This certification proceeding comes before the Court pursuant to Article IV, Section 11(9) of the Delaware Constitution and Supreme Court Rule 41. The Family Court has certified five questions of law which this Court accepted by order dated May 19, 1994. Briefing and oral argument before the Court en Banc followed. This is the decision of the Court on the certified questions.
I
As required for certification proceedings, the facts underlying the certified questions are undisputed. The defendant, Craig Hughes (“Hughes”),
1
was arrested on November 6, 1993, for receiving stolen property worth over $500 (11
Del.C.
§ 851) and second degree conspiracy (11
Del.C.
§ 512). The charges against Hughes would constitute felonies if he were an adult. Because Hughes was seventeen years old at the time of his arrest, he was subject to the jurisdiction of the Family Court.
State v. Connors,
Del.Super.,
Under the statutory scheme in place at the time of his arrest, Hughes fell under the original jurisdiction of the Family Court with the possibility that he could be transferred to Superior Court if, following an amenability hearing, the Family Court determined that Hughes was not amenable to its processes.
Hughes turned eighteen years old on September 24, 1994, and is therefore subject to the statute as amended. In addition, at least forty-five other cases pending before the Family Court involve children who either have reached the age of eighteen or may reach that age before their cases are adjudicated in the Family Court. Because of the great number of cases affected by the statutory amendment, and its attendant consequences upon the jurisdiction of the Family Court, the following questions implicating the amendment’s construction, application, and constitutionality were certified and accepted by this Court:
1. Whether the amendment to 10 Del.C. § 1002, effective as of April 11, 1994, applies to all relevant cases in which the offenses are committed on or after the effective date of the amendment, or to all cases pending in the Family Court as of the effective date of the amendment in which the respondent has already turned 18 years of age or will turn 18 years of age while awaiting trial.
2. Whether extended jurisdiction of the Family Court over juveniles beyond the age of 17, pursuant to 10 Del.C. § 928, is applicable in cases where the juvenile turns 18 while awaiting trial in the Family Court or becomes moot pursuant to the recent amendment to 10 Del.C. § 1002.
3. Whether the Attorney General must obtain an indictment before proceeding to try the defendant on the charges once the case is transferred to the Superior Court pursuant to 10 Del.C. § 1002.
4. Whether the statutory amendment violates the constitutional guarantee of equal protection of the laws.
5. Whether the statutory amendment violates the constitutional guarantee of due process of law.
We have concluded that the statutory amendment violates the constitutional guarantees of equal protection of the laws under the Federal Constitution and due
process of
law under both the Federal and Delaware Constitutions. U.S. Const, amend. 14; Del. Const, art I, § 7.
3
Because we answer question numbers four and five in the affirmative, the remaining questions are rendered moot and, accordingly, we decline to answer them.
See State v. Ayers,
Del.Supr.,
II
Before addressing the merits of Hughes’ constitutional claims arising under the due process and equal protection clauses, a review of the statutory framework delineating the jurisdiction of the Family Court, and our prior case law interpreting that scheme, is necessary to appreciate the circumstances which precipitated the enactment of the statutory amendment at issue.
Since its inception in 1945, the Family Court has been conferred almost exclusive jurisdiction over those under the age of eighteen charged with violations of State law. 10
Del.C.
§ 921;
State v. J.K.,
Del.Supr., 383
§ 902. Purpose; construction.
(a) In the firm belief that compliance with the law by the individual and preservation of the family as a unit are fundamental to the maintenance of a stable, democratic society, the General Assembly intends by enactment of this chapter that 1 court shall have original statewide civil and criminal jurisdiction over family and child matters and offenses as set forth herein. The court shall endeavor to provide for each person coming under its jurisdiction such control, care, and treatment as will best serve the interests of the public, the family, and the offender, to the end that the home will, if possible, remain unbroken and the family members will recognize and discharge their legal and moral responsibilities to the public and to one another.
(b) This chapter shall be liberally construed that these purposes may be realized. 10 Del.C. § 902.
Thus, in direct contrast to the criminal nature of an adult prosecution in the Superi- or Court, an adjudication of delinquency in the Family Court is a
civil
proceeding.
G.D. v. State,
Del.Supr.,
The proceedings against a child are not criminal in concept or in practice. Indeed, the child is not even charged with a ‘crime’ no matter what the conduct. See 10 Del.C. § [1002]. In the Family Court the charge is a general one of ‘delinquency.’ § 921(l)(2)a_ State policy in a proceeding against a child in the Family Court is to make it entirely a part of the Court’s ‘civil jurisdiction,’ § 921._
State v. J.K.,
Notwithstanding the societal policy to proceed against children in a civil setting, the General Assembly has provided two statutory exceptions under which children may be criminally prosecuted at the adult level. 10
Del.C.
