Harbert, In re

• Citation: 85 Wn.2d 719,538 P.2d 1212
• Decision Date: 14 August 1975
• Docket Number: No. 43707,43707
• Parties: In re the Welfare of William Henry HARBERT, a minor, Petitioner.
• Court: United States State Supreme Court of Washington

Page 719

85 Wn.2d 719

538 P.2d 1212

In re the Welfare of William Henry HARBERT, a minor, Petitioner.

No. 43707.

Supreme Court of Washington, En Banc.

Aug. 14, 1975.

David A. Thorner, Hazel & Weeks, Dobbs, Van Diest & Moore, J. Adam Moore, Yakima, for appellant.

Jeffrey C. Sullivan, Prosecuting Atty., for Yakima County, Kenneth W. Raber, Deputy Pros. Atty., Yakima, for respondent.

WRIGHT, Associate Justice.

This case challenges the regularity of proceedings conducted under RCW 13.04.120 relating to the declination of jurisdiction by the juvenile court. Appellant challenges the constitutionality of RCW 13.04.120 on the basis that no standards are enunciated in the statute to serve as guidelines to the court. Appellant also challenges the admission of certain evidence at the hearing. We hold that RCW 13.04.120 is constitutional. We also hold that the testimony, reports and exhibits offered into evidence are admissible in this type of hearing.

On the night of February 14, 1975, Yakima County sheriff's deputies responded to a call from appellant's mother reporting a shooting at appellant's address. When the deputies arrived, appellant's father was found lying in a bathroom with a fatal head wound. The sheriff's office sent out a bulletin on appellant and the following day he was arrested by Douglas County deputy sheriffs in East Wenatchee. At the time of apprehension, appellant's father's wallet was found in appellant's possession. Appellant was conveyed to Waterville where he was questioned about the shooting. A short time later, a deputy sheriff from Yakima County made contact with the appellant who was given Miranda warnings. Appellant then said he wished to make a statement. In the statement taken from the appellant it was learned that the appellant and his father had an argument. The argument occurred after the father was notified that the appellant had dropped his third period class in school. The father threatened to beat the appellant and have him sent to Cascadia. Appellant admitted he had decided to shoot his father before going downstairs. Approximately five minutes after going downstairs, appellant went back upstairs and shot his father.

Two days after the shooting, Yakima County officers, with the consent of appellant's mother, searched appellant's bedroom and seized a wall plaque containing the inscription: 'I keep thinking about killing my parents but I don't know if I can stop myself if they get me that mad.'

Appellant was charged by delinquency petition in Yakima County Juvenile Court. At a hearing to determine whether the juvenile court would waive jurisdiction, both the confession and the plaque, over appellant's objection, were admitted into evidence. The juvenile court also considered the probation officer's report though the probation officer did not personally testify in connection with the report. The State further offered into evidence (over appellant's objection) a coroner's report and hearsay statements regarding appellant's conversation with Waterville police soon after arrest.

The defense called a number of expert witnesses. A psychiatrist testified that appellant was sane and that appellant was not a danger to society and would probably only initiate violence toward family members. The Regional Administrator of Juvenile Probation and Parole testified that the juvenile facilities were adequate to handle appellant. The Reverend Alan L. Ward, a Methodist minister with experience in the adult correctional system, testified that he felt appellant belonged in a juvenile system if custody could be extended to his 21st birthday. He stated he would not want to see appellant released at age 18. Appellant also called his mother, who testified she felt appellant was not a danger to the community. However, when asked about release at age 18, she ansered: 'It would not be long enough.'

The juvenile court, after hearing testimony and considering all of the evidence, declined jurisdiction. The court made the specific finding that juvenile facilities were inadequate to rehabilitate the 17 1/2-year-old youth unless juvenile jurisdiction could be retained until his 21st birthday. Based on the decision of In re Carson, 84 Wash.2d 969, 530 P.2d 331 (1975) the court correctly believed that its jurisdiction could not, even by consent, be extended beyond appellant's 18th birthday. ¹

Appellant appealed the order declining jurisdiction. The Court of Appeals issued an order staying the criminal trial. This court granted review by writ of certiorari.

We will consider the constitutional attack on RCW 13.04.120 first. The gist of appellant's attack is that he is denied due process in two ways. First, that the standards provided in the statute are so vague as to allow arbitrary, capricious or discriminatory decision making. Second, that the standards pertaining to declining jurisdiction are so unclear that the juvenile cannot effectively prepare for the waiver hearing.

