In the Interest of Johnson , 257 N.W.2d 47 ( 1977 )

MOORE, Chief Justice.

This is a juvenile court proceeding in which the petition alleged Beverly Ann Johnson, age 15, was a child in need of assistance or delinquent in that she stole $110 from the Covenant House at Burlington and also there cut and slashed a sofa with a sharp instrument. By amendment it was claimed she stole a pair of shoes from a Burlington store.

A demand for trial by jury was made and denied. Upon an adjudicatory hearing without a jury, Beverly Ann was adjudged a delinquent child. Her custody was transferred to the department of social services.

Her sole contention on this appeal is that Code section 232.27, which provides all hearings in juvenile cases shall be without a jury, violates Article I, sections 9 and 10 of the Iowa Constitution. Section 9 provides that “the right of trial by jury shall remain inviolate.” Section 10 secures the right of trial by jury “in all criminal prosecutions, and in cases involving the life, or liberty of an individual.”

I. We begin our analysis with a recognition that proceedings in juvenile court are not prosecutions for crime. They are special proceedings which serve as an ameliorative alternative to criminal prosecution of children. State v. White, Iowa, 223 N.W.2d 173, 175; In Re Henderson, Iowa, 199 N.W.2d 111, 116; In Re Delaney, Iowa, 185 N.W.2d 726, 728; Code section 232.1. A child under jurisdiction of the juvenile court is not amenable to prosecution under the criminal law until she is transferred for prosecution as an adult. State v. Speck, Iowa, 242 N.W.2d 287, 289; Bergman v. Nelson, Iowa, 241 N.W.2d 14, 15, 16; State v. Anthony, Iowa, 239 N.W.2d 850; State v. White, supra; Code section 232.72.

II. Several constitutional procedural rights were delineated in the landmark decision of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. It is now settled doctrine the juvenile is entitled to adequate written notice of the charges against him. We have previously held chapter 232 passes constitutional muster in this regard. In Re Henderson, supra, 199 N.W.2d 116, 117. Additionally, the juvenile has a right to counsel, In re Henderson, supra; section 232.28; he also has the right to confront and cross-examine adverse witnesses. In Re Delaney, supra, Iowa, 185 N.W.2d 726. Furthermore he possesses the 5th Amendment right against incrimination. Where a confession is determined to have been involuntarily coerced, due process bars its use. Interest of Thompson, Iowa, 241 N.W.2d 2, 6; Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.

Although the Supreme Court has determined the aforementioned constitutional requirements are applicable in a juvenile delinquency adjudication it has declined to engraft thereto the full panoply of rights constitutionally assured an adult accused of crime. McKeiver v. Pennsylvania, 403 U.S. 528, 533, 534, 91 S.Ct. 1976, 1980, 29 L.Ed.2d 647, 654; In Re Gault, 387 U.S. at 30, 87 S.Ct. at 1445, 18 L.Ed.2d at 548; Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97, 98.

III. We are here guided by the United States Supreme Court’s determination in McKeiver v. Pennsylvania, supra, that due process under the 14th Amendment does not require a jury trial in state juvenile proceedings. Unquestionably we must ultimately determine constitutional requirements in Iowa and are under no obligation to uphold a state statute merely because in the view of the Supreme Court of the United States it is not unconstitutional. Davenport Water Co. v. Iowa State Commerce Com’n, Iowa, 190 N.W.2d 583, 593; Iowa-Illinois G. & Elec. Co. v. Ft. Dodge, 248 Iowa 1201, 1224, 85 N.W.2d 28, 41. However, where, as here, constitutional provisions contain a similar guarantee they are usually deemed to be identical in scope, import and purpose. Davenport Water Co. v. Iowa State Commerce Com’n, supra; Graham v. Worthington, 259 Iowa 845, 863, 146 N.W.2d 626, 638; Dickinson v. Porter, 240 Iowa 393, 400, 35 N.W.2d 66, 72. Thus, while under these circumstances we are not bound by the McKeiver decision, we may look to its rationale for such guidance as it may afford. Shearer v. Perry Community Sch. Dist., Iowa, 236 N.W.2d 688, 691, 692; Davenport Water Co. v. Iowa State Commerce Com’n, supra.

