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Nao v. State (2/6/98) ap-1573
NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL K. NAO, III, )
) Court of Appeals Nos. A-6097/6107
Appellant and ) Trial Court No. 4FA-94-3671 Cr
Cross-Appellee, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee and ) [No. 1573 - February 6, 1998]
Cross-Appellant, )
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Thomas E. Fenton, Fairbanks, for
Appellant & Cross-Appellee. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee & Cross-
Appellant.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
During the 1994 legislative session, the Alaska
Legislature amended this state's juvenile delinquency laws. See SLA
1994, chapter 113. Prior to the 1994 amendments (with a few
exceptions not pertinent here), when a person under the age of
18 violated the criminal law, they were dealt with under the
juvenile delinquency provisions of former AS 47.10. However, in SLA
1994, ch. 113, sec. 6, the legislature enacted former AS 47.10.-
010(e). Under this statute, proceedings against 16- and 17-year-
olds who committed certain serious felonies would no longer be
governed by the delinquency laws; instead, these persons would be
prosecuted as adults and, if found guilty, punished as adults. The
specified felonies were: (1) any crime against a person that is
either an unclassified felony or a class A felony, and (2) first-
degree arson. See former AS 47.10.010(e). [Fn. 1]
This appeal involves a constitutional challenge to the
legislature's action. Nao contends that the legislature exceeded
its constitutional powers when it enacted former AS 47.10.010(e).
He asserts that this statute conflicted with the Delinquency Rules
promulgated by the Alaska Supreme Court, and he further asserts that
the statute was not enacted in accordance with the procedures
specified in Article IV, Section 15 of the Alaska Constitution for
legislative amendments to court rules. [Fn. 2]
As explained in more detail below, we reject Nao's
characterization of the legal effect of former AS 47.10.010(e).
This statute did not alter matters of procedure; rather, it altered
the coverage of the juvenile delinquency laws. Former AS 47.10.-
010(e) changed the criminal penalties that 16- and 17-year-olds
faced for certain criminal acts, and it changed the scope of the
superior court's juvenile jurisdiction over 16- and 17-year-olds.
Such changes are within the province of the legislature; we uphold
the statute as a valid exercise of legislative power. [Fn. 3]
On November 9, 1994, Daniel K. Nao, III, participated in
an armed robbery in Fairbanks. Nao was 17 years old at the time.
Pursuant to former AS 47.10.010(e), Nao was prosecuted as an adult;
a Fairbanks grand jury indicted him for first-degree robbery,
AS 11.41.500(a), and second-degree theft, AS 11.46.130(a).
Nao asked the superior court to order the State to
prosecute him as a juvenile. Nao argued that former AS 47.10.010(e)
was unconstitutional because (1) the statute addressed matters of
procedure, (2) it conflicted with the Delinquency Rules promulgated
by the Alaska Supreme Court, and (3) it had not been passed by a
two-thirds' majority of the legislature for the specified purpose
of amending the Delinquency Rules. See Article IV, Section 15 of
the Alaska Constitution, as interpreted in Leege v. Martin, 379 P.2d
447, 451 (Alaska 1963).
Superior Court Judge Neisje J. Steinkruger rejected Nao's
argument and concluded that former AS 47.10.010(e) was "substantive"
rather than "procedural" for purposes of Article IV, Section 15.
Employing the legal analysis formulated by the supreme court in
Nolan v. Sea Airmotive, 627 P.2d 1035, 1040-43 (Alaska 1981), Judge
Steinkruger found that the main effect of former AS 47.10.010(e) was
a jurisdictional change: the statute removed a group of offenders
from the superior court's juvenile jurisdiction and declared that
these offenders would now be tried as adults under the superior
court's criminal jurisdiction. Judge Steinkruger recognized that
this jurisdictional change inevitably meant that the proceedings
against these offenders would be governed by different procedural
rules by the Criminal Rules instead of the Delinquency Rules.
But the judge concluded that former AS 47.10.010(e) did not change
any of the Delinquency Rules. Rather, the statute redefined the
type of litigation to which the Delinquency Rules apply.
On appeal, Nao renews his argument that former AS 47.-
10.010(e) was an improper legislative attempt to change the
Delinquency Rules improper because the statute was not passed in
accordance with the procedural requirements of Article IV, Section
15. However, the amendment to AS 47.10.010(e) did not change the
procedural rules governing delinquency proceedings. Rather, it
narrowed the definition of the legal matters that would be pursued
as delinquency proceedings thus redefining the class of cases to
which the Delinquency Rules apply.
