SUPREME COURT OF ARIZONA
En Banc
DAVID G. ) Arizona Supreme Court
) No. CV-03-0169-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 2003-0030
THE HONORABLE MICHAEL POLLARD OF )
THE TUCSON CITY COURT, in and ) Pima County Superior
for the COUNTY OF PIMA, STATE OF ) Court
ARIZONA, ) No. CR-20013589
)
Respondent, ) Tucson City Court
) Nos. TR 02001686
STATE OF ARIZONA, ex rel., ) TR 02002072
MICHAEL D. HOUSE, Attorney for ) TR 02003099
the City of Tucson, )
)
Real Party in Interest. ) O P I N I O N
)
__________________________________)
Petition for Review from
Court of Appeals, Division Two,
No. 2 CA-SA 2003-0030
Special Action Review from
Tucson City Court
Nos. TR 02001686, TR 02002072, TR 02003099
REMANDED TO TUCSON CITY COURT
MICHAEL D. HOUSE, Tucson City Attorney Tucson
By: William F. Mills
Attorneys for Real Party in Interest
City of Tucson Public Defender’s Office Tucson
By: Russell E. Hughes, Assistant City Public Defender
Attorneys for Petitioner
R Y A N, Justice
¶1 This case concerns whether a city court judge who has
been authorized to adjudicate criminal misdemeanor traffic
citations issued to a juvenile can apply the Arizona Rules of
Criminal Procedure and order a jury trial. We hold that he
cannot.
I.
¶2 Petitioner, fourteen-year-old David G., was involved
in a high-speed chase through the City of Tucson with various
Tucson Police officers and a Tucson air unit. David was
ultimately apprehended and cited for numerous civil traffic
violations. He was also cited for two Title 28 criminal
offenses: 1) leaving the scene of an accident in violation of
Arizona Revised Statutes (“A.R.S.”) section 28-664(A)(1) (1998),
a class 3 misdemeanor; and 2) reckless driving in violation of
A.R.S. § 28-693(A) (1998), a class 2 misdemeanor.
¶3 At David’s arraignment, the State, unaware that David
was a juvenile, advised the Tucson City Court judge that it
would seek jail time for the two criminal offenses.
Consequently, the judge appointed a public defender to represent
1
David and set the matter for a pretrial conference. After
1
See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (holding
“that absent a knowing and intelligent waiver, no person may be
imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at
2
realizing that David was a juvenile, the State withdrew its
request for jail time.
¶4 David filed a motion to dismiss the criminal offenses,
challenging the jurisdiction of the Tucson City Court to hear
juvenile cases. The court denied the motion to dismiss. David
filed a second motion to dismiss alleging a violation of due
process because the city court judge failed to comply with the
Arizona Rules of Juvenile Procedure. The court denied David’s
motion, ruling in part, “[t]hat the Rules of Criminal Procedure
in so far as they do not conflict with the Rules of Juvenile
Procedure guarantee the protection of due process rights.” The
court subsequently set the matter for a jury trial. See Urs v.
Maricopa County Attorney’s Office, 201 Ariz. 71, 72, ¶ 2, 31
P.3d 845, 846 (App. 2001) (holding that reckless driving is a
jury-eligible offense under Article 2, Sections 23 and 24, of
the Arizona Constitution).
¶5 David then filed a petition for special action with
the Arizona Court of Appeals. The court declined jurisdiction,
with Judge Flórez voting to accept jurisdiction. David filed a
his trial”); Neilson v. Superior Court, 159 Ariz. 395, 396, 767
P.2d 1185, 1186 (App. 1988) (finding that a defendant has a
constitutional right to be represented by counsel if the
defendant’s “liberty is in jeopardy” (quoting Argersinger, 407
U.S. at 40)).
3
petition for review by this court. He did not request a stay.2
¶6 Although David’s case may have concluded by now,
making the issue in this case moot with respect to David, the
issue is one that is capable of repetition yet evades review.