§ 1010. First, under section 1010(a)(1), children, regardless of age, who are charged with the most serious felonies, as designated by the statute, are prosecuted as adults. Second, under section 1010(a)(2), the Family Court has the discretion to transfer the case of a child over sixteen years of age to the Superior Court for trial as an adult if the court concludes that the child is not amenable to the Family Court processes. Under the statute, the Family Court conducts a so-called amenability hearing, initiated upon motion of the Attorney General or
The statutory scheme provides an additional judicial safeguard to children alleged to have either committed a designated felony or those found by the Family Court to be nonamenable. In 1971, the State Assembly created a mechanism, now known as the “reverse amenability” process, in which those children coming within the jurisdiction of the Superior Court may be transferred to the Family Court when adjudication in that forum is proper. 58 Del.Laws c. 116, now 10 Del.C. § 1011. 5 Under section 1011(a), the Attorney General, without leave of Court, may transfer to the Family Court those eases involving either designated felony offenses or those children found nonamenable when a transfer would best serve “the interests of justice.”
The defendant may exercise a concomitant right under section 1011(b) and may petition the Superior Court for a hearing to determine amenability. The statute permits, but does not require, an evidentiary hearing upon application of a child to consider several enumerated factors and other relevant considerations in deciding whether the interests of justice would best be served by the transfer of the child to Family Court. The reverse amenability hearing thus ensures a judicial determination of amenability which is premised upon the ñatee of the offense as well as the character of the child.
State v. Anderson,
Del.Super.,
This Court explicitly upheld the constitutionality of the reverse amenability process in
Marine v. State,
Del.Supr.,
Factually,
Marine
involved a fourteen year old who was indicted for first degree murder. Because Marine was charged with a designated felony, he fell within the jurisdiction of the Superior Court. §§ 921(2)a, 1010(a). Marine sought transfer of his case to Family Court pursuant to the reverse amenability process under the present section 1011(b). The Superior Court conducted an evidentiary hearing on Marine’s amenability after which it denied his motion for transfer. Marine
After an exhaustive review of the Family Court Act, this Court held that the Delaware statutory scheme, which permitted the Superior Court to convict a child as an adult for an offense which would result in an adjudication of delinquency in the Family Court, did not violate the guarantees of due process or equal protection.
Marine I,
Specifically, we held that section 1011 required the Superior Court, in a proceeding similar to a “proof positive” hearing at which a defendant’s right to bail is determined when charged with a capital offense, to consider whether the State can establish a
pri-ma facie
case against the defendant.
Marine I,
Upon remand, the Superior Court concluded that the State did not have a fair likelihood of convicting Marine of first degree murder and that Marine’s request to have his case transferred to Family Court should have been granted as required by the statute upon such a finding. On appeal, this Court affirmed.
Marine v. State,
Del.Supr.,
The State then moved for reargument, contending that Marine could be retried for either first degree murder or second degree murder in the Superior Court. In denying reargument, we held that Marine could not be retried in the Superior Court for first degree murder because the Superior Court had determined, and this Court had affirmed, that the State did not have a fair likelihood of convicting him of that charge, thus precluding further litigation of the issue through the doctrine of collateral estoppel.
On April 11, 1994, Senate Bill 140 was signed into law to amend 10
Del.C.
§ 1002 by
§ 1002. Delinquent child not criminal; prosecution limited.
Except as provided by § 1010, no child shall be deemed a criminal by virtue of an allegation or adjudication of delinquency, nor shall a child be charged with or prosecuted for a crime in any other court. In this Court the nature of the hearing and all other proceedings shall be in the interest of rather than against the child. Except as otherwise provided, there shall be no proceedings other than appellate proceedings in any court other than this Court in the interest of a child alleged to be dependent, neglected, or delinquent.
However, if a child reaches his eighteenth birthday prior to an adjudication on a charge of delinquency arising from acts which would constitute a felony were he charged as an adult under the laws of this State, then the Family Court shall retain jurisdiction for the sole purpose of transferring the matter to the Superior Court for prosecution as an adult. Any such transfer under this Section shall not be subject to § 1011 of this title.
69 DeLLaws c. 205 (emphasis added).
The statutory amendment was drafted in direct response to our ruling which denied the State’s motion for reargument of the
Marine
decisions.
