IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, Petitioner - Appellant, v. M.H.P., Child, M.L.P., Mother, M.P., Father, | Supreme Ct. No. 20120340 District Ct. No. 08-2011-JV-00328 |
APPEAL FROM ORDER ADOPTING REFEREE'S FINDINGS AND ORDER DATED AUGUST 10, 2012, AND ORDER CLARIFYING ADOPTING REFEREE'S FINDS AND ORDER DATED AUGUST 29. 2012.
Burleigh County Juvenile Court
South Central Judicial District
The Honorable Bruce Romanick, Presiding
APPELLEE'S BRIEF |
| TUNTLAND & COLLING |
| Tom Tuntland |
| Bar ID#03250 |
| Attorney for M.H.P., Child, Appellee |
| 210 Collins Ave., P. O. Box 1315 |
| Mandan, ND 58554 |
| Phone (701) 667-1888 Fax (701) 667-1308 |
| tomtutusa |
I. TABLE OF CONTENTS
| Page or ¶ | |
| Table of Authorities . . | ii, iii |
| Issues Presented for Review . . . . . . . . | 1 |
| Statement of Case . . . . A. Nature of the Case: . . . . . . . . . . . . B. Proceedings Below and Facts . . . . C. Disposition Below | 1 1 1 3 |
| Argument . . . . . . . . . . A. Standard of Review . . . . . . . . . . . B. Double Jeopardy . . C. Failure to Prove Need for Treatment and Rehabilitation . . . . . . . D. Dismissal of the Petition was the appropriate action when Petitioner failed to prove M.H.P. needed Treatment and Rehabilitation . . . . . . . E. Sex Offender Registration . . . . . . | 4 4 4 7 8 9 |
| Conclusion . . . . . . . . . | 10 |
II. TABLE OF AUTHORITIES
| A. Cases | Page or ¶ |
| Breed v. Jones, 421 U.S. 519, 529-30, 95 S. Ct. 1779, 1786, 44 L. Ed. 2d 346 (1975) . . . . . | ¶¶ 31, 33 |
| Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) . . . | ¶ 33 |
| Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644 . . . . . . . | ¶ 24 |
| Interest of B.F., 2009 ND 53, 764 N.W.2d 170 . . . . . . . . . . . | ¶¶ 27, 38 |
| Interest of L.B.B., 2005 ND 220 ¶ 6, 707 N.W.2d 469 . . . . . | ¶ 24 |
| Interest of T.S., 2011 ND 118, ¶ 8, 798 N.W.2d 649 . . . . . . | ¶¶ 24, 25, 31 |
| Price v. Georgia, 398 U.S. 323, 326, 329, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970) . | ¶ 33 |
| Serfass v. U. S., 420 U.S. 377, 378, 95 S. Ct. 1055, 1057, 43 L. Ed. 2d 265 (1975) . . . . . . . . | ¶ 32 |
| State v. Allesi, 216 N.W.2d 805, 817-18 (N.D. 1974) . . . . . . | ¶ 30 |
| State v. Jensen, 333 NW2d 686 (ND 1983) . . | ¶ 32 |
| State v. Rogers, 2007 ND 68, ¶ 11, 730 N.W.2d 859 . . . . . . . | ¶ 38 |
| State v. Yineman, 2002 ND 145, ¶ 8, 651 N.W.2d 648) . . . . | ¶ 38 |
| Teigen v. State, 2008 ND 88, 749 N.W.2d 505, 513 . . . . . . . | ¶ 25 |
| United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) . . . . . . | ¶ 33 |
| United States ex rel. Marcus v. Hess, 317 U.S. at 548--549 . | ¶ 33 |
| B. Constitutional Provisions | |
| U.S. Const. amend. V . . . . . . . | ¶ 28, 30, 38 |
| N. D. Const. art. I, § 12 . . . . | ¶ 29 |
| N.D. Const. art I, § 13 . . . . . | ¶ 30 |
| C. Rules | |
| N.D. Sup. Ct. Admin. R. 13, § 11(b) . . . . . . . | ¶ 10 |
| N.D.R.Civ.P. 52(a) . . . . . . . . . | ¶ 24 |
| D. Statutes | |
| N.D.C.C. § 12.13215 (2) . . | ¶ 54 |
| N.D.C.C. ch. 27-20., The Uniform Juvenile Court Act . . . . . | ¶ 34 |
| N.D.C.C. § 27-20-01 (2) . . . . . | ¶ 48 |
| N.D.C.C. § 27-10-02 (7) . . . . . | ¶ 34 |
| N.D.C.C. § 27-20-28 . . . . . . . | ¶ 14 |
| N.D.C.C. § 27-20-29 . . . . . . . | ¶ 35, 36, 47 |
| N.D.C.C. § 27-20-29 (2) . . . . . | ¶ 36, 47, 49, 50 |
| N.D.C.C. § 27-20-29 (3) (4) & (5) . . . . . . . . . | ¶ 43 |
| N.D.C.C. § 27-20-31 . . . . . . . | ¶ 36 |
| N.D.C.C. § 27-20-56(1) . . . . . | ¶ 38 |
| N.D.C.C. ch. 29-01 Criminal Procedure, General Provisions | ¶ 55 |
| N.D.C.C. § 29-01-01 . . . . . . . | ¶ 55 |
| N.D.C.C. § 29-01-07 . . . . . . . | ¶ 30 |
| N.D.C.C. § 29-01-09 (4) . . . . . | ¶ 55 |
III. ISSUES PRESENTED FOR REVIEW
[¶01] 1. Should this Appeal be dismissed on Double Jeopardy grounds?
