FREEDMAN, Circuit Judge.
The Juvenile and Domestic Relations Division of the Municipal Court of the Virgin Islands found that Kenneth Brown, a 14-year-old juvenile had violated the Virgin Islands statute against petit larceny and committed him to the Department of Social Welfare of the Virgin Islands until he should attain the age of 18 years. The District Court denied his petition for leave to appeal and its action is before us for review.
I.
On September 22, 1968, Claude Mahon, the complaining witness, on returning from a swim at Pelican Cove, St. Croix, noticed that his wallet had disappeared from the trousers he had left in his automobile. In an immediate search for the culprit, two of Mahon's companions encountered Kenneth Brown near the beach. After some questioning they searched him and discovered a ten dollar bill and two one dollar bills in his pocket, the same denominations as those missing from Mahon's wallet. They elicited the statement from Brown that he had obtained the money from two other boys. Accompanied by Mahon, who had by now rejoined them, they took Brown to the police. The police refrained from any questioning until the arrival of Brown's uncle, whom they had summoned. Before they began their questioning the police advised Brown of his right to remain silent and to have an attorney, but they failed to warn him that any statements he might make could be used against him. The trial judge later found that Brown had been "substantially told of his rights."
Brown was thereafter charged with petit larceny in violation of 14 V.I.Code § 1084. He was tried before the Juvenile and Domestic Relations Division of the Municipal Court, where he was represented by court-appointed counsel. At the close of the government's case and again at the conclusion of the trial, defendant's counsel moved for dismissal on the ground that the government had failed to prove the charge beyond a reasonable doubt. The trial judge found defendant guilty in circumstances which make it uncertain that he applied the standard of proof beyond a reasonable doubt.
14 V.I.Code provides:
"§ 1083. Grand larceny
"Whoever takes property —
"(1) which is of $100 or more in value; or
"(2) from the person of another — commits grand larceny and shall be imprisoned for not more than 10 years.
"§ 1084. Petit larceny
"Whoever commits larceny under any other circumstances is guilty of petit larceny and shall be fined not more than $200 or imprisoned not more than 1 year, or both."
"The Court: Ready for the defendant's side of the case, Mr. Marsh.
"Mr. Marsh: At this time, after the government rests, the defendant moves to dismiss the charge against the defendant on the ground that it has not been proven beyond a reasonable doubt, the charge that he did willfully steal and carry away $12 in cash.
"The Court: It doesn't have to be beyond a reasonable doubt. You mean a prima facie case.
"Mr. Marsh: No sir, beyond a reasonable doubt.
"The Court: At the end of the Government's case it has to be beyond a reasonable doubt? That's —
"Mr. Marsh: I submit we are not required to put on any proof until they have proven a case beyond a reasonable doubt.
"The Court: You don't go ahead until they have proven a case beyond a reasonable doubt? That's new law to me, Mr. Marsh. I don't know when it was passed.
* * * * *
"Mr. Marsh: * * * I respectfully submit there's insufficient evidence to put the defendant to his proof.
"The Court: If there's any testimony we'll have it after lunch.
* * * * *
"Mr. Marsh: Defendant offers no testimony.
"The Court: All right, gentlemen, do you want to argue or submit?
"Mr. Ellison: The Government submits, your Honor.
"Mr. Marsh: I think I covered my argument in my motion.
"The Court: I would think so.
"The court finds the defendant guilty as charged of having stolen this money as described in the complaint from the pocket of Claude Mahon."
Defendant petitioned the District Court for leave to appeal from the judgment of guilt and commitment thereon, claiming that the evidence before the Municipal Court was inadequate to establish his guilt beyond a reasonable doubt and that the statements and other evidence taken from him were obtained without adequate notice of his constitutional rights. The petition was filed pursuant to 4 V.I.Code § 33, which in general authorizes appeals from the Municipal Court to the District Court as of right but requires that in juvenile and domestic relations cases "they may be taken only if specially allowed by the district court."
