THE STATE OF OHIO, APPELLEE, v. AALIM, APPELLANT.
No. 2015-0677
Supreme Court of Ohio
Submitted April 20, 2016—Decided December 22, 2016
2016-Ohio-8278 | 150 Ohio St.3d 463
LANZINGER, J.
{¶ 1} In this сase we are asked whether certain provisions of the Revised Code that make the transfer of juveniles to adult court mandatory in specific circumstances violate constitutional due-process and equal-protection provisions. We hold that the mandatory transfer of juveniles without providing for the protection of a discretionary determination by the juvenile-court judge violates juveniles’ right to due process.
{¶ 2} In December 2013, a complaint was filed in the Juvenile Division of the Montgomery County Court of Common Pleas, alleging that appellant, Matthew I. Aalim, engaged in conduct that would be considered aggravated robbery in violation of
{¶ 3} After conducting a hearing, the juvenile court found that Aalim was 16 years old at the time of the alleged offense and that there was probable cause to believe that he committed the conduct alleged in the complaint, including the firearm specification. The juvenile court automatically transferred the case to the general division of the common pleas court as the statute required. An indictment was issued charging Aalim with two counts of aggravated robbery in violation of
{¶ 4} Aalim filed a motion to dismiss the indictment and transfer his case back to juvenile court, arguing that the mandatory transfer of juveniles pursuant to
{¶ 5} The Second District Court of Appеals affirmed the trial court‘s judgment, rejecting Aalim‘s challenges to the mandatory-transfer statutes. Rejecting Aalim‘s due-process argument, the court of appeals relied on a previous decision to hold that the mandatory-transfer scheme of
{¶ 6} We accepted jurisdiction over two propositions of law, which ask us to hold that
II. LEGAL ANALYSIS
A. Argument Summary
1. The statutes
{¶ 7}
(A) A child who is alleged to be a delinquent child is eligible for mandatory transfer and shall be transferred as provided in section
2152.12 of the Revised Code in any of the following circumstances:(1) The child is charged with a category one offense and either of the following apply:
(a) The child was sixteen years of age or older at the time of the act charged.
(b) The child was fourteen or fifteen years of age at the time of the act charged and previously was adjudicated a delinquent child for committing an act that is a category one or category two offense and was committed to the legal custody of the department of youth services upon the basis of that adjudication.
(2) The child is charged with a category two offense, other than a violation of section
2905.01 of the Revised Code, the child was sixteen years of age or older at the time of the commission of the act charged, and either or both of the following apply:(a) The child previously was adjudicated a delinquent child for committing an act that is a category one or a category two offense and was committed to the legal custody of the department of youth services on the basis of that adjudication.
(b) The child is alleged to have had a firearm on or about the child‘s person or under the child‘s control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the fireаrm to facilitate the commission of the act charged.
Aggravated robbery is a category-two offense,
{¶ 8} To prevail on a facial constitutional challenge to a statute, the challenging party must prove beyond a reasonable doubt that the statute is unconstitutional. State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7, citing State v. Warner, 55 Ohio St.3d 31, 43, 564 N.E.2d 18 (1990), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Statutes are presumed constitutional, and we have stated that for a statute to be facially unconstitutional, it must be unconstitutional in all applications. Id., citing Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.
2. Positions of the parties
{¶ 9} Aalim presents facial due-process and equal-protection challenges to the mandatory-transfer statutes. His arguments regarding due process are (1) that fundamental fairness requires that every juvenile receive an opportunity to demonstrate a capacity to change, (2) that youth must always be considered as a mitigating—not aggravating—factor, (3) that the irrebuttable presumption of transfer contained in the statutes is fundamentally unfair, and (4) that juveniles have a substantive due-process right to have their youth and its attendant characteristics taken into account at every stage of the proceedings (including transfer).
