*1 Stierwalt, Thomas L. Sandusky County Prosecuting Attorney, and Norman P. Solze, Prosecuting Attorney, Assistant for appellant.
Timothy Defender, Kunze, Young, Ohio Public and Valerie Assistant Public Defender, appellant. Appellant. Ohio, Aalim, Appellee, State
under
upon
S.Ct.Prac.R. 18.02 order to “correct decisions
deemed to
have been made
error.” State ex rel. Huebner v. W. Jefferson
Council,
Village
In seeking
Ohio St.3d
2}{¶
to the
subject
to allocate certain
matters
Assembly
to the General
authority
common pleas.
divisions of the courts of
jurisdiction
specified
original
exclusive
Wilson,
40, 42,
The
4}{¶ juveniles to adult mandatory and determine that the bindover of certain sented 2152.10(A)(2)(b) 2152.12(A)(1)(b) does not violate the Due court under R.C. R.C. 2151.26 was amended and recodified as R.C. 2152.12. See Am.Sub.S.B. No. 1. Laws, IV, 9447, Part of Law Equal Course Clause Protection Clause of the Ohio Constitution analogous provisions and the of the Fourteenth Amendment to the United States Constitution.
I. CASE BACKGROUND Ohio, On December appellee, the state of filed a complaint Pleas, Juvenile Division of the Montgomery County Court of Common alleging Aalim, Matthew I. appellant, engaged conduct that would be considered 2911.01(A)(1) aggravated robbery violation of if R.C. committed an adult. also complaint specification. contained firearm The state filed motion to Aalim, transfer requesting court relinquish jurisdiction and transfer him to general division of the common pleas court to be tried as an 2152.10(A)(2)(b), 2152.12(A)(1)(b). pursuant adult to Juv.R. R.C. and R.C. *3 10, 2014, January appeared On Aalim before the Juvenile Division of the {¶ 6} Montgomery County Court of Common Pleas for a hearing on whether the juvenile court relinquish jurisdiction should over Aalim’s At hearing, case. Aalim was represented by counsel and his mother was present. also After, court hearing, entry issued order and that Aalim finding was 16 years old at the time of the that alleged probable offense and there was cause to believe that he had committed the conduct in the alleged complaint, including the firearm specification. findings, recognized Based these that it no longer jurisdiction had and transferred the case to the division of general 2152.10(A)(2)(b) pleas required the common court as under R.C. and 2152.12(A)(1)(b). An indictment was issued Aalim with two charging counts 2911.01(A)(1) aggravated robbery violation of R.C. with accompanying firearm specifications. aggravated robbery The two counts of in the indictment charged fact reflected the that there were two victims of the conduct. alleged Aalim filed a motion to dismiss the indictment and transfer his case back {¶ 7} court, arguing that bindover of mandatory pursuant to R.C. 2152.10(A)(2)(b) 2152.12(A)(1)(b) rights and violates their to due and process equal protection prohibition as well as the cruel and unusual against punishments under both the United trial States and Ohio Constitutions. The court overruled motion, Aalim pleas aggravated and entered of no contest to the two counts of robbery. accepted pleas, The court dismissed the firearm specifications reached, consistently plea agreement with a that the had and sentenced parties Aalim to concurrent prison years terms four on each count. Appeals judgment, Second District Court of affirmed the trial court’s
rejecting
challenges
mandatory-bindover
Rejecting
Aalim’s
to the
statutes.
Aalim’s
due-process argument,
appeals
previous
the court of
relied on
decision
mandatory-bindover
comports
to hold that
scheme of R.C. 2152.12
¶
II. LEGAL ANALYSIS presents Aalim facial due-process equal-protection challenges *4 2152.10(A)(2)(b) 2152.12(A)(1)(b). R.C. and arguments regarding His (1) that fundamental requires every juvenile fairness that receive an opportu- (2) nity to a capacity youth demonstrate to that must change, always be (3) a mitigating—not considered as that aggravating—factor, the irrebuttable (4) presumption unfair, of transfer contained in the statutes is fundamentally and that juveniles have a substantive due-process right youth have their and its attendant characteristics taken into account a during proceeding. bindover claim, (1) of Aalim support equal-protection argues his that mandatory-bindover statutes create of similarly classes situated who are (2) differently solely ages, juvenile’s treated based on their that a status as a (3) a suspect purposes equal-protection analysis, class for of and that age-based mandatory-bindover rationally distinctions statutes are not related to the of purpose juvenile-delinquency proceedings. mandatory-bindover satisfy The state counters that the statutes consti-
tutional due-process requirements they because for all the provide required notice, counsel, such as
procedural safeguards, right right the right witnesses, to confront right and cross-examine to introduce evidence on one’s behalf, self-incrimination, the privilege against own from protection double jeopardy. Additionally, the state that argues substantive due does not give right amenability Aalim the to an hearing. argues The state also equal-protection Aalim’s fails challenge mandatory-bindover because the statutes do not a infringe upon right fundamental or affect a suspect class and are rationally related to a legitimate governmental interest. 2152.10(A) R.C. sets forth which subject cases are to mandatory
bindover and provides:
(A) A child who is alleged delinquent child is eligible mandatory transfer and shall be transferred as provided section 2152.12 in any the Revised Code of the following circumstances:
(1) The charged child is with a category one offense and either of the following apply:
(a) The child was years age sixteen or older at the time of act charged.
(b) The child was fourteen or fifteen years age the time of the act charged adjudicated and previously delinquent was child for committing an act that is a one or two category category offense and was committed to the legal custody of the department youth upon services the basis of adjudication.
(2) offense, The child is charged category two other than a Code, violation of section 2905.01 of the Revised child was sixteen years or older at the time of the charged, commission of the act either or both of the following apply:
(a) previously adjudicated The child was for commit- delinquent child an act that ting category is a one or a category two offense and was committed to legal custody of the services on department youth adjudication. of that basis
(b) The child is to have had a on or alleged firearm about the child’s person or under the control committing child’s while the act firearm, firearm, to have displayed possession brandished the indicated firearm, or used the firearm to facilitate the commission of the act *5 charged. Aalim offense, 2152.02(BB)(1),
Aggravated robbery category-two R.C. years was 16 old at the time the offense was committed. he was also Because 494 required. R.C. automatic transfer was specification, with a firearm to adult court
2152.10(A)(2)(b). transfer a A court must cause to believe probable if “there is these circumstances automatically under 2152.12(A)(l)(b)(ii). R.C. charged.” the act that the child committed Due of Law Due Process and Course A. First, Aalim categories. fits into two argument due-process Aalim’s to an individualized substantive-due-process right juveniles have
claims that
Second,
hearing.
amenability
in an
juvenile-division judge
aby
determination
jurisdiction over a
grant
decision to
Assembly’s
Aalim
that the General
argues
pleas
of the common
general
to the
division
juvenile offenders
class of
special
Due
of Ohio’s
Course
requirement
“fundamental fairness”
courts violates the
Due Process Clause.
and the Fourteenth Amendment’s
Law Clause
Law
the Due Course of
Clause
equated
this court has
Since
of the
with the Due Process Clause
I,
of the
Constitution
Article
16
Ohio
Section
v.
See Adler Whit
to the
States Constitution.
Amendment
United
Fourteenth
(1887).
rel. Heller v.
beck,
539, 569,
also State ex
44
1. Substantive substantive-due-process “established method of Court’s 16} {¶ Glucksberg, 521 U.S. Washington features.” analysis primary has two (1997). First, the court has “observed 720, 117 138 L.Ed.2d rights those fundamental and liberties specially protects Due Process Clause * * * are, history in this Nation’s and tradition’ objectively, ‘deeply which rooted liberty nor liberty,’ such ‘neither concept in the of ordered ‘implicit E. 720-721, Moore v. quoting if Id. at justice they exist were sacrificed.’ would (1977) Cleveland, (plurality 97 S.Ct. Connecticut, 319, 326, L.Ed. 288 Palko v. opinion), (1937). cases Second, substantive-due-process court has “required interest.” Id. fundamental description’ ‘careful asserted Flores, Reno v.
