JV-111701 v. Superior Court In and For County of Maricopa

• Decision Date: 05 October 1989
• Docket Number: CA-SA,JV-111701,P,No. 1,1
• Citation: 163 Ariz. 147,786 P.2d 998
• Parties: etitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; Honorable Thomas Jacobs, a judge thereof, Respondent Judge, STATE of Arizona, Real Party in Interest. 88-259.
• Court: Arizona Court of Appeals

Page 998

786 P.2d 998

163 Ariz. 147

JV-111701, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; Honorable Thomas Jacobs, a judge thereof, Respondent Judge STATE of Arizona, Real Party in Interest.

No. 1 CA-SA 88-259.

Court of Appeals of Arizona Division 1, Department B.

Oct. 5, 1989.

Reconsideration Denied Nov. 15, 1989.

Review Denied Feb. 26, 1990.

[163 Ariz. 148] Dean W. Trebesch, Maricopa County Public Defender by Ellen Edge Katz, Deputy Public Defender, Phoenix, for petitioner.

Richard M. Romley, Maricopa County Atty. by William F. Molner, Deputy County Atty., Phoenix, for real party in interest.

OPINION

LEVI RAY HAIRE, Judge, Retired.

Petitioner, the juvenile in Maricopa County Juvenile Action No. JV-111701, raises three issues for our review in this petition for special action. He contends that Rule 3, Rules of Procedure for the Juvenile Court, 17B A.R.S. (Juvenile Rule 3), is unconstitutional because: (1) it fails to insure that a juvenile will receive a timely initial appearance before a judicial officer where the court informs him of his constitutional rights, the charges against him, and makes a determination regarding probable cause and pretrial detention; (2) the rule employs an impermissibly low standard of proof for determining whether a juvenile should be detained pending adjudication; and, (3) the rule permits the court to detain a juvenile without making specific findings of fact regarding the necessity for continued pretrial detention.

PROCEDURAL HISTORY

The juvenile was detained for allegedly delinquent behavior on Wednesday evening, November 23, 1988. The juvenile remained in custody and no action was taken on the following day, Thursday, Thanksgiving day. On Friday a petition alleging delinquency was filed. The juvenile remained in custody through the weekend of November 26 and 27. On Monday the juvenile appeared, for the first time, before the Juvenile Court for a combined advisory and detention hearing. Thus the juvenile was detained for five days before a judge advised him of the charges against him and of his constitutional rights at the combined advisory and detention hearing.

At the combined hearing the judge determined that there was probable cause to believe that the juvenile had committed the delinquent acts alleged in the petition, and that there was reasonable cause to continue the juvenile's detention pending adjudication. The judge did not make detailed factual findings supporting his decision to continue the pretrial detention of the juvenile, other than in the conclusory language set forth in Juvenile Rule 3(b).

The pertinent provisions of Juvenile Rule 3 provide:

"(a) ...

"(b) A child shall be detained only if there is probable cause to believe that the child committed the acts alleged in the petition, and there is reasonable cause to believe:

"(1) That otherwise he will not be present at any hearing; or

"(2) That he is likely to commit an offense injurious to himself or others; or

"(3) That he must be held for another jurisdiction; or

"(4) That the interests of the child or the public require custodial protection.

"(c) "(d) No child shall be held in detention for more than 24 hours, excluding Saturdays, Sundays and holidays, unless a petition alleging his delinquent conduct has been filed; and no child shall be held longer than 24 hours, excluding Saturdays, Sundays and holidays, after the filing of said petition unless so ordered by the court after hearing."

SPECIAL ACTION JURISDICTION

We have accepted special action jurisdiction in this proceeding because the issues raised are of substantial importance and will continuously affect a large number of juveniles. ¹ The issues raised concern the constitutionality of a juvenile rule promulgated by the Arizona Supreme Court, and present pure issues of law. ² Because the issues raised involve pretrial detention procedures, principles of mootness would normally preclude appellate review. See, e.g., Schall v. Martin, 467 U.S. 253, 256, n. 3, 104 S.Ct. 2403, 2405, n. 3, 81 L.Ed.2d 207, 212, n. 3 (1984) citing Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54 (1975):

"Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly 'capable of repetition, yet evading review.' "

Accordingly, special action appellate review is appropriate despite the apparent mootness of the issues in this particular case. See Matter of King, 150 Ariz. 206, 722 P.2d 374 (App.1986).