Chapter 12 (formerly chapter 10) of Title 47 contains the
statutes that govern proceedings against minors who are alleged to
have violated the criminal law, as well as the statutes that
prescribe the penalties to be imposed if the minor is found guilty.
These statutes reflect a "benevolent attitude that the legislature
[shows] toward more youthful offenders". Henson v. State, 576 P.2d
1352, 1354 (Alaska 1978). The concept that underlies Alaska's
juvenile delinquency laws is that, generally, "a person under
eighteen years of age does not have mature judgment and may not
fully realize the consequences of [their] acts". P.H. v. State, 504
P.2d 837, 841 (Alaska 1972). For this reason, the delinquency laws
insulate a youthful offender from a public trial. See AS 47.12.-
110(a); see also AS 47.12.040(a) and 47.12.060 (allowing informal
adjustment of a criminal charge against a minor). These laws impose
penalties that are geared toward individual treatment and
reformation rather than general deterrence and condemnation. See
AS 47.12.120 and 47.12.140. Moreover, these laws require that the
records of delinquency proceedings be kept confidential for most
purposes, so that youthful offenders "[will] not ... bear the stigma
of a criminal conviction for the rest of [their] life". P.H., 504
P.2d at 841; see AS 47.12.180 and 47.12.300-310. [Fn. 4]
In our government of divided powers, the legislature
defines crimes and establishes punishments. See 21 Am.Jur.2d,
"Criminal Law", sec.sec. 10-11. The Alaska Supreme Court explicitly
recognized this principle in Alex v. State, 484 P.2d 677, 685
(Alaska 1971):
Save only as limited by constitutional
safeguards, the legislature may choose any reasonable means to
protect the people from the violation of criminal laws. In general,
the comparative gravity of offenses and their classification and
resultant punishment is for legislative determination.
In the juvenile delinquency statutes, the legislature has
established a different, more lenient set of consequences for
youthful offenders who violate the criminal law. The Alaska Supreme
Court has recognized that it is the legislature's province to decide
when and specifically, to which offenses these different
consequences will apply.
In State v. G.L.P., 590 P.2d 65, 67 (Alaska 1979), a minor
was charged with misdemeanor joyriding as an adult in district
court. The district court dismissed the charge because the court
concluded that the minor's offense was governed by the juvenile
delinquency laws; the court therefore directed the State to file a
delinquency petition in superior court. Id. at 66-67. On appeal,
the supreme court reversed the district court and held that the
minor should be prosecuted as an adult because the legislature
did not intend for the juvenile delinquency laws to apply:
Read together, [former] AS 28.35.010(d) and
[former] AS 47.10.010(b) demonstrate a clear legislative intent to
exclude from the coverage and requirements of the juvenile code
those cases involving alleged misdemeanor violations of Alaska's
"joyriding" statute by persons under eighteen years of age.
G.L.P., 590 P.2d at 67. [Fn. 5]
Thus, it is the legislature's province to decide which
prosecutions shall be governed by the normal criminal laws and which
shall be governed by the juvenile delinquency laws. For example,
in M.O.W. v. State, 645 P.2d 1229, 1234 (Alaska App. 1982), this
court held that a minor can not elect to be treated as an adult when
the legislature has prescribed juvenile penalties for the minor's
violation of criminal law.
Courts from other states have reached the same conclusion.
For example, in People v. J.S., 469 N.E.2d 1090, 1096 (Ill. 1984),
the Illinois Supreme Court stated:
We believe that the legislature, by lowering
the age for juvenile court jurisdiction in relation to certain
crimes, is not usurping a judicial function, but [is] redefining the
applicability of a statute which it created under its legislative
power.
Accord, Washington v. State, 642 So.2d 61, 63 (Fla. App. 1994) ("The
legislature has absolute discretion to determine whether an
individual charged with a particular crime is entitled to the
benefit of the juvenile justice system."). See also State v.
Berard, 401 A.2d 448, 453 (R.I. 1979) (upholding the authority of
the legislature to exclude certain age groups from the coverage of
the juvenile delinquency laws).
