 (1947); Sonnenberg v. Markley, 289 F.2d 126 (C.A.7, 1961); Suarez v. Wilkinson, 133 F.Supp. 38 (D.C.Penn., 1955); Arkadiele v. Markley, 186 F.Supp. 586 (D.C.Ind., 1960); Clay v. Reid, 173 F.Supp. 667 (D.C.Dist. of Col., 1959); Wilson v. Coughlin, 259 Iowa 1163, 147 N.W.2d 175 (1966); Long v. Langlois, 93 R.I. 23, 170 A.2d 618 (1961). The New York lower courts are divided on this subject, as set forth in the opinion of In re Garrett, 74 Misc.2d 961, 346 N.Y.S.2d 651 (1973). A strong and rather persuasive recent federal opinion espousing a position antithetical to that taken by the petitioner in the present case is found in United States ex rel. Murray v. Owens, 465 F.2d 289 (C.A.2, 1972).

However, any necessity for choice here between these divergent views has been obviated by the 1972 amendment to the Missouri statute covering this subject. Prior to that amendment, § 219.230 permitted the Board of Training Schools with the approval of the Governor to transfer any person committed to its custody to any state adult correctional institution 'for the purpose of discipline'. In Boone v. Danforth, 463 S.W.2d 825 (Mo. banc 1971), the Supreme Court held that statute unconstitutional in that it permitted transfer by administrative action without any judicial hearing or determination.

In response to that opinion, the Legislature promptly amended § 219.230 to its present form, under which a judicial hearing upon due notice is required as are also certain factual findings. What is even more important for present purposes, the Legislature did not stop there, but went still further by making provision as to the juvenile's dispositional care after the transfer had been completed. The Legislature did not merely say that the juvenile could be transferred to the Department of Corrections to be handled by that Department in accordance with its regular routines. Instead, the statute provides that the juvenile shall be 'dealt...