[¶02] 2. Was the District Court's Order Affirming the Magistrate's Findings Clearly Erroneous?
[¶03] 3. Could the Juvenile Court order a child who had not been adjudicated delinquent to register as a sexual offender?
IV. STATEMENT OF THE CASE [¶04] A. Nature of the Case:
[¶05] This is an appeal from a District Court Order which adopted the Referee's Order dismissing the petition in the Juvenile Court Action because the Petitioner failed to prove, by clear and convincing evidence, that the child was in need of treatment and rehabilitation.
[¶06] B. Proceedings Below and Facts
[¶07] On August 3, 2011, a petition was filed in the Burleigh County Juvenile Court which alleged the Child, M.H.P., committed the offense of Gross Sexual Imposition, an adult Class A Felony, if committed by an adult. The petition alleged that M.H.P. "engaged in sexual contact with E.B., who was then 8 years old, by touching E.B.'s vaginal area through her clothing." (App. pp. 7-9) It was alleged that M.H.P. was 15 years old at the time of the alleged offense.
[¶08] M.H.P. denied the allegations of delinquency alleged in the Petition. A hearing to determine whether he committed the alleged delinquent act was held on February 16, 2012 before Judicial Referee Wayne Goter.
[¶09] On March 2, 2012 Referee Goter issued his Findings of Fact and Interim Order. He found, beyond a reasonable doubt, that M.H.P. had committed the delinquent act. Referee Goter ordered a hearing to determine whether M.H.P. was in need of treatment and rehabilitation. (App. pp. 10-13).
[¶10] M.H.P. requested review of the Referee's findings by the District Court pursuant to N.D. Sup. Ct. Admin. R. 13, § 11(b). The District Court reviewed the record and on April 19, 2012 issued findings which adopted Referee Goter's findings of fact and order. (App. p. 14).
[¶11] Referee Goter scheduled a dispositional hearing on the need for treatment and rehabilitation. (Docket # 128, Notice of Hearing).
[¶12] The dispositional hearing was held on May 31, 2012. (Docket for May 31, 2012, No Docket Number, located between docket numbers 130 and 131; Transcript of Dispositional Hearing.)
[¶13] On April 12, 2012, thirty-nine days before the dispositional hearing, counsel for M.H.P. submitted a pre-hearing brief which made it clear he intended to challenge the need for treatment and rehabilitation. (App. pp. 15-18) On April 16, 2012 Petitioner submitted a response to M.H.P. pre-hearing brief. (App. pp. 19-22) Petitioner's brief made it clear that Petitioner had received a copy of the report of a psychologist, Dr. Shannon Weisz, sometime before April 16th. (App. p. 19)
[¶14] Although the Petitioner had the right under N.D.C.C. § 27-20-28 to request that M.H.P. be examined by a physician, psychologist or addiction counselor no such request was made.
