Pauley v. Gross

Decision Date16 December 1977
Docket NumberNo. 49220,49220
Citation1 Kan.App.2d 736,574 P.2d 234
PartiesWilliam PAULEY, Jr., a minor by and through his guardian ad litem, Steven Hornbaker, Plaintiff, v. Jim GROSS, Sheriff of Geary County, Kansas, Respondent.
CourtKansas Court of Appeals

Syllabus by the Court

1. Except in rare instances, appellate courts do not decide moot questions or render advisory opinions. One exception is where a real controversy of statewide importance and interest exists but because of the time required for adequate presentation the question cannot ordinarily be litigated at the appellate level prior to becoming moot. Such exception can also be applicable in an original proceeding.

2. Kansas espouses the parens patriae doctrine in dealing with juvenile offenders.

3. No child is deemed criminally charged when proceeded against under the juvenile code.

4. An essential finding for temporarily detaining a juvenile prior to an adjudication of the charges against him is that detention is necessary either to insure his presence at trial or for his own protection or welfare.

5. Denial of bail and detention of a juvenile prior to adjudication do not contravene section 9 of the Kansas bill of rights nor do they deny due process or equal protection of the laws in violation of the fourteenth amendment to the federal constitution.

Steven L. Hornbaker, of Harper & Hornbaker, Chartered, Junction City, for plaintiff.

Michael E. Francis, County Atty., and Curt T. Schneider, Atty. Gen., for respondent.

Jim L. Lawing, Wichita, for ACLU of Kansas Foundation, and Marty Guggenheim, New York City, for American Civil Liberties Union, amici curiae.

Ira Dennis Hawver, Topeka, for Kansas Trial Lawyers Association, amicus curiae.

Roger N. Walter, Asst. Atty. Gen., and Curt T. Schneider, Atty. Gen., amici curiae.

En Banc.

HARMAN, Chief Judge:

This is an original proceeding in habeas corpus. The issue is whether a juvenile is entitled to pretrial bail as a matter of right under our federal and state constitutions. The case is submitted upon stipulated facts after briefing and oral argument.

On May 26, 1977, plaintiff, William Pauley, Jr., a seventeen- year-old male, was arrested upon a charge of burglary and grand theft. The same day delinquency proceedings under our juvenile code were instituted against him in the district court of Geary county and a guardian ad litem was appointed. A temporary detention hearing pursuant to K.S.A.1976 Supp. 38-819 was held May 27, 1977, at the conclusion of which the court refused to release plaintiff to his guardian, denied bail, and ordered that the sheriff of Geary county should have plaintiff's custody in a special area away from adult prisoners. The court made the following findings:

"1. That the juvenile had a history of juvenile offenses for curfew violations numbering four.

"2. That the juvenile had been adjudged a delinquent in 1974 for burglary. Said juvenile was sent to the Boys Industrial School in Topeka and released in December 1975.

"3. That the juvenile had been 'A.W.O.L.' while at the Boys Industrial School on two occasions.

"4. Evidence showed also that since his release from the Boys Industrial School he had no further juvenile record until the present charges and that he had never failed to appear at any court proceeding."

The court further found that plaintiff was dangerous to himself and others and that he was being held for his own welfare and protection and that of others because other adequate supervision for him did not exist. Hearing on the merits in the delinquency proceeding was scheduled for June 3, 1977.

On May 31, 1977, an amenability hearing conducted in the district court of Geary county resulted in a finding that plaintiff was not a fit and proper person to be dealt with under the juvenile code and prosecution under the criminal code was directed. This latter action has prompted a suggestion of mootness by the respondent inasmuch as once a juvenile is certified for trial as an adult, he becomes entitled to bail. We deal first with this matter.