There is a presumption in favor of the constitutionality of RCW 13.04.120 and appellant must clearly demonstrate its unconstitutionality. Yelle v. Kramer, 83 Wash.2d 464, 520 P.2d 927 (1974); Aetna Life Ins. Co. v. Washington Life and Disability Ins. Guar. Ass'n, 83 Wash.2d 523, 520 P.2d 162 (1974); Young Americans for Freedom, Inc. v. Gorton, 83 Wash.2d 728, 522 P.2d 189 (1974); Swanson v. White, 83 Wash.2d 175, 517 P.2d 959 (1973); State ex rel. Morgan v. Kinnear, 80 Wash.2d 400, 494 P.2d 1362 (1972); Seattle v. Jones, 79 Wash.2d 626, 488 P.2d 750 (1971).

This court has already given a narrowing construction to RCW 13.04.120 and particularly to that portion of the statute allowing the court 'in its discretion' to decline jurisdiction. The eight criteria mentioned in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), have been adopted in this jurisdiction in State v. Williams, 75 Wash.2d 604, 453 P.2d 418 (1969). Accord, In re Burtts, 12 Wash.App. 564, 530 P.2d 709 (1975). Superimposed on the eight Kent criteria are the limitations imposed on all courts of first instance, which arise from statutory, common law and court rule created principles of appellate review. In In re Burtts, supra, the Court of Appeals sustained a 'vagueness' attack upon RCW 13.04.120 by stating, in part, 12 Wash.App. at page 570, 530 P.2d at page 713:

To assure judicial responsibility, the discretion exercised by a juvenile court is reversible for manifest abuse of discretion, I.e., when 'the discretion has been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable.' Friedlander v. Friedlander, 80 Wash.2d 293, 298, 494 P.2d 208, 211 (1972). Moreover, when a juvenile court exercises judicial power, including the exercise of discretion, like other courts it is subject to law-oriented reasons, precedents, legal concepts and principles, as well as traditional legal logic characteristic of the American legal system.

Further limitation is found in the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and from article 1, section 3 of the Washington Constitution. In Kent v. United States, supra, the United States Supreme Court characterized waiver proceedings as 'critically important' and stated 383 U.S. at page 554, 86 S.Ct. at page 1053:

. . . there is no place in our system of law for reaching a result of such tremendous consequences without ceremony --without hearing, without effective assistance of counsel, without a statement of reasons.

Moreover, both Kent and In re Dillenburg v. Maxwell, 70 Wash.2d

331, 413 P.2d 940, 422 P.2d 783 (1966), recognize the necessity that a waiver order must be accompanied by a statement of the reasons for the waiver order of sufficient specificity to permit meaningful review. The judge's findings of fact wxactly paralleled the eight criteria mentioned in Kent. The combined effect of these three sources of limitation provide adequate standards. RCW 13.04.120 is not amenable to attack for vagueness or overbreadth.

The second aspect of appellant's attack on RCW 13.04.120 must also fail.

Appellant's counsel knew beforehand that the seriousness of the crime and the shortness of time available for juvenile rehabilitation would be the two most serious obstacles to resisting waiver. He perceived the problem, was well prepared for it and adequately fulfilled his role as advocate. It was stated in Haziel v. United States, 131 U.S.App.D.C. 298, 404 F.2d 1275, 1279 (1968):

The child's advocate should search for a plan, or perhaps a range of plans, which may persuade the court that the welfare of the child and the safety of the community can be served without waiver.

In the instant case, counsel offered a plan under the juvenile system. Counsel even procured written consent from his client, attempting to extend jurisdiction until age 21. Such consent is of no value. Because of his minority, appellant could repudiate it upon reaching majority. Further, jurisdiction cannot be conferred by consent or agreement. Puget Sound Agri. Co. v. Pierce County, 1 Wash.Terr. 75 (1859); Miles v. Chinto Mining Co., 21 Wash.2d 902, 153 P.2d 856, 156 P.2d 235 (1944); Washington Local Lodge No. 104 etc. v. International Brotherhood etc., 28 Wash.2d 536, 183 P.2d 504, 189 P.2d 648 (1947); Adams v. Walla Walla, 196 Wash. 268, 82 P.2d 584 (1938); In re Wesley v. Schneckloth, 55 Wash.2d 90, 346 P.2d 658 (1959).

Counsel offered expert testimony by a number of witnesses to the effect that juvenile facilities were adequate to rehabilitate the appellant. However, without exception, appellant's own witnesses stated that a rehabilitation program lasting only 6 months would be inadequate. Appellant and his counsel were in no way prevented from fully presenting their views. We hold that the statute (RCW 13.04.120) is constitutional.

The decision to waive jurisdiction was supported by substantial evidence and cannot now be overturned for arbitrariness. State v....