J. T. v. O'Rourke In and For Tenth Judicial Dist.

• Decision Date: 27 September 1982
• Docket Number: 82SA155 and 82SA156,82SA151,82SA157-82SA164,Nos. 82SA152-82SA154,s. 82SA152-82SA154
• Citation: 651 P.2d 407
• Parties: J. T., L. J., L. S., G. D., M. C., P. T., R. P., R. R., R. V., T. B. and S. G., Petitioners, v. Honorable Patti F. O'ROURKE, Judge of the District Court In and For the TENTH JUDICIAL DISTRICT, State of Colorado, Respondent. J. T., L. T. and D. Q., Petitioners, v. Honorable Patti F. O'ROURKE, Judge of the District Court, In and For the TENTH JUDICIAL DISTRICT, State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 407

651 P.2d 407

J. T., L. J., L. S., G. D., M. C., P. T., R. P., R. R., R.

V., T. B. and S. G., Petitioners, v. Honorable Patti F. O'ROURKE, Judge of the District Court In and For the TENTH JUDICIAL DISTRICT, State of

Colorado, Respondent.

J. T., L. T. and D. Q., Petitioners, v. Honorable Patti F. O'ROURKE, Judge of the District Court, In and For the TENTH JUDICIAL DISTRICT, State of

Colorado, Respondent.

Nos. 82SA152-82SA154, 82SA157-82SA164, 82SA151, 82SA155 and 82SA156.

Supreme Court of Colorado En Banc.

Sept. 27, 1982.

J. Gregory Walta, Colorado State Public Defender, Patricia R. Salazar, Deputy State Public Defender, Pueblo, for petitioners.

John J. Keilbach, Pueblo, for petitioner, S. G.

G. F. Sandstrom, Dist. Atty., Matthew Martin, Deputy Dist. Atty., Pueblo, for respondent.

Allen, Foreman & Mueller, Mary G. Allen, Denver, for amicus curiae, The Colorado Criminal Defense Bar.

ERICKSON, Justice.

We issued a rule to show cause under C.A.R. 21 in fourteen consolidated petitions in which the petitioners contend that the Pueblo District Court erred in denying their motions for a preliminary hearing because they were not detained pending their adjudicatory hearings. We now make the rule to show cause absolute in J. T. v. O'Rourke (S.Ct. No. 82SA152); L. J. v. O'Rourke; L. S. v. O'Rourke; G. D. v. O'Rourke; M. C. v. O'Rourke; P. T. v. O'Rourke; R. P. v. O'Rourke; R. R. v. O'Rourke; R. V. v. O'Rourke; S. G. v. O'Rourke; and T. B. v. O'Rourke; and discharge the rule in J. T. v. O'Rourke (S.Ct. No. 82SA151); L. T. v. O'Rourke; and D. Q. v. O'Rourke.

I.

The facts in J. T. v. O'Rourke, S.Ct. No. 82SA151, are similar to those in the other consolidated cases and provide a factual explanation of the proceedings before us. On September 17, 1981, a delinquency petition was filed in Pueblo District Court against J. T. alleging one count of theft under fifty dollars, in violation of section 18-4-401, C.R.S.1973 (now in 1978 Repl.Vol. 8). J. T. was served with a summons and delinquency petition, and the district court subsequently appointed counsel for J. T. J. T. was not detained pending an adjudicatory hearing, but was released to the custody of his mother after she signed a "promise to appear." On November 16, 1981, J. T. filed a motion for a preliminary hearing in the district court. Pursuant to stipulation, his motion for a preliminary hearing was taken under advisement and was to be determined with similar motions which were filed in the other consolidated cases. On March 9, 1982, the district court denied the motions. The district court declared that a preliminary hearing for non-detained juveniles is neither contemplated by the Colorado Rules of Juvenile Procedure (C.R.J.P.) nor required by the United States or Colorado Constitutions.

In our view, a juvenile who is detained is entitled to a preliminary hearing by constitutional mandate. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The right to a preliminary hearing in all other instances is based upon interpretation of the Colorado Children's Code, title 19, C.R.S.1973 and the Colorado Rules of Juvenile Procedure. Section 19-3-101(1)(d), C.R.S.1973 (now in 1978 Repl.Vol. 8) of the Code, when read in conjunction with C.R.J.P. 1, determines the availability of the preliminary hearing. We now hold that juveniles charged in delinquency proceedings with crimes (felonies and class 1 misdemeanors) subject to Colorado Rules of Criminal Procedure (Crim.P.) 5 and 7 ¹ are entitled to a preliminary hearing. We now hold that juveniles held on lesser charges are not granted a right to a preliminary hearing by statute or by rule.

II.

A.

