David G. v. Pollard Ex Rel. County of Pima

SUPREME COURT OF ARIZONA
En Banc

DAVID G. ) Arizona Supreme Court
) No. CV-03-0169-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 2003-0030
THE HONORABLE MICHAEL POLLARD OF )
THE TUCSON CITY COURT, in and ) Pima County Superior
for the COUNTY OF PIMA, STATE OF ) Court
ARIZONA, ) No. CR-20013589
)
Respondent, ) Tucson City Court
) Nos. TR 02001686
STATE OF ARIZONA, ex rel., ) TR 02002072
MICHAEL D. HOUSE, Attorney for ) TR 02003099
the City of Tucson, )
)
Real Party in Interest. ) O P I N I O N
)
__________________________________)

Petition for Review from
Court of Appeals, Division Two,
No. 2 CA-SA 2003-0030

Special Action Review from
Tucson City Court
Nos. TR 02001686, TR 02002072, TR 02003099

REMANDED TO TUCSON CITY COURT

MICHAEL D. HOUSE, Tucson City Attorney Tucson
By: William F. Mills
Attorneys for Real Party in Interest

City of Tucson Public Defender’s Office Tucson
By: Russell E. Hughes, Assistant City Public Defender
Attorneys for Petitioner
R Y A N, Justice

¶1 This case concerns whether a city court judge who has

been authorized to adjudicate criminal misdemeanor traffic

citations issued to a juvenile can apply the Arizona Rules of

Criminal Procedure and order a jury trial. We hold that he

cannot.

I.

¶2 Petitioner, fourteen-year-old David G., was involved

in a high-speed chase through the City of Tucson with various

Tucson Police officers and a Tucson air unit. David was

ultimately apprehended and cited for numerous civil traffic

violations. He was also cited for two Title 28 criminal

offenses: 1) leaving the scene of an accident in violation of

Arizona Revised Statutes (“A.R.S.”) section 28-664(A)(1) (1998),

a class 3 misdemeanor; and 2) reckless driving in violation of

A.R.S. § 28-693(A) (1998), a class 2 misdemeanor.

¶3 At David’s arraignment, the State, unaware that David

was a juvenile, advised the Tucson City Court judge that it

would seek jail time for the two criminal offenses.

Consequently, the judge appointed a public defender to represent
1
David and set the matter for a pretrial conference. After

1
See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (holding
“that absent a knowing and intelligent waiver, no person may be
imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at

2
realizing that David was a juvenile, the State withdrew its

request for jail time.

¶4 David filed a motion to dismiss the criminal offenses,

challenging the jurisdiction of the Tucson City Court to hear

juvenile cases. The court denied the motion to dismiss. David

filed a second motion to dismiss alleging a violation of due

process because the city court judge failed to comply with the

Arizona Rules of Juvenile Procedure. The court denied David’s

motion, ruling in part, “[t]hat the Rules of Criminal Procedure

in so far as they do not conflict with the Rules of Juvenile

Procedure guarantee the protection of due process rights.” The

court subsequently set the matter for a jury trial. See Urs v.

Maricopa County Attorney’s Office, 201 Ariz. 71, 72, ¶ 2, 31

P.3d 845, 846 (App. 2001) (holding that reckless driving is a

jury-eligible offense under Article 2, Sections 23 and 24, of

the Arizona Constitution).

¶5 David then filed a petition for special action with

the Arizona Court of Appeals. The court declined jurisdiction,

with Judge Flórez voting to accept jurisdiction. David filed a

his trial”); Neilson v. Superior Court, 159 Ariz. 395, 396, 767
P.2d 1185, 1186 (App. 1988) (finding that a defendant has a
constitutional right to be represented by counsel if the
defendant’s “liberty is in jeopardy” (quoting Argersinger, 407
U.S. at 40)).

3
petition for review by this court. He did not request a stay.2

¶6 Although David’s case may have concluded by now,

making the issue in this case moot with respect to David, the

issue is one that is capable of repetition yet evades review.