495 The court has cautioned against using the Fourteenth Amendment to define new liberty fundamental interests without examples “concrete involving fundamental rights found to be in deeply legal rooted our tradition.” Id. at 722. The court has observed that approach tends to rein in subjective “[t]his elements in necessarily present judicial due-process review.” Id. Aalim’s substantive-due-process can argument disposed of in short order. 1851, Ohio’s Due Course of Law Clause in adopted was and the Four- Constitution, teenth Amendment to the United States which contains the federal Clause, Due Process in was ratified The first court in the United in Illinois, States was established 1899 in County, Cook and the first court in Ohio was Cuyahoga Court, County Juvenile established in 1902. Ohio, Supreme Court of Desktop Guide Juvenile Court 1-1 Clerks It was not until 1937 that Assembly the General established courts through- state, 268, out 520, 522, see Am.S.B. No. 117 Ohio Laws and the amenability hearing juvenile-court 1969, was not added to the system until see Am.H.B. No. Laws, II, 2040, 133 Ohio Part 2049. Because Ohio’s Due Course Law Clause and the federal Due Process Clause both predate creation of States, courts Ohio and throughout the United these cannot provisions have right juvenile-court Therefore, created substantive to a specific proceeding. amenability hearing cannot be “deeply rooted this Nation’s history “ ” tradition” and ‘implicit concept liberty,’ of ordered Moore at quoting Palko at 326. Justice O’Neill’s dissenting opinion contends that the United States Court rely solely has refused to on historical analysis interpreting when
the Fourteenth Amendment’s substantive-due-process protection. Dissenting
O’Neill, J.,
opinion,
at
quoting Planned Parenthood
Southeastern
833, 847-848,
Pennsylvania
Casey,
v.
505
112
U.S.
S.Ct.
{¶ 19} In Dist. criminal-procedure cases. process on substantive due rights based Osborne, the court declined to Dist. v. Third Judicial Attorney’s Office for testing to access evidence for right DNA recognize substantive-due-process to act justices] policymak- “would force as establishing right [the such because (2009). Flores, 2308, 52, 73-74, And 129 S.Ct. ers.” 557 U.S. right by asserted substantive-due-process to recognize the court declined proceedings private placement juveniles awaiting deportation undocumented custody Immigration of detention adults instead responsible ‘“ (INS) rooted in right such a was not “so and Nationalization Service because ’ ” ranked as fundamental.” people of our as the traditions and conscience Salerno, 1, L.Ed.2d United States v. quoting 507 113 S.Ct. 123 739, 751, Snyder 697 107 95 L.Ed.2d 481 U.S. S.Ct. (1934). Massachusetts, 97, 105, Comparing L.Ed. 674 291 U.S. substantive-due-process jurisprudence the court’s Flores and Osborne to interpretation that the court has confined its broad privacy cases demonstrates government prohibited private in which actions substantive due to cases autonomy. conduct and infringed personal rely refused to categorically the court has not Finally, Casey, since Fourteenth Amendment
exclusively analysis interpreting on historical when 742, 130 177 L.Ed.2d 561 U.S. S.Ct. protections. Chicago, See McDonald (2010). McDonald, that the Second Amendment the court determined Fourteenth arms to the states under the right keep applies and bear this conclusion Process Clause. Id. at 791. The reached Amendment’s Due “it concluding McDonald at is using Glucksberg analysis, historical counted the and ratifiers of the Fourteenth Amendment clear the Framers necessary to our rights those fundamental right keep among and bear arms at 778. system liberty,” of ordered id. claims analysis substantive-due-process court’s The touchstones of the tradition and whether history right grounded
are whether the asserted conduct, Flores at private intrusion into right protects against government 508, not, Lawrence, 303; 156 L.Ed.2d Justice 539 U.S. S.Ct. a valid of our social right “expression whether the suggests, dissent O’Neill’s O’Neill, J., at 116. conscience,” dissenting opinion, Fairness 2. Fundamental Next, due-process argument. we address Aalim’s fundamental-fairness observed, consequence, has all its ‘due “[f]or the United States Court
As
be,
been,
Lassiter
precisely
can never
defined.”
perhaps
has never
process’
Servs.,
18, 24, 101
68 L.Ed.2d
Cty. Dept.
v. Durham
Social
(1981).
depending
that varies
on the
concept
Due
is a flexible
circumstances
particular
attached to the interest at stake and the
importance
occur.
v. Natl. Assn.
Radiation
deprivation may
which the
Walters
under
Survivors,
“Applying
enterprise
an uncertain
which must discover
the Due Process Clause is therefore
consider
of in a
situation
first
particular
what ‘fundamental fairness’ consists
the several interests that are
by assessing
relevant
and then
ing any
precedents
D.S.,
2016-Ohio-
at 24-25. Accord In re
Ohio St.3d
at stake.” Lassiter
*8
¶
(what
I,
16 of the
1027,
1184,
satisfies Article Section
process
54 N.E.3d
28
in a particular
of fundamental fairness
“depends on considerations
Constitution
(1971) (plurality opinion). and Rules in the Revised Code hearing of a is contained safeguard “The constitutional Procedure, in due and other grounded process and it is
of Juvenile
D.W.,
434,
bindover context. the court declined to extend all constitutional guaran- however, tees that would be to adults. Id. at 556. applicable Importantly, court did determine that “constitutional to due principles relating process” are juveniles. juvenile Id. at 557. For applicable purposes bindover from court court, to adult the court held that due when a satisfied stating issues a decision its reasons for the transfer after conducting hearing at counsel. Id. at 554. represented which recently years As as three this court ago, recognized: “[T]he Court of the United States has held that the hearing ‘critically bindover is a and that important proceeding’ hearing up ‘must measure to the essentials of ” D.M., due and fair treatment.’ In re 2014-Ohio- ¶ Moreover, quoting Kent at 562. quoted we have Kent “ for the that a rule transfer of to adult court should not occur ‘without counsel, ceremony—without hearing, without effective assistance of without a ¶ 20, statement of reasons.’ Kent at D.W. Relying required by the fundamental fairness procedural pro- cess, the Chief Justice’s dissenting opinion argues that Kent that a requires “ juvenile-court judge make “individualized assessment” ‘full based on ‘ investigation’ require[s] consideration of the history [that] “entire of the ’ ” sic.) child” before transferring to adult court. (Emphasis Dissent- O’Connor, C.J., ing opinion, 99-100, quoting Kent at quoting Watkins v. States, (D.C.Cir.1964). However, United 343 F.2d this portion Kent is distinguishable from the facts at Assembly issue here. The General determines 4(B). jurisdiction Constitution, IV, court. Ohio Article Section And the Assembly General has determined that in the limited circumstances 2152.10(A)(2)(b) 2152.12(A)(1)(b), described R.C. juvenile offenders of a murder, murder, certain aggravated certain serious felonies *9 committed after a prior delinquency adjudication, and certain serious felonies Kent, committed with a firearm shall be bound over to adult court. the United Supreme States Court was not declaring requirement of the Juvenile Court Act for a “full investigation” before transfer constitutionally required. was Instead, Id. at 547. the court broadly declined to use the Kent decision to apply adult constitutional guarantees to children. Id. 556. The court decided Kent statute, based on the unique requirements of the applicable the Juvenile Court Act, Moreover, and it went “no further.” Id. the reliance the Chief Justice’s dissent on United precedents States Court interpreting offend- Eighth ers’ Amendment protections misplaced because those cases were Amendment, decided Eighth based on the not on procedural protections dissenting Amendment. See of the Fourteenth in the Due Process Clause found ¶ C.J., O’Connor, at 58. opinion, juvenile division to the Here, from the mandatory Aalim’s bindover
{¶27} of “funda- requirements court satisfied pleas of the common division general and the federal Due Course of Law Clause by Ohio’s required mental fairness” judge juvenile-division before hearing Aalim had Due Process Clause. there was offense and whether alleged at the time of the Aalim’s determine in the alleged committed the conduct that he had cause to believe probable and he had a by counsel represented Aalim was hearing, At this complaint. entry explaining issued an hearing, After the present. parent after this Only proceeding Aalim. jurisdiction had over why longer it no of Law Due Course Clause required by fairness Ohio’s the fundamental satisfying from the was Aalim transferred Due Process Clause and the federal Aalim failed to court. has pleas of the common general to the division division let alone due-process rights, his that his bindover violated show guar- due-process the constitutional facially violate mandatory-bindover statutes antees. Equal
B. Protection that R.C. of his claim support arguments Aalim raises two 2152.12(A)(1)(b) 2152.10(A)(2)(b) rights. juveniles’ equal-protection violate therefore, class and that suspect are a First, juveniles Aalim contends that Additionally, he scrutiny. strict differently triggers treating some are not statutes mandatory-bindover distinctions age-based that the argues juvenile proceedings. purpose related to the rationally to the Amendment of the Fourteenth Protection Clause Equal {¶29} * * * deny any person shall “No State provides, Constitution United States Protection Equal of the laws.” Ohio’s jurisdiction equal protection its within Constitution, political power “All provides, Clause, I, 2 of the Ohio Article Section protection equal for their is instituted people. inherent in the Government * * functionally equivalent equal-protection provisions *.” These two benefit Bd. Dist. Tri-Valley Local School Eppley v. analysis. the same require N.E.2d Edn., 122 Ohio St.3d Protection Equal violates legislation state considering “In whether ** levels of *, different apply [courts] Amendment of the Fourteenth Clause Jeter, Clark of classifications.” scrutiny types to different analytic approach use the same L.Ed.2d 465 We I, 2 of the Article Section violates classification statutory whether a determining Williams, Ohio Constitution. State *10 (2000). step The first in an equal-protection analysis is to proper determine the
{¶ 31}
Johnson,
standard of review. Arbino v.