The full provision reads:
"The District Court has appellate jurisdiction to review the judgments and orders of the Municipal Court in all civil cases, in all juvenile and domestic relations cases, and in all criminal cases in which the defendant has been convicted, other than on a plea of guilty. Appeals in civil, juvenile and domestic relations cases may be taken by the party aggrieved by the judgment or order appealed from, but in juvenile and domestic relations cases they may be taken only if specially allowed by the district court."
The District Court denied the petition for leave to appeal and a subsequent petition for rehearing in which for the first time defendant called attention to the recent decision of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), which he claimed required a mandatory appeal as a matter of due process.
II.
Defendant contends that it was an abuse of discretion for the District Court to deny him leave to appeal in view of his serious claims of the insufficiency of the evidence against him, the inadmissibility of his statements and the evidence seized, and the failure to apply the standard of proof of guilt beyond a reasonable doubt. The District Court gave no reasons for its denial of leave to appeal, and we therefore are without knowledge of the considerations which it must have believed outweighed these serious claims, the last of which was later vindicated on due process grounds in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Were we now required to decide whether the District Court abused its discretion, a remand would be necessary in order to obtain a statement of the reasons for its action.
Cf. Scott v. Commanding Officer, 431 F.2d 1132 (3 Cir. 1970).
There is, however, a more fundamental issue than the narrow question whether there was an abuse of discretion. It is whether the statutory provision on which the District Court undertook to exercise discretion violates the Bill of Rights contained in § 3 of the Revised Organic Act of the Virgin Islands. Although the Bill of Rights is conferred by act of Congress, it expresses the congressional intention to make the federal Constitution applicable to the Virgin Islands to the fullest extent possible consistent with its status as a territory. A claim of violation of the Bill of Rights, therefore, amounts in substance to a claim of unconstitutionality, which ordinarily is reached only if a case cannot otherwise be decided. Here, however, there are considerations which compel a decision even if the issue is treated as a constitutional one. The issue has been fully argued. A decision now which is limited to the question of abuse of discretion may bring the issue to us again in this very case. The issue is a recurrent one in general, and the District Court should not continue to engage in the delicate and often difficult function of exercising its discretion if such appeals are as of right and it has no discretion to deny them. Its function would be deranged if it were overhung by the threat of invalidity of the statutory provision, a threat which could be brought into the forefront only where leave to appeal was denied. For these important practical considerations, which affect the proper administration of justice and in the exercise of our supervisory jurisdiction over the courts of the Virgin Islands, we consider the validity of the statutory provision.
1 V.I.Code Annot. p. 92, quoted infra, n. 9.
See infra, n. 9.
See Commonwealth v. Gilfedder, 321 Mass. 355, 357, 73 N.E.2d 241, 242 (1947): "The issue of constitutionality has been fully argued. * * * [I]t would certainly arise again in the near future * * *. In these circumstances it seems our duty in the interest both of * * * the public to deal with the fundamental issue."
Sarlls v. State, 201 Ind. 88, 93, 166 N.E. 270, 275 (1929):
"It is true that this case can be decided without going into the constitutional questions, but we believe that the merits of the controversy before us cannot be completely determined without a consideration of such questions. The constitutional questions have been exhaustively briefed by both parties, and in view of their manifest public importance, of the fact that an ultimate decision of them must some time be arrived at in this court, and of the holding of our own court that a public officer cannot be compelled to obey a statute that is unconstitutional, even when he is sued in mandamus * * *." See also 16 C.J.S. Constitutional Law § 94, n. 62 and cases cited therein.
Government of the Virgin Islands v. Lovell, 378 F.2d 799, 6 V.I. 422 (3 Cir. 1967).
III.
We therefore turn to the claim that the statutory provision violates defendant's right to the equal protection of the laws guaranteed to him by § 3 of the Revised Organic Act of the Virgin Islands, because it permits appeal to the District Court from judgments and orders of the Municipal Court in juvenile and domestic relations cases only when specially allowed by the District Court while the right of appeal is absolute in all other cases, civil and criminal.