See In re Leon G., 204 Ariz. 15, 18 n.1, ¶ 2, 59 P.3d 779, 782

n.1 (2002) (“Generally, this court will not examine waived or

moot questions. An exception exists, however, for issues that

are of great public importance or likely to reoccur.” (citing

Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 104, 692 P.2d

280, 283 (1984) and Corbin v. Rodgers, 53 Ariz. 35, 39, 85 P.2d

59, 61 (1938))). Concluding that clarification is necessary as

to the appropriate procedures to be applied in city court for

cases involving minors charged with misdemeanor traffic

offenses, we granted review.3 We have jurisdiction under Article

6, Section 5(3), of the Arizona Constitution and A.R.S. §

12-120.24 (2003).

II.

¶7 A juvenile is an individual under the age of eighteen

2
David later advised this court that he had a pretrial
conference pending in this matter. It is unclear from the
record whether the order setting a jury trial remained in
effect. Neither party has subsequently advised us whether this
matter has been resolved, either by trial, change of plea, or
dismissal.
3
Two other cases involving juveniles who had raised the same
issue were consolidated for the purpose of deciding the issue
raised in David’s second motion to dismiss.

4
years. A.R.S. § 8-201(6) (Supp. 2003). An act committed by a

juvenile is considered delinquent if that same act “committed by

an adult would be a criminal offense or a petty offense.”

A.R.S. § 8-201(10). 4 If committed by an adult, the charges of

reckless driving and leaving the scene of an accident would

constitute criminal acts under Title 28. A.R.S. §§

28-664(B), -693(B). Thus, because David is a juvenile, his

offenses were delinquent acts.

A.

¶8 The juvenile court has original jurisdiction over all

delinquency proceedings, A.R.S. § 8-202(A) (Supp. 2003), and all

offenses listed in A.R.S. § 8-323(B) committed by a person under

eighteen years of age. A.R.S. § 8-202(E). The offenses listed

in A.R.S. § 8-323(B) include any provision of Title 28 that is

“not declared to be a felony.” A.R.S. § 8-323(B)(1) (Supp.
5
2003). Because David was cited under Title 28 for two

misdemeanor violations, the Juvenile Division of the Pima County

4
Excluded from the definition of “delinquent act” are
offenses listed in A.R.S. § 13-501(A) and (B), which include
such offenses as first and second degree murder, sexual assault,
and other serious offenses. A.R.S. § 8-201(10).
5
The other offenses listed in A.R.S. § 8-323(B) consist of
the following: purchase of alcohol; boating or game and fish
violations; curfew violations; truancy; graffiti offenses;
purchase or possession of tobacco; violations of any city
ordinance; and “failure to appear related to any offense in this
section.” A.R.S. § 8-323(B)(2)-(9).

5
Superior Court had original jurisdiction to adjudicate these

charges.

¶9 Although the juvenile court has original jurisdiction

over such citations, the presiding judge of the county may

decline jurisdiction over the offenses listed in A.R.S. § 8-

323(B). A.R.S. § 8-202(E). 6 If such a declination occurs, the

presiding judge of the juvenile court has the discretion to

appoint juvenile hearing officers, “who may be magistrates or

justices of the peace.” A.R.S. § 8-323(A). Such hearing

officers “may hear and determine juvenile pretrial detention

hearings” and “process, adjudicate and dispose of all cases that

are not classified as felonies and in which a juvenile . . . is

charged with violating,” among other offenses, “[a]ny provision

of title 28 not declared to be a felony.” A.R.S. § 8-323(B)(1)

(footnote omitted).

¶10 Effective March 5, 2001, the presiding judge of the

Juvenile Division of the Pima County Superior Court declined

jurisdiction of all juvenile civil and misdemeanor traffic

offenses other than offenses for driving under the influence.

Admin. Order No. 2001-01 (Feb. 26, 2001). In the same order,

the presiding judge authorized city magistrates to hear those

6
This provision allows juveniles to be treated as adults for
civil traffic violations. See A.R.S. § 8-202(E). But as
discussed later, for misdemeanor criminal traffic offenses, the
juvenile must be adjudicated under the procedures set forth in
A.R.S. § 8-323.