468,
Johnson &
2007-
¶
Ohio-6948,
420,
legislation
When
infringes upon fundamental
right
class,
constitutional
or the rights
suspect
of a
strict scrutiny applies. See
Williams at 530. If neither a
right
involved,
fundamental
nor a suspect class is
See,
the rational-basis
e.g.,
Queen
Metro,
test is used.
City
49 Ohio
Menefee
29,
(1990).
27,
St.3d
bindover
scheme to qualify
strict-scrutiny review,
Aalim must
juveniles
demonstrate that
a suspect
juveniles
class or that
have a fundamen-
tal
right
constitutional
to an amenability proceeding. See Williams at 530.
A “suspect class” is
disabilities,
defined as “one ‘saddled with such
subjected to such a history
treatment,
of purposeful unequal
or relegated to such
a position
political
powerlessness as to command extraordinary protection from
”
majoritarian political
process.’ Massachusetts Bd.
Murgia,
Retirement v.
307, 313,
2562,
U.S.
(1973). The
United States
Court has noted that “age is not a suspect
classification under the Equal Protection
Gregory
Clause.”
v. Ashcroft, 501 U.S.
2395,
111 S.Ct.
Fortson,
L.Ed.2d 410
Accord State v.
11th
¶ 41
2011-P-0031,
Dist.
No.
Portage
(“Ohio
2012 WL
courts
consistently
have
that juveniles
held
do not constitute a
suspect class
law”);
the context of equal protection
In re Vaughn, 12th Dist. Butler No. CA89-
11-162,
1990)
1990 WL
(Aug.
(“juveniles
*5
have never been treated
as a suspect class and legislation
juveniles
aimed at
has never been subjected to
the test of strict scrutiny”). Under
law,
both Ohio and
federal
are not
class,
a suspect
considered
and we decline to define them as one now. And as
discussed above with respect to
process, juveniles
substantive due
do not have a
fundamental
right to
amenability hearing,
right
because the
to such a hearing
“
is not
“deeply rooted
this Nation’s history and tradition” and
‘implicit
concept
Moore,
of ordered liberty,’
431 U.S. at
Palko,
differently
can
grounds
if no
goals
only
of the State’s
pursuit
to the
unrelated
957, 963, 102
Id.,
Fashing,
it.
Clements
justify’
conceived to
Doe,
312, 320, 113
(1982), and
Heller v.
citing
L.Ed.2d 508
S.Ct.
(1993),
Professors,
Am.
Univ.
Cent.
Assn.
Univ.,
55, 58,
Hanning, 89 Ohio
extraordinary
measures
provide special
mandatory-bindover procedure
recognized
We
offenders.
Id.
89-90.
cases,
older or violent
involving
2151.26(B)(4)(b),
mandatory-bindover provision
that former R.C.
Hanning
firearm,
with a
offense
category-two
who committed
16-year-olds
applicable
amenability
determining
usual criteria for
“a
to the
exception
was
narrow
inherently
of an
has been accused
an older child
situations where
certain
commit serious
juveniles who
Prosecuting older
Id. at 92.
dangerous offense.”
related to
rationally
court is
pleas
of a common
division
general
crimes
it allows
crime because
rising juvenile
fighting
interest of
legitimate state
division, where
general
in the
prosecuted
to be
serious
offenders
most
“harms
recognized
court has
available. This
punishments
harsher
C.S.,
perpetrator.”
upon
are not
by
dependent
victims
suffered
III. CONCLUSION I, Because this court failed in Aalim 150 Ohio St.3d to consider the Assembly’s General exclusive constitutional *12 authority jurisdiction to define the of the courts of pleas common under Article IV, 4(B) Section Constitution, of the Ohio grant we the state’s motion for reconsideration pursuant to S.Ct.Prac.R. 18.02. Upon reconsideration, we hold the mandatory bindover of certain offenders under R.C. 2152.10(A)(2)(b) 2152.12(A)(1)(b) and complies with process due equal protec tion guaranteed by the Ohio and United States Constitutions. We therefore /, vacate our decision in affirm Aalim and we the judgment of the court of appeals upholding trial court’s denial of Aalim’s motion to dismiss his indictment.
Motion for reconsideration granted and judgment affirmed. JJ., concur. French, O’Donnell
DeWine, J., concurs, with an joined opinion by O’Donnell, J. J., concurs in part and in part, dissents with an opinion.
Fischer, O’Connor, C.J., dissents, with an opinion joined by J. O’Neill, J., dissents, with an opinion. O’Neill,
DeWine,
J., concurring.
join
I
fully in the court’s decision. I
write separately to emphasize why
reconsideration is so
important
view,
this case. In my
Aalim,
State v.
150 Ohio
463,
life, liberty, or property, without due process of law.” Fourteenth Amendment to
503 Constitution, its seem the clause on face would U.S. Section While one procedures employed when only adequacy itself with concern read life, the United Court has liberty, property, States deprived government some actions “re- component include forbids substantive Daniels implement of the fairness of used to them.” gardless procedures Williams, 662 474 Unlike U.S. component of the Due Process Clause “is process, substantive procedural v. E. by preconstitutional history.” neither its nor Moore suggested language (1977) Cleveland, (White, J., L.Ed.2d 531 dissenting). concepts. proce a clear demarcation between the two While There is procedures employed, substantive due process adequacy
dural due assesses When the a law of legislative legislature passes reviews enactments. adequacy procedures; there is no about the general application, question all the that is due. 3 Ronald D. legislative process provides See Nowak, E. Rotunda & John Treatise on Constitutional Law: Substance (5th Acres, Procedure, 17.8(c), Ed.2012); v. Miami-Dade Section L.L.C. (11th Club, 1288, 1294 Cir.2003); Inc. v. F.3d Richmond Boro Gun New Cty., 338 (9th (2d Riverside, York, Cir.1996); Diaz v. 895 F.2d 97 F.3d Cir.1990) 11925, *4; decision), at 1990 WL Oklahoma (unpublished table available Comm., Laws 889 F.2d *13 Beverage Edn. Assn. Alcoholic Enforcement Prairie, 1142, (10th v. F.2d 1144 Cir.1989); Line Venture Grand 839 Cty. Joint (5th & Retirement Cir.1988); Briggs Commt. Stratton Brown Retirement of (7th Cir.1986). Plan, 521, Thus, a challenge generalized 797 527 a to F.2d of a who are juveniles that all certain legislative example, determination—for must in adult court—is made crimes be tried qualifying certain Due Rotunda & Nowak component Process Clause. under substantive 130; 1294; 689; at Line Joint Cty. at Boro Gun Club at 75 Acres Richmond 1144; Brown at 527. Venture however, concepts. Somehow, has muddled the two jurisprudence our C.P., in re 2012-Ohio- confusion first became In 131 Ohio St.3d
This
evident
automatic,
There,
challenge
lifelong
with a
(1971)
Gault,
(plurality
opinion), citing
re
(1967),
Winship,
In re
L.Ed.2d 368
Although the court
not
explicit
doing—the
was
C.P. about what it was
term
import
substantive due
was never even
mentioned—the
its decision
take
procedural
was to
fundamental-fairness standard and transform it into a
substantive standard.
