Summary
In DeBacker v. Sigler, 185 Neb. 352, 175 N.W.2d 912, this court held that vesting in the county attorney a discretionary power to proceed against juveniles in the juvenile or criminal courts was not an unconstitutional practice and did not violate the precepts of due process.
Summary of this case from State v. LytleOpinion
No. 37531.
Filed March 20, 1970.
Infants: Trial. A defendant is not entitled to a jury trial upon a complaint filed in the juvenile court alleging that the defendant is a delinquent child.
Appeal from the district court for Lancaster County: WILLIAM C. HASTINGS, Judge. Affirmed.
Kerrigan, Line Martin, for appellant.
Clarence A. H. Meyer, Attorney General, and Melvin K. Kammerlohr, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is a second proceeding for a writ of habeas corpus by Clarence J. DeBacker. The petitioner alleges that he is in the custody of the Warden of the Nebraska Penal and Correctional Complex by reason of a transfer from the Boys' Training School under section 83-455, R.R.S. 1943. The validity of section 83-455, R.R.S. 1943, is not an issue in this proceeding.
The petitioner alleges that he is unlawfully deprived of his liberty because the Juvenile Court Act of Nebraska, under which he was committed, is unconstitutional. Specifically, the petitioner complains that section 43-206.03, R.R.S. 1943, does not provide for a trial by jury and that section 43-205.04, R.R.S. 1943, permits the county attorney to decide whether juveniles shall be charged in the juvenile court or in the criminal court.
The issues here are essentially the same as those presented in DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508. In that case, four members of this court, including the writer, were of the opinion that the Juvenile Court Act violated the Constitution of the United States because of the decisions of the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, and Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.Ed.2d 491. However, the judgment of the district court dismissing the proceeding was affirmed because of the five-judge concurrence requirement of Article V, section 2, Constitution of Nebraska.
The petitioner then appealed to the United States Supreme Court where, after argument, the appeal was dismissed. DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148. In DeStafano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, that court had decided that Duncan v. Louisiana would not apply to trials prior to May 20, 1968. The court concluded that petitioner's case was "not an appropriate one" in which to decide whether the Nebraska statute was valid.
It has been the rule in this state that a defendant is not entitled to a jury trial upon a complaint filed in the juvenile court alleging that the defendant is a delinquent child. State ex rel. Weiner v. Hans, 174 Neb. 612, 119 N.W.2d 72. It now appears that this is still the rule, at least as to proceedings in which the trial commenced prior to May 20, 1968.
The petitioner presents a new contention based upon the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. In substance, the argument is that the classification of juveniles separately from adults for correctional purposes is unreasonable; that there is no reasonable basis for such a classification; and that the act is, therefore, invalid.
The respondent points out the many places in the law where minors have always been classified separately from adults. The existence of the juvenile court system itself is a recognition of the validity of the separate classification of juveniles for correctional purposes. We think that the right of a juvenile to a jury trial in juvenile court, if one exists, does not have its origin in the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
The petitioner's contention that section 43-205.04, R.R. S. 1943, is invalid because it permits the county attorney to decide whether juveniles shall be charged in the juvenile court or in the criminal court is not well founded. As pointed out by the United States Supreme Court in DeBacker v. Brainard, supra, the discretion vested in the county attorney is not conferred by the Juvenile Court Act.
In his brief the petitioner suggests that there should be a procedure available to a juvenile so that he could obtain a judicial determination as to whether he should be charged in the juvenile court or the criminal court. Although we find no constitutional objection to the procedure in this state, the question is not presented in this case. The petitioner was charged in juvenile court and his only objection to proceeding in that court was in regard to his demand for a jury trial.
It is unnecessary to consider the petitioner's assignment of error relating to Article V, section 2, of the Constitution of Nebraska.
The judgment of the district court is affirmed.
AFFIRMED.
SMITH, J., concurs in the result because DeBacker complains of proceedings that antedate May 20, 1968, the probable cutoff.