{¶ 10} In support of his equal-protection claim, Aalim argues (1) that the mandatory-transfer statutes create classes of similarly situated juveniles who are treated differently based solely on their ages, (2) that a juvenile‘s status as a juvenile is a suspect class for purposes of equal-protection analysis, and (3) that the age-based distinctions in the mandatory-transfer statutes are not rationally related to the purpose of juvenile-delinquency proceedings.
{¶ 11} The state counters that the only process due to juveniles is codified in the mandatory-transfer statutes as a special measure created for certain specified
B. Due Process
{¶ 12} The
{¶ 13} As the United States Supreme Court has observed, “For all its consequence, ‘due process’ has never been, and perhaps can never be, precisely defined.” Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina, 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Due process is a flexible concept that varies depending on the importance attached to the interest at stake and the particular circumstances under which the deprivation may occur. Walters v. Natl. Assn. of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). “Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation by first considering any relevant precеdents and then by assessing the several interests that are at stake.” Lassiter at 24-25.
{¶ 14} “[N]either the
{¶ 15}
The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its
interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.
Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus. And despite the dissent‘s inclination to walk in lockstep with the federal courts on constitutional matters, we have repeatedly recognized that the Ohio Constitution contains greater protections than the federal Constitution in certain instances. See Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 61 (Lanzinger, J., concurring in judgment only).
{¶ 16} The juvenile courts “occupy a unique place in our legal system.” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 65. The juvenile-court system is a legislative creation based on promoting social welfare and eschewing traditional, objective criminal standards and retributive notions of justice. Id. at ¶ 66. “Since its origin, the juvenile justice system has emphasized individual assessment, the best interest of the child, treatment, and rehabilitation, with a goal of reintegrating juveniles back into society.” State v. Hanning, 89 Ohio St.3d 86, 88, 728 N.E.2d 1059 (2000). “[T]he General Assembly has adhered to the core tenets of the juvenile system even as it has made substantive changes to the Juvenile Code in a get-tough response to increasing juvenile caseloads, recidivism, and the realization that the harms suffered by victims are not dependent upon the age of the perpetrator.” C.S. at ¶ 74.
{¶ 17} A common thread underlying the analysis in our juvenile cases is the recognition “that a juvenile could ‘receive[] the worst of both worlds’ in the juvenile-court system by being provided ‘neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.‘” Id. at ¶ 70, quoting Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In recognition of juveniles’ need for procedural protections, our decisions have acknowledged that “numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings.” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26. For example, we have held that juveniles have a right to counsel, In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969), paragraph one of the syllabus; a Fifth Amendment right to protection from self-incrimination, In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921, ¶ 1; and a right to full double-jeopardy protections under the Ohio Constitution, In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 11-12.
1. Juveniles are entitled to fundamental fairness
{¶ 18} In considering a juvenile‘s right to counsel during juvenile proceedings, we noted that the phrase “due process”
“expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.”
C.S. at ¶ 80, quoting Lassiter, 452 U.S. at 24-25. We have accordingly observed, “Because of the state‘s stake in the rehabilitation of the juvenile offender and the theoretically paternal role that the state continues to play in juvenile justice, a balanced approach is necessary to preserve the special nature of the juvenile process while protecting procedural fairness.” State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 49.
{¶ 19} We have recently discussed the concept of fundamental fairness in juvenile proceedings in holding that automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system violates due process. In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 71. In C.P., we emphasized that the discretion of the juvenile judge is an “essential element of the juvenile process.” Id. at ¶ 77. We accordingly held that fundamental fairness requires that the juvenile-court judge decide the appropriateness of any adult penalty for juvenile acts. Id. at ¶ 78. Of particular importance to this case, we explained that fundamental fairness may require additional procedural protections for juveniles:
[F]undamental fairness is not a one-way street that allows only for an easing of due process requirements for juveniles; instead, fundamental fairness may require, as it does in this case, additional procedural safeguards for juveniles in order to meet *** the juvenile system‘s goals of rehabilitation and reintegration into society.
