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The Emancipation of the Juvenile Court, 1957-65
The Emancipation of the Juvenile Court, 1957-65
BY REGNAL W GARFF
FOR the juvenile court in Utah During those years the Public Welfare Commission's control of the court was seriously challenged. The challengers had the same concern as the commission for the best interest and welfare of children. However, both sides had differing concepts as to how that could best be accomplished within the legal system Some of the most significant antagonists served within the system itself: the juvenile court judges. The ensuing struggle embroiled those within the state child welfare organization along with child placement agencies, social workers, educators, legislators, the Utah State Bar Association, and the general public
In 1957 the Public Welfare Commission had "general control and supervision over juvenile courts and probation officers [with] power to affix the salaries of the judges. . . ."1 The commission also had the power to appoint one judge for each of the six juvenile court districts and to remove them for cause. 2 Accordingly, on July 1, 1957, the commission, consisting of Clyde C. Edmonds (to be replaced in 1961 by Lamont B. Gundersen), Ward C. Holbrook, and L. Loraine Cook, reappointed the following judges for six-year terms: E F Ziegler, Ogden; Rulon W. Clark, Salt Lake City; Monroe Paxman, Provo; Burt L. Dart, Price; Merrill L. Hermansen, Ephraim; and Durham Morris, Cedar City. Judges Dart, Hermansen, and Morris served on a part-time basis. Attorney John Farr Larson, director of the Bureau of Services for Children, was the power behind the welfare commission throne and the one who directly administered and supervised the juvenile courts.
Emboldened, perhaps by their recent appointment for six-year terms in April 1958, some of the judges, presumably those who were full time, proposed the removal of the juvenile courts from the jurisdiction of the commission They reasoned that the commission, part of the executive branch of state government, could not constitutionally administer the juvenile court. They also felt that the commission was too controlling. Larson, however, believed these judges wanted the separation because it would likely enhance their status as judges and increase their salaries. He chastised the activist judges in a letter dated April 15, 1958:
Larson's condescending response, apparently with commission approval, strengthened the resolve of some of the judges to end commission control over the court. These judges took particular umbrage when the commission, in its periodic administrative review, criticized their judicial performance. They felt the commission, as part of the executive branch, had neither the right nor the expertise to evaluate legal procedures and judicial performance. Thus, the drive for independence flared once again at the end of 1958.
Unfortunately, the judges lacked cohesiveness and common purpose among themselves. Many factors contributed to the judges' remaining loyal to the commission. A major one was job security. The judges had just been reappointed by the commission Other factors related to temperament and circumstances of the individual judge. Three were part-time judges in small rural communities, and two were older with outside interests. Judge Ziegler, a young firebrand, constantly agitated for emancipation In contrast, Judge Clark, on the bench for twenty-five years, was highly respected and had survived a variety of administrative and political changes during his tenure.4 He had a thoughtfully deliberate temperament, considering all of the pros and cons before committing himself to a position He remained circumspect, yet supportive of the idea of judicial independence. No wonder there was no unanimity among the judges. And without judicial sup port no significant change could take place in the system.
Nevertheless, the issues remained significant; cosmetic adjustments could not resolve the underlying constitutional concerns posed by the judges. The smoldering embers of the controversy, fanned by the Utah State Bar Association, burst into flame. As a result, the 1959 legislature requested the Legislative Council to study the juvenile court system and make recommendations regarding the supervision and control of the court by the commission. The Legislative Council asked the State Bar Association to conduct the study. James E. Faust, president of the Bar at that time, and presently an apostle in the Church of Jesus Christ of Latter-day Saints, appointed a committee chaired by Brigitte Bodenheimer, professor of constitutional law at the University of Utah College of Law, now deceased. Other members included Judge Ziegler, now deceased, representing the juvenile court judges; Richard H. Moffat, a Bar commissioner and presently judge in the Third District Court; and attorneys Virginia Roberts (deceased), David Watkiss, Henry Nygaard, and Bruce Coke.