I,
In Aalim
went even further. The court referred to
C.P.
I,
463,
its fundamental-fairness standard. Aalim 150 Ohio St.3d ¶ But, perhaps recognition progeny N.E.3d of the dubious that decision as matter federal constitutional jurisprudence, decided the case under the Ohio The court did so by grafting Constitution. the fundamental- standard onto Ohio right fairness Constitution: hold that the “[W]e process under the Constitution that all requires Ohio children have the right an amenability hearing mandatory- transfer adult court that the before I, statutes the right guaranteed by transfer violate to due Article C.P., 16 of Quite Section the Ohio Constitution.” Id. at 25. feat: the court procedural one; takes a due-process standard and transforms it into substantive I, in Aalim that substantive due-process standard is into the transplanted Fortunately, Constitution. our provide opportunity rules us to reconsider that decision. true, course, It is our state is a Constitution document 45}
{¶
independent
may provide
force that
greater protection than the United States
Cleveland,
Constitution. Arnold v.
{¶ remotely Constitution is even implicated by the mandatory-bindover provision: open, person, All courts shall and every injury be for an done him in his land, law, goods, person, reputation, by or have due remedy shall course of shall justice and have without denial delay. may administered Suits be state, brought against manner, such courts and such as bemay provided law. out, history traditions nothing suggests in our majority points as the
And an individual- of Clause mandates receive that the Due Course Law ¶ 17. Majority is heard. opinion about where their case ized determination Clause, Law of the Due adoption at the time of the Course opposite: Just the Id. no courts Ohio. there were the addition of this new step to back from good There is reason 47}
{¶ Constitu fundamental fairness to substantive-due-process standard of the most perhaps due has been tion. doctrine substantive Indeed, our constitutional tradition. bedeviling part and controversial federal history in American fall under judicial most criticized decisions some See, Sandford, Dred e.g., due Scott process. rubric substantive York, 45, 25 (1857); Lochner v. New S.Ct. 19 How. 15 L.Ed. (1905). has justification, substantive due With fair 49 L.Ed. judicial amorphous as child” for use of constitutional “poster decried been — States, v. United goals.” a court’s own Johnson “policy doctrine to achieve (2015) (Thomas, j., U.S. -, concurring). are this unchartered area responsible decisionmaking “guideposts Because “always expand reluctant courts have been open-ended,” scarce and Hts., v. Harker process.” Collins concept substantive 1061, 117 L.Ed.2d 261 similarly substantive-due-process-type be to read We should reluctant 48} {¶ independently our duty While into Ohio Constitution. concepts its we should not treat to enforce guarantees, the Ohio Constitution and interpret text policy preferences as unconnected responsibility impose this license Indeed, substantive-due-process history of federal tradition. the troubled incorporating similarly nebulous pause to cause us to before analysis ought our doctrine into Constitution. sense as a standard. perfect procedural fairness makes Fundamental 49}
{¶
individualized
training
experience to make
courts,
equipped by
As
we are
in a loss of
procedures
that result
particular
to whether
determinations
fairness into a substantive
fundamentally fair. But to transform fundamental
for those of
preferences
their policy
invites
to substitute
simply
standard
courts
such a task.
any
guide
standards to
legislature
without
not
But it is
mandatory
end all
bindovers.
idea to
may
good
It
well
50}
{¶
we,
rather than
in our
ordains
Nothing
our call make.
Constitution
get to make that decision.
people’s
representatives,
elected
J.,
in the foregoing opinion.
concurs
O’Donnell,
*15
J., concurring
part
part.
and dissenting in
Fischer,
Gonzales,
For the
in my
reasons stated
in State
separate opinion
276,
O’Connor, C.J., dissenting. In declaring our independence, nation’s the founders decreed that the right liberty inalienable was a self-evident truth. The founders recognized they asking that were a substantial give sacrifice of colonists: up some of that liberty society to live in civil promise on the mere that government would liberty secure their and other important rights. for Advocating ratification of the Constitution, Alexander Hamilton offered reassurance to that doubters their rights protected would by be checks “liberty and balances because can have nothing alone, fear from the judiciary every but would have to fear from thing its union with of either the other departments.” The Federalist No. 78 at 523 Ed.1961). (Cooke James Madison also supported separation of powers, writing
{¶ that it 53} “is all admitted on preservation hands be essential to the of but liberty” warning another particularly applicable consideration American govern- ment would guard part be “to one society injustice against the of the other (Cooke Ed.1961). part.” The Federalist 51 at No. Madison advised: Justice is the It government. end civil society. the end of It ever been, obtained, has and ever will be until pursued, be or until be pursuit. lost society under the forms which stronger faction can readily oppress weaker, unite and anarchy may truly nature, said to in a reign as state of where the weaker individual not ** secured against the stronger violence *. Id. at 352. The majority’s decision today brings us step
{¶ one closer to the anarchy 54} about which Madison warned. The majority blindly constitutionality affirms the of the mandatory-transfer statute’s without even a perfunctory analysis due-process of its implications. The majority’s not holding bring justice does children, citizens, Ohio’s who are our among weakest nor does it honor the sacrifices of our founders “seeur[ing] Blessings Liberty” to future generations, Constitution, Instead, preamble. the majority bows to the basest instincts of outspoken society—fear faction of our and anger—to reach result violates all notions of separation powers by advancing legislative expense judiciary. branches interests of the executive *16 Aalim, respect I. punish majority In its to Matthew the shows no appellant, effort the legislative role that no act to judiciary’s ensuring contrary of the suffer, term, all in be to stand. will at least the short Constitution allowed We today’s a result of decision. however, Court has so Fortunately, Supreme the United States not been
{¶ 55} was principles upon country own role or the which our quick dispense to with its law and recognizes process primary The court that of is the high “[d]ue founded. It term individual freedom. is the basic and essential indispensable foundation of the rights the of the individual and delimits in the which defines compact social Gault, re may which state exercise.” powers the 18 L.Ed.2d facing to of law is not limited to adults right The due Rather, it Id. promise 13. an and eternal of liberty. of essential
deprivation Americans, too youth. a child is including Although the to all our Constitution and, Ohio, in judges, legislators their their those young legislators to vote for liberty. protections the a child’s judges ignore safeguarding cannot constitutional may development motives have informed the though good And even States, the has throughout Supreme court the United Court juvenile systems rules based constitutional procedural upon us that absence of “[t]he reminded fair, efficient, De- always procedures. has and effective produced not principle not frequently due resulted from of have partures principles established Id. in arbitrariness.” 18-19. enlightened procedure, but Ohio, again once alleged juvenile an offender will today, After face adult criminal juvenile out of court to subject mandatory transfer cause that the child showing of to believe probable conviction on a mere whether the child amenable charged, regardless the of committed offense of system. deprive a child juvenile-justice To rehabilitation and treatment “procedural short of the procedure limited falls his or her such ” Id. at 27-28. implied process.’ ‘due phrase of care regularity exercise restraint, court, judicial of reverses of under the majority guise A Aalim, of our decision State a motion for reconsideration I”).2 (“Aalim the court’s But make no mistake: contends, majority because agrees, that of Aalim I is warranted The reconsideration state Constitution, 4(B) IV, generally which of this failed to consider Article Section pleas. jurisdiction of common authority Assembly courts to define the confers General clearly I during argument case. Aalim oral on the merits this raised that rationale state Assembly has legislative and that the General acknowledged are a creation that courts approves arbitrary decision of access to the deprivation system and what sine non qua juvenile-transfer hearings—the should be the determination whether the is amenable The majority to rehabilitation. does so affording legislature, ignoring blind deference to the requirements fairness, process and and artificially constraining the United States Court’s commands that we must differently consider offenders than adult offenders, Alabama, see Miller (2012) (holding sentences life imposing mandatory imprisonment without possibility on individuals who parole committed their crimes when under Eighth of 18 age Constitution); violates the Amendment the United States Carolina,
J.D.B. v. North (2011) (holding police must consider the suspect when *17 determining custody whether the for purposes of Miranda warn Arizona, 1602, 16 ings, (1966)); see Miranda 384 U.S. 86 S.Ct. L.Ed.2d 694 Simmons, 551, 570-571, (2005) Roper v. (holding that the of years execution individuals who were under 18 at the they time committed capital Eighth crimes violates the and Fourteenth Amend Constitution). ments to the States United concurring justice’s eagerness to reconsider Aalim I to appears {¶ 59}
. based recognize on reluctance to substantive-due-process federal jurisprudence or incorporate to into substantive-due-process protections the Ohio Constitution. This from maxim signals departure settled law and the that the federal floor, Constitution provides rights. not the ceiling, constitutional Aalim, youth and, an African years American who was 16 according old {¶ 60} counsel, to his had no criminal at record the time of his hearing, transfer was nevertheless treated as an adult and haled into the Montgomery County Court of Common Pleas to face maximum over years sentence of of imprisonment and (exclusive $40,000 restitution) in sanctions of court costs and first-degree- on two felony aggravated counts of robbery with firearm specifications.3 Given the changes concurring made substantive dissenting the Juvenile Code. Aalim I V16. And a stated, opinion Assembly Chapter “[T]he General created Ohio’s courts in R.C. consequently, court, statutorily courts are creatures of statute. As a created jurisdiction, authority only upon by has limited and it can conferred it exer.cise (Citation omitted.) Assembly.” J., (Kennedy, General concurring dissenting). Aalim I at 39
Thus,
legal
the state’s motion for
argument
reconsideration relies on
new fact
no
failed to
we
18.02(B) (“A
consider in Aalim I. See S.Ct.Prac.R.
