IN RE D.S.
No. 2016-0907
Supreme Court of Ohio
October 25, 2017
2017-Ohio-8289
O‘NEILL, J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re D.S., Slip Opinion No. 2017-Ohio-8289.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2017-OHIO-8289
IN RE D.S.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re D.S., Slip Opinion No. 2017-Ohio-8289.]
(No. 2016-0907—Submitted May 17, 2017—Decided October 25, 2017.)
Juvenile law—
APPEAL from the Court of Appeals for Franklin County, No. 15AP-487, 2016-Ohio-2810.
O‘NEILL, J.
{¶ 1} Appellant, D.S., allegedly engaged in acts of sexual contact with another boy. Both boys were under the age of 13. In this appeal, we consider whether the juvenile court properly dismissed the complaint pursuant to
Facts and Procedural History
{¶ 2} Appellee, the state of Ohio, charged D.S., then a 12-year-old, with three delinquency counts of gross sexual imposition pursuant to
{¶ 3} D.S. moved to dismiss the complaint on the authority of our decision in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528. The motion claimed that
{¶ 4} D.S. filed objections to the magistrate‘s decision denying the motion to dismiss, making the same arguments to the juvenile court. The juvenile court sustained the objections and dismissed the case. Referring to the allegations in the complaint, the court stated that since “[t]hese children are quite close in age, it is arbitrary to decide who should be charged and who should not, given there is no threat of force or violence.” Accordingly, the court held
there are alternative methods available to provide for the treatment needs of both children and to protect the community as a whole without the use of formal Court action. If the parents are not able to provide the treatment
necessary, a dependency action may be filed on behalf of the child needing the services. The Court does not find it is in the best interest of either child, given the facts of this case, to continue with the prosecution of this matter.
{¶ 5} The state appealed, arguing that dismissal—whether based upon an as-applied constitutional challenge or under
{¶ 6} D.S. appealed. We agreed to accept jurisdiction over the appeal, 146 Ohio St.3d 1514, 2016-Ohio-7199, 60 N.E.3d 6, which presents the following propositions of law:
- A juvenile court‘s decision to utilize non-judicial community resources in lieu of criminal prosecution is [a] matter
Juv.R. 9(A) entrusts to the discretion of the juvenile court. That decision may not be overturned on appeal in the absence of an abuse of discretion. R.C. 2907.05(A)(4) is unconstitutional as applied to a child under the age of 13, who allegedly engaged in sexual contact with another child under 13.
Analysis
{¶ 7} We are faced with two propositions of law, only one of which presents a constitutional query. “It is well settled that this court will not reach constitutional issues unless absolutely necessary.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9. We should avoid reaching a constitutional question
{¶ 8} Under
{¶ 9} We have considered
{¶ 11} Turning to the present case, we hold that the juvenile court did not abuse its discretion by dismissing the matter pursuant to
{¶ 12} We do not need to reach the constitutional question. We therefore do not consider whether
Conclusion
{¶ 13} Given our conclusion that the juvenile court did not act unreasonably in the circumstances, we cannot substitute our own judgment in place of the order of that court. Likewise, the court of appeals should not have reversed the order to
Judgment reversed.
O‘CONNOR, C.J., and O‘DONNELL, J., concur.
FISCHER, J., concurs in judgment only, with an opinion.
KENNEDY, J., dissents, with an opinion joined by FRENCH and DEWINE, JJ.
FISCHER, J., concurring in judgment only.
{¶ 14} In this case, appellant, D.S., has asked us to hold that a juvenile court‘s decision to dismiss the charges against him under
{¶ 15} I do not join the lead opinion, however, because the lead opinion uses language that could be interpreted as an expansion of the material rights of juveniles when there is no basis in law to support such an expansion. D.S. has not asked us to provide such a broad holding, and it is not necessary to do so in order to decide this case.
KENNEDY, J., dissenting.
{¶ 16} Because a majority of this court fails to adhere to our fundamental role as members of the judiciary when interpreting court rules, I dissent. When a court rule is plain and unambiguous, we apply it as written. State ex rel. Potts v. Comm. on Continuing Legal Edn., 93 Ohio St.3d 452, 456, 755 N.E.2d 886 (2001). Because the language of
{¶ 17} Moreover, charging an allegedly delinquent child under the age of 13 with gross sexual imposition pursuant to
{¶ 19} The lead opinion paraphrases our holding in In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), but it then writes a new ending. According to the lead opinion, this court in In re M.D. “stated that upon the filing of the complaint against M.D., ‘it reasonably devolved on the juvenile judge to dismiss it’ pursuant to the mandates of the policies embodied in the relevant statutes and in
{¶ 20} But did we really say—or even imply—in In re M.D. that the juvenile court could have dismissed a formally filed complaint pursuant to
{¶ 21} The full text of the quoted passage reads:
It was inappropriate that this case was filed in juvenile court. The case having been filed, it was reasonably devolved on the juvenile judge to dismiss it pursuant to the mandates of R.C. Chapter 2151. The failure to dismiss resulted in a denial of M.D.‘s constitutional rights to due process under the law, * * * which should have been vindicated by the court of appeals.
(Emphasis added.) In re M.D., 38 Ohio St.3d at 154.
{¶ 22} So what really happened? M.D. was adjudicated a delinquent child after the juvenile court found, beyond a reasonable doubt, each statutory element of the crime of complicity to rape. Id. at 150, 151. In order for the juvenile court to have adjudicated M.D. delinquent for committing complicity to rape, an actual rape would had to have occurred. After a review of the statutory elements of rape and the evidence, we concluded that no rape had been committed. Id. at 151-152.