Once again the salary issue became a catalyst for change Judge Clark, still dissatisfied with the inequities of judges' salaries, requested an increase from the $7,200 a year he was receiving, to $10,000, which would place him at parity with the district court judges. He reasoned with the commission that he deserved the increase because he was serving full time in the largest district in the state with the heaviest case load. He threatened to resign if the commission denied his request. When the commission denied his request, true to his word, at age sixty-six, Clark retired on July 1, 1959, after twenty-six years on the juvenile bench. 5 On August 1, 1959, the commission appointed me to fill Clark's unexpired term.
The committee began its work in earnest in mid-1960, and the Legislative Council in 1961 asked the group to continue its efforts. The committee interviewed professionals who worked with children and parents, members of the juvenile court staff, judges, attorneys, people who had been users of court services, and national authorities on juvenile courts and juvenile justice The committee also conducted its own independent research. It met with Larson and members of the Welfare Commission In the fall of 1961 it received a comprehensive legal opinion from Reed L. Martineau, a member of the Bar and editor-in-chief of the Utah Law Review. The opinion drafted under the direction of the University of Utah College of Law, concluded:
Letters supporting this conclusion came from Dean Roscoe Pound, Harvard University Law School; Glen R. Winters, executive director, American Judicature Society; and William Sheridan, U.S Department of Health, Education, and Welfare.
Toward the end of 1961 the committee was moving in the direction of recommending an independent juvenile court with no administrative ties to the Welfare Commission. Without support from the juvenile court judges themselves, however, the committee's actions would amount to an exercise in futility.
Knowing this, Judge Ziegler organized a dinner meeting with the juvenile court judges at the Heidelberg Restaurant in Farmington, Utah Four attended: Ziegler, Paxman, Hermansen, and me. The meeting served as a council of war, for as Ziegler explained it was now time for us tojoin the fray or surrender to the commission. We had to take a position. All of us were acutely aware that our terms would expire June 30, 1963. We knew that if the committee's recommendations were not enacted into legislation, our biting the hand that feeds us could lead to that hand's withholding our reappointments. Yet, all of us, including those not in attendance at the dinner meeting, were convinced that the legal conflicts arising from this unconstitutional arrangement could not be ignored.
None of us could have anticipated the storm of controversy that would rage for the next three or four years nor the depth of personal animosity that would develop as we joined the battle. It became a war, a civil war over turf. Each side rationalized its position by professing to act in the best interests of children Both organizations purported to be better suited to serve the needs of children while complying with constitutional principles. On one side, Larson spoke for the Welfare Commission On the other side were the State Bar Association and the juvenile court judges. Each side attracted supporters from the community. The three major newspapers, the Salt Lake Tribune, the Deseret News, and the Ogden Standard-Examiner, aware of the importance of the struggle and its far-reaching implications, eagerly reported the arguments of both sides and expressed editorial opinions
The Bar committee submitted its report on July 25, 1962, with the following partial list of recommendations: (1) The governor should appoint specialized judges, drawing from candidates selected by a nominating committee. (2) The juvenile court should share the same status as the district court, while remaining independent and separate, with its own administrative structure and budget. (3) A board of judges should establish policies and procedures (4) The juvenile courts should be completely separated from the Welfare Commission. (5) The juvenile judges should appoint staff, including probation officers and clerks. (6) The legal rights of those using the system should be strengthened. 6
Responding to the report, the commission picked up the gauntlet, counterattacking with arguments to the Legislative Council in July and August of 1962. The commission's arguments against adoption of the Bar report included: (1) Judicial control of the juvenile court would result in its becoming overly legalistic, thus ignoring important concerns of treatment and rehabilitation. (2) The commission should retain responsibility for the juvenile court because the Welfare Department had responsibility for all problem children. (3) The commission never interfered with any specific case decisions because its role was strictly administrative. (4) The constitutional concerns were unfounded and "flimsy," given that no appeals raising the separation of powers issue had been brought to the Utah Supreme Court nor had there been "cries of trampled rights." (5) An outside agency needed to supervise the judges. Or as Larson put it, "The watchmen needed to be watched." Larson asked, "Who under the system proposed would seek the resignation of a judge who performed his own physical examinations? Or who 'shamefully padded' his expense account? Or call to account a judge who had financed an automobile purchased with [public] funds?"