In McKeiver the court refused to hold that a jury is a necessary component of accurate fact finding in the informal and basically nonadversarial process of juvenile hearings. In support of this result the court reasoned as follows:

“If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial. * *.

“Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding — or at least the adjudicative phase of it — with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge’s possible awareness of the juvenile’s prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers — all to the effect that this will create the likelihood of pre-judgment — chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates.

“If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it." (Emphasis supplied). 403 U.S. at 550, 551, 91 S.Ct. at 1988, 1989, 29 L.Ed.2d 663, 664.

IV. We have previously upheld the statutory predecessors of section 232.27 in Wissenburg v. Bradley, 209 Iowa 813, 816, 820, 229 N.W. 205, 206, 209, against constitutional challenge under Article I, section 9 of the Iowa Constitution. Notwithstanding appellant’s contention to the contrary, we believe her argument was met and rejected there. In light of McKeiver we reaffirm our prior holding. Section 232.27 is not violative of Article I, section 9.

V. We now turn to juvenile’s contention section 232:27 is violative of Article I, section 10 of our constitution which we have previously set forth.

In light of the foregoing discussion we first must reject the attempt to equate a juvenile adjudicatory hearing with a full scale criminal proceeding. McKeiver v. Pennsylvania, supra; In Re Gault, supra; Kent v. United States, supra; State v. White, supra.

However, because clearly a “liberty” interest is at stake in light of Gault and its progeny, we still must construe the second portion of this section of our Iowa Bill of Rights.

In construing our constitution- we have stated it must be construed as a whole. Gallarno v. Long, 214 Iowa, 805, 819, 243 N.W. 719, 725. It is our duty, if fairly possible, to harmonize constitutional provisions. Newby v. Woodbury County District Court, 259 Iowa 1330, 1339, 147 N.W.2d 886, 892. Thus in the present context we must attempt to harmonize Article 1, section 10 with Article I, section 9, previously discussed.

Furthermore, we recognize that unlike statutes, our constitution sets out broad general principles. A constitution is a living and vital instrument. Its very purpose is to endure for a long time and to meet conditions neither contemplated nor foreseeable at the time of its adoption. Redmond v. Carter, Iowa, 247 N.W.2d 268, 275 (LeGrand, J., concurring specially); Bechtel v. City of Des Moines, Iowa, 225 N.W.2d 326, 332. Thus the fact a separate juvenile court system was not in existence at the time our constitution was adopted in 1857 should not blindly mandate an absurd result because our forefathers had not yet seen fit to establish a separate juvenile court system. Sometimes, as here, the literal language must be disregarded because it does violence to the general meaning and intent of the enactment. 16 Am.Jur.2d Constitutional Law, section 76 at 258. Recently in Pitcher v. Lakes Amusement Co., Iowa, 236 N.W.2d 333, 335, 336, we considered an attack on Article I, section 9 of our constitution discussed supra involving the right to trial by jury. There we said:

“Time has increasingly demonstrated it was illogical to freeze forever our conception of a jury trial. * * * .

“ * * *. Constitutions must have enough flexibility so as to be interpreted in accordance with the public interest. This means they must meet and be applied to new and changing conditions. * * * »

We conclude it is not constitutionally required to inject a jury into the juvenile court setting.