See In re Leon G., 204 Ariz. 15, 18 n.1, ¶ 2, 59 P.3d 779, 782
n.1 (2002) (“Generally, this court will not examine waived or
moot questions. An exception exists, however, for issues that
are of great public importance or likely to reoccur.” (citing
Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 104, 692 P.2d
280, 283 (1984) and Corbin v. Rodgers, 53 Ariz. 35, 39, 85 P.2d
59, 61 (1938))). Concluding that clarification is necessary as
to the appropriate procedures to be applied in city court for
cases involving minors charged with misdemeanor traffic
offenses, we granted review.3 We have jurisdiction under Article
6, Section 5(3), of the Arizona Constitution and A.R.S. §
12-120.24 (2003).
II.
¶7 A juvenile is an individual under the age of eighteen
2
David later advised this court that he had a pretrial
conference pending in this matter. It is unclear from the
record whether the order setting a jury trial remained in
effect. Neither party has subsequently advised us whether this
matter has been resolved, either by trial, change of plea, or
dismissal.
3
Two other cases involving juveniles who had raised the same
issue were consolidated for the purpose of deciding the issue
raised in David’s second motion to dismiss.
4
years. A.R.S. § 8-201(6) (Supp. 2003). An act committed by a
juvenile is considered delinquent if that same act “committed by
an adult would be a criminal offense or a petty offense.”
A.R.S. § 8-201(10). 4 If committed by an adult, the charges of
reckless driving and leaving the scene of an accident would
constitute criminal acts under Title 28. A.R.S. §§
28-664(B), -693(B). Thus, because David is a juvenile, his
offenses were delinquent acts.
A.
¶8 The juvenile court has original jurisdiction over all
delinquency proceedings, A.R.S. § 8-202(A) (Supp. 2003), and all
offenses listed in A.R.S. § 8-323(B) committed by a person under
eighteen years of age. A.R.S. § 8-202(E). The offenses listed
in A.R.S. § 8-323(B) include any provision of Title 28 that is
“not declared to be a felony.” A.R.S. § 8-323(B)(1) (Supp.
5
2003). Because David was cited under Title 28 for two
misdemeanor violations, the Juvenile Division of the Pima County
4
Excluded from the definition of “delinquent act” are
offenses listed in A.R.S. § 13-501(A) and (B), which include
such offenses as first and second degree murder, sexual assault,
and other serious offenses. A.R.S. § 8-201(10).
5
The other offenses listed in A.R.S. § 8-323(B) consist of
the following: purchase of alcohol; boating or game and fish
violations; curfew violations; truancy; graffiti offenses;
purchase or possession of tobacco; violations of any city
ordinance; and “failure to appear related to any offense in this
section.” A.R.S. § 8-323(B)(2)-(9).
5
Superior Court had original jurisdiction to adjudicate these
charges.
¶9 Although the juvenile court has original jurisdiction
over such citations, the presiding judge of the county may
decline jurisdiction over the offenses listed in A.R.S. § 8-
323(B). A.R.S. § 8-202(E). 6 If such a declination occurs, the
presiding judge of the juvenile court has the discretion to
appoint juvenile hearing officers, “who may be magistrates or
justices of the peace.” A.R.S. § 8-323(A). Such hearing
officers “may hear and determine juvenile pretrial detention
hearings” and “process, adjudicate and dispose of all cases that
are not classified as felonies and in which a juvenile . . . is
charged with violating,” among other offenses, “[a]ny provision
of title 28 not declared to be a felony.” A.R.S. § 8-323(B)(1)
(footnote omitted).
¶10 Effective March 5, 2001, the presiding judge of the
Juvenile Division of the Pima County Superior Court declined
jurisdiction of all juvenile civil and misdemeanor traffic
offenses other than offenses for driving under the influence.
Admin. Order No. 2001-01 (Feb. 26, 2001). In the same order,
the presiding judge authorized city magistrates to hear those
6
This provision allows juveniles to be treated as adults for
civil traffic violations. See A.R.S. § 8-202(E). But as
discussed later, for misdemeanor criminal traffic offenses, the
juvenile must be adjudicated under the procedures set forth in
A.R.S. § 8-323.