Marine II,
The statute also alters the existing scheme by preventing the defendant from obtaining judicial review of an important aspect of the amenability process. First, by mandating that those offenders falling under its purview be automatically transferred to Superior Court, the statute clearly intended to dispense with the right of the accused to seek a judicial determination under section 1010. Moreover, the provision explicitly eliminates the reverse amenability process in the Superior Court under section 1011 for those children transferred to that court for trial as adults.
Hughes argues that the statutory amendment violates his rights of due process and equal protection because he has been deprived of the essential protection afforded by the reverse amenability process. U.S. Const. Amend. 14; Del. Const, art. I, § 7. Hughes claims that this procedure is designed to safeguard him from the unfettered authority of the State to impose potential arbitrary or capricious charging decisions, a practice viewed as unconstitutional by this Court in Marine I. The statutory amendment, it is argued, eliminates the independent examination into the basis of a felony charge against a child and vests the prosecution with the authority to determine jurisdiction over those children who will reach age eighteen pending trial in Family Court. We agree with Hughes that the elimination of the reverse amenability process is violative of his constitutional rights.
Ill
Hughes concedes that the age-based distinction drawn by the amendment does not pertain to a fundamental right or suspect class.
See Marine I,
In determining whether a statutory classification, not involving a suspect class or fundamental right, violates the equal protection [or due process] clause, we presume that the distinctions so created are valid. ‘A statutory discrimination or classification will not be set aside if any state of facts reasonably may be conceived to justify it.’
Marine I,
The General Assembly is endowed with broad authority as a policy-making body
The discretion of the General Assembly in setting policy under its police power is, however, not absolute. It may not be arbitrary or capricious: it must be reasonable. When the power is exercised to classify for purpose of trial for crimes, as this is, then the classification must be founded on differences reasonably related to the purposes of the statute in which the classification is made.
Ayers,
Equal protection does not require identical treatment for all individuals within a class but, rather, when distinctive treatment for individual class members does occur, there must be a reasonable basis for the distinction.
Marine I,
As noted earlier, the constitutionality of the Delaware statutory scheme establishing age-based distinctions among children was upheld by this Court in the
Marine I
decision.
Marine I,
We rejected Marine’s claim that the Delaware legislative framework denied Marine equal protection and due process, in large part because of the Legislature’s adoption in 1971 of a reverse amenability statute, the forerunner of section [1011]. See Marine I at 1209.
Marine II,
Prior to the amendment, the decision whether the Family Court or the Superior Court obtained jurisdiction over a child was premised upon specific factors subject to review by an independent judicial body in an amenability hearing or reverse amenability hearing. §§ 1010, 1011. The presumptive classification of children within the jurisdiction of the Family Court under section 1010 withstands constitutional scrutiny largely because an amenability hearing ensures an impartial judicial determination, which is informed by specific criteria, of whether a child is suitable to the rehabilitative processes available in Family Court. In State v. J.K., we stated:
In our judgment, a distinction drawn by the Family Court Judge in the decisional process, after having properly applied the[ ] extensive criteria, cannot be said to be arbitrary or irrational. Only after it clearly appears to the Court that a reasonable difference exists between two juveniles so as to classify one as amenable and one as non-amenable, may the Court bind each of them over to different treatment.
Similarly, the reverse amenability process under section 1011 protects children
Notwithstanding the pivotal constitutional safeguards inherent in the amenability and reverse amenability processes, the statutory amendment attempts to consign those children charged with felonies to the Superior Court, upon reaching age eighteen before adjudication in the Family Court, without independent judicial scrutiny into the basis of the alleged offenses. Under the new legislative scheme, neither the Family Court nor the Superior Court has the authority to review the charge against the child to weigh its evidential foundation and validity. Moreover, the courts have been divested of then-discretion to transfer a case to another forum “in the interests of justice.” Thus, every child charged with a felony who reaches age eighteen pending trial is subject to prosecution as an adult without regard to the factual basis which underlies the alleged offense.
Under this scenario, the fate of a child is entirely entrusted — without impartial judicial review — to the charging authority, which unilaterally decides whether to charge a child with a felony or misdemeanor, without a mechanism to challenge its charging decision or transfer the case to the appropriate forum. In essence, the statutory amendment has stripped the judiciary of its independent jurisdictional role in the adjudication of children by granting the charging authority the unbridled discretion to unilaterally determine which forum has jurisdiction over every child who will reach eighteen years of age before being adjudicated in Family Court. In theory, under the statutory amendment, the State could attempt to try all seventeen year olds as adults by including a felony charge in every case and delaying trial until the child reaches age eighteen. By abrogating the amenability processes, the statute has deprived children, such as Hughes, the judicial counterweight which they are constitutionally entitled to receive.