This case involves the interpretation of procedural provisions of both the Colorado Children's Code and the Colorado Rules of Juvenile Procedure. The procedural guidelines for the juvenile system present no conflicts between the judiciary's rulemaking power and the General Assembly's lawmaking power. The Colorado Children's Code reflects a legislative judgment concerning the manner in which juvenile defendants should be treated. The Colorado Rules of Juvenile Procedure reflect this court's judgment concerning the manner in which juvenile courts should proceed in applying the Code. We take this opportunity to reconcile the Code with the Rules. To ensure compliance with the substantive provisions of the Code, the General Assembly directed the juvenile courts to observe certain procedural formalities in section 19-3-101(1)(d). Section 19-3-101(1)(d) allows juvenile courts to make a preliminary determination that jurisdiction is proper:

"(d) After the filing of a petition alleging that the child is within the court's jurisdiction, as provided in section 19-1-104(1)(a), the court may conduct a preliminary hearing to determine if there is probable cause to believe that the facts alleged in the petition bring the child within the court's jurisdiction." (Emphasis added.)

When the General Assembly drafted this statute it recognized that our constitutional rulemaking power authorizes us to determine what procedural requirements are necessary under the Children's Code. ² The discretionary language of section 19-3-101(1)(d) recognizes that we will promulgate rules of procedure which are necessary.

We acted within this authority when we promulgated C.R.J.P. 1 and made some of the Colorado Rules of Criminal Procedure applicable to juvenile proceedings:

"Rule 1. Scope

"These rules govern proceedings brought in the juvenile court under Title 19, C.R.S.1973, as amended, also hereinafter referred to as the Children's Code, except that adult proceedings under section 19-3-119, C.R.S.1973, shall be conducted according to the Colorado Rules of Criminal Procedure. Proceedings are civil and where not governed by these rules or the procedures set forth in Title 19, C.R.S.1973, as amended, shall be conducted according to the Colorado Rules of Civil Procedure. Proceedings in delinquency shall be conducted in accordance with the Colorado Rules of Criminal Procedure except as otherwise provided by statute or by these rules."

The Rule specifically provides that juvenile defendants will receive the same procedural rights as adult defendants when neither statute nor rule provides otherwise. Accordingly, section 19-3-101(1)(d) should be read against the procedural background provided by C.R.J.P. 1.

The discretionary language of section 19-3-101(1)(d) recognizes that juvenile courts will proceed in compliance with rules of juvenile procedure promulgated by this court. The statute grants the juvenile court discretion to conduct a preliminary hearing to determine if there is probable cause to believe that the court has jurisdiction over the juvenile suspect. It grants the court exclusive original jurisdiction over delinquent children, section 19-1-104(1)(a), C.R.S.1973 (now in 1978 Repl.Vol. 8). ³ Part of the jurisdictional requirement of section 19-1-104(1)(a) is that the allegedly delinquent child has violated any federal or state laws, or municipal ordinances. ⁴ A preliminary inquiry held to determine facts of jurisdiction will necessarily determine if there is probable cause to believe that the suspect has committed the acts with which he is charged. Section 19-3-101(1)(d) therefore gives the juvenile courts limited discretion to conduct a preliminary hearing on the issue of probable cause to charge a juvenile suspect.

The juvenile court's discretion, however, must yield to the dictates of C.R.J.P. 1 which incorporates the provisions of Crim.P. 5 and 7. Under Crim.P. 5 and 7, persons charged with committing a class 1 misdemeanor or a felony have a right to a preliminary hearing to determine probable cause. When we made juvenile delinquency proceedings subject to the rules of criminal procedure we recognized that, in some instances, juveniles should have the same procedural rights as adults. We believe that the rules of criminal procedure, as applied through C.R.J.P. 1, give juveniles charged in delinquency proceedings with committing felonies or class 1 misdemeanors (which we designate as "serious offenses") the same procedural rights as adults.

In cases where the juvenile is charged with the commission of an act which, if committed by an adult, would be a felony or class 1 misdemeanor, the juvenile court must grant a preliminary hearing in accordance with C.R.J.P. 1. Where, however, the juvenile is charged with the commission of an act which, if committed by an adult, would not constitute a felony or a class 1 misdemeanor, then a preliminary hearing is not to be held. With less serious charges, other considerations of the juvenile system prompt us to avoid the adversarial atmosphere found in the preliminary hearing. ⁵ If the juvenile is charged with a less serious offense, but is detained pursuant to order of court, a probable cause hearing is mandated by Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), as we recognize in this opinion.

B.

J. T. also contends that the right to a preliminary hearing for non-detained juveniles not charged in delinquency proceedings with a class 1 misdemeanor or felony is required by the due process clauses in the United States and Colorado Constitutions. U.S.Const. amend. XIV; Colo.Const. Art. II, sec. 25. We disagree.

The United States Supreme Court has held that the adjudicatory hearing in juvenile delinquency proceedings "must measure up to the essentials of due process and fair treatment." In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548 (1967). The Court recognized that where delinquency proceedings may lead to a commitment to a state institution, the following specific rights are essential to due process of law: (1) written notice of the specific charge or factual allegations, given to the child and his parents or guardian sufficiently in advance of the hearing to permit preparation; (2) notification to the child and his parents of the...