Section 3 provides:
"No law shall be enacted in the Virgin Islands which shall * * * deny to any person therein equal protection of the laws." 1 V.I.Code Annot. p. 92, 48 U.S.C. § 1406g. The same provision remains after the federal constitutional protections were further extended to the Virgin Islands by Pub.L. 90-496, § 11, 82 Stat. 841, effective on its adoption on August 23, 1968 ( 48 U.S.C. § 1561). See, for the 1968 amendments, 3 U.S.Cong.Code Adm.News 1968, pp. 970, 976.
Supra, n. 3.
However unusual it may seem to minds accustomed to the almost unlimited availability of appeals, it has been held that due process does not require the right to appellate review. Once it is extended, however, there may not be imposed upon it discriminatory limitations which violate the right to the equal protection of the laws.
McKane v. Durston, 153 U.S. 684, 687-688, 14 S.Ct. 913, 38 L.Ed. 867 (1893); see also Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); see also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
The question, therefore, is reduced to the inquiry whether defendant's condition as a juvenile found guilty of petit larceny placed him in a status sufficiently different from that of an adult convicted of the same offense that he may be denied the absolute right of appeal granted to adults.
Beginning with the watershed decision of In re Gault the Supreme Court has made it clear that juveniles are within the shelter of the guarantee of due process. It has therefore held that a juvenile is entitled to the constitutional protection of adequate notice of the hearing and the nature of the offense charged against him, the right to have counsel at the hearing, the privilege against compulsory self-incrimination, the right to confront the witnesses against him, the right to adequate notice of proceedings certifying him for trial as an adult, and the right to have the adjudication against him based on proof of the charge beyond a reasonable doubt rather than by a preponderance of the evidence. While these cases were decided under the due process clause of the Fourteenth Amendment, there is no reason for withholding similar application of the equal protection clause in appropriate aspects of juvenile court proceedings.
In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
Ibid at 41, 87 S.Ct. 1428.
Ibid. at 55, 87 S.Ct. 1428.
Ibid at 56, 87 S.Ct. 1428.
Kent v. United States, 393 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Cf. Knight v. Board of Education of City of New York, 48 F.R.D. 108 (1968).
In the case before us, the Municipal Court acquired jurisdiction of the defendant under 4 V.I.Code § 172(1)(D), because he was "alleged to have violated * * * [a] territorial * * * law * * *," by committing petit larceny. At the conclusion of his trial in the Juvenile and Domestic Relations Division, the judge announced that "the court finds the defendant guilty as charged of having stolen the money described in the complaint."
4 V.I.Code § 172(1), (2) are quoted in full, infra. n. 22.
The adjudicative process serves the same goal in both juvenile and criminal trials, the determination of responsibility and the propriety of the state's infringement of the defendant's liberty. It is true that the care and custody which is then afforded a juvenile may differ from that given an adult in both nature and duration. And while both these aspects of juvenile proceedings are characteristically informal and flexible, the Supreme Court's declaration that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone" expresses its determination to prevent the degeneration of this informality and flexibility into unguided caprice.
R.R. v. Texas, Court of Civil Appeals of Texas, 448 S.W.2d 187 (1969), app. dis. 400 U.S. 808, 91 S.Ct. 35, 27 L.Ed. 2d 37 (1970).
In re Gault, supra, at 13.
For this reason defendant's trial was required to adhere to the fundamental requirements of due process. What was at stake then was the integrity of the trial, and the adjudicatory process was safeguarded by those guarantees which are the hallmarks of a civilized society's treatment of those whose liberty it seeks to invade.
The informality and flexibility of the juvenile adjudication and the subsequent treatment make the right of appeal perhaps more, and certainly not less, vital to safeguard those subject to the juvenile process from the possible degeneration warned against in Gault. This is exemplified here by defendant's commitment for a period of over three years for an offense which justified imprisonment for at most one year in an adult criminal case. We find no consideration lying at the core of the concept of a separate system of justice for juveniles which is impaired by an appeal. Far from being harmful, appellate review is a beneficial safeguard for both the juvenile system and the juvenile accused. We therefore conclude that it was a denial of the equal protection of the laws to deny to defendant the right of review accorded to adults.