motion for
not
reconsideration shall
constitute a
n * * ”).
reargument of the case
Reconsideration is therefore unwarranted here.
denied,
grounds
pleaded
3. After his motion
part
to dismiss on constitutional
was
Aalim
no
contest
plea bargain
specifications.
of a
in which the state
dismissed
firearm
He was
to four
sentenced
years
count,
imprisonment
concurrently,
years
postrelease
on each
to run
in addition to five
$531.97,
phone
ostensibly
control and
stealing.
restitution
for the cell
that he was convicted of
us,
silence
Supreme
before
and the
Court’s
the constitutional issue
importance of
than
since its decision more
juvenile-transfer
statutes
constitutionality
on the
States,
1045,
subject juveniles, nor can fulfill the regarding recent teachings Court’s States “ is no hearings to transfer ‘there respect declaration with Supreme Court’s consequences such tremendous of law for a result of reaching in our place system Gault, L.Ed.2d ceremony.’ without Kent at 554. majority analysis to the offered countenance give Unable result, I dissent. achieve its desired
BACKGROUND
first
notes,
Assembly
the General
established
majority
theAs
County
subsequently expanded
in 1902 and
Cuyahoga
in Ohio in
juvenile court
(1969).
70, 73,
patriae
protect
wayward
the vision that the courts would
child
influences,”
from “evil
“save” him from criminal prosecution, and provide
(1990),
6,
him social and
T.R.
rehabilitative services.
In re
52 Ohio St.3d
15,
439;
556 N.E.2d
Children’s Home Marion
v.
90
Cty. Fetter
110, 127,
(C.C.Ohio
761;
106
parte
1911),
Ohio St.
N.E.
Ex
Januszewski
123,
196 F.
127.
C.S.,
267,
In re
115 Ohio St.3d
874 N.E.2d
Despite
differing goals
courts,
and adult
the establish
{¶ 65}
ment of
courts was not
for
Assembly
a license
the General
to deprive
juveniles
fact,
their constitutional
rights.
range
are entitled to a
rights grounded
Kent,
constitutional protections.
383
See
U.S.
86
84;
358, 367-368,
S.Ct.
16 L.Ed.2d
In re
397
Winship,
U.S.
90 S.Ct.
(1970)
25
(applying
juvenile offenders);
L.Ed.2d 368
reasonable-doubt standard to
Gault,
tions owed United States Court restores them. See Baird, 622, 648, (1979) (lead Bellotti 443 U.S. S.Ct. L.Ed.2d 797 (a opinion) abortion); cannot unduly state burden a minor’s to an right Ingraham (1977) Wright, 430 U.S. (corporal punishment interest); Jones, implicates a child’s Breed v. 421 532-533, (1975) (double-jeopardy protections L.Ed.2d apply Thus, to juveniles). an important legislature remains check on the ensuring the of children in rights just proceedings, guard is on legislative overreach in other areas the law. required We are to apply the same constitutional check to the mandato-
ry-transfer procedure Ohio, considering established it comports whether requirements fairness. Assembly mandatory General established during transfer wave of pro-punishment legislation.4 As this exemplifies, case mandatory-trans- *19 hearings fer relatively recent in the juvenile justice scheme of in Ohio and the United States. And because a transfer to adult court always almost is intended Assembly Ohio, 4. In mandatory-transfer precursor General enacted the first in statute mandatory-transfer currently Chapter statute codified R.C. 2162. Sub.H.B. No. Laws, (effective II, 11,1987). Part Mar. mandatory impose, court could juvenile harsher than a to for a sentence allow juvenile of and aspect sentencing deprives of implicates punitive transfer juvenile-justice system. hallmarks of the to the rehabilitative access mandatory-transfer hearings given not surprising That result is {¶ 69} Gault, who, more after Kent and had become legislators of state were borne per- offenders in to punishment young response criminal of about sanguine Waterfall, crime, see, Note, in juvenile e.g., misperceived—increases ceived—or Sentencing Absent a Conviction Authorizing Muniz: Adult Juveniles State v. of (2005). Sentence, 229, 231 Juvenile- 35 N.M.L.Rev. that Authorizes an Adult in which patriae mission toward schemes justice parens shifted from policy role, juvenile for prominent particularly increasingly punishment played homicides, of offenses, gang- and other indicia with firearm offenders in the Adult Criminal Justice Bishop, Juvenile activity. related Offenders (2000). 27 Crime & Just. System, 83-84 as and system’s role ameliorative seeing juvenile-justice than Rather “ to crack down on
rehabilitative, legislative approaches ‘designed the new were court crime,’ eligibility criminal ‘expanded involved generally Waterfall at sanctioning’ juveniles. of adult correctional processing and Justice, System Justice Was Founded Bilchik, of The Juvenile Dept, Justice, 1999 National Individualized through Rehabilitation Concept on the Bulletin, at https://www.ncjrs.gov/html/ojjdp/ Juvenile Justice Report Series: 9912_2/contents.html. 86, 89, 728 N.E.2d Hanning, also See State rising (2000) (the response statute is Ohio’s mandatory-transfer “part but crime”). misguided and immature seeing juveniles than Rather savvy, and “as as vicious and saw them redemption, legislation the new worthy criminals,” at adult-like, Bishop career incipient juvenile’s of a of the ramifications keenly aware legislators State were court, in which adult its milieu to therapeutic from court and
transfer fact, were at hearings transfer integral. and deterrence are punishment epidemic response perceived tough” legislative the “get core of 89; Redding, Hanning including here Ohio. country, violence this Proposals Based Legal to Criminal Court: Juveniles Reform Transferred Research, 710-715 1997 Utah L.Rev. Social Science and dramatic.” quick has been policy of transfer This “transformation Just, at least states 1992 and & 84. Between Bishop, Crime the transfer facilitate provisions expediently enacted the District of Columbia “offense-based, categorical, by establishing young to adult offenders individualized, proceedings waiver offender-oriented alternatives absolute result, Id. “As process. that streamlined the transfer court” are neither who range a broad offenders implicates transfer many states *20 chronic, particularly particularly serious nor of yet some whom are not in their teens.” Id. at 84-85. Ohio, the mandatory-transfer provision was one the of hallmarks of “get-tough
the
approach”
by juveniles,
state’s
to crimes
creating
committed
provision wholly
discretionary
transfer
different from the
transfers that previous-
ly
juvenile
were the sine
non of
qua
Hanning,
transfers.5
at
Ohio St.3d
argument that system the transfer to the adult punish- is about ment, procedure: not “But the crux is punishment. issue That’s what this all is about. not really It’s about not process, procedure. it’s about It’s about what do punish juveniles do we these who are transferred to adult over court.” added.) (Emphasis And implicates because the issue punishment, Supreme J.D.B., Miller, Court’s teachings and Roper regarding constitutional limitations juvenile sentencing implicated Kent, are as its strongly holding which recognized that hearings transfer “critically important” juveniles.