6
matters. Id. The Tucson City Council approved the delegation

of this authority to the city magistrates in 2001. Res. No.

18865 (Mar. 26, 2001); see A.R.S. § 8-323(A) (requiring the

local governing body to “approve the appointment of municipal

judges as juvenile hearing officers”). Consequently, the city

court judge in this case, sitting as a juvenile court hearing

officer, had the authority to hear and adjudicate David’s

citations.

B.

¶11 Delinquency proceedings are governed by the Arizona

Rules of Procedure for the Juvenile Court. Ariz. R.P. Juv. Ct.

1(A); Yavapai County Juvenile Action No. 7707, 25 Ariz. App.

397, 399, 543 P.2d 1154, 1156 (1975). A proceeding in the

juvenile court is generally initiated by the filing of a

referral of delinquent conduct that sets forth 1) the facts of

the juvenile’s alleged acts; 2) the juvenile’s name, age,

gender, and address; 3) the names and addresses of the

juvenile’s parent, guardian, or custodian, if known; and 4) if

the juvenile is in custody, the place of detention and the date

and time the juvenile was taken into custody. Ariz. R.P. Juv.

Ct. 22(A). Upon receipt of the referral, the prosecutor has the

sole discretion to divert or defer the prosecution to a

community based alternative program or to a diversion program.

Id. R. 22(C). If the prosecutor does not designate the offense

7
for diversion, the referral must be submitted for prosecution.

Id. R. 22(D). Once the referral of a juvenile who is not in

custody has been received by the prosecutor, the prosecutor has

forty-five days to file a petition with the court. Id. R.

25(B)(2). Notice of the petition and notice to appear before

the court must be given in writing to the juvenile and his

parent, guardian, or custodian. Id. R. 26(A). Attendance at

the proceeding is mandatory for the juvenile and his parent,

guardian, or custodian.7 Id.

C.

¶12 By statute and rule, juvenile proceedings for non-

felony offenses may be initiated “by the referral of a uniform

Arizona traffic ticket and complaint form,” rather than by

filing a formal petition. A.R.S. § 8-301(3)(Supp. 2003); see

also A.R.S. § 8-323(C) (permitting a hearing on any of the

offenses listed in A.R.S. § 8-323(B) to “be conducted upon . . .

a uniform Arizona traffic ticket”); Ariz. R.P. Juv. Ct. 33(A)

(providing for the initiation of juvenile proceedings for non-

felony offenses “by the filing of an Arizona Traffic Ticket and

Complaint, otherwise known as a citation, in lieu of a

petition”). But the Juvenile Rules of Procedure contain no

specific rules governing the adjudication of juveniles cited for

7
“Upon a showing of good cause, the court may waive the
appearance of the parent, guardian or custodian . . . .” Ariz.
R. P. Juv. Ct. 26(A).

8
violating any of the offenses listed in A.R.S. § 8-323(B).

¶13 The omission of specific procedures in the Juvenile

Rules for the adjudication of non-felony offenses was not

inadvertent. As the comment to Rule 33 explains:

It was the determination of the committee
that due to the number of lower courts which
process non-felony offenses, statewide
procedural rules would not permit individual
counties the flexibility needed to dispose of
such cases in the most efficient manner
possible. Further, amendments made to A.R.S.
[§] 8-323, as reflected in S.B. 1024, have
clarified some of the provisions which have
been most troublesome for the juvenile
courts.

Ariz. R.P. Juv. Ct. 33 cmt. The question, therefore, is whether

a city judge, sitting as a juvenile hearing officer, has the

flexibility to apply the Rules of Criminal Procedure to

proceedings brought under A.R.S. § 8-323.