6
matters. Id. The Tucson City Council approved the delegation
of this authority to the city magistrates in 2001. Res. No.
18865 (Mar. 26, 2001); see A.R.S. § 8-323(A) (requiring the
local governing body to “approve the appointment of municipal
judges as juvenile hearing officers”). Consequently, the city
court judge in this case, sitting as a juvenile court hearing
officer, had the authority to hear and adjudicate David’s
citations.
B.
¶11 Delinquency proceedings are governed by the Arizona
Rules of Procedure for the Juvenile Court. Ariz. R.P. Juv. Ct.
1(A); Yavapai County Juvenile Action No. 7707, 25 Ariz. App.
397, 399, 543 P.2d 1154, 1156 (1975). A proceeding in the
juvenile court is generally initiated by the filing of a
referral of delinquent conduct that sets forth 1) the facts of
the juvenile’s alleged acts; 2) the juvenile’s name, age,
gender, and address; 3) the names and addresses of the
juvenile’s parent, guardian, or custodian, if known; and 4) if
the juvenile is in custody, the place of detention and the date
and time the juvenile was taken into custody. Ariz. R.P. Juv.
Ct. 22(A). Upon receipt of the referral, the prosecutor has the
sole discretion to divert or defer the prosecution to a
community based alternative program or to a diversion program.
Id. R. 22(C). If the prosecutor does not designate the offense
7
for diversion, the referral must be submitted for prosecution.
Id. R. 22(D). Once the referral of a juvenile who is not in
custody has been received by the prosecutor, the prosecutor has
forty-five days to file a petition with the court. Id. R.
25(B)(2). Notice of the petition and notice to appear before
the court must be given in writing to the juvenile and his
parent, guardian, or custodian. Id. R. 26(A). Attendance at
the proceeding is mandatory for the juvenile and his parent,
guardian, or custodian.7 Id.
C.
¶12 By statute and rule, juvenile proceedings for non-
felony offenses may be initiated “by the referral of a uniform
Arizona traffic ticket and complaint form,” rather than by
filing a formal petition. A.R.S. § 8-301(3)(Supp. 2003); see
also A.R.S. § 8-323(C) (permitting a hearing on any of the
offenses listed in A.R.S. § 8-323(B) to “be conducted upon . . .
a uniform Arizona traffic ticket”); Ariz. R.P. Juv. Ct. 33(A)
(providing for the initiation of juvenile proceedings for non-
felony offenses “by the filing of an Arizona Traffic Ticket and
Complaint, otherwise known as a citation, in lieu of a
petition”). But the Juvenile Rules of Procedure contain no
specific rules governing the adjudication of juveniles cited for
7
“Upon a showing of good cause, the court may waive the
appearance of the parent, guardian or custodian . . . .” Ariz.
R. P. Juv. Ct. 26(A).
8
violating any of the offenses listed in A.R.S. § 8-323(B).
¶13 The omission of specific procedures in the Juvenile
Rules for the adjudication of non-felony offenses was not
inadvertent. As the comment to Rule 33 explains:
It was the determination of the committee
that due to the number of lower courts which
process non-felony offenses, statewide
procedural rules would not permit individual
counties the flexibility needed to dispose of
such cases in the most efficient manner
possible. Further, amendments made to A.R.S.
[§] 8-323, as reflected in S.B. 1024, have
clarified some of the provisions which have
been most troublesome for the juvenile
courts.
Ariz. R.P. Juv. Ct. 33 cmt. The question, therefore, is whether
a city judge, sitting as a juvenile hearing officer, has the
flexibility to apply the Rules of Criminal Procedure to
proceedings brought under A.R.S. § 8-323.
¶14 David argues that only the Juvenile Rules of Procedure
can be applied. The State counters that the comment to Rule 33
authorizes the municipal courts to depart from “[s]trict
compliance with the dictates of the Rules of Juvenile
Procedure,” and fill the gap by applying the Rules of Criminal
Procedure. Both parties ignore the procedures described in
A.R.S. § 8-323.