ANALYSIS majority’s holding today fundamentally misunderstands and mini- mizes role of due Although cases. mandatory- Ohio’s transfer statute provides some depriving before child offender of access juvenile-justice to the system, that process inadequate under the applicable balancing test established the United Supreme States Court. Additionally, mandatory comport transfer does not concept fairness, fundamental must which we at risk apply being deprived interest. paucity precedent statutes, Given the concerning juvenile-transfer this case will transfer, discretionary juvenile-court judge In a relinquish has the discretion to jurisdiction youth court’s judge over and transfer or “bind over” to adult court if the juvenile-justice determines the individual not amenable to care or rehabilitation within the system appears 2151.26(B)(3). See R.C. public safety. to be a threat The rubric of a mandatory quite transfer is different. Court opportunity provide offer United States further in this area. guidance Analysis, Majority under Fails
Even
a Procedural Due-Process
*21
Mandatory-
the
the
to
that
Limited Procedure of
Establish
Hearing
Constitutional Protections
Transfer
Satisfies
that by enacting legislation,
may
The
Court
states
Supreme
recognizes
liberty
by
that
the federal
Process
protected
create
interests
are
Due
Clause.
Conner,
See,
472, 483-484,
2293,
115 S.Ct.
132
e.g., Sandin v.
515 U.S.
L.Ed.2d
McDonnell,
539,
2963,
v.
418 U.S.
94 S.Ct.
citing
418
935
Wolff
(1974).
depends
the
any procedural protections
“Whether
are due
on
extent to
to
grievous
will be ‘condemned
suffer
loss.’
v.
Morrissey
which
individual
Brewer,
471, 481,
2593,
(1972), quoting
408
92
determining
hearing,
what
is due to a
at a
process
do
the
way
reaching
there is no
so without
conclusion
all likelihood because
is not
mandatory-transfer
enough.6
the
that Ohio’s
statute affords
process
that
misplaced
concurring opinion’s
due
is also
because
court’s
The
attack on substantive
6.
I,
procedural
process,
premised
Aalim 150
tenets of
see
decision Aalim I was
on the
¶
(“juvenile procedures
also must account
83
25
themselves
St.3d
N.E.3d
adults”).
event,
unpersuasive
any
is
And in
the concurrence
for the
in children versus
differences
substantive-due-process
Supreme
has limited the
doctrine
its merits.
States
Court
The United
See,
Texas,
573-574,
e.g.,
it.
v.
but has not abandoned
Lawrence
Pennsylvania
Casey,
(2003), citing
Planned Parenthood
Southeastern
L.Ed.2d
recently
833, 851,
Although
in a
Justice Thomas
declared
loses his or her at of status the moment filing charge alleging by mandatory-transfer statute,7 crime covered Assembly Ohio’s General provided child, some process juvenile to the court requiring to find eligibility probable cause to believe that the child committed a crime covered by mandatory-transfer juvenile statute revoking before status. this Because very process limited is insufficient to vindicate the significant liberty child’s status, in retaining juvenile interest I would conclude that it is unconstitutional. requirements Because the of due are “flexible and call[ ] demands,” such procedural protections as the particular situation 408 Morrissey, 2593, 92 U.S. at S.Ct. 33 apply L.Ed.2d courts must the framework procedural many because created too an right hurdles for individual to vindicate his or her money regain paid to the state as the result of a conviction that at has been overturned. Nelson -, at applied procedural 137 S.Ct. The court inspection “[t]he 1257-1258. familiar by Eldridge, (1976),” instructed Mathews v. 424 96 S.Ct. at Nelson -, S.Ct. at should 137 as we here. See, 46b-127(a) (a e.g., 7. immediately being upon Conn.Gen.Stat.Ann. child loses status charged offense); years with certain alleged crimes if the child was at least old at the time of the (the juvenile-court jurisdictional 16-2301 D.C.Code definition “child” in statute excludes individu- (13- crimes); aged 16 or 15-year- als older who are with certain N.Y.Penal Law 30.00 criminally responsible subject jurisdiction olds are for certain offenses and not to the court). 893, 47 L.Ed.2d 424 U.S. Eldridge, Mathews
established liberty to an individual’s validating before actions adverse interest.8 Austin, L.Ed.2d Wilkinson consideration three distinct factors: requires Mathews [f]irst, action; that will be affected the official private interest second, through an of such deprivation risk of erroneous interest used, value, if any, and the additional substitute procedures probable interest, finally, including the Government’s procedural safeguards; and fiscal the function involved and the and administrative burdens would entail. procedural requirement additional or substitute Mathews factor, no that a there should be debate child’s considering first 83}
{¶ possibility “The retaining interest status is substantial. liberty jurisdiction criminal is matter general from a court of transfer Breed, juvenile.” to the great significance if are in the child is clearly jeopardy 346. The child’s interests L.Ed.2d only Not adult, subject to adult criminal courts. do penalties, treated as court, all in adult but child child receive harsher sentences many offenders those consequences of convic- with adult convictions face the collateral offenders than greater their a manner far tions—including awareness of crimes—in public court. they would requires juvenile pertaining law courts to seal records Notably, 84}
{¶
arrested;
without
were resolved
who
whose cases
*23
juveniles
were
merits;
successful-
juveniles
who have
complaint
of a
or
dismissal on
filing
adjudicated as
and
who were
completed
program;
diversion
ly
pretrial
York,
197,
2319,
Supreme
281
Court
v.
432 U.S.
8.
In Patterson New
application
inquiry
in
procedural-due-proeess
than the Mathews framework
set forth narrower
“
justice
principle
so
in
procedure:
rule
some
rooted
matters of criminal
whether a state
‘offends
202, quoting
people
our
to be
as fundamental.’
Id.
traditions
conscience of
ranked
(1934).
Supreme
Massachusetts,
But the
Snyder
{¶ 85}
Golston,
felony
associated with a
conviction are severe and obvious.”
State
(1994).