While in the present case the juvenile proceedings adjudicated that defendant had violated a criminal statute of the Virgin Islands, we believe no valid distinction regarding the absolute right of appeal may be drawn between those juvenile cases which allege a specific violation of the criminal law and every other case in which a juvenile is brought before the Municipal Court. The categories of cases of children under 18 years of age and of certain minors beyond that age are set out in 4 V.I.Code § 172. It will be seen from these categories that the same conduct of a juvenile who has violated a criminal law (subsection (1)(D)) would readily serve in most cases either as evidence or as the entire basis for a charge under other categories of juvenile delinquency, such as endangering the welfare of himself or others (subsection (1)(B)) or being beyond the control of his parent or other custodian (subsection (1)(C)) or as one who is neglected or abandoned (subsection (1)(A)). This does not, of course, exhaust the interrelation between the various provisions of § 172. In all of them, it is only when the court makes a decree based on findings of fact that a child falls within one of these jurisdictional provisions, that the statute authorizes it to employ the characteristic juvenile court remedies under 5 V.I. Code § 2506. Among the remedies which the court may decree under § 2506 in any of these cases is commitment. The determining factor, therefore, is not so much whether the juvenile is charged with the commission of a crime or what other category of § 172 the charge falls within, but rather what disposition the Municipal Court makes of the juvenile himself in its decree. If the ultimate result of its decree is the loss of the juvenile's liberty, whether the immediate occasion is a finding designating him as a delinquent or a criminal, the result is realistically the same as that which would follow from a declaration of criminality. In all cases where the juvenile is deprived of his liberty there inheres equally an absolute right of appeal.
Section 172 provides:
"Except as otherwise provided herein and subject to the exclusive jurisdiction of the district court in causes arising under the laws of the United States, the juvenile and domestic relations division of the municipal court shall have jurisdiction in proceedings:
"(1) Concerning any child under 18 years of age living or found within the judicial division (A) who is neglected as to proper or necessary support or education as required by law, or as to medical, psychiatric, psychological or other care necessary for his well-being, or who is abandoned by his parent or other custodian, (B) whose occupation, behavior, condition, environment or associations are such as to injure or endanger his welfare or that of others, (C) who is beyond the control of his parent or other custodian, or (D) who is alleged to have violated or attempted to violate any federal, state, territorial, or local law or municipal ordinance, regardless of where the violation occurred;
"(2) Concerning any minor 18 years of age or older living or found within the judicial division alleged to have violated or attempted to violate any federal, state, territorial or local law or municipal ordinance prior to having become 18 years of age, the court being empowered to deal with such a minor under the provisions of this chapter relating to children;
"(3) To determine the custody or guardianship of the person of any child under 18 years of age living within the judicial division, for the adoption of a minor and to terminate parental rights in connection with such proceedings;
"(4) For judicial consent to the marriage of a child under 18 years of age, when such consent is required by law; and
"(5) For the treatment or commitment of a mentally defective or mentally disordered or emotionally disturbed child under 18 years of age."
Winship at 365-366, 90 S.Ct. at 1073, quoting Gault at 36, 87 S.Ct. 1428:
"We made clear in [ Gault] * * * that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for `[a] proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.' [In re Gault, 387 U.S. * * * at 36, 87 S.Ct. 1428.]"
We hold, accordingly, that § 33 of Title 4 of the V.I.Code is invalid to the extent that it requires a juvenile to obtain the special allowance of the District Court for an appeal from the Municipal Court in a case in which the decision of the Municipal Court imposes a restraint upon his liberty.
The order of the District Court will be vacated and the case remanded to the District Court with direction to treat the petition as a notice of appeal and to hear the appeal on the merits.