{¶ 20} Aalim argues that we should apply the principles of our previous juvenile cases to hold that he is entitled to be treated as a juvenile under the jurisdiction of the juvenile court and that he should receive an amenability hearing before any transfer to the general division of common pleas court. He asserts that juvenile-court judges are in the best position to evaluate each juvenile‘s suitability for juvenile or adult court, that fundamental fairness requires that juveniles have the оpportunity to demonstrate a capacity to change
2. The special status of juveniles
{¶ 21} The legislative decision to create a juvenile-court system, along with our cases addressing due-process protections for juveniles, have made clear that Ohio juveniles have been given a special status. This special status accords with recent United States Supreme Court decisions indicating that even when they are tried as adults, juveniles receive special consideration. See Roper v. Simmons, 543 U.S. 551, 570-571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 77-78, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012).
{¶ 22} In this line of cases, the Supreme Court has established that youth is a mitigating factor for purposes of sentencing. Roper at 570, citing Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); Graham at 77-78; Miller at 476. While those cases featured Eighth Amendment claims, the court has clearly stated that “children are constitutionally different from adults for purposes of sentencing,” Miller at 471. The court has explained three significant differences between juveniles and adults:
First, children have a “lack of maturity and an underdeveloped sense of responsibility,” leading tо recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569 [quoting Johnson at 367]. Second, children “are more vulnerable * * * to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child‘s character is not as “well formed” as an adult‘s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570.
(Ellipsis sic.) Miller at 471.
{¶ 23} We have acknowledged these federal principles in our own recent holdings with respect to Ohio law. See State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, paragraphs one and two of the syllabus (following Miller in holding that a court must separately consider on the record the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole); A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, at ¶ 13 (the
{¶ 24} For purposes of delinquency proceedings, the General Assembly has chosen to treat every person under the age of 18 as a child until transfer has occurred.
{¶ 25} We now recognize that because children are constitutionally required to be treated differently from adults for purposes of sentencing, juvenile proсedures themselves also must account for the differences in children versus adults. The mandatory-transfer statutes preclude a juvenile-court judge from taking any individual circumstances into account before automatically sending a child who is 16 or older to adult court. This one-size-fits-all approach runs counter to the aims and goals of the juvenile system, and even those who would be amenable to the juvenile system are sent to adult court. Juvenile-court judges must be allowed the discretion that the General Assembly permits for other children. They should be able to distinguish between those children who should be treated as adults and those who should not. Cognizant of our statement in C.P. that fundamental fairness may require additional procedural safeguards for juveniles in order to meet the juvenile system‘s goals of rehabilitation and reintegration into society, we hold that the right to due process under the Ohio Constitution requires that all children have the right to an amenability hearing before transfer
{¶ 26} Given the special status of children, we are unconvinced by the state‘s argument that the only process due in these circumstances is codified in the mandatory-transfer statutes as a special measure created for certain specified circumstances. The existence of a juvenile-court system and the principles set forth in our previous cases dictate that children are fundamentally different from adults. All children are entitled to fundamental fairness in the procedures by which they may be transferred out of juvenile court for criminal prosecution, and an amenability hearing like the one required in the discretionary-transfer provisions of the Revised Code is required to satisfy that fundamental fairness.
3. Discretionary transfer
{¶ 27} The General Assembly has provided for discretionary transfer of children aged 14 or older when there is probable cause to believe the child committed the charged act, the child is not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions.
In making its decision under this division, the court shall consider whether the applicable factors under division (D) of this section indicating that the case should be transferred outweigh the applicable factors under division (E) of this section indicating that the case should not be transferred. The record shall indicate the specific factors that were applicable and that the court weighed.