The rule is, except in rare instances, appellate courts do not decide moot questions or render advisory opinions (In re Browning, 1 Kan.App.2d 652, 573 P.2d 1095 (decided November 4, 1977)). One exception is where a real controversy of statewide importance and interest exists but because of the time required for adequate presentation the question cannot ordinarily be litigated at the appellate level prior to becoming moot (see, e. g., Smith v. Miller, 213 Kan. 1, 514 P.2d 377). The case at bar is not an appeal but is an original proceeding which ordinarily can be more speedily processed, but nonetheless the issue in it has become academic. We think the same rationale should be applicable in an original proceeding also where, as here, review of an important judicial question, capable of appellate attention, would normally be frustrated by action which ought not be delayed including that of certification of a juvenile for trial as an adult offender in an appropriate case, if the rule of mootness were strictly applied. 1 Hence, we will consider the issue presented.

The eighth amendment to the federal constitution confers no right to bail on anyone, either adult or juvenile. It provides only that bail shall not be excessive. A citizen charged in state courts must rely on his state constitution or statute for bail. Kansas provides for such a right in its constitution:

"All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." (Bill of Rights § 9)

The conflict underlying the issue before the court has been described as one of expanding egalitarianism versus the parens patriae tradition of the juvenile court system (see Hafen, Reservations About Children's Rights, 1976 Brigham Young U.L.Rev. 605, 607). Arguments urging reform the granting of more extensive procedural protection to juveniles include: (1) The constitution is silent on age. (2) The purpose of parens patriae is to grant the juvenile greater protection than he would experience under the criminal law. Why strip him, then, of those constitutional rights guaranteed adults? (3) In spite of statutory proclamation that juvenile proceedings are civil in nature, the juvenile still is stigmatized with crime when he stands accused of an offense. (4) The juvenile often faces very real "deprivation of liberty," no matter what the euphemistic name given the detention facility. See, Note, The Right to Bail and the Pre-"Trial" Detention of Juveniles Accused of "Crime," 18 Vanderbilt L.Rev. 2096 (1965); Comment, Juvenile Right to Bail, 11 Journal Family Law 81 (1971); Comment, Children's Liberation Reforming Juvenile Justice, 21 K.L.R. 177 (1973); Anno. "Juvenile Courts Right of Bail," 53 A.L.R.3d 848 (1973).

Kansas has long espoused the parens patriae doctrine in dealing with juvenile offenders (see State v. Fountaine, 196 Kan. 638, 642-643, 414 P.2d 75, 79), now expressed in K.S.A.1976 Supp. 38-801 as follows "This act (juvenile code) shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in the child's own home, as will best serve the child's welfare and the best interests of the state. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state."

Our juvenile code specifically provides for pretrial detention. First, K.S.A.1976 Supp. 38-815(e ) states that whenever a child under the age of eighteen years is taken into custody by a peace officer and is forthwith taken before the district court, as is required, such child shall not remain in any detention or custody, other than the custody of the parent, guardian or other person having legal custody of the child, for more than forty-eight hours, excluding Sundays and legal holidays, from the time the initial custody was imposed by a peace officer, unless a determination is made, within such forty-eight hour period, as to the necessity for any further detention or custody in a detention hearing as provided in K.S.A.1976 Supp. 38-815b.

This latter statute prescribes the procedure for a detention hearing, to include appointment of a guardian ad litem, notice of hearing and the like, along with this:

"(c ) The district court may order temporary custody or detention as provided in K.S.A.1976 Supp. 38-819, in a detention hearing under this section after determining that: (1) The child is dangerous to self or to others; (2) the child is not likely to appear at a hearing for adjudication on any petition filed pursuant to K.S.A.1976 Supp. 38-816; or (3) the health and welfare of the child may be endangered without further care.

"(d ) When the court finds that the continued detention of the child pending adjudication in a hearing on a petition is not required to serve the welfare of the child and the best interests of the state as determined in subsection (c ) of this section, the court shall order the child's release and in doing so may place the child in the custody of the parent, guardian or other person having legal custody of the child, or a juvenile probation officer, or may impose any other conditions which may be required subject to modification by the court."

K.S.A.1976 Supp. 38-819 provides:

"(a ) Prior to or during the pendency of a hearing on a petition to declare a child to be delinquent, miscreant, wayward, a traffic offender, a truant or dependent and neglected, filed pursuant to K.S.A.1976 Supp. 38-816, the district court may order that such child be...

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