concurring. When the smoke settles from our decision, two things will become obvious. Our legal decision is right, and it will not, or should not, disrupt the legal process in Arkansas. It will only strengthen it.
The General Assembly created a separate court in 1911, calling it the juvenile court. At that time the county judge had several judicial duties, including probate matters. Even so, the county court has always been a court of limited jurisdiction, not general jurisdiction, as are the circuit and chancery courts. There is no mention of juveniles or matters relating to juveniles in the constitutional article creating the county court. A bare majority of this court in 1919 found that the language of the constitutional provision creating the county courts could be stretched to include juvenile matters. The most obvious place, then and now, for such jurisdiction is with a trial court. We do not know why the General Assembly made the decision it did, nor why juvenile matters have been neglected so long by our legal system. More than likely it has simply been a case of inertia.
Once accomplished, it became easy to drift along with no one questioning the original wisdom of a decision. The circuit judges and chancellors have never expressed a desire for such jurisdiction and an establishment of sorts, the juvenile justice system, has grown up with a built-in interest to perpetuate a system long past due for correction.
In 1975 the General Assembly adopted a new juvenile code authorizing a system of juvenile referees to act for the county judge as juvenile judges. The referees have to be lawyers. The most noticeable example of the legislature’s intention to create a new court is found in a provision of the new code which reads:
The decisions of the juvenile referee shall be binding upon the county judge, who shall sign any order or judgment delivered by the juvenile referee and such order or judgment shall be a decision of the county judge.
Ark. Stat. Ann. § 45-440 (Repl. 1977).
In other words, the county judge is not the judge — the juvenile referee is the judge and the court. At the present time there are 61 lawyers serving as juvenile referees in Arkansas. Only 15 county judges still serve as the judge in such matters. So we have in place a new court system created in violation of the Arkansas Constitution.
Can legislation be passed to keep juvenile matters in the county courts? The answer is no. It is too late. As the majority opinion says, even if such a subject matter might have been proper in 1911, it is no longer even thinkable.
Fixing it may seem hard at first blush; but it will not be. All the legislature has to do is decide where to place jurisdiction for juvenile matters. The choices are either the circuit court or the chancery court, or both. At the present time the circuit court reviews all decisions made by the juvenile “court” and is familiar with the law and procedure. It would not be a bad decision to pronounce circuit courts would have jurisdiction in all juvenile matters. It might, however, add considerably to the case load of some of those courts. The legislature may consider simply transferring jurisdiction to the chancery courts. This might not be a bad decision. But juvenile delinquency laws are essentially penal in nature and traditionally reserved for law courts. It might not be constitutional in this regard.
The best answer would be to divide jurisdiction between circuit and chancery courts —juvenile delinquency questions to the circuit court, neglected and dependent children questions to chancery court.
At one time juvenile delinquents were considered criminals. While that view has softened, that part of the juvenile procedure directed to juvenile delinquents could rightly be considered a matter properly belonging in circuit court. Matters concerning dependent and neglected children obviously should be in chancery court where that judge already has jurisdiction over guardianship as probate judge and custody of children as chancellor. At last, one judge would have in his control all matters relating to custody, guardianship, or the care of neglected and dependent children. This solution would also spread out the additional work load caused by the added jurisdiction.
The least desirable answer, in my opinion, would be to simply pick up the existing juvenile referee system and transfer it in toto to chancery or circuit court. That will no doubt be the first solution considered. The legislature will have to consider practical as well as theoretical problems, such as what to do with the juvenile referees and what to do about the extra case load. The legislature ought to resist the temptation to continue using referees or the permanent referee system. Referees and masters are simply substitutes for the judge, and there is no place in our judicial system for permanent substitutes for judges. Such referees mean only one thing to the people that have to appear before them: their problem does not deserve the attention of a real judge. While no reflection is or should be cast on those who have served as referees, it would be a disservice to the people to continue to treat juvenile matters as a second-rate legal problem and continue a system that does just that. This matter deserves the full respect of our judicial system.
Juveniles in trouble are one of the most serious concerns for our society, our government, and our judicial system. There are rarely quick, easy, clear answers in juvenile matters. Such cases involve children out-of-control; children mentally, physically and sexually abused; children abandoned or neglected. These cases tax society and the legal system. But can there be more important questions which deserve the full attention of our judicial system? How many permanent wards of the state, who end up on welfare, in the penitentiary or in our mental institutions, surface first in juvenile courts? The problem demands the best attention we can give it and the best talent we have — that means a full-fledged judge, mature, experienced and directly accountable to the people.
Our constitutional scheme does not contemplate a court system of permanent referees who are not directly accountable to the people. The chancellors or circuit court judges, or both, will probably not welcome the work, and the juvenile referees may resist giving up their roles. But this is one instance where personal and selfish concerns must be set aside. Our judicial system can be set right, and it ought to be done as quickly and efficiently as possible. The benefits to the people, the law, and our judicial system will be immeasurable if it is done right. If not, the problem will languish until a later time when it has to be addressed again.
A good many trial judges can absorb the work load without inconvenience. Some may be pressed. A few might be overworked to the point that cases stack up. Some counties may require an extra judge to handle the case load. The figures are available showing the work load of the trial courts in each circuit, and they will readily tell where any extra judges are needed. Arkansas has been adding an average of one trial judge every year for the last ten years. More will be added this year. Almost certainly, our present system can absorb this extra work without serious disruptions. The cost for the transition should not be great. In fact the cost to the state and counties should be less than the present cost of the system. Once the smoke clears, I feel the legislature’s decision will not be all that difficult. If later adjustments are needed to correct an overload of a circuit, it can be done.