In Re Weidner

487 P.2d 1385 (1971)

In the matter of Corey Dean WEIDNER, a Child. State of Oregon, Respondent, v. Corey Dean Weidner, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted July 20, 1971.

Decided August 26, 1971.

William C. Snouffer, Portland, argued the cause for appellant. With him on the brief were Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

A petition was filed in the Juvenile Department, Washington County Circuit Court, alleging that 17-year-old Corey Dean Weidner was within the jurisdiction of the juvenile court by reason of the fact that on May 22, 1970, in Multnomah County, Oregon, he unlawfully sold a kilo of marihuana, a narcotic drug. Thereafter, pursuant to notice, on June 8, 1970, the defendant child, his parents, his attorney and the juvenile court counselor appeared before the juvenile court judge for a hearing to determine whether the child should be remanded to adult court. No evidence was adduced at the hearing, which consumed only nine minutes, and the court remanded Weidner to adult court. The remand statute, ORS 419.533, reads as follows:

"(1) A child may be remanded to a circuit, district, justice or municipal court of competent jurisdiction for disposition as an adult if: "(a) The child is at the time of the remand 16 years of age or older; and "(b) The child committed or is alleged to have committed a criminal offense or a violation of a municipal ordinance; and "(c) The juvenile court determines that retaining jurisdiction will not serve the best interests of the child and the public. "* * *"

The remand order did not set forth reasons for the remand.

*1386 Defendant claims the "hearing" was so cursory as not to amount to a hearing; that the remand order of the court did not comply with the remand statute, ORS 419.533, or with the requirement of Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), in that it did not set forth reasons for the remand nor recite that "retaining jurisdiction [would] not serve the best interests of the child and the public." Finally, defendant contends that the remand statute unconstitutionally deprived him of due process of law and equal protection of the laws under the Oregon and United States Constitutions in that it is void for vagueness.

We will consider defendant's contentions in reverse order, commencing with his attack on the constitutionality of the remand statute. The Oregon Supreme Court in State v. Little, 241 Or. 557, 564, 407 P.2d 627, 630 (1965), cert. denied 385 U.S. 902, 87 S. Ct. 208, 17 L. Ed. 2d 133 (1966), in discussing a challenge to the constitutionality of the Oregon statute said:

"The defendant next contends that if the statute is applied literally to allow the remand in this case, then it violates the defendant's rights under the equal-protection and due-process clauses of the Fourteenth Amendment to the United States Constitution. "We are satisfied that no such basis exists for challenging the constitutionality of the statute. Prior to the enactment of the present juvenile law, a child could be remanded to the adult court at any age. The current version of the statute has taken away none of the child's common-law rights, and has given the child some new rights."

Further, it must be remembered that the remand proceeding is civil in nature, not criminal, and the principal consideration is whether the juvenile court process or the adult court process is better suited to protect the public and assist the individual involved. State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), cited by defendant in support of his claim that the remand statute is constitutionally void for vagueness, was a criminal case involving the interpretation of the criminal statute defining the crime of contributing to the delinquency of a minor, and, as such, is doubtful authority for interpreting whether the criteria set forth in the remand statute meet constitutional standards. Moreover, since the juvenile court is not making an adjudicatory determination, there is less reason for applying the substantive due process requirements of the criminal law. See State v. McMaster, Or. App., 91 Adv.Sh. 771, 476 P.2d 814 (1970), reversed Or., 92 Adv.Sh. 1563, 1568, 486 P.2d 567 (1971).

The remand statute sets out the specific criteria for determining whether a juvenile should be remanded: the age of the child, the character of the offense and the effect of the retention of jurisdiction on both the interests of the child and the public. These standards are sufficient criteria to outline the boundaries for the exercise of the juvenile court's discretion.

The next consideration is defendant's claim that the remand order did not comply with the remand statute nor with the requirements of Kent v. United States, supra. Kent v. United States is interpreted to require the entry of specific findings of fact which will support its decision to remand a child to adult court. Oregon State Bar, Oregon Juvenile Law Handbook, Remand § 4.9 (1970). The remand statute itself provides that the court must make a finding not only that the child is above 16 years of age and is alleged to have committed a criminal offense, but also that "retaining jurisdiction will not serve the best interests of the child and the public." In the present case the court did not comply either with Kent or with the remand statute in this regard.

Defendant's other assignment is that no hearing, in fact, was held. Although the remand statute, ORS 419.533, does not specifically require a hearing on the question of remand, it has been interpreted by the Oregon Supreme Court in *1387 the light of Kent, supra, and Gault[1] to require a hearing. Bouge v. Reed, 254 Or. 418, 459 P.2d 869 (1969). No particular formalities are required for the hearing, but the moving party has the burden of proving that the three requirements of the remand statute have been met. In this case the petitioner was the juvenile court counselor and no competent evidence was adduced at the "hearing" although the child, his parents, his attorney and the juvenile counselor were present pursuant to notice. The primary issue in the remand hearing is the prognosis for rehabilitation of the child if he is found to be within the jurisdiction of the juvenile court and subjected to the rehabilitative programs available to the juvenile court.[2]

In view of the failure of the hearing to meet the findings requirements of the remand statute and to hold the hearing contemplated by Kent, and required by Bouge v. Reed, supra, the remand order is reversed and the matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

NOTES

[1] In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

[2] A law review article on the subject is:

Schornhorst, The Waiver of Juvenile Court Jurisdiction: Kent Revisited, 43 Ind.L.J. 583, 604-605 n. 127 (1968).

Mentioned favorably in the article is a statute of the Texas Juvenile Act concerning factors which should be considered in making the remand determination.

It reads, in part:

"* * *

"(g) After full investigation and hearing the juvenile court shall retain jurisdiction of the case unless it determines that, because of the seriousness of the offense or the background of the offender, the welfare of the community requires criminal proceedings.

"(h) In making the determination under Subsection (g) of this section, the court shall consider, among other matters:

"(1) whether the alleged offense was against person or property, with greater weight in favor of waiver given to offenses against the person;

"(2) whether the alleged offense was committed in an aggressive and premeditated manner;

"(3) whether there is evidence upon which a grand jury may be expected to return an indictment;

"(4) the sophistication and maturity of the child;

"(5) the record and previous history of the child;

"(6) the prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services and facilities currently available to the juvenile court."