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Declaratory Ruling Request regarding Juvenile Adjudications under MCL 333.20173

From Reentry

June 6, 2003

Michael Zimmer
Bureau of Hearings/Legal Resources Division
Department of Consumer and Industry Services
611 West Ottawa
Lansing, MI 48909

Re: Request for Declaratory Ruling Regarding Employment Rights of Jane Doe

Dear Mr. Zimmer,

Pursuant to MCL 24.263, we are writing to request a declaratory ruling on the interpretation of MCL 333.20173, which concerns the employment of persons with criminal records in the health care industry.

Jane Doe is a twenty-seven year old mother of three who is currently pursuing a R.N. degree at Montcalm Community College (MCC). In order to support her family while she is in school, Ms. Doe signed up for a CNA course through MCC. Ms. Doe started the CNA class, but was then told by MCC that because she has a juvenile record, she could not continue with the course. The CNA course offered by MCC requires students to do their clinical work in nursing homes. MCC officials expressed to Ms. Doe that they are unsure about their obligations under MCL 24.263, and told her that they would consult with school attorneys in an effort to determine if the law applies to her.

Ms. Doe does not have any convictions. Ms. Doe's record consists solely of two juvenile adjudications, both of which arose out of an incident in October 1990. At the time, Ms. Doe was fifteen years old. Ms. Doe and one of her best girlfriends discovered that a boy was playing the two of them off against one another by pretending to be interested in the girlfriend in order to pursue Ms. Doe. Ms. Doe and her friend, along with some other girls, decided to get back at the boy. They went to the boy's house and entered through an unlocked door. The girls, who lived down the street and had previously spent time at the boy's house, knew that the boy had pornography magazines, and also knew where he kept them. The girls took the boy's Playboy magazines and put them on the kitchen table in the hopes of getting the boy into trouble with his parents. The girls also wrote a message in soap on a screen door. As a result of this incident, Ms. Doe ended up with both a misdemeanor adjudication for breaking and entering and felony adjudication for breaking and entering. Ms. Doe was unable to afford an attorney to represent her in the juvenile proceedings, and no attorney was appointed to represent her. Ms. Doe does not have any other juvenile adjudications, nor does she have any adult convictions. Attached please find a copy of Ms. Doe's juvenile record and of the order of disposition in her case.

The question which we would submit for a declaratory ruling is: does MCL 333.20173 bar a nursing home or other covered facility from employing, contracting with, or granting clinical privileges to an individual, such as Ms. Doe, who has a juvenile record but who does not have any adult convictions?

Ms. Doe has never been convicted of any crime, and therefore should not be covered by the statute. The statute prohibits certain health facilities from employing an individual if the individual has been convicted of either a felony within the past 15 years or certain specified misdemeanors within the last 10 years. (Emphasis added). Because the statute uses the term "convicted," it cannot apply to juvenile adjudications, which by definition are not convictions.

First, Michigan courts have repeatedly held that Ajuvenile adjudications do not constitute convictions. People v Fort, 138 Mich App 322, 330 (1984). See also People v Ristich, 169 Mich App 754, 756 (1988) ([T]here is no such thing as a >juvenile conviction); People v Covington, 144 Mich App 652, 655 (1985) (holding that earlier caselaw which refers to juvenile convictions incorrectly states the law as an adjudication is not a conviction); People v Daniels, 149 Mich App 602 (1986) (Juvenile convictions are not convictions, but merely adjudications). As the Court of Appeals has noted, A[t]he unique feature of the family court is the civil, and not criminal, nature of the proceedings, known as adjudications. People v Thenghkam, 240 Mich App 29, 36 (2000). Thus, juvenile adjudications are not convictions because the juvenile justice system, with its emphasis on rehabilitation, serves a different purpose from the adult criminal justice system. Since the statute applies to offenses for which a person is convicted, is cannot apply to juvenile adjudications.

Second, juvenile adjudications are fundamentally different from adult convictions in that a juvenile who is adjudicated in the juvenile system (as opposed to a juvenile or adult tried in the criminal justice system) is not afforded the full protections available to criminal defendants. For example, juveniles do not have the right to a jury, and may lack counsel under circumstances where an indigent defendant in a criminal case would be entitled to an appointed attorney. In light of the limited procedural protections available within the juvenile justice system, it is doubtful whether the legislature could ever constitutionally place limits on the employment rights of individuals with juvenile adjudications. In any case, it is a basic principle of statutory interpretation that statutes, where possible, should be construed to avoid such difficult constitutional questions.

Third, MCL 712A.23 evinces a clear legislative intent not only to distinguish between convictions and adjudications, but also to prohibit the use of adjudications as the basis for subsequent disabilities. That statute provides: disposition of any child under this chapter, or any evidence given in such case shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the child under this chapter. The purpose of this statute is to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past. People v Smallwood, 306 Mich 49, 53 (1943). Thus the objective is to prevent a juvenile adjudication from discrediting the individual subsequently due to his or her childhood actions. People v Pennington, 113 Mich App 688, 697 (1982). If juvenile adjudications formed the basis for a bar on employment in nursing facilities, this would be an unlawful subsequent use of the adjudication, in violation of MCL 712A.23.

For the reasons stated above, we respectfully request a declaratory ruling that MCL 333.20173 does not bar a nursing home or other covered facility from employing, contracting with, or granting clinical privileges to an individual, such as Ms. Doe, who has a juvenile record but who does not have any adult convictions.


Jane Doe

Miriam Aukerman
Attorney at Law

cc: Lon Holton, Dean, Moncalm Community College

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