III.
A.
¶15 In State ex rel. Collins v. Seidel, 142 Ariz. 587,
9
591, 691 P.2d 678, 682 (1984), we recognized that the
legislature may enact procedural rules that supplement, but do
not contradict, the rules the court has promulgated. Section 8-
323 sets forth the procedures a juvenile hearing officer must
follow in adjudicating a juvenile charged with violating any of
the offenses listed in A.R.S. § 8-323(B). 8 For several reasons,
we conclude that the procedures in § 8-323 reasonably
supplement, and do not contradict, the relevant Juvenile Rules
of Procedure.
¶16 First, A.R.S. § 8-323(C), mirroring Juvenile Rule
33(A), authorizes the juvenile hearing officer to depart from
the formality of the general requirements of referral and
petition and may conduct a hearing on an alleged violation based
upon “a written notice to appear, including a uniform Arizona
traffic ticket and complaint form, that states, at a minimum,
8
In his supplemental brief, David contends that because
Article 6, Section 5 gives exclusive power to this court to
promulgate procedural rules, application of any procedural
scheme other than the Rules of Juvenile Procedure violates
Article 6 and the separation of powers provision of the
constitution, Article 3. David did not raise this argument
below, nor in his petition for review. Therefore, the argument
is waived. State v. Detrich, 188 Ariz. 57, 64, 932 P.2d 1328,
1335 (1997) (Defendant waived issue “by failing to sufficiently
argue this claim on appeal.”); State v. Nirschel, 155 Ariz. 206,
208, 745 P.2d 953, 955 (1987) (“Failure to argue a claim
constitutes abandonment and waiver of that issue.” (citing State
v. McCall, 139 Ariz. 147, 163, 677 P.2d 920, 936 (1983))).
Nevertheless, as we explain, the procedures outlined in A.R.S. §
8-232 do not conflict with the Juvenile Rules of Procedure.
10
the name and address of the juvenile, the offense charged and
the time and place the juvenile shall appear in court.” Second,
A.R.S. § 8-323(D), paralleling Rule 26(A), provides that the
matter may not proceed to disposition unless a parent, guardian,
or custodian appears with the juvenile at the time of the
disposition. 9 Third, a juvenile has the right to appeal to the
juvenile court from an order of a juvenile hearing officer.
A.R.S. § 8-325 (1999). This procedure comports with that set
forth in Rules 88 and 89 governing juvenile appellate procedure.
¶17 In addition, and perhaps most importantly, A.R.S. § 8-
323(F) limits the sanctions the hearing officer may impose. For
example, the hearing officer may not impose jail time. Instead,
the hearing officer may do any of the following: place the
juvenile on unsupervised probation, § 8-323(F)(1); transfer the
citation to the juvenile court for further proceedings, § 8-
323(F)(2); suspend or restrict the juvenile’s driving
privileges, § 8-323(F)(3); order the juvenile to attend traffic
school or counseling, § 8-323(F)(4); order the juvenile to pay a
monetary assessment or penalty, § 8-323(F)(5); order the
juvenile to perform community service, § 8-323(F)(6); order the
juvenile to pay restitution, § 8-323(F)(9); or reprimand the
9
But “[u]pon a showing of good cause that the parent,
guardian or custodian cannot appear on the date and time set by
the court, the court may waive the requirement that the parent,
guardian or custodian appear.” A.R.S § 8-323(D).
11
juvenile and take no further action, § 8-323(F)(11). Moreover,
in Pima County, once the proceeding has concluded, the hearing
officer must forward copies of all citations along with his
findings and disposition to the juvenile court for review.
Admin. Order No. 2001-01 (Feb. 26, 2001). Because all possible
sanctions fall short of incarceration, we conclude that strict
application of the Juvenile Rules of Procedure, as argued by
David, is not required.