INITIAL HEARING

The juvenile's primary contention is that the provisions in Juvenile Rule 3(d) allowing the exclusion of weekends and holidays before an initial hearing is held, are unconstitutional because the procedure deprives a juvenile of equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution.

In this case, because Juvenile Rule 3(d) allows the exclusion of Saturdays, Sundays and holidays, the juvenile was not brought before a judge until the fifth day after his arrest. Prior to that time, he had not been advised by the court of the charges against him, of his right to counsel, nor of his other constitutional rights. Likewise, prior to that time there had been no judicial determination that there was reasonable cause to detain the juvenile pending adjudication, nor a determination that there was probable cause to believe that the juvenile had committed the delinquent acts charged against him.

The juvenile contrasts the treatment accorded juveniles under Juvenile Rule 3(d) with that provided for adults in Rule 4, Arizona Rules of Criminal Procedure. Under Criminal Rule 4.1(a), an adult arrested on criminal charges must be taken "before a magistrate without unnecessary delay." If the adult is not brought before a magistrate within 24 hours after arrest, he must be immediately released. At the initial appearance before the magistrate, the adult is informed of the charges against him, informed of his rights to counsel, given appointed counsel if appropriate, and the magistrate determines and sets the conditions governing the release of the defendant pending trial. See Criminal Rule 4.2(a). ³ In computing the 24 hours allowed for an initial appearance under Criminal Rule 4.1(a), the exclusion of Saturdays, Sundays and holidays is not authorized. Rather, the 24 hour initial appearance limitation for an adult applies even though the adult might have been arrested on a holiday or during a weekend, or on the day preceding such a holiday or weekend.

The juvenile contends that the extended detention allowed by Juvenile Rule 3(d) without affording judicial review violates his Fourth Amendment rights and denies him due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. Because we find merit in the juvenile's equal protection arguments, we need not address his Fourth Amendment and due process arguments.

EQUAL PROTECTION

As previously noted, under the circumstances involved in this case, Juvenile Rule 3(d) permits the state to detain a juvenile for five days before advising the juvenile of applicable constitutional rights and of the pending delinquency charges. In contrast, an adult must be taken before a magistrate within 24 hours of the arrest, and, at this initial appearance, the adult must be informed of the pending charges, the right to counsel and the right to remain silent, an attorney must be appointed for an indigent adult if requested, and the court must determine the conditions for the adult's release. Criminal Rule 4.2(a). Thus, there is a substantial difference between the pretrial detention treatment afforded juveniles and that afforded to adults detained by the state.

The Fourteenth Amendment's due process protections generally apply to juveniles as well as to adults. See Application of Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538 (1967) (juvenile entitled to appropriate notice of charges, to counsel, to confront and cross-examine witnesses, and to privilege against self-incrimination); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (double jeopardy principles are applicable to juvenile proceedings); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt in delinquency matters). However, due process does not necessarily require that the state always treat juveniles in the same manner as adults. Schall v. Martin, 467 U.S. at 263, 104 S.Ct. at 2409, 81 L.Ed.2d at 216 (1984). Under a due process analysis it has been held that juveniles are not entitled to certain protections constitutionally guaranteed to adults. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (juveniles not entitled to jury trial). Similarly, a statutory scheme that allows the imposition of a longer penalty on a juvenile than would occur if the charges were against an adult does not violate equal protection standards. Appeal, in Maricopa County Juvenile No. J-86509, 124 Ariz. 377, 604 P.2d 641 (1979), cert. denied McGruder v. Arizona, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 245 (1980). See also, Appeal in Maricopa County Juvenile Action No.J-81405-S, 122 Ariz. 252, 594 P.2d 506 (1979) (prosecution of juvenile on petition rather than by complaint does not violate equal protection standards); In re Maricopa County Juvenile Action No. J-72804, 18 Ariz.App. 560, 504 P.2d 501 (1972) (difference in appeal procedures for juveniles does not violate equal protection standards).

Against this...