ICA Extends Tachibana to Juvenile Proceedings

In re TKC (ICA June 24, 2009)

Background. The State filed a petition against TC, a juvenile, alleging ten counts of engaging in sexual conduct with a person less than fourteen years old. TC was less than fourteen years old at the time of the incidents. The family court conducted a "stipulated trial." Police reports and the reports of a psychologist were stipulated into evidence for the family court--as the trier of fact--to review. The stipulation did not discuss TC's waiver of his right to testify; it merely said that the stipulation was "through and upon the advice of his attorney." After the evidence was submitted, TC's parents filed a motion to examine the makers of the various reports. The motion was opposed by the State on the grounds that the parents lacked standing. The family court denied the motion and entered findings of fact, conclusions of law, and rendered a decision that TC was a "law violator" for all counts. The family court ordered TC on probation until his 18th birthday. TC appealed.

Constitutional "Criminal" Procedures in the Prosecution of Juveniles. Although juveniles are protected by the state and federal constitutions in family court proceedings, strict adherence to criminal procedures available to adult criminal defendants are not required. In re Doe, 62 Haw. 70, 72, 610 P.2d 509, 511 (1980). The ICA noted that many procedural safeguards from the Bill of Rights apply in juvenile proceedings when the juvenile can be imprisoned for a term of years: the right to be "informed of the nature and cause of the accusation"; the right to counsel; the right to confrontation and cross-examination; and the right against self-incrimination. Id. at 72, 610 P.2d at 511. As a general rule, while juvenile proceedings need not conform to all of the requirements of a criminal trial, the proceedings must nonetheless "scrupulously maintain standards consistent with fundamental fairness." Id. at 73, 610 P.2d at 511-12.

And now this Includes the Right to Testify. TC urged the ICA to recognize plain error in the family court's failure to obtain a knowing, voluntary, and intelligent waiver of TC's constitutional rights. The ICA agreed and held that a juvenile defendant has the "right to testify on his or her own behalf as this is a fundamental constitutional safeguard which is essential to the concept of due process. " The right to testify on one's own defense is guaranteed by the state and federal constitutions. State v. Tachibana, 79 Hawai'i 226, 231-32, 900 P.2d 1293, 1298-99 (1995). This right "may not be waived by counsel as a matter of trial strategy, but may be relinquished only by the defendant." Id. Trial courts, therefore, must engage in an on-the-record colloquy with the criminal defendant to ensure that any waiver of the right to testify is knowing and voluntary. Id. at 233-36, 900 P.2d at 1300-03.

The ICA noted that the colloquy is necessary because "[m]any defendants are unaware that they have a constitutional right to testify which no one, not even their lawyer, may take away from them." Id. at 233-34, 900 P.2d at 1300-01. The ICA extended this rationale to juveniles. According to the ICA, juveniles are "particularly likely to be unaware of the constitutional right to testify on one's own behalf and particularly vulnerable to the admonitions of counsel--as well as those of parents or other authoritative adults." The ICA concluded that it "would be unduly burdensome, and inconsistent with the established rule of law in this state, to place a burden on minors to assert their fundamental constitutional rights when the supreme court has determined that this approach is too burdensome to be applied to adults."

A Kiddie Colloquy. The ICA held that juveniles must be advised of their right to testify and when the juvenile does not testify, the family court must engage in a colloquy to obtain an on-the-record waiver of that right. The ICA also noted that family courts should "take into account those special concerns that are present when young persons, often with limited experience and education and immature judgment, are involved." Here, the ICA concluded that the family court did not determine whether TC knowingly and voluntarily waived his right to testify. The error was not harmless.

Others with "Special Concerns?" The ICA noted that family courts should take into account the "special concerns" of juveniles and their inability to understand their rights. The ICA noted that most juveniles have "limited experience and education and immature judgment." There certainly may be criminal defendants out there who have the same limited experience and education and the same immature judgment. Should grown-up courts take into account the "special concerns" like a family court? It would certainly make sense. The right to testify--at least according to the ICA--is just as important in a criminal defendant's case as in a juvenile's law-violator proceeding. Shouldn't it work the other way too? After all, the basis for the piecemeal incorporation of the Bill of Rights and other constitutional protections is due process. Due process only requires certain fundamental rights, but these rights that are deemed fundamental are no different in juvenile proceedings than from criminal cases. So it would make senses that if there are "special concerns" for juveniles during the Tachibana colloquy, there ought to be "special concerns" for any criminal defendant. It questions whether a formulaic colloquy is effective at all.