¶18 Instead, the procedures in § 8-323 provide the
flexibility recommended in the comment to Juvenile Rule 33, yet
still afford a juvenile procedural due process similar to that
provided by the Juvenile Rules of Procedure.
B.
¶19 Contrary to the State’s position, the Arizona Rules of
Criminal Procedure apply only to “criminal proceedings in all
courts within the State of Arizona.” Ariz. R. Crim. P. 1.1
(emphasis added). Because David is a juvenile, the allegations
against him are not criminal offenses. See A.R.S. § 8-201(10)
(defining criminal offenses committed by juveniles as
“delinquent acts”). Furthermore, an adjudication of delinquency
is not deemed a criminal conviction and does not impose any
civil disabilities ordinarily resulting from a criminal
conviction. A.R.S. § 8-207(A) (Supp. 2003). Therefore, the
application of the Rules of Criminal Procedure to a juvenile’s
12
adjudication in a proceeding brought under A.R.S. § 8-323(B)
conflicts with the plain language of Rule 1.1. Thus, to the
extent the city court applied the Rules of Criminal Procedure,
it erred.
IV.
¶20 Nevertheless, the State maintains that application of
the Rules of Criminal Procedure did not violate David’s due
process rights in this case. In fact, the State argues that
affording David a jury trial gives him more procedural due
process than do the procedures in A.R.S. § 8-323 or the Rules of
Juvenile Procedure. This argument overlooks the policies
underlying the juvenile justice system.
A.
¶21 From the inception of the juvenile justice system,
courts have recognized that juvenile cases involved special
interests that could not be adequately addressed by the adult
criminal system. In re Gault, 387 U.S. 1, 15 (1967) (noting
that the early reformers of the juvenile system were “profoundly
convinced that society’s duty to the child could not be confined
by the concept of justice alone”). The juvenile was seen as
essentially good and the idea of crime and punishment was
abandoned. Id. The primary function of juvenile courts is
treatment and rehabilitation. Id. at 15-16 (“The child was to
be ‘treated’ and ‘rehabilitated’ and the procedures, from
13
apprehension through institutionalization, were to be ‘clinical’
rather than punitive.”). In contrast, the public policy of
Arizona’s Criminal Code is “to condemn, correct, or deter
transgressions which harm either individual or public
interests.” State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279, 280
(1980) (citing A.R.S. § 13-101). In addition, rehabilitation is
not an express sentencing policy of our criminal code; rather
the policy is “[t]o impose just and deserved punishment on those
whose conduct threatens the public peace.” Id. at 372, 621 P.2d
at 281 (quoting A.R.S. § 13-101(6)).
¶22 In an attempt to further the goals of treatment and
rehabilitation of juveniles, courts in the past kept juvenile
proceedings less formal and initially forsook the “rigidities,
technicalities, and harshness” of the substantive and procedural
criminal law. Gault, 387 U.S. at 15. Such informal
proceedings, however, were ultimately found to violate the
juvenile’s right to due process. Id. at 19 (“Unfortunately,
loose procedures, high-handed methods and crowded court
calendars, either singly or in combination, all too often have
resulted in depriving some juveniles of fundamental rights that
have resulted in a denial of due process.” (quoting Paul S.
Lehman, A Juvenile’s Right to Counsel in a Delinquency Hearing,
17 Juv. Ct. Judges J. 53, 54 (1966))).
14
¶23 Consequently, the United States Supreme Court held
that the Due Process Clause applies to juvenile proceedings.
Schall v. Martin, 467 U.S. 253, 263 (1984) (holding that
“certain basic constitutional protections enjoyed by adults
accused of crimes also apply to juveniles”). A juvenile is
entitled, among other things, to notice of the charges, see
Gault, 387 U.S. at 31-34; right to counsel, 10 see id. at 34-42;
privilege against self-incrimination, see id. at 42-57; right to
confrontation, see id. at 56-57; cross-examination, see id.;
proof beyond a reasonable doubt, see In re Winship, 397 U.S.