{¶ 28} The discretionary-transfer process satisfies fundamental fairness under the Ohio Constitution. It takes into account the fact that childrеn are constitutionally different from adults for purposes of an eventual sentencing after findings of guilt. Its factors account for the differences between children and adults noted by the Miller court: children‘s lack of maturity, their vulnerability to negative influences and outside pressures, and their more malleable character that makes their actions less likely to be evidence of irretrievable depravity. In doing so, the discretionary-transfer process ensures that only those children who are not amenable to dispositions in juvenile court will be transferred. Thus, while we hold that the mandatory-transfer statutes violate juveniles’ right to due process as guaranteed under the Ohio Constitution, transfer of juveniles amenable to adult court may still occur via the discretionary-transfer process set forth in
{¶ 29} “When this court holds that a statute is unconstitutional, severing the portion that causes it to be unconstitutional may be appropriate.” Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 18, citing
“(1) Are the constitutional and the unconstitutional parts capable of separаtion so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?”
Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph 19 of the syllabus. Clearly, the mandatory-transfer provisions and discretionary-transfer provisions are capable of separation, can be read independently, and can stand independently. Furthermore, it is possible to carry out transfers of juveniles to adult court once the unconstitutional provisions are stricken. And no words or terms need to be inserted in the discretionary-transfer provisions in order to give effect to them. Therefore, having held that the mandatory-transfer provisions of
III. CONCLUSION
{¶ 31} We hold that the mandatory transfer of juveniles to the general division of a common pleas court violates juveniles’ right to due process as guaranteed by
{¶ 32} We accordingly reverse the judgment of the Second District Court of Appeals and remand the cause to the juvenile court for an amenability hearing pursuant to
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER and O‘NEILL, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion.
FRENCH, J., dissents, with an opinion joined by O‘DONNELL, J.
KENNEDY, J., concurring in part and dissenting in part.
{¶ 33} I agree with the majority that the discretionary-bindover process under
{¶ 34} State courts are “free to construe their state constitutions as providing different or even broadеr individual liberties than those provided under the federal Constitution.” Arnold v. Cleveland, 67 Ohio St.3d 35, 41, 616 N.E.2d 163 (1993). However, we have interpreted the Ohio Due Course of Law Clause,
{¶ 35} Here, the majority is silent as to whether the mandatory-bindover procedure violates the Due Process Clause of the
{¶ 36} Similarly, the majority‘s conclusion that
“There is no doubt that the Due Process Clause is applicable in juvenile proceedings. ‘The problem,’ we have stressed, ‘is to ascertain the precise impact of the due process requirement upon such proceedings.’ In re Gault, 387 U.S. 1, 13-14, 87 S.Ct. 1428, 1436-1437, 18 L.Ed.2d 527 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See Id., at 31-57, 87 S.Ct., at 1445-1459 [18 L.Ed.2d 527] (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (double jeopardy).”
(Brackets sic.) State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 48, quoting Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984).
{¶ 38} Fundamental fairness is a “unique doctrine [that] is not appropriately applied in every case but only in those instances when the interests involved are especially compelling.” In re W.Z., 194 Ohio App.3d 610, 2011-Ohio-3238, 957 N.E.2d 367, ¶ 19 (6th Dist.). (“It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.“) Id., quoting State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989). The majority holds that the current mandatory-bindover procedure violates fundamental fairness. I disagree.
{¶ 39}
{¶ 40} The majority takes this unique, statutorily created court system and bootstraps onto it “fundamental fairness” requirements that are not required by
{¶ 41} In D.H., we acknowledged that in order to comply with the fundamental-fairness due-process standard, juvenile proceedings must provide such “basic constitutional protections” as notice of the charges and the rights to counsel, confrontation, and cross-examination. 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.3d 209, at ¶ 48, citing In re Gault, 387 U.S. at 31-57.
{¶ 42} “It is undisputed that the General Assembly is ’ “the ultimate arbiter of public policy” ’ and the only branch of government charged with fulfilling that role.” C.P. at ¶ 97, quoting Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. By declaring that juvenile courts are constitutionally required to provide an amenability hearing to those juveniles that the General Assembly has mandated are to be bound over after a probable-cause determination, the majority has unmoored due process from the precedents that have ensured that the judicial branch does not abuse the guarantee by imposing its policy views on the General Assembly under the rubric of alleged “fundamental fairness.” The United States Supreme Court has long recognized the importance of limiting the application of the federal Due Process Clause. “[T]he
{¶ 43} The majority, however, now uses
FRENCH, J., dissenting.