The juvenile court judges entered the fray with their own statements unequivocally supporting the Bar proposals. The professional staff of the court likewise issued supporting statements.7
After all the posturing and arguments, the Legislative Council refused to adopt the Bar's recommendations. Undaunted, the Bar submitted its own legislation in 1963, H.B. 1., implementing its recommendations. The bill passed the House but failed in the Senate by one vote. The battle was lost but the war continued. 8 Now the judges were exposed and extremely vulnerable with their terms expiring on June 30, 1963. Still, there had been no casualties.
Strategically, the commission seriously miscalculated. In a meeting with Judge Ziegler and his staff on April 25, 1963, commission chair Ward Holbrook warned that "unswerving loyalty to the Welfare Department would be expected in the future" from all the judges He went on to say, "There will be no recriminations on past actions, but we must have loyalty in the future We want to know if a judge is going to support our organization or still try to sever it." Turning to Ziegler he said, "and I expect an expression of loyalty from your lips before I ever cast my vote for reappointment." The demand for a loyalty oath created a firestorm of criticism for the commission. Nevertheless, the commission proceeded surreptitiously to implement the loyalty requirement. Just before the expiration of our terms at the end of June we judges were individually called in before the commission for a loyalty interview.
During the interview the commission unveiled a complete reorganization plan for the juvenile court wherein Larson was to be appointed judge in the Second District (now the Third District). The plan further provided that Larson would be the presiding judge for the juvenile court statewide. The Welfare Department would have a separate division of juvenile courts. As presiding judge Larson would be directly responsible to the commission. When asked if I could work under this system I replied, "You call me in here for my reappointment interview, lay out a complete reorganization plan, a plan I have never seen before nor have I had any input on it, and ask me if I can support it The implication is if my answer is 'no' I will not be reappointed. If my answer is 'yes' then I will be. Frankly, I don't know if I can live with it. However, if I find I cannot work within the system, I will resign." What I did not say was that I had no intention of resigning under any circumstances. To me, "working within the system" meant the whole system of government I hoped to work to improve the present system through whatever means available. Apparently, my answer was satisfactory because I was reappointed, as were the other judges. 9
The Bar saw the commission's plan as palliative window dressing. On July 1, 1963, committee members Richard Moffat and David Watkiss sought a writ to enjoin the commission from creating an administrative office, a second judgeship in the second district, and a presiding judgeship Meanwhile, on August 1, 1963, the Utah Supreme Court, by a three to two majority, found the statute that delegated control and supervision of the court to the commission and which granted the commission the power to remove judges for cause in violation of the Utah Constitution.10
The Utah Supreme Court opinion provided the coup de grace The mandate was now clear: There had to be legislative changes in 1965. As a result, the commission revised its reorganization plan. A Tribune editorial, dated September 10, 1963, reported:
Thus the Supreme Court forced an uneasy truce between the antagonists pending legislative action. The Woodward decision seemingly ended the war and cleared the way for cooperative action to devise the best possible Juvenile Court Act.