{¶ 23} The only proscribed act of sexual conduct that “resemble[d]” what two five-year-olds did at M.D.‘s instruction was fellatio, which this court defined as ” ‘the practice of obtaining sexual satisfaction by oral stimulation of the penis.’ ” Id. at 152, quoting Webster‘s Third New International Dictionary 836 (1986). Because the evidence demonstrated that “[f]ellatio did not occur,” we concluded that “no rape was committed to which [M.D.] could be an accessory.” Id. Therefore, we recognized that “[a]djudicating a child as ‘delinquent’ under circumstances where, as here, the child has neither committed a crime nor violated a lawful order * * * is obviously contrary to R.C. Chapter 2151.” (Emphasis added.) Id.
{¶ 25} The CCJC‘s intake policy relating to statutory-rape charges involving children under the age of 13 provided, ” ‘Rape—Complaint shall be taken and set before a JUDGE unless subject is under age 13 years, in which case matter may be diverted.’ ” (Capitalization sic.) Id. at 153, quoting the intake policy. A memorandum in the record of the case from the legal department of the CCJC further emphasized the intake policy:
“In situations where there is an allegation of sexual conduct involving no force and both the alleged offender and the victim are under 13 years of age, charges are not to be taken under the above statute. As an alternative, the intake mediator may consider unruly charges on one or both children.”
Id., quoting the memorandum.
{¶ 26} Thereafter, we stated that it was “inappropriate” that the case was filed, but given that the case had been filed, we stated that “it reasonably devolved on the juvenile judge to dismiss it pursuant to the mandates of
{¶ 27} Having determined that our decision in In re M.D. did not authorize a juvenile court to use
{¶ 28} “To interpret court rules, this court applies general principles of statutory construction. * * * Therefore, we must read undefined words or phrases in context and then construe them according to rules of grammar and common usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. In determining the intent of the rule, in addition to the language, we also review “the purpose to [be] accomplished.” State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections, 75 Ohio St.3d 275, 277, 662 N.E.2d 17 (1996).
{¶ 29} Along with these rules of construction, interpretation of the Juvenile Rules requires a liberal construction to care for and protect children under the jurisdiction of the court and to protect the community and the public interest by
{¶ 30} The full text of
(A) Court action to be avoided. In all appropriate cases formal court action should be avoided and other community resources utilized to ameliorate situations brought to the attention of the court.
(B) Screening; referral. Information that a child is within the court‘s jurisdiction may be informally screened prior to the filing of a complaint to determine whether the filing of a complaint is in the best interest of the child and the public.
{¶ 31} A plain reading of
{¶ 32} The Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch (“FCDRJB“), restates the provisions of
{¶ 33} D.S. was charged with three delinquency counts of gross sexual imposition pursuant to
{¶ 35} Additional support—beyond the mere wording of the rule—that
{¶ 36}
{¶ 37} A majority of this court holds that the juvenile court did not abuse its discretion when it dismissed the complaint pursuant to
{¶ 38} Having concluded that the juvenile court abused its discretion in dismissing the complaint under
{¶ 39} Because the constitutionality of a statute is a legal question, a court‘s review is de novo. Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶ 16. An analysis of the constitutionality of a statute begins with a presumption of constitutionality. Burnett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 28. “Before a court may declare unconstitutional an enactment of the legislative branch, ‘it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’ ” Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 25, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. “A party may challenge a statute as being unconstitutional on its face or as applied to a particular set of facts.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944), paragraph four of the syllabus. Because D.S. asserts an “as applied” challenge, he “bears the burden of presenting clear and convincing evidence of a presently existing state of facts that make the statute unconstitutional and void when applied to those facts.” Id. at ¶ 38, citing Belden at paragraph six of the syllabus. More specifically, D.S. must prove by clear and convincing evidence that it is unconstitutional to charge a child under the age of 13 with gross sexual imposition under
{¶ 40} In In re D.B., the state charged a 12-year-old child with raping an 11-year-old child under
{¶ 41} In In re D.B., the juvenile court had adjudicated D.B. delinquent for committing statutory rape, and the court of appeals had affirmed the judgment of the juvenile court. We accepted D.B.‘s appeal challenging the constitutionality of applying
{¶ 42} First, we held that charging D.B. with statutory rape violated his right to due process:
As applied to children under the age of 13 who engage in sexual conduct with other children under the age of 13,
R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is the offender andwhich is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down.
(Emphasis added.) In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, at ¶ 24.
{¶ 43} This court noted that its holding will not apply when rape charges are brought under other subsections of
{¶ 44} This court also held that application of
R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. Because D.B. and [the other child] were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense.
(Emphasis added.) Id. at ¶ 30.
{¶ 45} Accordingly, this court held that charging a juvenile offender with statutory rape under
{¶ 46} Because D.B. and the alleged victim were both under the age of 13, we reversed the juvenile court‘s judgment that adjudicated D.B. delinquent. 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, at ¶ 1.
{¶ 47} D.S. argues that gross sexual imposition under
{¶ 48} Unlike the statutory-rape charge at issue in In re D.B., which is a strict-liability offense, gross sexual imposition under
{¶ 49} Therefore, I would hold, based on the facts of this case, that when the state charges an allegedly delinquent child under the age of 13 with gross sexual imposition under
{¶ 50} Our guiding principle that the Juvenile Rules should be liberally construed to care for and protect children under the jurisdiction of the juvenile court does not embrace an exercise of judicial activism.
{¶ 51} For all the foregoing reasons, I would affirm the judgment of the court of appeals, which reversed the judgment of the juvenile court and remanded the matter for further proceedings. Therefore, I dissent.
FRENCH and DEWINE, JJ., concur in the foregoing opinion.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellee.
Yeura R. Venters, Franklin County Public Defender, and David L. Strait, Assistant Public Defender, for appellant.
Riya S. Shah, urging reversal for amicus curiae, Juvenile Law Center.