State ex rel. Juvenile Dept. of Klamath County v. Reynolds

• Decision Date: 03 September 1993
• Citation: 317 Or. 560,857 P.2d 842
• Parties: In the Matter of Brad Reynolds, a Child. STATE ex rel. JUVENILE DEPARTMENT OF KLAMATH COUNTY, Respondent on Review, v. Brad REYNOLDS, Petitioner on Review. CC 9100157CF; CA A72480; SC S39829.
• Court: Oregon Supreme Court

Page 842

857 P.2d 842

317 Or. 560

In the Matter of Brad Reynolds, a Child.

STATE ex rel. JUVENILE DEPARTMENT OF KLAMATH COUNTY, Respondent on Review, v. Brad REYNOLDS, Petitioner on Review.

CC 9100157CF; CA A72480; SC S39829.

Supreme Court of Oregon.

Argued and Submitted May 5, 1993.

Reassigned Aug. 30, 1993.

Decided Sept. 3, 1993.

Myron Gitnes, Klamath Falls, argued the cause and filed the petition for petitioner on review.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent on review. Amy E. Alpaugh, Asst. Atty. Gen., Salem, filed the response. With her on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Angela Sherbo, Portland, filed an amicus curiae brief on behalf of Calvin Jackson.

Jenny Cooke, Portland, filed an amici curiae brief on behalf of the Nat. Legal Aid and Defender Ass'n, Oregon Crim. Defense Lawyers Ass'n, and the Youth Law Center. With her on the brief were Martha Bergmark, Washington, DC, of the Nat. Legal Aid and Defender Ass'n; Alice Bussiere and David Lambert, San Francisco, CA, of the Nat. Center for Youth Law; and Mark I. Soler and Susan L. Burrell, San Francisco, CA, of the Youth Law Center.

VAN HOOMISSEN, Justice.

The issue in this case is whether the jurisdictional phase of a juvenile proceeding under ORS 419.476(1)(a) ¹ ("delinquency proceeding") is a "criminal prosecution" within the meaning of Article I, section 11, of the Oregon Constitution. For the reasons that follow, we hold that it is not.

A petition was filed in juvenile court in March 1991 alleging that the child, then 13, had done acts that, if done by an adult, would constitute sodomy in the first degree, ORS 163.405, a Class A felony; sexual abuse in the first degree, ORS 163.425, a Class B felony; and furnishing obscene materials to minors, ORS 167.065, a Class A misdemeanor.

Before the adjudicatory hearing, the child moved for a jury trial, citing Article I, section 11, of the Oregon Constitution, and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. ² The juvenile court denied the child's motion for a jury trial and, in May 1991, heard the matter without a jury. ORS 419.498(1). After taking the matter under advisement, the court informed the parties that it had found beyond a reasonable doubt that the child had committed two of the acts alleged in the petition and, therefore, that the child was within the court's jurisdiction pursuant to ORS 419.476(1)(a). The third allegation, concerning sodomy, was dismissed by the juvenile court. After a dispositional hearing, the child, who already was on informal bench probation to the juvenile court as a result of earlier difficulties, was placed on formal probation for two years.

On appeal, the Court of Appeals affirmed per curiam, citing State v. Turner, 253 Or. 235, 453 P.2d 910 (1969). State ex rel Juv. Dept. v. Reynolds, 116 Or.App. 243, 839 P.2d 288 (1992). This court allowed the child's petition for review to consider his claim that he had a constitutional right to a jury trial.

Article I, section 11, of the Oregon Constitution, provides in part:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *."

The child's principal claim is that he is entitled to a jury trial, because the juvenile court proceeding in his case was a "criminal prosecution" under Article I, section 11.

Frequently, this court has approached constitutional questions under Article I of the Oregon Constitution by examining the historical context of the constitutional provision in question. A prime example is State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980), in which this court was called on, for the first time, to determine the scope of Article I, section 27, of the Oregon Constitution, which provides that "[t]he people shall have the right to bear arms for the defence (sic) of themselves, and the State." In outlining its interpretive approach, the court wrote:

"Despite the many variations in wording, the states' constitutional provisions guaranteeing the right to bear arms share a common historical background. We begin first with an examination of this historical background and then with an examination of the meaning and purpose of the particular words chosen by the Oregon drafters. We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment." 289 Or. at 362 (emphasis added).