¶14 David argues that only the Juvenile Rules of Procedure

can be applied. The State counters that the comment to Rule 33

authorizes the municipal courts to depart from “[s]trict

compliance with the dictates of the Rules of Juvenile

Procedure,” and fill the gap by applying the Rules of Criminal

Procedure. Both parties ignore the procedures described in

A.R.S. § 8-323.

III.

A.

¶15 In State ex rel. Collins v. Seidel, 142 Ariz. 587,

9
591, 691 P.2d 678, 682 (1984), we recognized that the

legislature may enact procedural rules that supplement, but do

not contradict, the rules the court has promulgated. Section 8-

323 sets forth the procedures a juvenile hearing officer must

follow in adjudicating a juvenile charged with violating any of

the offenses listed in A.R.S. § 8-323(B). 8 For several reasons,

we conclude that the procedures in § 8-323 reasonably

supplement, and do not contradict, the relevant Juvenile Rules

of Procedure.

¶16 First, A.R.S. § 8-323(C), mirroring Juvenile Rule

33(A), authorizes the juvenile hearing officer to depart from

the formality of the general requirements of referral and

petition and may conduct a hearing on an alleged violation based

upon “a written notice to appear, including a uniform Arizona

traffic ticket and complaint form, that states, at a minimum,

8
In his supplemental brief, David contends that because
Article 6, Section 5 gives exclusive power to this court to
promulgate procedural rules, application of any procedural
scheme other than the Rules of Juvenile Procedure violates
Article 6 and the separation of powers provision of the
constitution, Article 3. David did not raise this argument
below, nor in his petition for review. Therefore, the argument
is waived. State v. Detrich, 188 Ariz. 57, 64, 932 P.2d 1328,
1335 (1997) (Defendant waived issue “by failing to sufficiently
argue this claim on appeal.”); State v. Nirschel, 155 Ariz. 206,
208, 745 P.2d 953, 955 (1987) (“Failure to argue a claim
constitutes abandonment and waiver of that issue.” (citing State
v. McCall, 139 Ariz. 147, 163, 677 P.2d 920, 936 (1983))).
Nevertheless, as we explain, the procedures outlined in A.R.S. §
8-232 do not conflict with the Juvenile Rules of Procedure.

10
the name and address of the juvenile, the offense charged and

the time and place the juvenile shall appear in court.” Second,

A.R.S. § 8-323(D), paralleling Rule 26(A), provides that the

matter may not proceed to disposition unless a parent, guardian,

or custodian appears with the juvenile at the time of the

disposition. 9 Third, a juvenile has the right to appeal to the

juvenile court from an order of a juvenile hearing officer.

A.R.S. § 8-325 (1999). This procedure comports with that set

forth in Rules 88 and 89 governing juvenile appellate procedure.

¶17 In addition, and perhaps most importantly, A.R.S. § 8-

323(F) limits the sanctions the hearing officer may impose. For

example, the hearing officer may not impose jail time. Instead,

the hearing officer may do any of the following: place the

juvenile on unsupervised probation, § 8-323(F)(1); transfer the

citation to the juvenile court for further proceedings, § 8-

323(F)(2); suspend or restrict the juvenile’s driving

privileges, § 8-323(F)(3); order the juvenile to attend traffic

school or counseling, § 8-323(F)(4); order the juvenile to pay a

monetary assessment or penalty, § 8-323(F)(5); order the

juvenile to perform community service, § 8-323(F)(6); order the

juvenile to pay restitution, § 8-323(F)(9); or reprimand the

9
But “[u]pon a showing of good cause that the parent,
guardian or custodian cannot appear on the date and time set by
the court, the court may waive the requirement that the parent,
guardian or custodian appear.” A.R.S § 8-323(D).

11
juvenile and take no further action, § 8-323(F)(11). Moreover,

in Pima County, once the proceeding has concluded, the hearing

officer must forward copies of all citations along with his

findings and disposition to the juvenile court for review.

Admin. Order No. 2001-01 (Feb. 26, 2001). Because all possible

sanctions fall short of incarceration, we conclude that strict

application of the Juvenile Rules of Procedure, as argued by

David, is not required.

