State v. Henderson , 1972 Iowa Sup. LEXIS 867 ( 1972 )

McCORMICK, Justice

(concurring specially).

I concur in the result but not the way it is reached.

I. The majority opinion goes far beyond necessities of the case. The only record made at trial raising constitutional issues was a pretrial motion to dismiss “amended” during trial. Chapter 232, The Code, was thereby alleged to infringe due process and equal protection by denying: (1) notice of charges; (2) right to counsel ; (3) confrontation and cross-examination; (4) right against self-incrimination; (5) appellate review and transcript of proceedings ; (6) jury trial; and (7) necessity of proof of delinquency beyond a reasonable doubt. The other issues discussed in the majority opinion were raised for the first time on appeal and should not be decided here. Cole v. City of Osceola, 179 N.W.2d 524, 528 (Iowa 1970); Prine v. Hovick, 176 N.W.2d 183, 185 (Iowa 1970).

In addition, the sole constitutional attack at trial was against the statute on its face. It was not attacked as applied. Therefore the sole test of constitutionality is what may be done under its authority rather than what wai done. Chicago, R. I. & P. R. Co. v. Liddle, 253 Iowa 402, 112 N.W.2d 852 (1962). The majority’s defense of its application in this case is unnecessary.

This appeal should decide whether chapter 232, The Code, offends due process and equal protection under Amendment XIV, United States Constitution, in the respects alleged, and nothing more.

Appellant’s first five claims are answered in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). She correctly maintains Iowa juvenile courts must accord the rights therein recognized, and the majority opinion rightly decides chapter 232 does not deny them. The sixth claim (right to jury trial) is answered adversely in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). That should have been enough to dispose of these six claims.

II. However, the majority goes further and in Division III(l) upholds the notice actually given in this case and in Division III (4) makes the right against self-incrimination unavailable to Iowa children charged with delinquency where the conduct would not be a public offense for an adult. These issues were not raised at trial and should not be decided here, but since the majority has discussed them I register my disagreement with the positions taken.

On the notice question it is conceded Gault requires advance notice setting forth the alleged misconduct with particularity. In re Gault, supra, 387 U.S. at 33, 87 S. Ct. 1428. Our statute comports with due process because it mandates such notice. Code § 232.3(1) requires the petition to set forth plainly “[t]he facts which bring the child within the purview of this chapter.” Summons and notice must “recite briefly the substance * * * or shall have attached a copy of the petition.” §§ 232.4, 232.5, The Code. In this case the statute was not followed. The petition alleged John was delinquent under § 232.2 (13) (c) because “uncontrolled by his parents by reason of being wayward or disobedient.” It failed utterly to set forth the alleged conduct with particularity as required by Gault.

However, appellant’s complaint about it is untimely. She should have attacked it by appropriate prehearing challenge so the trial court could have required the State to amend the petition to supply the particulars desired or could have furnished other remedy. By participating in the hearing without objection to the particularity- of notice appellant waived her right to attack it. Notice was deficient but the issue is raised too late.

III. I also dissent from the majority’s refusal to follow the plain mandate in Gault that “juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ for purposes of the privilege against self-incrimination.” In re Gault, supra, 387 U.S. at 49, 87 S.Ct. at 14SS. See Contemporary Studies Project: Juvenile Delinquency in Iowa, S3 Iówa L. Rev. 1119, 1145 (1968) (the privilege is applicable to juveniles subject to delinquency proceedings and possible commitment); Frey, Gault and Iowa Juvenile Justice, 17 Drake L.Rev. 53, 63 (1967) (“After Gault, each judge must now insure that the juvenile is extended his privilege against self-incrimination.”).

The rule was restated in McKeiver v. Pennsylvania, supra, 403 U.S. at 533, 91 S.Ct. at 1980:

“Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are * * * the privilege against self-incrimination.”

The majority seeks to soften the blow by saying John may “only” be institutionalized for one year. Of course it could be longer. He could be placed in the Eldora training school. §§ 232.34(4), 242.5, 242.14, The Code. Pie could also be confined in the men’s reformatory. § 218.91, The Code. See Wilson v. Coughlin, 259 Iowa 1163, 147 N.W.2d 175 (1966).