Parents have Standing, but Failed to Raise Issues that were Independent from their Child. Standing to appeal typically require (1) that the person was a party to the action; (2) the person seeking a change on appeal had standing to oppose it below; and (3) the person is one affected or prejudiced by the appealable order. Keahole Defense Coalition, Inc. v. Bd. of Land and Natural Res., 110 Hawai'i 419, 428, 134 P.3d 585, 594 (2006). After culling the rules of the family court and HRS chapter 571 and noting that there is a "liberty interest in the care, custody, and control of" children protected by the due process clause in the Hawai'i constitution, In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002), the ICA concluded that the parents have standing to assert their claims and addressed them. The only issue that was distinct from TC's issues was the denial of their request to examine the "witnesses." Unfortunately, there was no argument supporting their contention that the family court erred in denying their request. Thus, the ICA deemed the issue waived. Hawai'i Rules of Appellate Procedure Rule 28(b)(7).

A new Theory of Standing? Standing is usually determined with a three-part test: (1) whether there was actual or threatened injury; (2) the injury is fairly traceable to the action; and (3) a favorable decision is likely to provide relief for the injury. Mottyl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001). Standing requisites may also be "tempered, or even prescribed, by legislative and constitutional declarations of policy." Life of the Land v. Land Use Com'n, 63 Haw. 166, 172 n. 5, 623 P.2d 431, 438 n. 5 (1981). The Keahole test quoted by the ICA addresses standing to appeal from a decision and seems to be distinct from the initial inquiry of whether the appealing party had standing before the lower court or agency (As a matter of fact, the second prong of the Keahole test requires that the party have standing below.). So did the parents have standing before the family court in the first place? The ICA held that they did. But it did not apply the injury-in-fact test. It didn't even cite it. Then again, it looks like the ICA took the position that the Hawai'i Constitution, HRS chapter 571, and the rules of the family court have conferred standing to parents in juvenile proceedings.

Minors Engaging in Consensual Sexual Conduct are Committing Statutory Rape. TC and his parents conceded that the plain and unambiguous language of the relevant sex assault statutes (HRS §§ 707-730(1)(b) and 707-732(1)(b)) encompasses fact scenarios in which the actor the complaining witness are both under fourteen years old. TC and his parents argued that a literal application of the statutes produced an absurd and unjust result because it would punish children for engaging in "consensual" sex. The ICA rejected this claim. The ICA stated that despite "any reservations we may have about the result in particular instances," it could not "ignore the plain language of the statutes in question." Furthermore, the ICA noted the "age gap" in HRS § 707-732(1)(c). The legislature decriminalized sexual conduct among older teenagers (i.e. minors ages 14 or 15 may have sexual contact with other minors that are no more than five years older). According to the ICA, the legislature could have, but did not, decriminalized all sexual conduct among minors--as TC and his parents argue. The ICA did not disturb the policy adopted by the legislature and found no absurd result.

State may Prosecute one of the Consenting Minors and not the Other. TC was not the only minor engaging in sexual activity, but he was the only one prosecuted. Discriminatory enforcement of criminal laws exist when the defendant can show an "intentional or purposeful discrimination that is deliberately based upon an unjustifiable standard such as race, religion or other arbitrarily classification." State v. Kailua Auto Wreckers, Inc., 62 Haw. 222, 226-27, 615 P.2d 730, 734-35 (1999). According to the ICA, merely prosecuting one over another is not the kind of selectivity that arises into a violation of constitutional equal protection and due process rights. Moreover, it appeared to the ICA that TC was significantly older than the other minors and had engaged in several acts of sexual contact. According to the ICA, "[p]rosecutors may evaluate respective culpability, strength of witnesses and defenses, and perceived credibility, as well as consider the need to prevent future misconduct and the need for rehabilitative or educational services for accused juveniles."

No Right to Privacy to Engage in Sexual Behavior with Other kids. The ICA rejected the claim that consensual sex among minors is protected by the right to privacy under the state and federal constitutions. Minors, like adults, may have some right to sexual privacy under the federal constitution. City of Akron v. Akron Center for Reprod. Health, Inc., 462 U.S. 416 (1983). But the State may restrict this privacy right for minors when the restriction "serves a significant state interest." Carey v. Population Srvs. Int'l, 431 U.S. 678, 693 (1977). According to the ICA, legislature determined that children under fourteen must be protected from sexual activities. See State v. Buch 83 Hawai'i 308, 320, 926 P.2d 599, 611 (1996) ("children are fragile organisms that are subject to abuse and require vigilant protection"). The ICA refused to disturb the legislature's concern and held that "the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen." The ICA then examined the separate and distinct right to privacy under the Hawai'i Constitution. Haw. Const. Art. I § 6. Only "personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy." State v. Mueller, 66 Haw. 616, 627-28, 671 P.2d 1351, 1358-59 (1983). The ICA simply did not find a fundamental privacy right to engage in sexual activity with other young children.