Perhaps
Ohio St.3d
criminal incarcerated, trial are more likely to more receive likely longer incarceration, periods of significantly higher and have rates of recidivism and Frazier, Lanza-Kaduce, reoffend more quickly. Bishop, Winner, & The Transfer Juveniles a Difference?, to Criminal Court: Does It Make 42 Crime & Delinquency decade, wonder past many No that over the states have enacted laws that again once channel offenders to young courts. Brain, (Mar. 2017). Thus, See Crime and the Adolescent N.Y. Times child’s in retaining subject juvenile- interest his or her status as a to the justice system significant. deprivation second Mathews factor is the risk an erroneous
through the process mandatory-transfer permits offered. Ohio’s statute the just judge consider two transferring factors before to adult court a accused of a committing by juvenile’s covered the at crime the law: the time
517 cause to believe that the probable offense and whether there is the 2152.12(A). mandatory-transfer-eligible conduct. R.C. juvenile committed the any evidence, judge mitigating does not the to consider such permit The statute illness, a emotionally criminal has mental is history, the accused lacks whether immature, at of the alleged or or was under duress the time psychologically discretionary-transfer at may only All of these factors be considered a crime. 2152.12(E). Most there be no consideration of hearing. importantly, may R.C. rehabilitation, the hallmark purpose the accused is amenable whether system. juvenile-justice Miller, recognized As the Court “none of United States 89}
{¶ 2011, (2010)] Florida, 560 U.S. 130 what S.Ct. [Graham (and mental transitory) children—about their distinctive traits said about Miller, at vulnerabilities—is 567 U.S. 132 crime-specific.” environmental has that “it recognized 183 407. And the court is less S.Ct. L.Ed.2d aby that even a crime committed is to conclude heinous supportable From a irretrievably standpoint character. moral would depraved evidence adult, an a equate failings be of a minor those of for misguided that a character deficiencies will be reformed.” greater possibility exists minor’s 1. mandatory-transfer at 125 L.Ed.2d Ohio’s S.Ct. 161 Roper, a system right inquire a in which a has no to even into judge statute creates rehabilitation, it. weigh allowing judge juvenile’s let alone Without potential age, significant or risk of beyond probable cause there any inquiry conduct Thus, into a criminal. delinquent lifelong of rehabilitation turning capable offender is child’s status as deprivation risk of erroneous substantial. interest, government’s final factor is the The third and Mathews that the and administrative burdens the function involved the fiscal
including would “The extent to entail. procedural requirement additional or substitute influenced recipient by must be afforded the which procedural loss,’ depends upon may grievous which he be ‘condemned to suffer extent to governmental loss outweighs recipient’s avoiding interest whether Morrissey, 408 U.S. at summary adjudication.” interest Commt., Refugee Joint Anti-Fascist L.Ed.2d (Frankfurter, J., concurring). recognizes Mathews L.Ed. S.Ct. safeguard an to the individual affected additional point some benefit “[a]t * * * just, may action is society assurance that the and to terms increased 893, L.Ed.2d cost.” outweighed the state is not burden to discretionary-transfer system But a difference between required, time and respect to the resources bench. With and the token proceedings amenability discretionary-transfer hearing *25 hearing prior conducted to a mandatory transfer is minimal in the overall scheme. At a discretionary-transfer hearing, judge must determine the age of the accused and whether there is probable cause to believe that he or she committed crime, just as a judge must do at a mandatory-transfer hearing. See 2152.12(A) (B). R.C. other, and There only two significant, albeit require ments at a discretionary-transfer hearing: judge must determine whether the juvenile is “amenable to care or rehabilitation within system, * * n safety community [whether] requires an adult sanction for the 2152.12(B)(3). juvenile.” R.C. To assist in making determinations, these judge must order an investigation “into the education, child’s social history, situation, family any other factor bearing whether the child is amenable to juvenile rehabilitation, including mental examination of the child by public private agency or a person qualified 2152.12(C). to make the examination.” R.C. The relevant question when considering the
{¶ 92} third Mathews factor is not whether will but, rather, burden the state at all whether the burden of additional procedural safeguards outweighs the child’s interest retaining juvenile status and the risk of erroneously depriving the child of that status. The child’s interest in retaining his or her status and the
significant risk that children capable of rehabilitation will prosecuted in adult court as a result of the procedure bare-bones set forth in the mandatory-transfer statute clearly outweigh the state’s limited burden of conducting the investigation 2152.12(C) required by R.C. prior to the transfer hearing. I Accordingly, would conclude that the limited “process” afforded under the mandatory-transfer stat- ute is fundamentally inadequate and therefore unconstitutional.
Fundamental Proceedings Fairness in Requires Juvenile Consideration
of a Juvenile’s Amenability to Rehabilitation and Treatment in
System
Juvenile-Justice
applicable
“[T]he
standard in
proceedings, as
developed by
1,
1428,
Gault [387 U.S.
87 S.Ct.
18 L.Ed.2d
and Winship
527]
[397
U.S.
90 S.Ct.
is fundamental
368]
fairness.” McKeiver v.
Pennsylvania,
528, 543,
(1971)
U.S.
91 S.Ct.
fied the fundamental-fairness and was attorney present given his and his mother were hearing which Majority opinion majority opinion at 27. The written decision on transfer. youth’s age two facts: the analysis only to consideration thereby reduces that the youth there is cause to believe only probable as a number and whether *26 not contemplate Kent did not that result and did charged committed the crime. Quite contrary. fairness. the it as a matter of due endorse Kent, subject mandatory was not to transfer juvenile appellant In the {¶ 96} jurisdiction juvenile of the juvenile-court judge’s a decision to waive the but to Kent, Aalim, was But of these two is the same. like procedures court. the effect at jurisdiction charged court when he was subject to the exclusive jurisdiction of court’s subject was also to a waiver age 16. Kent statutory Court Act. Under this under the District Columbia’s Juvenile could, scheme, investigation,” a “full juvenile-court judge conducting after (i.e., jurisdiction and transfer the case to the district waive the court’s adult) years an at least 16 old and adjudication court for offender adult, that, felony. be a Kent at 547-548. by if committed an would offense grounds, and constitutional challenged, statutory Kent appeal, On Court made jurisdiction. Although Supreme waiver of juvenile-court judge’s the facts of determining discretion juvenile-court judges enjoy clear that broad was not “a case, that their exercise of that discretion emphasized a it also given 1045, 16 Kent, L.Ed.2d at arbitrary procedure.” license for statute fact, District of Columbia’s waiver explained, In the court only ‘an not into the facts inquiry in each case based on “requires judgment a parens patriae plan whether the question also into the alleged offense but ” fn. case.’ Id. at particular in the proper is desirable and procedure (D.C.Cir.1959). States, high As the court Pee v. F.2d United explained: statute net, therefore, boy by of 16—was is that petitioner—then of his consequence as a and benefits procedures
entitled to certain Court. jurisdiction of the Juvenile to the “exclusive” statutory right circumstances, that decision as to waiver considering particularly these was potentially matter to the District Court jurisdiction and transfer of the years’ five confine- as the difference between important petitioner that, a valid sentence, as a condition to we conclude ment and death by access his order, hearing, including to a was entitled petitioner waiver which reports or similar probation social records and counsel court, presumably are considered and to a statement of reasons for the Juvenile that required by Court’s decision. We believe this result is the statute read the context of constitutional principles relating to due process and the assistance of counsel.
Id. at 557. Thus, majority misunderstands Kent when it suggests Court in that only held case “due is satisfied when stating court issues a decision its reasons for the transfer after conduct-
ing hearing counsel,” at which the represented by majority opinion ¶ 24. much requires Kent more. For example, required .the court that Kent’s counsel given access to the child’s social records. These were relevant to waiver because the “full “
investigation” required consideration of the history ‘entire the child.’ Kent States, (D.C.Cir.1964). quoting Watkins United 343 F.2d Additionally, policy noted that a memorandum promulgated by the juvenile court regarding application of the District of Columbia’s waiver statute *27 required juvenile-court judge the consider “sophistication such factors as the and maturity juvenile” juvenile’s of the and the prior justice contacts with the Id. at fn. system. 566-567. The of scope investigation this to analogous investigation required the under discretionary-transfer Ohio’s provision, R.C. 2151.12(C). sum, the in Court’s decision Kent its in exemplified belief origins
the
of
purpose
juvenile-justice
the
which
system,
emphasized
has
individualized assessment of
the
followed
rehabilitation and reinte-
into
gration
society, rather than rote assessments
only
focused
on the child’s age
misconduct,
with the ultimate
of
goal
punishment. See
Hanning,
88-89,
D’Ambra,
St.3d
A
citing
Legal
to
Response
Juvenile
Why
Panacea,
Crime:
Waiver
Juvenile
Not
2 Roger
Is
a
Williams
of
Offenders
(1997); Kent,
U.L.Rev.