The authorities sought to be distinguished by the majority are controlling. I can find no case since Gault holding the privilege inapplicable in delinquency proceedings. Privilege applicability is not measured by the conduct serving as basis for the charge but by whether delinquency adjudication brings possible institutionalization. All Iowa delinquency cases fit this measure.

In this case there was no objection at trial based on the privilege. If evidence had been received subject to such objection, we could disregard any evidence as to which the objection was good. Our review is de novo. § 232.58, The Code; In re Morrison, 259 Iowa 301, 306, 144 N.W.2d 97, 100 (1966). Appellant’s only complaint at trial was absence of affirmative statutory expression of the privilege. Of course, constitutional rights are available without statutory repetition. 16 Am.Jur.2d Constitutional Law § 149.

The majority erroneously holds the privilege unavailable, but since it was not invoked in this case the result is unaffected.

IV. I dissent from Division V which denies appellant’s claim § 232.31, The Code, is unconstitutional because it permits delinquency adjudication upon clear and convincing evidence rather than proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), requires proof beyond a reasonable doubt if the conduct would be an adult public offense. The majority seeks to save the lesser standard where delinquency is predicated upon a claim the child is “uncontrolled” or “habitually disobedient” under § 232.2(13) (c). There is no rational basis for distinction. We cannot abdicate our responsibility to apply due process standards simply because the United States Supreme Court has not previously decided a case on exactly the same facts.

Winship did not reach the issue of constitutionality of New York procedures governing a “person in need of supervision.” New York Family Court Act § 712 defines such child as “an habitual truant or * * * incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority.” Cf. § 232.2(13) (c), The Code. Since Winship, New York has required proof beyond a reasonable doubt both in delinquency and “person in need of supervision” hearings finding no real adjudicatory distinction between them. In re E., 68 Mise. 2d 487, 327 N.Y.S.2d 84, 86 (1971); see also In re D., 36 A.D.2d 970, 321 N.Y.S.2d 510 (1971). We should now say with New York, “ * * * [W]e do not see how we can give some children less rights than others. Would this not be the case of saying that you have more rights when it is alleged that you have perpetrated more of a wrong?” In re E., supra, 327 N.Y.S.2d at 87.

All the reasons given in Winship for requiring proof beyond a reasonable doubt where conduct would be an adult public offense are equally applicable to all Iowa delinquency bases. See Kemplen v. State of Maryland, 428 F.2d 169, 172-175 (4th Cir. 1970); United States v. Costanzo, 395 F.2d 441, 443-445 (4th Cir. 1968); 68 Mich.L. Rev. 567 (1970). I find no jurisdiction since Winship which has adopted the peculiar and unjust dichotomy embraced by the majority here.

I believe § 232.31 is unconstitutional as violative of due process in permitting adjudication of delinquency upon clear and convincing evidence. The provision is sev-erable and the remainder of the statute is unaffected.

However, I would not reverse the trial court. In this de novo appeal we are required to weigh the evidence anew. § 232.58, The Code. The evidence in this case satisfies the reasonable doubt standard and requires delinquency adjudication.

V. It is implicit in these recent developments affecting juvenile court procedures that contested delinquency hearings should be conducted in two phases, one adjudicatory and the other dispositional. Code § 232.14 seems to require it. See also 84 Harv.L.Rev. 1, 162 (1970) (“In Winship as well as Gault the court carefully isolated the adjudicatory stage from both the pretrial and dispositional stages * * *.”) The adjudicatory hearing is solely to determine the merits of the delinquency allegation; the disposition hearing is to determine treatment if the claim has been proved. In re Wooten, 13 Md.App. 521, 284 A .2d 32 (1971).

This case was tried with mixed and confused purpose. Adjudicatory and disposi-tional issues were tried simultaneously. The record illustrates what Gault intended to eliminate from adjudicatory hearings. We should tell juvenile courts hereafter to use separate adjudicatory and disposition hearings.

VI. The majority has reached the right result for the wrong reasons. I concur only in the result.

MASON, RAWLINGS and REY-NOLDSON, JJ., join in this special concurrence.