State ex rel. Harris v. Calendine

• Decision Date: 22 March 1977
• Docket Number: No. 13815,13815
• Citation: 160 W.Va. 172,233 S.E.2d 318
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Gilbert HARRIS, a minor, proceeding by his next friend Emma Burrows v. Calvin A. CALENDINE, Commissioner of Public Institutions for the State of West Virginia, succeeded by Stewart Werner, and Robert J. Klein, Superintendent, Davis Center for Boys.

Page 318

233 S.E.2d 318

160 W.Va. 172

STATE of West Virginia ex rel. Gilbert HARRIS, a minor, proceeding by his next friend Emma Burrows v. Calvin A. CALENDINE, Commissioner of Public Institutions for

the State of West Virginia, succeeded by Stewart

Werner, and Robert J. Klein,

Superintendent, Davis Center for Boys.

No. 13815.

Supreme Court of Appeals of West Virginia.

March 22, 1977.

Syllabus by the Court

1. Under the doctrine of the least obtrusive remedy, this Court will not strike down a statute as unconstitutional whenever there is an adequate less obtrusive remedy which will assure that the statute will not be unconstitutionally applied.

2. W. Va. Code, 49-1-4 (1941) and W. Va. Code, 49-5-11 (1975), providing the definition of "delinquent child" and the methods of disposition for children adjudged delinquent, respectively, are constitutional however, they must be applied in such a way as to protect status offenders from unconstitutional incarceration.

3. The indiscriminate incarceration of juvenile status offenders along with juvenile criminal offenders violates W. Va. Const., art. III, § 5, and W. Va. Const., art. III, § 10, because such indiscriminate incarceration denies status offenders' right to equal protection of the laws, their right to substantive due process, and their right to protection against cruel and unusual punishment.

4. Under no circumstances can a child adjudged delinquent because of a status offense, i. e., an act which if committed by an adult would not be a crime, be incarcerated in a secure, prison-like facility with children adjudged delinquent because of criminal activity.

5. Regardless of any euphemistic title which the State may select such as "home for girls," "industrial school," "forestry camp," "children's shelter," "orphanage," or other imaginative name, any institution for children which relies upon locked rooms, locked buildings, fences, guards, physical restraint, strict regimentation, or corporal punishment, is a "secure, prison-like facility."

6. No child adjudged delinquent for a status offense may be incarcerated in a secure, prison-like facility devoted exclusively to status offenders unless the record supports a specific finding by the juvenile court that the child is so ungovernable or anti-social that no other reasonable alternative exists, or with due care and diligence on the part of the State could exist, to physical restraint such as only a secure, prison-like facility can provide. The proper test in this regard is not what reasonable alternatives are actually afforded by the State but rather what reasonable alternatives could be afforded by a humane and enlightened state, solicitous of the welfare of its children.

7. While no child adjudged delinquent for a status offense may be incarcerated in a secure, prison-like facility with children adjudged delinquent because of criminal activity, such status offenders may be housed and educated with criminal offenders in half-way houses and other modern, well-staffed facilities when it can be reasonably demonstrated that the welfare of both status and criminal offenders will be enhanced and that there is no serious threat to the physical or emotional well-being of the status offenders.

Charles R. Garten, Jr., Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for respondents.

NEELY, Justice.

This habeas corpus proceeding calls into question the constitutional validity of West Virginia's classification and disposition of juvenile offenders. The Court does not find unconstitutional W. Va. Code, 49-1-4 (1941), which defines a "delinquent child," or W. Va. Code, 49-5-11 (1975), which authorizes certain methods of disposition for children adjudged delinquent; nevertheless, we find that definite guidelines are needed to prevent these statutes from being unconstitutionally applied in violation of W. Va. Const., art. III, § 10, the due process clause, and W. Va. Const., art. III, § 5, the cruel and unusual punishment clause.

The petitioner, Gilbert Harris, is a 16 year old boy now confined in the Davis Center, a forestry camp for boys, pursuant to an order of the Calhoun County Juvenile Court adjudging the petitioner delinquent because he had been absent from school for 50 days.