The State responds that it has very broad discretion in determining whether or not to prosecute and what charge(s) to file against a defendant. We recognized the broad discretion of the charging authority in Marine I:
The law is well settled that a legislative scheme vesting broad authority in the state or federal government through the charging process to determine whether a child shall be prosecuted as a juvenile or as an adult is not a denial of due process in the absence of ‘suspect’ factors [race or religion] or other arbitrary classifications.
Marine I,
... the State has broad discretion as to whom to prosecute. ‘[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.’
Id.
at 61 (quoting
Wayte v. United States,
The State’s decision to charge .a child with a felony implicates constitutional rights not present in the average charging decision of an adult. The consequences of over-charging an adult are limited. While an unfounded felony charge may implicate an adult’s liberty interest and provide the State greater bargaining position in any plea negotiations with the adult, a trial buffers any prejudice suffered by the adult by compelling the State to prove the elements of the alleged offense beyond a reasonable doubt.
In re Winship,
Conversely, judicial review of the charging decision is essential for those children who are prosecuted as adults. While over-charging an adult is of little consequence, a groundless felony charge against a child who reaches age eighteen pending trial in the Family Court results in a criminal prosecution with its grave attendant consequences. The child is subjected to a public trial in the Superior Court and, if found guilty, convicted of a crime with the attendant stigma of possessing a criminal record. Therefore, an unfounded felony charge may arbitrarily deprive a child of the many advantages of adjudication in the Family Court in which, regarding a misdemeanor: the child is afforded treatment in his own interest, 10 Del.C. § 902(a); the child is assured privacy, 10 Del.C. § 1063; the child may have certain delinquency adjudications expunged and arrest records destroyed, 10 Del.C. § 1001; and, most importantly, the child is never designated a criminal. 10 Del.C. § 1010. In view of these consequences, it is unconstitutional to grant unfettered discretion to the prosecution, whose unilateral charging decision can effectively establish the jurisdiction over a child. Some meaningful judicial review into the nature of the charge is essential to the constitutionality of such a scheme.
The State argues that the elimination of the reverse amenability process is not constitutionally offensive because adults have never been afforded an amenability procedure under this State’s statutory scheme. Under the language of section 1011, only a child (person under the age of eighteen) can be subject to a reverse amenability hearing. Because the statutory amendment only applies to those who have reached
adtdthood
prior to trial, the State argues that such children lost the benefit of reverse amenability upon reaching their eighteenth birthday. It is argued that these children — turned adults — cannot be deprived of that to which they are no longer entitled. The State claims that the amendment simply reiterates the basic principle that the Family Court loses jurisdiction over a child who reaches
Every child who is under the age of eighteen when arrested for a crime is initially subject to the jurisdiction of the Family Court unless charged with a designated felony or found nonamenable by the Family Court. The reverse amenability process ensures that those children charged with a designated felony receive an independent evaluation into the merits of the alleged offense. In either ease, the child is afforded a jzidicial determination of whether the Superior Court should assume jurisdiction over the child. It is of no consequence that adults are not entitled to an amenability or reverse amenability hearing. As a threshold matter, there must be some mechanism in which a child may seek a disinterested examination into the basis of the felony charge to be prosecuted as an adult.
It is now well established in Delaware that the defendant’s age at the time of his
arrest
for a given offense is determinative of whether the Family Court or the Superior Court has jurisdiction over the offense.
Marine II,
The amendment alters this process by fashioning jurisdiction over certain children based upon the date of adjudication and the crime alleged. Under this scheme, a child arrested and charged with a nondesignated felony while under eighteen years of age is subject to the scheduling variables of the Family Court. As a consequence, children charged with felonies are literally at the “mercy of the call of the calendar” of the Family Court. We are informed that currently, the routine trial tract for a case within the Family Court may extend from one year from arrest date until trial date. Moreover, due to the inevitable complications inherent in an overburdened Family Court, even the most efficient caseload management is subject to prolonged adjudicative delays. Hence, jurisdiction over children becomes contingent upon the efficiency of the judicial system rather than the seriousness of the crime and the age and character of the child. Premising jurisdiction over children upon the date their cases are adjudicated imposes an arbitrary deadline on a child’s constitutional rights and compounds the risk of arbitrariness in the charging process. Such risks cannot withstand equal protection scrutiny.