[¶15] At the dispositional conference, although M.H.P. had previously filed Dr. Weisz's report with the court (Tr. p. 3) M.H.P. elected to call Dr. Weisz who testified in detail. (Tr. pp. 3 - 32) The crux of Dr. Weisz's opinion was that M.H.P. did not need "sex specific treatment." (Tr. pp. 12-13). Dr. Weisz thought that M.H.P. could benefit from some therapy for the stress resulting from the legal proceedings and his attitudes taken up from his religion class. (Tr. p. 13.) Dr. Weisz explained the basis for his conclusions in detail. (Tr. pp 12 - 31). Referee Goter questioned Dr. Weisz to clarify his testimony. (Tr. pp. 27-31).
[¶16] On May 31, 2012 Referee Goter found that the Petitioner had not proved the need for treatment and rehabilitation. (Tr. pp. 61-62; Findings and Order of the Judicial Referee, App. pp. 38-40.) He dismissed the petition.
[¶17] On June 5, 2012 Petitioner requested District Court review of the Referee's Findings and Order. (Docket # 140, Request for Review of Referee's Findings of Fact and Order)
[¶18] On August 10, 2012 the District Court issued its Order Adopting the Referee's Finding and Order. (App. pp. 41-44.)
[¶19] On August 20, 2012 Petitioner moved the District Court for Clarification of its Order Adopting the Referee's Findings and Order (Docket #148).
[¶20] On August 29, 2012 the District Court issued it's Order Clarifying Adopting Referee's Findings and Order (App. p. 45) The District Court stated: "The Referee ordered the petition to be dismissed. This Court Adopted the Referee's findings and order. The Petition is dismissed. There is no adjudication remaining with the dismissal of the petition."
[¶21] C. Disposition Below
[¶22] The Petition (or proceeding) was dismissed because the Petitioner failed to prove by clear and convincing evidence that M.H.P. was in need of treatment and rehabilitation. (App. p. 40; App. p. 43; App. p. 45.)
V. ARGUMENT[¶23] A. Standard of Review
[¶24] The Juvenile Court's factual findings are reviewed under a clearly erroneous standard.
Under N.D.R.Civ.P. 52(a), we review a juvenile court's factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. "A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law."
Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644. We review questions of law de novo. Id.; In the Interest of T.S., 2011 ND 118, ¶ 8, 798 N.W.2d 649. See also Interest of L.B.B., 2005 ND 220 ¶ 6, 707 N.W.2d 469
In the Interest of T.S., 2011 ND 118, ¶ 8, 798 N.W.2d 649 See also Interest of L.B.B., 2005 ND 220 ¶ 6, 707 N.W.2d 469.
[¶25] Statutory interpretation is a question of law, fully reviewable on appeal.
Teigen v. State, 2008 ND 88, 749 N.W.2d 505, 513., In the Interest of T.S., supra.
[¶26] B. Double Jeopardy.
[¶27] This appeal is governed by Interest of B.F., 2009 ND 53, 764 N.W.2d 170 which held double jeopardy principles preclude an appeal from the acquittal in the juvenile court. This appeal is an appeal from an acquittal in the juvenile court and must be dismissed on Constitutional Grounds.
[¶28] The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ."
[¶29] North Dakota's Double Jeopardy Clause, N.D. Const. art. I, § 12 provides: "No person shall twice be put in jeopardy for the same offense."
[¶30] North Dakota's Constitutional and Statutory Double Jeopardy protections are intended to be co-extensive with the protections afforded under the Fifth Amendment to the U.S. Constitution.
It is our view that Section 29-01-07, N.D.C.C., and Section 13 of the North Dakota Constitution must be read in the light of history. Although they had the power to do so, we do not believe that the framers of the North Dakota Constitution who created Section 13 or the members of the Legislature who drafted Section 29-01-07 or its predecessor section intended a result different from that mandated by the Fifth Amendment to the United States Constitution.
State v. Allesi, 216 N.W.2d 805, 817-18 (N.D. 1974)
[¶31] Double Jeopardy protections apply to Juvenile cases. Breed v. Jones, 421 U.S. 519, 529-31 (1975), In the Interest of T.S., 2011 ND 118, ¶ 17, 798 N.W.2d 649.
[¶32] Jeopardy attaches in a non-jury proceeding when the first witness is sworn, e.g. when the court begins to hear evidence. State v. Jensen, 333 NW2d 686 (ND 1983); Serfass v. U. S., 420 U.S. 377, 378, 95 S. Ct. 1055, 1057, 43 L. Ed. 2d 265 (1975).
[¶33] Should Petitioner argue that the Referee's finding that M.H.P. had committed the act alleged eliminates double jeopardy concerns, the following from Breed v. Jones, supra., addresses such an argument.
Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution. See Price v. Georgia, 398 U.S. 323, 326, 329, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970);
Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975). The case goes on to explain:
As we have observed, the risk to which the term jeopardy refers is that traditionally associated with 'actions intended to authorize criminal punishment to vindicate public justice.' United States ex rel. Marcus v. Hess, supra, 317 U.S. at 548--549, 63 S.Ct. at 388. Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens--psychological, physical, and financial--on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once 'for the same offence.' See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S., at 331, 90 S.Ct. at 1762; United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.).
Breed v. Jones, 421 U.S. 519, 529-30, 95 S. Ct. 1779, 1786, 44 L. Ed. 2d 346 (1975) (Emphasis added)
[¶34] N.D.C.C. ch. 27-20, The Uniform Juvenile Court Act, defines a "delinquent child" as a child under the age of eighteen years who has committed a delinquent act and is in need of treatment or rehabilitation. N.D.C.C. § 27-10-02 (7).
[¶35] The procedures for determining whether an accused child is a delinquent child are established in N.D.C.C. § 27-20-29. The relevant portions of that Section read:
2. If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which the child is alleged to be delinquent or unruly, it shall proceed immediately or at a postponed hearing to hear evidence as to whether the child is in need of treatment or rehabilitation and to make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds that the child is not in need of treatment or rehabilitation, it shall dismiss the proceeding and discharge the child from any detention or other restriction previously ordered.
3. If the court finds from clear and convincing evidence that the child is deprived or that the child is in need of treatment or rehabilitation as a delinquent or unruly child, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case.
[¶36] A child cannot be adjudicated "Delinquent" unless it is proved that the child committed the acts alleged AND it is proved the child is in need of treatment and rehabilitation. N.D.C.C. § 27-20-29. The Juvenile Court can only enter an order of disposition against a child who has been adjudicated delinquent. N.D.C.C. § 27-20-31. M.H.P. was not adjudicated delinquent and N.D.C.C. § 27-20-29 (2). required the action against him to be dismissed.
[¶37] A child is only subject to punishment or other Juvenile Court sanctions or control if the criminal act is proved AND the need for treatment and rehabilitation is proved. Proof of both elements is necessary before punishment or treatment can be ordered. As we have previously noted in this brief, at ¶33, the risk to which the term "jeopardy" refers is that traditionally associated with 'actions intended to authorize criminal punishment to vindicate public justice.'
[¶38] This court has clearly held that Constitutional Double Jeopardy protections prevent the State from appealing to this court from an acquittal in a juvenile court case.Section 27-20-56(1), N.D.C.C., provides that "[a]n aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court . . . [and] [t]he appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court."
The State may not appeal from an acquittal in a criminal case. . . . When an appellate or trial court "'concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.'" State v. Rogers, 2007 ND 68, ¶ 11, 730 N.W.2d 859 (quoting State v. Yineman, 2002 ND 145, ¶ 8, 651 N.W.2d 648). Double jeopardy principles apply to juvenile court proceedings involving adjudication of delinquent acts.
Interest of B.F., 2009 ND 53 ¶¶ 5 - 6, 764 N.W.2d 170
[¶39] C. Failure to Prove Need for Treatment and Rehabilitation
[¶40] There were references during this proceeding to a "presumption" that the child who has committed acts which constitute a felony is in need of treatment and rehabilitation. No such presumption exists.
[¶41] N.D.C.C. § 27-20-29(2) relieves the petitioner from the obligation of proving the child is in need of treatment and rehabilitation if the child does not present any evidence to the contrary. But once the child presents evidence that he does not need treatment and rehabilitation it is incumbent on the Petitioner to present clear and convincing evidence that the child needs treatment and rehabilitation. The Petitioner who fails to present evidence to meet that burden of proof can expect the action will be dismissed. That is what happened in this case.
[¶42] In this case M.H.P. gave notice that he was contesting the need for treatment and rehabilitation and disclosed the nature of the expert testimony to that effect well in advance of the dispositional hearing.
[¶43] N.D.C.C. Subsection 3, 4 and 5 of Section 27-20-29 require notice to opposing counsel and require the Juvenile Court to afford counsel adequate time to prepare rebuttal of the opposition's contentions. Despite this notice Petitioner did not present any rebuttal of M.H.P.'s contentions.