{¶ 44} I respectfully dissent.
{¶ 45} The Due Process Clause of the
{¶ 46} To be sure, as a document of independent force, the Ohio Constitution may provide greater protections of individual rights and civil liberties than the United States Constitution mandates. Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus. And a majority of this court has found greater protection under the Ohio Constitution than the United States Constitution provides in various criminal contexts other than due process. See In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 11-13 (double jeopardy); State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23 (extraterritorial stop for a minor misdemeanor); State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, ¶ 7 (protection against warrantless arrests for minor misdemeanors); State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 48 (right against self-incrimination). See also State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 23 (plurality opinion) (stating that the Ohio Constitution‘s guarantee of equal protection independently precludes the classification at issue, without expressly finding that the Ohio Constitution provides greater protection than the United States Constitution). But the fact that the Ohio Constitution may provide greater protection than the United States Constitution is different from the question whether it does. See State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997) (“Despite this wave of New Federalism, where the provisions are similar and no persuasive reason for a differing interpretation is presented, this court has determined that protections afforded by Ohio‘s Constitution are coextensive with those provided by the United States Constitution“).
{¶ 47} While asserting no basis—other than mere permissibility—for holding that the Ohio Constitution affords juveniles greater due-process protections regarding transfer than the United States Constitution provides, and without considering whether the federal Due Process Clause guarantees juveniles an individualized amenability hearing, the majority conсludes that Ohio‘s mandatory-transfer provisions—
{¶ 48} Appellant, Matthew I. Aalim, raises a facial due-process challenge to Ohio‘s mandatory-transfer procedures. In 1969, the General Assembly enacted a statutory scheme by which a juvenile court could remove certain juveniles from its authority and transfer them to adult court for criminal prosecution. State v.
{¶ 49} Aalim, as a 16-year-old alleged to be delinquent as a result of a category-two offense committed with a firearm, fell within the category of juveniles subject to mandatory transfer.
{¶ 50} Aalim argues that Ohio‘s mandatory-transfer provisions are unconstitutional because due process requires an amenability hearing—giving the juvenile the opportunity to demonstrate a capacity for change—before a juvenile-court judge may transfer any juvenile to adult court. To succeed on his due-process challenge, Aalim must prove beyond a reasonable doubt that Ohio‘s mandatory-transfer provisions are clearly incompatible with constitutional due process. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. To do so, he must overcome a strong presumption that the provisions are constitutional.
{¶ 51} The phrase “due process” “expresses the requirement of ‘fundamental fairness,’ and applying the Due Process Clause is ‘an uncertain enterprise which must discover what “fundamental fairness” consists of in a particular situation.‘” Lassiter v. Dept. of Social Servs. of Durham Cty., 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). But the Due Process Clause guarantees more than fair process; it also provides heightened protection against governmental interference with certain fundamental rights and liberty interests. Wash-
{¶ 52} Ohio‘s mandatory-transfer provisions do not offend either substantive or procedural due process.
{¶ 53} Substantive due process protects only “fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation‘s history and tradition’ * * * and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.‘” Glucksberg at 720-721, quoting Moore v. E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), and Palko at 325-326; see also State v. Burnett, 93 Ohio St.3d 419, 427, 755 N.E.2d 857 (2001), citing Moore at 503. Protected rights and liberties include the specific freedoms guaranteed by the Bill of Rights as well as such “deeply rooted” rights as the right to marry, the right to have children, and the right to bodily integrity. Glucksberg at 720. Thе United States Supreme Court has expressed reluctance to expand the concept of substantive due process. Id.