Other jurisdictions which have considered this issue are in almost unanimous agreement that jury trials are not constitutionally required in juvenile proceedings. Flippo v. State, 49 Ala.App. 138, 269 So.2d 155; M. v. Superior Court of Shasta County, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664; In Re T.R.S., 1 Cal.App.3d 178, 81 Cal.Rptr. 574; In Re J.T., D.C., 290 A.2d 821, cert. denied, 409 U.S. 986, 93 S.Ct. 339, 34 L.Ed.2d 252; Robinson v. State, 227 Ga. 140, 179 S.E.2d 248; In Re Fucini, 44 Ill.2d 305, 255 N.E.2d 380, appeal dismissed, 403 U.S. 925, 91 S.Ct. 2242, 29 L.Ed.2d 704; Bible v. State, 253 Ind. 373, 254 N.E.2d 319; Dryden v. Commonwealth, Ky., 435 S.W.2d 457; State v. L**** D****, Me., 320 A.2d 885; In Re Johnson, 254 Md. 517, 255 A.2d 419; Welfare of J.E.C. v. State, 302 Minn. 387, 225 N.W.2d 245 (by inference); Hopkins v. Youth Court Of Issaquena County, Miss., 227 So.2d 282; In Re Fisher, Mo., 468 S.W.2d 198; In Re Geiger, 184 Neb. 581, 169 N.W.2d 431; In Re J.W., 57 N.J. 144, 270 A.2d 273; In Re State ex rel. J.W., 106 N.J.Super. 129, 254 A.2d 334; In Re D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627; In Re Burrus, 275 N.C. 517, 169 S.E.2d 879, aff’d sub nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647; In Re Agler, 19 Ohio St.2d 70, 48 O.Ops.2d 85, 249 N.E.2d 808; State v. Turner, 253 Or. 235, 453 P.2d 910; Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9; In Re Terry, 438 Pa. 339, 265 A.2d 350, aff’d sub nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647; In Re McCloud, 110 R.I. 431, 293 A.2d 512; Estes v. Superior Court, 73 Wash.2d 263, 438 P.2d 205. To the contrary are RLR v. State, Alaska, 487 P.2d 27; Peyton v. Nord, 78 N.M. 717, 437 P.2d 716; Arwood v. State, 62 Tenn.App. 459, 463 S.W.2d 943.

VI.In addition to the above authorities, several federal circuits have held there is no constitutional right to a jury trial under the Federal Juvenile Delinquency Act, Title 18, Section 5031 et seq. United States v. Hill, 4th Cir., 538 F.2d 1072; United States v. Cuomo, 5th Cir., 525 F.2d 1285, 1292; United States v. Torres, 2d Cir., 500 F.2d 944, 946, 947, 948; United States v. Salcido-Medina, 9th Cir., 483 F.2d 162, 164, cert. denied, 414 U.S. 1070, 94 S.Ct. 582, 38 L.Ed.2d 476; United States v. King, 6th Cir., 482 F.2d 454, 456, cert. denied, 414 U.S. 1076, 94 S.Ct. 594, 38 L.Ed.2d 483; Cotton v. United States, 8th Cir., 446 F.2d 107, 110.

We note the Uniform Juvenile Court Act, section 24, stops short of proposing the jury trial for juvenile proceedings.

VII. In the massive rewrite of the Iowa Juvenile Justice Law passed by the House in this past session of the legislature, 67 G.A. (1977 Session), H. F. 248, that branch of the legislature saw fit to retain the juvenile judge as the sole trier of fact at the adjudication hearing in recognition of the importance of retaining a true distinction between juvenile matters and full scale criminal trial proceedings. This conclusion was reached while at the same time protecting the juvenile’s rights through numerous statutory safeguards.

VIII. After careful consideration of the case law, the uniqueness of our juvenile justice system and the guidelines formulated by the United States Supreme Court, we conclude a juvenile is not constitutionally entitled to a trial by jury at a delinquency hearing under our constitution.

In oral argument appellant’s counsel relied heavily on State ex rel. Shaw v. Breon, 244 Iowa 49, 55 N.W.2d 565. It is not controlling here. However in view of the principles and holdings set out above, we now overrule that case.

AFFIRMED.

All Justices concur except McCORMICK, J., who concurs specially.