On April 9, 1976, the Director of Supportive Services for the Calhoun County Board of Education petitioned the juvenile court to find Mr. Harris either neglected or delinquent because of his irregular school attendance. A summons was served on petitioner's mother and stepfather stating that they were required to appear before the Calhoun County Juvenile Court, and after several continuances a hearing was finally held on May 17, 1976 at which the petitioner his attorney, and petitioner's mother appeared. At the hearing the petitioner did not deny the allegations against him and was adjudicated a delinquent child. The juvenile court committed the petitioner to the care, custody, and control of the Commissioner of Public Institutions for the State of West Virginia for assignment to the Industrial School for Boys at Pruntytown until the petitioner became 16 years old in July 1976. Upon reaching age 16, petitioner was to be reassigned to a Youth Center for the balance of a one year period, after which he was to be remanded to the custody of the Calhoun County Juvenile Court. Petitioner had never been charged with a delinquent act before the bringing of the petition now under review and had never previously appeared before the juvenile court. Furthermore, petitioner was nearly 16 at the time he was adjudged delinquent for truancy, and he was ordered incarcerated for almost a year past the legal age when school attendance is required. W. Va. Code, 18-8-1 (1951).

Petitioner lived in a remote, rural section of Calhoun County and had some difficulty getting to school during the winter months. More importantly, however, it appears that the petitioner was ridiculed and shunned by his classmates because he suffered from a facial disfigurement and was mildly retarded. Petitioner had been enrolled in a special education class during junior high school and high school, but the record does not disclose any details about those classes in the local schools or the programs offered by either the industrial school at Pruntytown or the Forestry Camp at Davis.

In support of his petition, petitioner alleges that he was not afforded adequate and sufficient notice of the charges against him; that the commitment is null and void because the petition filed against him was fatally defective for failing to set forth specific facts constituting neglect or delinquency; that the proceeding in the juvenile court was void because his parents did not have legal counsel at the hearing; that the trial judge abused his discretion in committing him to incarceration beyond the period during which he was required to attend school; and, that the entire juvenile commitment procedure violates the due process clauses, and the cruel and unusual punishment clauses of the State and Federal constitutions. The Attorney General of West Virginia confessed error in this proceeding and, consequently, there is no record before us.

The absence of a detailed record necessarily limits our review of the alleged procedural irregularities. Accordingly we confine ourselves in this opinion to reaffirming that a juvenile defendant in a delinquency proceeding is entitled to counsel who will represent and defend him both at trial and on appeal, and that his parents, guardians or other custodians are entitled to be informed that their child has a right to counsel. W. Va. Code, 49-5-10 (1975). An indigent defendant has a right to court appointed counsel, Code, 49-5-10 (1975), and all parties, particularly parents, guardians, or other custodians must be fully and meaningfully informed of their rights and must be accorded a reasonable time to confer with counsel and prepare a defense. Furthermore, any delinquency petition must allege sufficiently specific underlying facts to give the defendant and his parents, guardians, or other custodians fair notice of the charges against the defendant. State ex rel. Wilson v. Bambrick, W.Va., 195 S.E.2d 721 (1973); Crow v. Coiner, 323 F.Supp. 555 (N.D.W.Va.1971); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

As we decide this case on the basis of the Constitutional issues fairly raised in the petition, we need not reach the question of whether the trial judge abused his discretion in confining petitioner beyond the age at which school attendance is required.

I

The primary question presented by this proceeding is whether W. Va. Code, 49-1-4 (1941) and W. Va. Code, 49-5-11 (1975) establish methods for handling juvenile offenders which are inherently unconstitutional. These West Virginia statutes which indiscriminately combine status offenders ¹ with criminal offenders, present an enormous potential for abuse and unconstitutional application. Nonetheless, under the doctrine of the least obtrusive remedy, this Court will avoid striking down legislation whenever ". . . there is an adequate remedy to prevent such legislation from being unconstitutionally applied." Point 4, Syllabus, State ex rel. Alsop v. McCartney, W.Va., 228 S.E.2d 278 (1976). To save these statutes from constitutional infirmity and to assure that they will be constitutionally applied, this Court will discuss the perimeters dictated by the Constitution of the State of West Virginia which circumscribe their application.

W. Va. Code, 49-1-4 (1941) establishes the conditions under which a child may be adjudicated delinquent. That Section provides:

'Delinquent child' means a person under the age of eighteen years who:

(1) Violates a law or municipal ordinance;

(2) Commits an act which if committed by an adult would be a crime not punishable by death or life imprisonment;

(3) Is incorrigible, ungovernable, or...