In the Interest of Johnson

McCORMICK, Justice

(concurring specially).

The question here is whether the denial of jury trials in delinquency cases infringes Ia.Const. Art. I § 9 or Ia.Const. Art. I § 10. I concur in the result but not entirely in the basis of the majority opinion.

I. Ia.Const. Art. I § 9. As noted by the court, this court held in Wissenburg v. Bradley, 209 Iowa 813 , 229 N.W. 205 (1929), the requirement of Ia.Const. Art. I § 9 that the right to jury trial “shall remain inviolate” is not infringed by denial of jury trials in delinquency cases. The court reasoned the provision is not violated because juvenile proceedings are analogous to guardianship proceedings at common law which did not require trial by jury at the time the Constitution was adopted. In characterizing a delinquency action the court said:

*52 The action is, in a sense, a special proceeding provided by statute, wherein the state, by virtue of its authority as parens patriae, takes jurisdiction of the incorrigible child, and commits it, not to jail for punishment, but to a reformatory for its care, education, and training. 209 Iowa at 816 , 229 N.W. at 207 .

In the present case the juvenile calls this reasoning spurious, asserting the United States Supreme Court has rejected it. She contends a delinquency proceeding is a criminal trial in which a child had a right to trial by jury at common law when the Constitution was adopted. Therefore, she argues, denial of jury trial in a delinquency action does infringe Ia.Const. Art. I § 9.

Four cases of the United States Supreme Court are significant in determining whether a constitutionally tenable distinction can be said any longer to exist between a delinquency proceeding and a criminal trial. They are Kent v. United States, 383 U.S. 541 , 86 S.Ct. 1045 , 16 L.Ed.2d 84 (1966), In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967), In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), and McKeiver v. Pennsylvania, 403 U.S. 528 , 91 S.Ct. 1976 , 29 L.Ed.2d 647 (1971).

In Kent the Court noted the discrepancy between theory and practice in the juvenile system. The Court said:

While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts * * * lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens pat-riae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. 383 U.S. at 555 , 86 S.Ct. at 1054 , 16 L.Ed.2d at 94 .

In Gault the Court repeated and expanded its criticism of the juvenile court system in this country. In discussing the parens patriae concept, it said:

The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning its murky and its historic credentials are of dubious relevance. 387 U.S. at 16 , 87 S.Ct. at 1437-1438 , 18 L.Ed.2d at 540 .

Although the Court said the constitutional and theoretical basis of the juvenile court system is debatable, it stopped short of holding that no constitutionally tenable ground distinguishes delinquency proceedings from criminal trials. The Court imposed a number of due process safeguards on juvenile proceedings but insisted its holding would not “compel the States to abandon or displace any of the substantive benefits of the juvenile process.” 387 U.S. at 21 , 87 S.Ct. at 1440 , 18 L.Ed.2d at 543 .

In Winship the Court carried Gault one step further, imposing the standard of proof beyond a reasonable doubt on delinquency adjudications as an additional requirement of due process. The Court again alleged no risk existed that the beneficial aspects of the juvenile process would be destroyed.

Finally, in McKeiver , a plurality of the Court said its decisions “do not spell the doom of the juvenile court * * * 403 U.S. at 534 , 91 S.Ct. at 1981 , 29 L.Ed.2d at 654 . The plurality noted that “the juvenile court proceeding has not yet been held to be a ‘criminal prosecution’, within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label.” 403 U.S. at 541 , 91 S.Ct. at 1984 , 29 L.Ed.2d at 658 . The plurality rejected the “wooden approach” of calling the juvenile proceeding civil or criminal and instead proceeded to decide that due process did not require jury *53 trials in delinquency proceedings as a matter of fundamental fairness.

The result of Kent, Gault, Winship and McKeiver is that, contrary to the juvenile’s contention in the present case, a constitutionally tenable distinction still exists between delinquency actions and criminal cases. Therefore, even though juveniles have most of the protections given those accused of crime as a requirement of due process, the juvenile proceeding can still be placed outside the class of cases in which the right to trial by jury existed at common law. The rationale of our Wissenburg case has been eroded but not destroyed. It is still viable. See Fucini v. Illinois, 44 Ill.2d 305 , 255 N.E.2d 380 (1970), appeal dismissed, 403 U.S. 925 , 91 S.Ct. 2242 , 29 L.Ed.2d 704 (1971); Bible v. State, 253 Ind. 373 , 254 N.E.2d 319 (1970); and In re McCloud, 110 R.I. 431 , 293 A.2d 512 (1972). But see Peyton v. Nord, 78 N.M. 717 , 437 P.2d 716 (1968). Thus I agree with the majority that denial of a jury trial in delinquency cases does not contravene Ia.Const. Art. I § 9.

II. Ia.Const. Art. I § 10. In relevant part Ia.Const. Art. I § 10 assures an accused the right to speedy and public trial by jury “[i]n all criminal prosecutions, and in cases involving the life, or liberty of an individual * * * The juvenile’s contention under this provision presents an issue of first impression in this Court. Moreover, no other jurisdiction appears to have a similar constitutional provision, assuring the right to a jury trial to the accused not only in criminal prosecutions but in other cases involving life and liberty. Therefore we must decide without assistance of prior decisions whether a juvenile alleged to be delinquent is an “accused” in a case involving the life or liberty of an individual within the contemplation of the framers.