eliminating (“We whether, merits, at 554 not consider See Kent do rehabilitation. transferred; of law place system have but there is no our for Kent should been ceremony—without a tremendous without consequences result such reaching reasons”). counsel, without a without effective assistance statements hearing, For consideration of mandatory-transfer hearing, Ohio’s example, 102} {¶ not a calculation and does involve consideration simply mathematical All probable or that remains is cause youth’s maturity sophistication. finding offense. And mandatory-transfer-eligible that the child committed to believe process: duty a limited “while the court has to part this is done evidence to determine the state has credibility of the whether assess offense, it is not going credible evidence each element presented to assume scope hearing to exceed the limited of the bindover permitted A.J.S., the ultimate fact-finder.” role of unassailable, Additionally, the state’s evidence need not be
N.E.2d disprove has of the case. Id. at and the state no burden alternate theories ¶ 46, 61. of such perfunctory procedure of transfer as a result consequences court, has been transferred to adult
are indeed tremendous. Once offense. For prosecute mandatory-transfer-eligible example, need not state case, division to pleas Aalim the common court’s adult pleaded guilty in this robbery, the firearm Without specifications. but state dismissed aggravated court, subject not Aalim would have been specifications those Nonetheless, convictions adult court for offenses mandatory transfer. Aalim’s weight of adult mandatory no transfer carried longer eligible were and its collateral consequences. attendant punishment Thus, “process” attendant although majority heralds 104} {¶ statute, it does not hearing mandatory-transfer under Ohio’s superficial provided *28 “critically important” of a Supreme Court’s vision approach United States protections at faces deprivation which a proceeding with such “ceremony” required nor of decision system, provide does Kent, 560, 557, 554, 1045, at 86 S.Ct. 16 consequences. tremendous mandatory-transfer I would that Ohio’s Accordingly, L.Ed.2d 84. conclude for required standard comply does not fundamental-fairness proceeding juvenile-transfer proceedings. today recognize what majority’s Given the failure 105}
{¶ potential rehabilitative repeatedly regarding has held Court juvenile-transfer proceed- and the determination importance offenders Miller, court. 567 at implores high case a closer look See U.S. ings, this 522
478,
2455,
132 S.Ct.
350, 368, (1993) (“From 113 S.Ct. a moral standpoint it misguided would be to equate failings of a minor adult, with those of an for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, of youth ‘[t]he relevance as a mitigating factor derives from the fact that signature transient; qualities youth are mature, as individuals the impetu- ousness and that may ”). recklessness in younger years dominate can subside’ In the court, context of transfer to adult the Supreme Court has remained silent since Kent This fosters confusion as to what authority state legislatures have to mandatory-transfer enact statutes with limited or no process given the which, unclear standards for any, if procedural and protec substantive tions are entitled to prior court, to transfer to adult court. And this like (which all state courts handle almost all of the cases), nation’s criminal guidance need of given the paucity of constitutional guideposts and the dramatic increase the states’ use of mandatory transfer after Kent and Gault— that, transfers explained above, were preclude juveniles’ intended to rehabilita tion to allow for their punishment. harsher This is particularly given true the Supreme Court consistently has made clear over the last decade that in matters of punishment, we must at a minimum See, consider youth as a factor. e.g., 478; 68; Miller at Graham at at Roper 571. In so doing, the court has us, reminded repeatedly, that child’s is far “[a] ‘more than a chronological ” J.D.B., fact.’ U.S. quoting Eddings Oklahoma, “Indeed, L.Ed.2d court has seemed frustrated that it has repeatedly noted to us that minors are less mature responsible adults, than that they are lacking in experience, perspective, and judgment, and that they are more vulnerable and susceptible to the pressures of than peers are adults.” State v. Long, 138 Ohio St.3d 2014- Ohio-849, (O’Connor, C.J., concurring), citing J.D.B. at 274- I Although Aalim was solely decided the Ohio Constitution’s due- clause, I, see Aalim 150 Ohio St.3d 83 N.E.3d ¶ 25, 31, the majority eschews any distinction between our state Constitution and the United States Constitution for purposes Thus, of due-process analysis. today’s opinion ripe further review under the United States Supreme Court’s authority to define protections and limits of the federal Constitution. *29 (1914) Ordean, 779, L.Ed. 1363
See, Grannis v. e.g., (“the by the court of last resort of process whether the thus sanctioned question 14th within the Amend- process meaning constitutes due law the state decision, exercise an to this court for we must being properly presented ment it”). judgment independent upon
CONCLUSION to is requirement opportunity “A fundamental of due ‘the be at a time and in a meaningful It which be opportunity granted is must heard.’ Manzo, Armstrong manner.” meaningful hearing A there is no Grannis at 394. which
L.Ed.2d to rehabilitation and treatment juvenile’s amenability consideration to heard. Because the system meaningful opportunity is not juvenile-justice falls short of due mandatory-transfer Ohio’s statute process provided by limited I that it juvenile, fairness for would conclude is and fundamental unconstitutional. serious, that a who commits I do not notion quarrel 109}
{¶ to adult some proper or that transfer punished crime should be violent (1989) Watson, See, St.3d e.g., instances. State relinquish discretion to retain or juvenile-court judge’s that a broad (holding male with of a 15-year-old the transfer included discretion order jurisdiction school, psychiatric and no record, major issues disciplinary criminal no prior no limb). a tree But juvenile to death with he had beaten another disorder because a transfer statute is not authorized invalidate that this court suggestion separation the doctrines of not muster offends pass that does constitutional Here, balances, of our republic. both hallmarks powers checks that falls legislative one of those enactments mandatory-transfer statute are entitled majority’s ignores decision constitutionally short. The the role of and reduces arbitrarily deprived, that cannot be to a interest determine, among other people who are elected juvenile-court judges, reasons, and these to rehabilitation. For whether is amenable things, us, give I cannot countenance eyes its on” knowing “history has Miranda, “History Has Lin-Manuel See majority’s decision on reconsideration. You,” Broadway Recording). Cast (Original Hamilton Eyes Its On J., O’Neill, opinion. in the foregoing concurs
O’Neill,
J., dissenting.
*30
I
Respectfully,
dissent. For the reasons
in
explained my
{¶
dissenting
110}
Gonzales,
opinion in
State
{¶ Aalim I on history 112} and development of justice system’s treatment of children charged with criminal misconduct. Id. ¶at 14-24. Today, the majority abandons Aalim /’s acknowledgment that “children are constitutionally required to be adults,” treated differently from id. ¶at 25. Today’s ruling carves out an exception to that different treatment for 16- and 17-year-olds who commit serious crimes. inAnd process, discards the fundamental fairness that is due to the children who arguably most need of a special inquiry prior to being tossed into the adult criminal-justice system. era, In a bygone life, children were entitled not to liberty, or property merely
but custody.” Gault, “to In re (1967). Children were therefore treated by the state the way same that they of “the not receive the benefit and children did parents, their
are treated
of his
deprive
person
it seeks to
restrict
the state when
which
requirements
affairs,
leading
state of
often
This
to be
intolerable
liberty.”
proved
Id.
era, courts must
at 17-22.
In the modern
arbitrary results.
Id.
unfair and
“
to the essentials of due
up
that
‘measure
procedures
provide children
States,
Kent United
and fair treatment.’
Id.
1045, 16
L.Ed.2d 84
I,
form,
in its
was
the state
put
simplest
in Aalim
holding
Our
114}
{¶
every.person
to treat
juvenile-justice system
purports
cannot establish
*31
occurred,
2152.02(C), and
until transfer has
R.C.
of 18 as a “child”
under the
procedures
of transfer
protections
of those children the
deny
then
some
I,
adults.” Aalim 150 Ohio St.3d
in children versus
“account for the differences
¶
at 24-25.
83 N.E.3d
procedural
of both
grounded
principles
in Aalim I was
Our decision
“
procedural
‘such
process requires
Procedural due
due process.
and substantive
”
Eldridge,
Mathews
situation demands.’
particular
as the
protections
Brewer,
Morrissey v.
319, 334,
quoting
struck this from which the traditions as well as developed which it traditions from this Court which A decision of thing. a living That tradition is broke. radically survive, from it departs long could not while a decision which builds on what has likely survived is to be sound. I,
Id. In Aalim
we,
we recounted the numerous
ways which
as a self-aware and
ever-evolving society,
developed
have
new tradition:
recognition
463,
Aalim was issued December day From that until today, it has 2152.10(A) 2152.12(A) been the law of Ohio R.C. and are incompatible with the Fourteenth Amendment to the United States Constitution. I Aalim at 12- 2152.10(A) 2152.12(A) 26. On that day, we held that R.C. were not enforceable. Nothing changed has since that date other than the makeup of this court. reasons, For the I foregoing dissent. Jr., H.
Mathias Heck Montgomery County Prosecuting Attorney, and Andrew French,
T. Assistant Prosecuting Attorney, for appellee. Powell; Amanda J. Timothy Defender, Young, Ohio Public Charlyn n Bohland, Defender, Assistant Public appellant. O’Brien, Ron County Franklin Prosecuting Attorney, Taylor, and Steven L. Counsel, Division, Chief Appellate urging curiae, reconsideration for amicus Prosecuting Attorneys Association.