Arbitrary treatment under the amendment is not difficult to envision. For example, two juveniles are arrested for delinquency arising from the joint theft of property. The value of the property is questionable, but the police or the prosecution decide to treat the property as subject to the felony level had the defendants been adults.
7
One juvenile is 17 years and 10 months of age while the other has just turned 17. Both are referred to Family Court for trial. Since it clearly appears that, under normal Family Court scheduling, the older juvenile will “age out” while awaiting trial, his case will be automatically transferred to the Superior Court after two months. The other offender will likely be able to remain in the Family Court for processing and not run the risk of being convicted of a crime. The older offender, even if innocent, may be tempted to seek an expedited court date in order to plead guilty to a charge of “delinquency” in the Family Court. Under this scenario, there is no rational basis for distinguishing between the defendants in terms of their conduct, and both are arrested as “children.” Nonetheless, under the recent amendment differing adjudicative results will surely occur. A law which produces such results plainly violates the right of equal protection.
See State v. Owens,
The amendment deprives children of the constitutional safeguard of judicial review into the charging decision which was mandated by this Court in the
Marine
decisions. Without an independent examination into the evidentiary basis of a felony charge, the prosecution has the unfettered authority, through its charging decision, to unilaterally determine the jurisdiction over a substantial number of seventeen year old defendants in the Family Court. In effect, Hughes, and other defendants approaching their eighteenth birthday, will be penalized under the statute, via an adult prosecution in Superior Court, upon the nature of the allegation rather than the nature of the offense. Thus, the statute is facially unconstitutional as a violation of the right to due process under the United States and Delaware Constitutions. U.S. Const, amend. 14; Del. Const, art. I, § 7.
See also People v. Drummond,
Ct.App.,
We note that there never existed the perceived jurisdictional gap between the Family Court and Superior Court over those children who reach age eighteen before adjudication in the Family Court. The Marine decisions did not establish that children who reach age eighteen pending trial in Family Court become liberated from the jurisdiction of the Delaware judicial system. Rather, the result in Marine simply originated from a flawed amenability process in which Marine should have never been before the Superior Court. Marine was incarcerated throughout his trial and the appellate process and had, by then, served the maximum time period allowed under the then-existing Family Court laws so that a retrial in that court was futile. Marine was released from custody not because of a jurisdictional gap or loophole but, rather, his release was founded upon the traditional margins of jurisdiction between the Superior Court and Family Court.
Under the Marine decisions, a child who reaches age eighteen pending trial can be tried in either the Family Court or Superior Court depending upon a number of factors. For most offenses, the Family Court may elect to retain jurisdiction over the child or transfer jurisdiction to the Superior Court if it concludes that the child is not amenable to its processes. Those children charged with a designated felony are tried in the Superior Court unless the alleged felony lacks a factual predicate or a transfer to Family Court is “in the interests of justice.”
Moreover, the General Assembly has recently granted the Family Court potential jurisdiction over children until they reach the age of twenty-one. Subsequent to the
Marine
decisions, the General Assembly enacted 10
Del.C.
§ 928, which permits the Attorney General, prior to a child’s trial in Family Court, to petition the court to extend its jurisdiction over the child. 69
Del.Laws,
c. 96. Consequently, if the child is adjudged delinquent by the Family Court, the court may decide, after considering the child’s age and the seriousness of the offense, as well as
Finally, we note that the basic thrust of the statutory amendment would be constitutionally acceptable, if the reverse amenability process under 10 Del.C. § 1011(b) were retained. Since the State has argued that the provisions of the amendment are not severa-ble, we have not attempted to preserve the constitutionality of the statutory amendment by invalidating only the last sentence of the amendment which precludes application of § 1011.
IV
We conclude that the statutory amendment under review violates the constitutional guarantees of due process and equal protection of the laws. The amendment divests the judiciary of its independent role in assessing the evidentiary basis of a charge against a child. Such a judicial check on the charging authority is mandatory to comply with the principles enunciated in the Marine decisions. The distinctions drawn by the amendment are patently arbitrary and bear no rational relationship to a legitimate government interest.
The policy reasons which prompt the enactment of legislation are solely the concern of the General Assembly and it is not the function of the judiciary to question the wisdom underlying the passage of a statute.
Ames v. Wilmington Housing Authority,
Del.Supr.,
Certified questions numbers four and five are answered in the AFFIRMATIVE.