¶18 Instead, the procedures in § 8-323 provide the

flexibility recommended in the comment to Juvenile Rule 33, yet

still afford a juvenile procedural due process similar to that

provided by the Juvenile Rules of Procedure.

B.

¶19 Contrary to the State’s position, the Arizona Rules of

Criminal Procedure apply only to “criminal proceedings in all

courts within the State of Arizona.” Ariz. R. Crim. P. 1.1

(emphasis added). Because David is a juvenile, the allegations

against him are not criminal offenses. See A.R.S. § 8-201(10)

(defining criminal offenses committed by juveniles as

“delinquent acts”). Furthermore, an adjudication of delinquency

is not deemed a criminal conviction and does not impose any

civil disabilities ordinarily resulting from a criminal

conviction. A.R.S. § 8-207(A) (Supp. 2003). Therefore, the

application of the Rules of Criminal Procedure to a juvenile’s

12
adjudication in a proceeding brought under A.R.S. § 8-323(B)

conflicts with the plain language of Rule 1.1. Thus, to the

extent the city court applied the Rules of Criminal Procedure,

it erred.

IV.

¶20 Nevertheless, the State maintains that application of

the Rules of Criminal Procedure did not violate David’s due

process rights in this case. In fact, the State argues that

affording David a jury trial gives him more procedural due

process than do the procedures in A.R.S. § 8-323 or the Rules of

Juvenile Procedure. This argument overlooks the policies

underlying the juvenile justice system.

A.

¶21 From the inception of the juvenile justice system,

courts have recognized that juvenile cases involved special

interests that could not be adequately addressed by the adult

criminal system. In re Gault, 387 U.S. 1, 15 (1967) (noting

that the early reformers of the juvenile system were “profoundly

convinced that society’s duty to the child could not be confined

by the concept of justice alone”). The juvenile was seen as

essentially good and the idea of crime and punishment was

abandoned. Id. The primary function of juvenile courts is

treatment and rehabilitation. Id. at 15-16 (“The child was to

be ‘treated’ and ‘rehabilitated’ and the procedures, from

13
apprehension through institutionalization, were to be ‘clinical’

rather than punitive.”). In contrast, the public policy of

Arizona’s Criminal Code is “to condemn, correct, or deter

transgressions which harm either individual or public

interests.” State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279, 280

(1980) (citing A.R.S. § 13-101). In addition, rehabilitation is

not an express sentencing policy of our criminal code; rather

the policy is “[t]o impose just and deserved punishment on those

whose conduct threatens the public peace.” Id. at 372, 621 P.2d

at 281 (quoting A.R.S. § 13-101(6)).

¶22 In an attempt to further the goals of treatment and

rehabilitation of juveniles, courts in the past kept juvenile

proceedings less formal and initially forsook the “rigidities,

technicalities, and harshness” of the substantive and procedural

criminal law. Gault, 387 U.S. at 15. Such informal

proceedings, however, were ultimately found to violate the

juvenile’s right to due process. Id. at 19 (“Unfortunately,

loose procedures, high-handed methods and crowded court

calendars, either singly or in combination, all too often have

resulted in depriving some juveniles of fundamental rights that

have resulted in a denial of due process.” (quoting Paul S.

Lehman, A Juvenile’s Right to Counsel in a Delinquency Hearing,

17 Juv. Ct. Judges J. 53, 54 (1966))).

14
¶23 Consequently, the United States Supreme Court held

that the Due Process Clause applies to juvenile proceedings.

Schall v. Martin, 467 U.S. 253, 263 (1984) (holding that

“certain basic constitutional protections enjoyed by adults

accused of crimes also apply to juveniles”). A juvenile is

entitled, among other things, to notice of the charges, see

Gault, 387 U.S. at 31-34; right to counsel, 10 see id. at 34-42;

privilege against self-incrimination, see id. at 42-57; right to

confrontation, see id. at 56-57; cross-examination, see id.;

proof beyond a reasonable doubt, see In re Winship, 397 U.S.