358, 368 (1970); and protection against double jeopardy, see
Breed v. Jones, 421 U.S. 519, 527-28 (1975). The Court did not
hold, however, that a juvenile charged with criminal conduct
must be treated in the same manner as a similarly situated
adult. Instead, the Court stated that “the Constitution does
not mandate elimination of all differences in the treatment of
juveniles.” Schall, 467 U.S. at 263. Rather, the Court noted,
“[t]he State has ‘a parens patriae interest in preserving and
10
If the proceedings will not result in the commitment of the
juvenile to custody, the constitution does not require
appointment of counsel. Gault, 387 U.S. at 41 (“We conclude
that the Due Process Clause of the Fourteenth Amendment requires
that in respect of proceedings to determine delinquency which
may result in commitment to an institution in which the
juvenile’s freedom is curtailed, the child and his parents must
be notified of the child’s right to be represented by counsel
retained by them, or if they are unable to afford counsel, that
counsel will be appointed to represent the child.”) (emphasis
added).
15
promoting the welfare of the child,’ which makes a juvenile
proceeding fundamentally different from an adult criminal
trial.” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 766
(1982)).
¶24 Thus, certain constitutional protections afforded
adults are not guaranteed to juveniles. For example, a juvenile
is not guaranteed the right to a trial by jury. McKeiver v.
Pennsylvania, 403 U.S. 528, 545 (1971); see also Ariz. R.P. Juv.
Ct. 6 (Juvenile proceedings are to be conducted informally “in a
manner similar to the trial of a civil action before the court
sitting without a jury.”). The task of the juvenile court,
therefore, is “to strike a balance — to respect the
‘informality’ and ‘flexibility’ that characterize juvenile
proceedings, and yet to ensure that such proceedings comport
with the ‘fundamental fairness’ demanded by the Due Process
Clause.” Schall, 467 U.S. at 263 (citing Breed, 421 U.S. at
531, McKeiver, 403 U.S. at 543, and Winship, 397 U.S. at 366).
B.
¶25 We conclude that the substantive and procedural
structure of A.R.S. § 8-323 appropriately safeguards due process
rights, yet allows the flexibility necessary to promote the
policies of the juvenile justice system. As discussed above, a
juvenile hearing officer must notify the juvenile’s parent or
guardian before disposition. A.R.S. § 8-323(D). And the
16
hearing officer has limited discretion as to what sanctions may
be imposed. See A.R.S. § 8-323(F)(1)-(11). Finally, a
determination that the juvenile committed a delinquent act is
not considered to be a criminal conviction. See A.R.S. § 8-
207(A) (Adjudication of delinquency by the juvenile court will
“not be deemed a conviction of crime, impose any civil
disabilities ordinarily resulting from a conviction or operate
to disqualify the juvenile in any civil service application or
appointment.”).
¶26 Consequently, we disagree with the State’s assertion
that a jury trial provides more protection for the due process
rights of the juvenile than does an adjudication before a judge.
Forcing a juvenile to be tried by a jury for the offenses for
which David was cited does not promote the informality and
flexibility that the juvenile courts strive to achieve and
subjects the juvenile to the very stigma the legislature sought
to prevent.
¶27 We therefore hold that a city court judge, sitting as
a juvenile hearing officer, cannot apply the Rules of Criminal
Procedure and order a jury trial, but must instead apply the
procedures of A.R.S § 8-323.
V.
¶28 The ultimate resolution of this matter will depend
upon the status of David’s case. If he has been tried and
17
convicted as an adult, the city court judge must vacate the
convictions without prejudice. On the other hand, if the matter
is still pending, the judge must process the matter under the
procedures set forth in A.R.S. § 8-323. We therefore remand
this matter to the city court for further proceedings consistent
with this opinion.
______________________________________
Michael D. Ryan, Justice
CONCURRING:
______________________________________
Charles E. Jones, Chief Justice
______________________________________
Ruth V. McGregor, Vice Chief Justice
_
Rebecca White Berch, Justice
______________________________________
Andrew D. Hurwitz, Justice
18