ORDER
This 30th day of January, 1995 it appears that:
(1) The State has moved for reargument asserting various grounds which we find to be without merit. To the extent the State’s motion is intended to seek clarification for further guidance we note the following:
(a) Because of its accusatory, ex paite function, a grand jury does not serve as an independent check on prosecutorial authority and is not viewed as a protect or of a defendant’s rights. See United States v. Williams,504 U.S. 36 , -,112 S.Ct. 1735 , 1744-45,118 L.Ed.2d 352 (1992).
(b) The certified questions in the case requested this court to pass upon the constitutionality of 10 Del.C. § 1002, not 11 Del.C. § 1447. This Court will “decide only the case before us.” Paramount Communications, Inc. v. QVC Network, Del.Supr.,637 A.2d 34 , 51 (1991). Nor was the constitutionality of 11 Del.C. § 1447 before the Court in Cain v. State, Del. Supr.,639 A.2d 74 (1994) (ORDER), since the defendant in Cain did not seek a reverse amenability hearing under then-existing 10 Del.C. § 939 as to the section 1447 offense.
(c) In view of the State’s explicit rejection at oral argument of a severability analysis as contrary to legislative intent, the State will not be permitted to advance a post-decision contention to the contrary.
(d) As the decision of the Court makes clear, those children presently awaiting trial who are affected by 10 Del.C. § 1002 may be tried in either the Superior Court or the Family Court subject to the amenability process under 10 Del.C. § 1010(a)(2), and the Family Court may elect to retain jurisdiction over such persons under the recent amendment to 10 Del.C. § 928.
NOW, THEREFORE, IT IS ORDERED that the motion for reargument be, and the same hereby is,
DENIED.
Notes
. A pseudonym adopted to preserve the privacy of the minor defendant.
. Pursuant to 69 Del.Laws, c. 335, effective July 8, 1994, former Part A of Subchapter III of the Family Court Act, containing §§ 930 to 939, was redesignated as present §§ 1001 to 1011. Accordingly, in this opinion, we will refer to the pertinent statutory provisions as currently designated.
. Article I, section 7, of the Delaware Constitution provides that no person shall be deprived of property except "by the law of the land.” We have previously held that the phrase "due process of law” as contained in the Federal Constitution and the phrase "law of the land” as used in our State Constitution have substantially the same meaning.
Goddard v. State,
Del.Supr.,
. In the past, we have used the terms "children,” "minors” and "juveniles” when referring to those persons who have not yet reached their eighteenth birthday. For purposes of this opinion, we refer to such individuals as "children" because this term is defined and used throughout the Family Court Act and the amendment in question uses the term "child.” See 10 Del.C. § 901(3) “ ‘Child’ means a person who has not reached his 18th birthday.”
. The reverse amenability statute provides:
§ 1011. Transfer of cases from Superior Court to Family Court.
(a) In any case in which the Superior Court has jurisdiction over a child, the Attorney General may transfer the case to the Family Court for trial and disposition if, in his opinion, the interests of justice would be best served.
(b) Upon application of the defendant in any case where the Superior Court has original jurisdiction over a child, the Court may transfer the case to the Family Court for trial and disposition if, in the opinion of the Court, the interests of justice would be best served by such transfer. Before ordering any such transfer, the Superior Court may hold a hearing at which it may consider evidence as to the following factors and such other factors which, in the judgment of the Court are deemed relevant:
(1) The nature of the present offense and the extent and nature of the defendant’s prior record, if any;
(2) The nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any; and
(3) Whether the interests of society and the defendant would be best served by trial in the Family Court or in the Superior Court.
(c)In the event the. case is transferred by the Superior Court under this section, the case shall proceed as if it had been initially brought in the Family Court, and the Family Court shall have jurisdiction of the case, anything to the contrary in this chapter notwithstanding.
. As noted earlier. Marine was fourteen years old at the time of his arrest. Had Marine been tried on the charges for which he was arrested, murder second degree, the Family Court would have had exclusive jurisdiction over him. On the other hand, if Marine was sixteen years of age when charged with the same crime, he would have been subject to a transfer to Superior Court upon a finding of nonamenability by the Family Court under section 1010(c).
. Under Delaware law, theft is a misdemeanor if the value of the property in question is less than $500, otherwise the offense is deemed a felony. 11 Del.C. § 841.
. Although we have concluded that the statutory amendment is violative of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, we emphasize that our holding could be sustained exclusively under the due process provision of the Delaware Constitution. Del. Const, art. I, § 7.