358, 368 (1970); and protection against double jeopardy, see

Breed v. Jones, 421 U.S. 519, 527-28 (1975). The Court did not

hold, however, that a juvenile charged with criminal conduct

must be treated in the same manner as a similarly situated

adult. Instead, the Court stated that “the Constitution does

not mandate elimination of all differences in the treatment of

juveniles.” Schall, 467 U.S. at 263. Rather, the Court noted,

“[t]he State has ‘a parens patriae interest in preserving and

10
If the proceedings will not result in the commitment of the
juvenile to custody, the constitution does not require
appointment of counsel. Gault, 387 U.S. at 41 (“We conclude
that the Due Process Clause of the Fourteenth Amendment requires
that in respect of proceedings to determine delinquency which
may result in commitment to an institution in which the
juvenile’s freedom is curtailed, the child and his parents must
be notified of the child’s right to be represented by counsel
retained by them, or if they are unable to afford counsel, that
counsel will be appointed to represent the child.”) (emphasis
added).

15
promoting the welfare of the child,’ which makes a juvenile

proceeding fundamentally different from an adult criminal

trial.” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 766

(1982)).

¶24 Thus, certain constitutional protections afforded

adults are not guaranteed to juveniles. For example, a juvenile

is not guaranteed the right to a trial by jury. McKeiver v.

Pennsylvania, 403 U.S. 528, 545 (1971); see also Ariz. R.P. Juv.

Ct. 6 (Juvenile proceedings are to be conducted informally “in a

manner similar to the trial of a civil action before the court

sitting without a jury.”). The task of the juvenile court,

therefore, is “to strike a balance — to respect the

‘informality’ and ‘flexibility’ that characterize juvenile

proceedings, and yet to ensure that such proceedings comport

with the ‘fundamental fairness’ demanded by the Due Process

Clause.” Schall, 467 U.S. at 263 (citing Breed, 421 U.S. at

531, McKeiver, 403 U.S. at 543, and Winship, 397 U.S. at 366).

B.

¶25 We conclude that the substantive and procedural

structure of A.R.S. § 8-323 appropriately safeguards due process

rights, yet allows the flexibility necessary to promote the

policies of the juvenile justice system. As discussed above, a

juvenile hearing officer must notify the juvenile’s parent or

guardian before disposition. A.R.S. § 8-323(D). And the

16
hearing officer has limited discretion as to what sanctions may

be imposed. See A.R.S. § 8-323(F)(1)-(11). Finally, a

determination that the juvenile committed a delinquent act is

not considered to be a criminal conviction. See A.R.S. § 8-

207(A) (Adjudication of delinquency by the juvenile court will

“not be deemed a conviction of crime, impose any civil

disabilities ordinarily resulting from a conviction or operate

to disqualify the juvenile in any civil service application or

appointment.”).

¶26 Consequently, we disagree with the State’s assertion

that a jury trial provides more protection for the due process

rights of the juvenile than does an adjudication before a judge.

Forcing a juvenile to be tried by a jury for the offenses for

which David was cited does not promote the informality and

flexibility that the juvenile courts strive to achieve and

subjects the juvenile to the very stigma the legislature sought

to prevent.

¶27 We therefore hold that a city court judge, sitting as

a juvenile hearing officer, cannot apply the Rules of Criminal

Procedure and order a jury trial, but must instead apply the

procedures of A.R.S § 8-323.

V.

¶28 The ultimate resolution of this matter will depend

upon the status of David’s case. If he has been tried and

17
convicted as an adult, the city court judge must vacate the

convictions without prejudice. On the other hand, if the matter

is still pending, the judge must process the matter under the

procedures set forth in A.R.S. § 8-323. We therefore remand

this matter to the city court for further proceedings consistent

with this opinion.

______________________________________
Michael D. Ryan, Justice

CONCURRING:

______________________________________
Charles E. Jones, Chief Justice

______________________________________
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

______________________________________
Andrew D. Hurwitz, Justice

18