in proceeding to determine best interests of children found to be without adequate parental care, mother not entitled to jury trial
How later courts described this case
- in proceeding to determine best interests of children found to be without adequate parental care, mother not entitled to jury trial
Written by the judges who cited it.
The opinion
QUINN, Associate Judge
(dissenting).
The express language of the statute requires that “ * * * The court shall hear and determine all cases of children without a jury unless a jury be demanded by the child, his parent, or guardian or the court.” There is no question that such demand was seasonably made by appellant and refused by the trial judge. I feel that this refusal was reversible error.
Congress provided that a jury trial shall be had in these cases if it was demanded. However, it must be noted that Congress did not stop there but explicitly went on to give the parent or guardian or court, as well as the child, the right to make such demand. I feel that the use of the words “or the court” is significant in showing that Congress intended that a right to jury trial be created by the statute. When a right exists in various parties, in a case, one may assert that right if the others fail to assert it. By giving the court this power to demand a jury trial, the court is put in a position of being a protector of that right and when it feels that a situation warrants a jury trial it may order it, even though the parties to the case have either failed or refused to exercise their power to assert this right.
The West Virginia Code, under its article on juvenile courts, provides for a jury trial in the following language: “In a proceeding under this article, an interested person may demand, or the judge of his own motion, may order a jury of twelve persons to try any question of fact.” 1 I do not find any substantial variance between this statutory provision and the one under consideration. In interpreting this section the Supreme Court of Appeals of West Virginia held that the refusal to grant a jury trial under this section was reversible error. 2
Since this was a purely statutory proceeding, the Juvenile Court was bound to give a strict construction to that section of the statute and any attempt by that court or this court to deny the appellant a trial by jury is judicial legislation and not interpretation. I cannot say that a statute does not mean precisely what it says, in the absence of any ambiguities.
In discussing the interpretation of clear and unambiguous statutes Sutherland in *414 his work on Statutory Construction (3rd ed.), vol. 2, § 4702, states that the court in interpreting the act must declare it according to the words of the act, for they are, in fact, expressive of the sense and intent of the act. In State v. Duggan, 15 R.I. 403 , 6 A. 787, 788 , the Supreme Court of that State held: “It is an elementary froposition that courts only determine, by construction, the scope and intent of a law when the law itself is ambiguous or doubtful. If a law is plain, and within the legislative power, it declares itself, and nothing is left for interpretation. It is as binding upon the court as upon every citizen. To allow a court, in such a case, to say that the law must mean something different from the common import of its language, because the court may think that its penalties are unwise or harsh, would make the judicial superior to the legislative branch of the government, and practically invest it with the law-making power. The remedy for a harsh law is not in interpretation, but in amendment or repeal.”
. West Virginia Code 1949, § 4904(53) [6] [49-5-6].
. Newman v. Wright, 126 W.Va. 502 , 29 S.E.2d 155 .