The court took a similar approach to Article I, section 20--the "equal privileges and immunities" clause of the Oregon Constitution--in State v. Clark, 291 Or. 231, 630 P.2d 810, cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981). In Clark, this court considered whether the denial of a preliminary hearing to a defendant indicted by the grand jury, instead of by a district attorney's information, violated Article I, section 20. The court began by examining the history of that clause:

"This guarantee, taken like most of Article I from Indiana's Constitution of 1851, has been a part of the Bill of Rights since Oregon became a state in 1859. Antedating the Civil War and the equal protection clause of the fourteenth amendment, its language reflects early egalitarian objections to favoritism and special privileges for a few rather than the concern of the Reconstruction Congress about discrimination against disfavored individuals or groups." 291 Or. at 236, 630 P.2d 810.

Another example of such a historical approach to state constitutional interpretation appears in this court's Article I, section 8, jurisprudence. In Article I, section 8, cases, this court determines whether the limitation on speech falls within a "historical exception" to the constitutional free speech guarantee. State v. Henry, 302 Or. 510, 732 P.2d 9 (1987), provides an example of that approach. In Henry, this court was called on to determine whether a statute criminalizing the dissemination of obscene material violated Article I, section 8. The court concluded that obscene expression could not be so restricted, because the prohibition did not fall within any historical exception to the state's free speech guarantee.

Finally, this court has applied a historical approach in at least one case involving the right to jury trial under Article I, section 11. In State ex rel Dwyer v. Dwyer, 299 Or. 108, 698 P.2d 957 (1985), the question posed was whether a criminal contempt proceeding for failure to pay child support was a "criminal prosecution" within the meaning of Article I, section 11. The court examined criminal contempt proceedings in a historical context and concluded that such proceedings are "wholly confined within an historical exception that was well-established when the Oregon constitutional guarantee of a jury trial in all criminal prosecutions was adopted." 299 Or. at 114, 698 P.2d 957. ³

Dwyer and the other state constitutional cases cited above indicate that we should begin our analysis by determining whether, in 1859, when the Oregon constitutional guarantee of a jury trial "in all criminal prosecutions" was adopted, a person in the child's position would have been entitled to a jury trial. We turn to that question. ⁴

At common law, children under a certain age were conclusively presumed to lack criminal capacity. 1 LaFave & Scott, Substantive Criminal Law 566, § 4.11 (1986); 4 Blackstone, Commentaries, chs. II, XIX (Lewis ed. 1900). In the United States that age was 7 in some states and 10 in others. Mack, The Juvenile Court, 23 Harv.L.Rev. 104, 106 (1909). Children between 7 (or 10) and 14 were presumed to lack criminal capacity, but that presumption could be rebutted. 1 LaFave & Scott, supra, at 566-68. Children 14 years old and older were deemed to be criminally responsible. Ibid. The common law did not differentiate between adults and children who had reached the age of criminal responsibility; those children were criminally convicted and punished as adults would be. Mack, supra, 23 Harv.L.Rev. at 106. Oregon's Deady Code contained no statutes regarding juvenile offenders or the age of criminal responsibility, so it is likely that Oregon applied the common law rule. Thus, it would appear that, in 1859, a juvenile in the position of the child could have been prosecuted in the same manner as could any other accused felon. It follows that, in 1859, such a juvenile would have been entitled to a jury trial. ⁵

The question then becomes: Have circumstances so changed that today a child in a juvenile delinquency proceeding under ORS 419.476(1)(a) is faced with a "criminal prosecution," as that term is used in Article I, section 11? We turn to that inquiry.

Late in the nineteenth century, the Oregon legislature enacted legislation that allowed some exceptions for children. One statute permitted courts to send children under 16 who were convicted of crimes to state reform school instead of to prison. 1 Hill's Laws Annot. § 1414 (1887). In 1893, the legislature enacted statutes that gave adult criminal courts discretion to treat juveniles differently from adults: (1) the court could suspend judgment against a minor under 16 if the court believed that the child could be reformed; (2) although the court could send a child between the ages of 10 and 16 who was convicted of a crime punishable by imprisonment to reform school or county jail instead of sending the child to prison, children still were subject to capital punishment; (3) the grand jury could recommend reform school rather than indicting a child under 16; (4) the court could stay criminal proceedings for youths...