Alaska Delinquency Rule 1(b) declares that the Delinquency
Rules "govern practice and procedure ... in all phases of delin-
quency proceedings brought under AS 47.12.020." The referenced
statute, AS 47.12.020 (the successor to former AS 47.10.010)
specifies which offenses are to be prosecuted as delinquency
matters:
Jurisdiction. Proceedings relating to a
minor under 18 years of age ... are governed by this chapter, except
as otherwise provided in this chapter, when the minor is alleged to
be ... a delinquent minor as a result of violating the criminal law
of the state or a municipality of the state.
In sum, the Delinquency Rules themselves declare in Rule 1(b)
that they apply only to "proceedings brought under AS 47.12.020",
and AS 47.12.020 explicitly provides that the coverage of the
delinquency laws can be modified by the other sections of AS 47.12.
Because of this, no change in the Delinquency Rules is required when
the legislature enacts or amends a provision of AS 47.12 to expand
or narrow the categories of offenses that will be prosecuted in
delinquency proceedings. If, under the provisions of AS 47.12, an
offense is to be prosecuted under the adult criminal laws and not
the delinquency laws, then the Alaska Delinquency Rules do not apply
to the proceeding.
For these reasons, we reject Nao's contention that the
legislature's amendment of the juvenile delinquency laws violated
Article IV, Section 15 of the Alaska Constitution. The amendment
to former AS 47.10.010(e) did not alter the Delinquency Rules;
rather, it redefined the coverage of the delinquency laws (by
declaring that these laws do not apply to 16- and 17-year-olds who
commit the listed serious felonies). The Delinquency Rules continue
to apply to juvenile delinquency proceedings, while the Criminal
Rules continue to apply to criminal prosecutions. The amendment to
former AS 47.10.010(e) was a valid exercise of the legislature's
power to establish the punishment for crimes, to define the scope
of juvenile jurisdiction, and to define the substantive rights of
those who are accused of breaking the criminal laws.
Nao also claims that former AS 47.10.010(e) granted
unconstitutional powers to the executive branch of government
(specifically, prosecuting authorities). Nao points out that, under
former AS 47.10.010(e), the charge brought against a minor
determines whether the criminal or juvenile rules of procedure will
apply to the prosecution. Nao asserts that it is unconstitutional
to have defendants' procedural rights hinge on the charge brought
against them.
We reject Nao's argument. First, under Article I, Section
8 of the Alaska Constitution, the executive branch does not have
unbridled discretion to pursue felony charges; all felony defendants
(including 16- and 17-year-old defendants) are entitled to have
their charges screened by a grand jury before proceedings can
commence in the superior court. Second, and more important,
prosecutors have traditionally been vested with wide-ranging
discretion as to whether to bring criminal charges and, if so, what
charges to bring. Surina v. Buckalew, 629 P.2d 969, 973 (Alaska
1981) (citing Burke v. State, 624 P.2d 1240, 1246 (Alaska 1980)).
This charging discretion is part of our system of government, even
though a defendant's procedural rights may hinge on the prosecutor's
charging decision.
Even before the passage of former AS 47.10.010(e), the
juvenile delinquency laws did not apply to minors who were charged
with certain misdemeanors misdemeanors involving possession or
consumption of alcohol, traffic offenses, fish and game offenses,
or violations of the statutes and regulations governing parks and
recreation facilities. See former AS 47.10.010(b), now AS 47.12.-
030(b). Thus, the prosecutor's decision to charge a minor with one
of the enumerated crimes determined whether the juvenile delinquency
laws or the normal criminal laws governed the minor's trial and
punishment. After the 1994 amendment (that is, after the enactment
of former AS 47.10.010(e)), the juvenile delinquency laws no longer
apply to minors who are charged with certain felonies. But the
underlying principle remains the same: procedures and punishments
vary according to the charge brought against the minor, and the
decision as to the appropriate charge rests with the prosecuting
authority.
Nao argues that this state of affairs is unconstitutional,
but he cites no pertinent legal authority in support of his
argument. In fact, legal authority is against him. In Davis v.
Municipal Court, 757 P.2d 11, 23 (Cal. 1988), the court rejected the
contention
that a district attorney improperly exercises
"judicial authority" in violation of the separation-of-powers
doctrine when he exercises his traditional broad discretion, before
charges are filed, to decide what charges ought to be prosecuted,
even when that charging decision affects the defendant's eligibility
for [pre-trial] diversion.