{¶ 54} It is evident from the history and evolution of juvenile proceedings in this country, as well as courts’ consistent rejection of claims of fundamental rights to juvenile proceedings, that there is no fundamental right deeply rooted in the nation‘s history to juvenile-court proceedings or to an amenability hearing. Juvenile courts are legislative creations rooted in social-welfare philosophy. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66, citing Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The first juvenile court was not established in this country until 1899, In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and it was not until 1937 that the Ohio General Assembly conferred exclusive jurisdiction over minors upon Ohio‘s juvenile courts, In re Agler, 19 Ohio St.2d 70, 72, 249 N.E.2d 808 (1969).
{¶ 56} This court has repeatedly held that any right to juvenile proceedings is purely statutory. Agler at 72, citing Prescott v. State, 19 Ohio St. 184, 187-188 (1869). And other state and federal courts have similarly rejected the idea of a fundamental constitutional right to juvenile status or juvenile proceedings. See, e.g., State v. Tyler, 286 Kan. 1087, 1097, 191 P.3d 306 (2008) (“A juvenile has no constitutional right to be adjudicated under the Juvenile Justice Code“); Manduley v. Superior Court, 27 Cal.4th 537, 564, 117 Cal.Rptr.2d 168, 41 P.3d 3 (2002); State v. Angel C., 245 Conn. 93, 124, 715 A.2d 652 (1998); State v. Behl, 564 N.W.2d 560, 567 (Minn.1997); People v. Hana, 443 Mich. 202, 220, 504 N.W.2d 166 (1993); Jahnke v. State, 692 P.2d 911, 928-929 (Wyo.1984), overruled on other grounds, Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998); State v. Cain, 381 So.2d 1361, 1363 (Fla.1980); People v. Jiles, 43 Ill.2d 145, 148, 251 N.E.2d 529 (1969); Woodard v. Wainwright, 556 F.2d 781, 785 (5th Cir.1977) (“treatment as a juvenile is not an inherent right but one granted by the state legislature“). Because there is no deeply rooted, fundamental right to juvenile-court proceedings, Ohio‘s mandatory-transfer provisions do not violate substantive due process.
{¶ 57} Aalim‘s claim fares no better under procedural due process. To demonstrate a procedural-due-process violation, a plaintiff must first show that the state deprived him or her of a protected interest in life, liberty or property. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 567-570, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Protected liberty interests may arise from the Due Process Clause itself or the laws of the states. Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), citing Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). In a procedural-due-process claim, the deprivation of a constitutionally protected interest in life, liberty or property is not itself unconstitutional; what is unconstitutional is the deprivation of that interest without due process of law. Zinermon, 494 U.S. at 125, 110 S.Ct. 975, 108 L.Ed.2d 100, citing Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Before depriving a person of a protected interest, the state must afford the person some type of hearing unless the governmental
{¶ 58} There is “no doubt” that the Due Process Clause applies in juvenile proceedings. Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). See also Gault, 387 U.S. at 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (“neither the
{¶ 59} To be sure, a juvenile facing a delinquency adjudication in juvenile court is entitled to certain basic constitutional rights enjoyed by adults accused of a crime. Schall at 263; Agler at 76. These include the right to counsel, the privilege against self-incrimination, the right to confront and cross-exаmine witnesses, the right to use of the beyond-a-reasonable-doubt standard of proof, and the right to be free from double jeopardy. Schall at 263, citing Gault at 31-57, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). As a result of Gault and its progeny, “juveniles secured more of the rights afforded to adults.” C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 74.
{¶ 60} The majority opinion states:
A common thread underlying the analysis in our juvenile cases is the recognition “that a juvenile could ‘receive[] the worst of both worlds’ in the juvenile-court system by being provided ‘neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.‘”
Majority opinion at ¶ 17, quoting C.S. at ¶ 70, quoting Kent, 383 U.S. at 556, 86 S.Ct. 1045, 16 L.Ed.2d 84. But when a juvenile is tried as an adult, the case does not implicate the “worst of both worlds” concern.