A fourteen-member committee was appointed by the Legislative Council on January 11, 1964, with Rex J. Hanson, president of the Bar Association, as chair.11 Most of the original Bar committee were reappointed to this new committee. The committee eventually recommended legislation similar to H.B. 1, which included much of the Model Juvenile Court Act, with some improvements There was sporadic dispirited resistance to parts of the proposed legislation similar to that received in 1963,but most of the bill's detractors were silenced by Woodward. The Council of Juvenile Court Judges provided strong, vocal supporters for the legislation with one exception, Judge Larson He objected that the bill threatened the balance between diagnostic and treatment functions and the jurisdictional and legal functions; that the bill placed all phases of the court in the hands of law-trained judges; and that legal rights of children should receive greater protection.12
This time, however, the Legislative Council adopted the recommendations of its committee As a result, State Senators Charles Welch and Merrill Jenkins introduced S.B. 1 in the 1965 legislature. S.B. 1 passed both houses without dissent. It created an independent juvenile court with its own administrative structure, with a Board of Juvenile Court Judges setting policy and rules of practice and procedure The bill placed the juvenile courts on the same level as district courts. It established a balance between protection of the public and protection of the rights of children and parents and it emphasized treatment and rehabilitation. Money was appropriated to provide for professional staff and mental health resources Utah's unique Juvenile Court Act was one of the most effective in the country. The war was over. After eight years, the court had finally achieved emancipation!
POSTSCRIPT
As in any battle there are heroes and heroines. It is always difficult to single out a few when so many played key roles. However, two stand out who gave total commitment to the effort: Judge E. F. Ziegler and Professor Brigitte Bodenheimer, both deceased Also, the juvenile court judges showed great courage in jeopardizing their professional careers as they maintained their commitment to principle. 1 3 To them the state of Utah owes a debt of deep gratitude. It must also be said that Judge Larson maintained his indefatigable commitment to children and the concept of treatment and rehabilitation
At the first meeting of the Board of Juvenile Court Judges under the 1965 act Judge Larson nominated me for the position of the court's first presiding judge. 1 4 Richard P. Lindsey was selected as the first juvenile court administrator.
Fortunately, the worst fears of those who had resisted the change were never realized—quite the contrary. The Utah Juvenile Court was to become nationally recognized as a leader in juvenile justice, implementing the best of both worlds: protection of rights, concern for treatment and rehabilitation, and protection of the community.
If there is a lesson to be learned it is that change is inevitable; nothing ever remains the same. The entire court system of the state has made tremendous progress in the past few years and is presently in the process of reorganizing and consolidating the courts to improve the delivery of service to the community The validity of the Juvenile Court Committee's comment that "this should be considered a first step toward the ultimate goal of a family court" remains to be seen. In the words of the Bar committee's initial report:
It is something to consider.
NOTES
Judge Garff presently serves on the Utah Court of Appeals He was appointed to that court upon its creation in January 1987 and served as its first presiding judge Prior to that he sat as a judge in the Second District (now the Third) Juvenile Court for over twenty-seven years This article is based on his personal experiences and observations during the battle for emancipation He also was fortunate to have had access to an exhaustive collection of documents and newspaper articles assembled byJudge E F. Ziegler during the course of the struggle. Judge Ziegler presented a looseleaf record of the proceedings to each of the juvenile judges after the conclusion of the struggle Unless noted otherwise items cited herein are from this collection.
1 Utah Code Annotated S55-10-1 (1953).
2 Utah Code Annotated S55-10-3 (1953).
3 Apparently that was exactly the judges' concern, that good judges were poor.
4 When J Bracken Lee became governor he fired all of the juvenile court judges He reinstated Judge Clark in response to the public outcry and the persuasive intercession of Henry Henriod, who would later be appointed to the Utah Supreme Court Clark, an active Democrat, told me that Governor Lee required that he neuter himself politically Judge Bossard was also reinstated by Lee, but only on a day-to-day basis. He later resigned, not willing to continue living a life of political uncertainty. This type of political gamesmanship was not new to Bossard When he was originally appointed to the bench by Gov Herbert B Maw, the governor told him he must touch base regularly with local Democratic party heads in each county. Bossard refused to do this because it would prejudice his independence. Maw appointed him anyway.