In Matter of Welfare of L.J.S., 539 N.W.2d 408, 411-12
(Minn. App. 1995), the court held that a prosecutor's power to bring
criminal charges against juveniles of a certain age who violated
specified statutes was simply an instance of the prosecutor's
historical charging discretion. The court noted that "[c]ourts in
most other jurisdictions have ... rejected separation-of-powers
challenges to statutes giving a prosecutor absolute or conditional
discretion to charge a juvenile as an adult." See also United
States v. Batchelder, 442 U.S. 114, 125; 99 S.Ct. 2198, 2205; 60
L.Ed.2d 755, 765 (1979) ("The prosecutor may be influenced by the
penalties available upon conviction, but this fact, standing alone,
does not give rise to a violation of the Equal Protection or Due
Process Clause."); State v. Larson, 764 P.2d 749, 752 (Ariz. App.
1988) (declaring that it does not matter if the prosecutor's
charging decision affects the penalties to which the defendant is
subject at sentencing).
For these reasons, we reject Nao's contention that former
AS 47.10.010(e) gave unconstitutional charging discretion to the
executive branch.
Nao brings one more attack against AS 47.10.010(e). In
a single paragraph, with no citation to any pertinent legal
authority, Nao argues that former AS 47.10.010(e) violated the due
process clause because "[i]t is not rational to give the executive
[branch of government] blanket discretion based on a charging
decision". To the extent that Nao is arguing anything different
from the legal issues we have just discussed, we find that his
arguments are waived because they are inadequately briefed.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
In 1996, the legislature divided former AS 47.10 into two
chapters. AS 47.10 now contains the statutes governing children in
need of aid, while AS 47.12 contains the juvenile delinquency laws.
See SLA 1996, ch. 59. The statute at issue in this appeal, former
AS 47.10.010(e), has been replaced by AS 47.12.030(a). However, the
new statute codifies the same rule as the old: the delinquency laws
do not apply to 16- and 17-year-olds who commit an unclassified
felony against a person, a class A felony against a person, or
first-degree arson. See AS 47.12.030(a)(1)-(2).
Footnote 2:
Article IV, Section 15: "Rule-Making Power. The supreme
court shall make and promulgate rules governing the administration
of all courts. It shall make and promulgate rules governing
practice and procedure in civil and criminal cases in all courts.
These rules may be changed by the legislature by two-thirds vote of
the members elected to each house."
Footnote 3:
Nao also attacks AS 47.10.010(e) on due process grounds. As
explained below, we conclude that Nao has waived this due process
attack by failing to adequately brief it.
In addition, both Nao and the State appeal different aspects
of the trial judge's ruling that one clause of AS 47.10.010(e) was
unconstitutional. Under AS 47.10.010(e), and under its current
successor, AS 47.12.030(a), a minor who is charged with one of the
listed serious felonies is tried as an adult; but if the minor is
ultimately convicted of some lesser crime, then the minor is
eligible for disposition under the juvenile delinquency laws,
provided that the minor proves his or her amenability to juvenile
treatment. The trial judge ruled that, to the extent AS 47.10.-
010(e) made the minor shoulder the burden of proving amenability to
juvenile treatment, the statute violated the equal protection clause
of the Alaska Constitution. However, the judge also ruled that this
clause was severable from the rest of the statute.
The State appeals the judge's conclusion that the burden-
shifting clause was unconstitutional, while Nao appeals the judge's
ruling that the clause was severable. Both Nao's arguments and the
State's arguments are now moot. We recently held that the burden-
shifting clause is constitutional. See State v. Ladd, Opinion No.
1570 (Alaska App.; January 16, 1998).
Footnote 4:
We note that the legislature recently altered the traditional
confidentiality of juvenile proceedings and information concerning
juvenile offenders. See SLA 1997, ch. 64, sec.sec. 2-6, 8-9,
enacting
amendments to AS 47.12.110, AS 47.12.300, AS 47.12.310, and AS
47.12.315, as well as Delinquency Rule 3(c).
Footnote 5:
The two dissenters in G.L.P. disagreed with the majority's
interpretation of the pertinent statutes, but the dissenters agreed
with the majority that the issue facing the court was to determine
the legislature's intent. G.L.P., 590 P.2d at 70-71.