{¶ 61} In Kent, the Supreme Court expressed concern that juvenile courts were not measuring up to their laudable purpose of “provid[ing] measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment.” Kent at 554. The concern that a juvenile could receive “the worst of both worlds” in the juvenile court system stemmed from juvenile courts discarding procedural safeguards available to adults in a criminal prosecution. Id. at 556; Gault, 387 U.S. at 29, 87 S.Ct. 1428, 18 L.Ed.2d 527. A juvenile like Aalim who is tried in adult court, however,
{¶ 62} But even if we were to conclude that mandatory transfer to adult court does deprive a juvenile of a liberty interest, I would nevertheless also conclude that the process and substance of that transfer provide appropriate, predeprivation procedural protections. Because the legislature has exclusive authority to provide for treatment as a juvenile, it “may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved.” Woodard, 556 F.2d at 785. A juvenile who qualifies for mandatory transfer has the right to a pretransfer hearing at which the state must prove not only that the juvenile falls within the statutory classifications for mandatory transfer but also that probable cause exists to believe that the juvenile committed the charged offense.
{¶ 63} The majority cites this court‘s prior recognition that juveniles have a “special status” under Ohio law and that children are constitutionally different from adults for purposes of sentencing in support of its holdings that statutory transfer provisions must account for the differences in children versus adults and that a juvenile-court judge must have discretion to determine which children should be treated as adults and which children should not. Majority opinion at ¶ 21, 24-25. But while a majority of this court may prefer to afford juvenile-court judges discretion to determine, in all instances, whether a juvenile offender should be treated as an alleged delinquent in juvenile court or as a criminal defendant in adult court, that is an issue for the General Assembly. The Due Process Clause does not invest this court with thе power to sit as a super-legislature to second-guess the General Assembly‘s policy choices. See Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
{¶ 64} The majority also cites a line of recent Eighth Amendment decisions of the United States Supreme Court that establishes that children are constitutionally different from adults for purposes of sentencing and that youth is a mitigating factor. See Roper v. Simmons, 543 U.S. 551, 570-571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Eighth and Fourteenth Amendments forbid imposition of death penalty on juvenile offenders); Graham v. Florida, 560 U.S. 48, 77-78, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment prohibits imposition of
{¶ 65} The Ohio decisions that the majority cites are no more persuasive on the question before us. In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 1, this court simply applied Miller and held that a common pleas court must consider a juvenile homicide offender‘s youth as a mitigating factor before imposing a sentence of life without parole. We acknowledged Miller‘s statement that ” ‘children are constitutionally different from adults for purposes of sentencing.’ ” Id. at ¶ 12, quoting Miller at 471, and citing Roper and Graham. As in Roper, Graham, and Miller, the issue in Long involved the requirement that an adult court consider the youth of the defendant when sentencing a juvenile offender. Long had nothing to do with transfer procedures.
{¶ 66} In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, and In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, concerned juveniles’ entitlement to constitutional rights as part of delinquency adjudications in juvenile court. In A.G., the majority held that juveniles are entitled to the same double-jeopardy protections in juvenile court that adults receive. Id. at ¶ 9. C.P. involved a juvenile who remained in juvenile court as a result of the juvenile court judge‘s determination that he was amenable to rehabilitation in the juvenile system. C.P. at ¶ 84. There, the court held that a procedure that required automatic imposition of adult sanctions—lifetime sex-offender registration and notification requirements—without the participation of the juvenile-court judge violated the Eighth Amendment to the United States Constitution and due process. Id. at ¶ 1. Unlike in those cases, the issue here does not concern the extent of a juvenile‘s procedural rights in the course of a delinquency adjudication because the juvenile court transferred Aalim to adult court, where he will be afforded the full panoply of rights available to adults.