[¶44] Referee Goter found the Petitioner had not met it's burden of proving the need for treatment and rehabilitation. That finding is not surprising in light of the fact that Petitioner did not present any evidence that rebutted the defense evidence and presented no evidence that M.H.P. needed treatment and rehabilitation.
[¶45] The District Court affirmed the Referee's findings. The District Court's order was the only order possible in light of the evidence.
[¶46] D. Dismissal of the Petition was the appropriate action when Petitioner failed to prove M.H.P. needed Treatment and Rehabilitation.
[¶47] The procedures for determining whether an accused child is a delinquent child are established in N.D.C.C. § 27-20-29. The relevant portion of that section reads:
2. If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which the child is alleged to be delinquent or unruly, it shall proceed immediately or at a postponed hearing to hear evidence as to whether the child is in need of treatment or rehabilitation and to make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds that the child is not in need of treatment or rehabilitation, it shall dismiss the proceeding and discharge the child from any detention or other restriction previously ordered.
(Emphasis added.)
[¶48] The North Dakota Juvenile Court Act's purposes include: "Consistent with the protection of the public interest to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, and to substitute therefore a program of treatment, training and rehabilitation." N.D.C.C. § 27-20-01 (2). Treatment and rehabilitation are intended to take the place of punishment for commission of an adult crime.
[¶49] From the foregoing statutory scheme we see that the mere commission of a criminal act is not sufficient to support a finding that the child is delinquent. The Juvenile Court must find, by clear and convincing evidence, that protection of the public interest requires the child to undergo a program of treatment or rehabilitation. If the public interest does not require the child to go through a program of treatment or rehabilitation the proceeding must be dismissed and the child discharged from any detention. N.D.C.C. § 27-20-29 (2)
[¶50] Although Respondent is probably flogging a dead horse M.H.P. feels a compelling need to emphasize there is no presumption that a child who has committed a felony act needs treatment or rehabilitation. Instead, the law states, "In the absence of evidence to the contrary evidence of the commission of acts which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation." N.D.C.C. § 27-20-29 (2) (Emphasis added).
[¶51] Once evidence is introduced that the public interest does not require the child to undergo a program of treatment or rehabilitation mere proof of the fact that a child committed a felony act is not sufficient, by itself, to sustain a finding that the child is in need of treatment or rehabilitation.
[¶52] Obviously the required need for treatment or rehabilitation must be related to the criminal act and protection of the public. Proof that a child who committed burglary needs treatment for recurrent plantar warts is not sufficient to support a finding that he is a delinquent child.
[¶53] E. Sex Offender Registration
[¶54] The question of sex-offender registration is answered by N.D.C.C. § 12.13215 (2). Under that Section the court is authorized to order sexual offender registration only if the child is adjudicated delinquent because he committed a named sexual offense. As noted earlier in this brief M.H.P. was not adjudicated delinquent because Petitioner failed to prove the need for treatment or rehabilitation. A finding of delinquency is necessary before the court can order sexual offender registration.
[¶55] Petitioner argues that N.D.C.C. § 29-01-09 (4) applies to the issue of sex offender registration. N.D.C.C. ch. 29-01 applies to adult criminal prosecutions, not Juvenile Court proceedings. For example N.D.C.C. § 29-01-01 requires an applicable crime to be prosecuted by indictment or information unless one of the four statutory exceptions apply. None of them apply in Juvenile Court. N.D.C.C. § 29-01-09 (4), the statute cited by petitioner, applies to prosecutions in municipal courts. That was not the case in this action.
VI. CONCLUSION
[¶56] For the foregoing reasons this appeal should be dismissed as it is barred by double jeopardy principles.
[¶57] Even if double jeopardy did not bar this appeal Petitioner's failure to prove M.H.P. was in need of treatment and rehabilitation required dismissal of the Juvenile Court action. Failure to find M.H.P. delinquent, deprived the Juvenile court of the power to order registration as a sexual offender. The August 10, 2012 District Court Order Adopting the Referee's Finding and Order and the subsequent Clarifying Order should be affirmed.
[¶58] Dated December 21, 2012.
/s/ Tom Tuntland Tom Tuntland (ND Bar ID #03250) Attorney for Appellee, M.H.P. TUNTLAND & COLLING 210 Collins Ave. - P.O. Box 1315 Mandan, ND 58554 Phone: 701-667-1888 || Fax: 701-667-1308 tomtutusa