I believe we must approach this task of constitutional adjudication in the light of general principles recently explained in Rudd v. Ray, 248 N.W.2d 125, 129-130 (Iowa 1976). We must attempt to ascertain what was in the minds of the framers as indicated by the language used, the object to be attained, or evil to be remedied, and the circumstances at the time of adoption.

We are aided here by the record of the convention which drafted the Constitution of 1857. See W. Lord, Constitutional Debates (1857).

It was initially proposed in the 1857 convention that Art. I § 10 be retained in the same form as in the Constitution of 1946. That provision applied only in criminal prosecutions. See Art. I § 10, Const, of 1846. However, as a result of floor amendments and committee recommendations, language was added to the provision and it was adopted in the following form, with the additions shown in italics:

In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.

The record of the convention shows the language extending the enumerated rights beyond criminal prosecutions was added in reaction against the Fugitive Slave Act as amended by Congress in 1850. See 9 Stat. 462 .

Under the Fugitive Slave Act a slav-eowner from another state could obtain a “certificate of right” in an ex parte proceeding in his home state and present it in a free state like Iowa as conclusive proof of his right to the return of an alleged fugitive slave. Iowa courts were authorized to conduct a summary trial limited to requiring additional evidence on the issue of identity only, and the accused fugitive was even denied the right to testify.

Strong opposition to the Fugitive Slave Act and slavery existed among the delegates. See Lord, supra, at 651-654; B. Shambaugh, Constitutions of Iowa (1934), at 270-271. In speaking against the Fugitive Slave Act, one delegate said:

*54 If the words “due process of law”, shall in time be recognized by our judicial tribunals to mean what they really do mean, that no person shall be deprived of life, liberty or property, without a legal proceeding based upon the principles of the common law, and the constitution of the United States — that every man, when his life or liberty are imperilled, shall have the right to be tried, by a jury of his countrymen * * * [ — then], sir, that infamous Fugitive Slave Law will become a nulity [sic], and the American people will trample its odious enactments in the dust. Lord, supra, at 102.

After the words “and in all cases involving the life or liberty of an individual” had been added to Art. I § 10, one delegate moved to strike them. In his argument he said:

I understand that this provision is inserted for the purpose of providing that instead of the fugitive slave having the right of trial by jury where his labor may be due, he shall have his trial here; which would be equivalent to saying at once, that any slave in the territory of this state shall have the right to assert his freedom, and cannot be remanded back into slavery. That is the true meaning of that clause, I suppose. Lord, supra, at 736.

Proponents of the language acknowledged this asserted purpose. One delegate said, “I hold that unless we have the right to make a constitution which will secure to me the right to a jury trial if I am claimed as a fugitive slave, without that right we are not a sovereign people.” Lord, supra, at 737. Another supported the language on the theory the Fugitive Slave Act violated the United States Constitution. Lord, supra, at 738. The motion to strike the language was defeated. No one can doubt from the convention record that the disputed language was added to Art. I § 10 in an effort to nullify the Fugitive Slave Act by giving persons accused as escaped slaves the right to jury trial in Iowa.

We must now decide whether this same language gives a child the right to jury trial in a delinquency action. The juvenile court system was not established in Iowa until 1904 and obviously was not specifically foreseen by the delegates to the 1857 convention. However, because a constitutional provision has a life beyond the mischief which gave it birth, it is still necessary to determine whether the framers intended Art. I § 10 to be applicable in the kind of proceeding at issue here. I do not believe they did.

The parens patriae concept casts the State in a role providing each child coming within the jurisdiction of the juvenile court “the care, guidance, and control that will conduce to his welfare and the best interests of the state, and * * * when he is removed from the control of his parents, * * * care as nearly as possible equivalent to that which he should have been given.” § 232.1, The Code. As shown by the Supreme Court opinions in Kent, Gault, Winship and McKeiver this concept is seriously flawed. Substantial variance exists between theory and practice. However as those cases also show, the juvenile court system survives.

The features which distinguish a delinquency action from a criminal prosecution also help distinguish it from a proceeding involving the right to remove an alleged fugitive slave from the state. Moreover, unlike an accused under the infamous Fugitive Slave Act, the child is not threatened with capricious imposition of depersonalizing servitude. Restraint of liberty in the juvenile proceeding is a means of ameliorative treatment rather than a means of obtaining involuntary labor.

On that basis, recognizing the juvenile court system was unforeseen by the delegates to the 1857 convention, and giving full consideration to the language used, the object to be attained, and the circumstances at the time of its adoption, I do not believe the framers intended Art. I § 10 to reach the kind of process which the juvenile system involves. I do not believe the child in a delinquency proceeding is an “accused” threatened with loss of liberty within the meaning of that provision. Consequently I *55 agree with the court that it does not create a right to jury trials in delinquency actions.

We have no occasion here to pass on the wisdom of giving the child a right to trial by jury.