{¶ 67} Finally, the majority in Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, at ¶ 29, held that the rule announced in State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024—that a constitutionally infirm, uncounseled prior conviction may not be used to increase the degree and the sentence of a later offense—likewise applied to an uncounseled delinquency adjudication. The holding in Bode arose out of the juvenile‘s due-process right to the assistance of counsel during delinquency proceedings. Bode at ¶ 13-17. For
{¶ 68} I agree with the majority that “[a]ll children are entitled to fundamental fairness in the procedures by which they may be transferred out of juvenile court for criminal prosecution.” Majority opinion at ¶ 26. In my view, however, the concept of fundamental fairness does not preclude mandatory transfer. Fundamental fairness and the requirements of procedural due process are met when, after a probable-cause hearing, the juvenile court determines that the juvenile qualifies for mandatory transfer pursuant to duly enacted statutory prerequisites and that there is probable cause to believe that the juvenile committed the charged offense. The procedures set out in the mandatory-transfer provisions and in the Juvenile Rules provide the requisite process and afford the juvenile fundamental fairness. I therefore conclude that
{¶ 69} Because I conclude that Ohio‘s mandatory-transfer provisions do not violate due process, I briefly consider—but ultimately reject—Aalim‘s argument that they violate the right to equal protection under the
{¶ 70} A statute that does not impliсate a fundamental right or a suspect classification does not violate equal protection if it is rationally related to a legitimate government interest. State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 39, citing Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 15. As stated in my due-process analysis, the mandatory-transfer provisions do not abridge fundamental rights. Nor do they involve a suspect classification; age is not a suspect classification for purposes of equal protection, State ex rel. Keefe v. Eyrich, 22 Ohio St.3d 164, 165-166, 489 N.E.2d 259 (1986), citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), and Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
{¶ 71} Aalim argues that Ohio‘s mandatory-transfer provisions irrationally treat children who are 16 or 17 when they commit a category-two offense with a firearm and are subject to mandatory transfer differently from children who are 14 or 15 and who are subject to discretionary transfer. Aalim states that “no ground can be conceived to justify” those age-based distinctions. I disagree.
{¶ 73} The mandatory-transfer provisions are “part of Ohio‘s response to rising juvenile crime” and “one of the hallmarks of [the General Assembly‘s] ‘get tough’ approach.” State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059 (2000). I agree with those Ohio appellate courts that have concluded that the General Assembly‘s decision to single-out older juvenile offenders—who are “potentially more streetwise, hardened, dangerous, and violent“—is rationally related to the legitimate governmental interests in protecting society and reducing violent crimes. State v. J.T.S., 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103, 2015 WL 1303097, ¶ 45, citing State v. Anderson, 2d Dist. Montgomery No. 25689, 2014-Ohio-4245, 2014 WL 4792558, and State v. Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, 2014 WL 1900459. I therefore conclude that the mandatory-transfer provisions do not violate equal-protection principles under either the United States or the Ohio Constitution.
{¶ 74} For these reasons, I respectfully dissent.
O‘DONNELL, J., concurs in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, аnd Andrew T. French, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Amanda J. Powell and Charlyn Bohland, Assistant Public Defenders, for appellant.
Rickell L. Howard, urging reversal for amicus curiae Children‘s Law Center, Inc.
Maritza S. Nelson, Law Office of Maritza S. Nelson, L.L.C., urging reversal for amici curiae Juvenile Justice Coalition, League of Women Voters of Ohio, and Ohio Association of Child Caring Agencies.
Kimberly P. Jordan, urging reversal for amicus curiae Justice for Children Project, Ohio State University, Moritz College of Law.
David L. Strait, Assistant Public Defender, urging reversal for amicus curiae Franklin County Public Defender.
Melissa Lindsay, urging reversal for amicus curiae Family & Youth Law Center, Capital University Law School.
Dorianne Mason, urging reversal for amicus curiae Ohio Justice & Policy Center.
Michele Temmel, urging reversal for amicus curiae Hamilton County Public Defender.
Beatrice Jessie Hill, urging reversal for amicus curiae Case Western Reserve University Schubert Center for Child Studies.
Marsha L. Levick, urging reversal for amicus curiae Juvenile Law Center.
Nadia N. Seeratan, urging reversal for amicus curiae National Juvenile Defender Center.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Stephen P. Carney, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.