N. P. A. v. State , 1979 Alas. LEXIS 698 ( 1979 )

RABINOWITZ, Chief Justice,

dissenting.

I agree with the majority’s conclusion that the minor has a constitutional right to attend the waiver hearing. In P. H. v. State, 504 P.2d 837, 842-43 (Alaska 1972), this court held that a minor in a waiver hearing possesses the right to confront witnesses, and that this right is grounded on the Sixth Amendment to the United States Constitution and upon article I, section 11 of the Alaska Constitution.¹ Furthermore, I am of the view that conducting a waiver hearing in the minor’s absence is inconsistent with Alaska’s Children’s Rules. Children’s Rule 12 makes clear that the child must be present for the court to conduct a child’s hearing regarding delinquency, dependency, or disposition. Although Children’s Rule 3, which governs waiver proceedings, is silent with respect to the subject of the minor’s presence, the explicit requirement of presence provided for in Children’s Rule 12 emphasizes the need for the presence of the child at the waiver hearing, since the waiver hearing can result in the loss of the protections afforded the child by the state which are embodied in the children’s system. Among other values, the child also stands to lose the children’s system’s protection from public scrutiny.

My disagreement with the court’s opinion goes to the holding that the minor voluntarily waived her right to appear at the superi- or court waiver hearing in Alaska. Admittedly, the right to be present is waivable, but before waiver can be found it must be shown that the waiver was an intentional,, intelligent, and voluntary relinquishment of a known right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). In my view, the record in the case at bar does not support a finding of either an express or implied waiver of the right to be present. By concluding that the minor voluntarily waived her right to be present at the waiver hearing, the court in effect requires her to waive arguably meritorious defenses to an allegedly unlawful extradition proceeding in order to preserve her constitutional right to be present at any waiver hearing conducted by the superior court in Alaska. In my view, it is impermissible to condition the minor’s exercise of her constitutional right to attend the waiver hearing upon the minor’s waiver of her due process rights with regard to the extradition proceedings.

1 . In R.L.R. v. State, 487 P.2d 27, 31 (Alaska, 1971), the minor’s right of confrontation in delinquency proceedings was recognized.