5 Juvenile court judges were not included in the judicial retirement plan at that time. As a result, Clark retired at less than $200 a month.
6 In light of the impending reorganization of the juvenile court, the committee had considered whether to go further and create a family court The committee saw "its present proposal as a first step toward the ultimate goal of a family court." Because it based most of its recommendations on the Model Standard Juvenile Court Act of 1959, only slight changes would be needed to transform the act into the Model Standard Family Court Act of 1959.
7 Earlier in 1962 the judges had formed the Council of Juvenile Court Judges in order to have greater autonomy and to provide a mechanism for organized response At this time Judge Hermansen had resigned to become an Orem City judge. Judge Dart had also resigned. Judge Paul C. Keller replaced Dart as a full-time judge, and Judge Sterling R Bossard replaced Hermansen The council elected me as its first president.
8 The commission had repeatedly made the point that even though thousands and thousands of cases had come before the juvenile court not one had been appealed to the Utah Supreme Court on the issue of separation of powers What they did not realize was that in 1962 I had committed a young man to the State Industrial School After the hearing I invited his attorney, Robert C Cummings, into my chambers and suggested he appeal the case, attacking the constitutionality of the law giving the commission control over the court He agreed and the appeal was pending at the time H.B 1 failed See In Re Woodward, 384 P.2d 110 (Utah 1963).
9 Because Judge Morris did not seek reappointment, Bossard also took over his duties and became a full-time judge.
10 In Re Woodward, 384 P.2d 110 (Utah 1963).
11 The Salt Lake Tribune ofJanuary 1, 1964, listed the members of the committee as follows: Judge E F Ziegler, Mrs J Arthur Wood, William M Dale (chief probation officer, Second District), Marvin L. Pugh, Mrs. Brigham E. Roberts, Professor Brigitte Bodenheimer, Richard H. Moffat, Professor Milton G Thackeray, Dr Lowell L Bennion, Mrs Robert G Snow, Mrs Stanley Marcus, Mrs Howard B Summerhays, and Lamont Gundersen.
12 Several years later Judge Larson acknowledged his fears had not been realized because the Juvenile Court Act was in the best interest of all concerned.
13Judges Ziegler and Paxman were not reappointed in 1969 by Gov Calvin L Rampton Strident voices in their respective districts strongly opposed their reappointment Also, Ziegler may have contributed to his not being reappointed He fired the First District's chief probation officer three or four months before reappointments were to be made The chief probation officer was the governor's brother-in-law Later, Ziegler would return to the judiciary as an Ogden City judge and later as ajudge in the Circuit Court. Paxman returned to private life. Judge L. Roland Anderson succeeded Ziegler; Judge Merrill L. Hermansen returned to the juvenile court bench replacing Paxman.
14 The circumstances that brought Judge John Farr Larson to share a district with me as ajudge were extremely stressful for both of us. We had been antagonists, he representing the Welfare Commission and I representing the Council of Juvenile Court Judges. Personal animosity had existed between us for four years. But with the passage of the Juvenile Court Act we resolved our personal disagreements for the sake of the court. Perhaps the words of William Dale, then chief probation officer for the Second District, describe best what transpired: "It is necessary to emphasize the conflict that existed in order to appreciate the marvelous melding of the opposing positions that was to follow with Judge Garff and Judge Larson These two judges, whose relationship was born of conflict and opposition, became the best of friends, with each holding the other in great trust and respect Each had his unique strengths, each achieved more than his share of recognition for judicial leadership, each was highly respected by staff and community Together they gave the court the most exemplary judicial stature, and guided the court to an enviable administrative posture."
15 The National Council on Crime and Delinquency did an extensive research study on the court In December 1986 the council's director, Dr Barry Krisberg, stated that he was acquainted with most of the courts in the country, and the Second District Juvenile Court was the outstanding juvenile court and was doing that which a juvenile court should do.
