Commentary: On Reconsideration: What’s Up With State v. Aalim?

Update: On May 25, 2017, the Supreme Court of Ohio granted reconsideration in this case, and reversed it.  Read the analysis of the new merit decision here.

At the end of December of last year, facing the upcoming retirement of Justices Pfeifer and Lanzinger, the Supreme Court of Ohio really cranked out some major decisions. One of those was State v. Aalim, 2016-Ohio-8278, decided December 22, 2016. In a 4-3 opinion written by Justice Lanzinger, the court struck down, on due process grounds under the Ohio Constitution, the mandatory transfer of juveniles to adult court. Joining the majority opinion were Chief Justice O’Connor and Justices Pfeifer and O’Neill.  Justices Kennedy, French and O’Donnell all dissented over the majority position that the mandatory transfer statutes were unconstitutional. Read an analysis of that merit decision here.

This is the case syllabus:

  1. The mandatory transfer of juveniles to the general division of common pleas court violates juveniles’ right to due process as guaranteed by Article I, Section 16 of the Ohio Constitution.
  2. The discretionary transfer of juveniles 14 years old or older to the general division of common pleas court pursuant to the process set forth in R.C. 2152.10(B) and 2152.12(B) through (E) satisfies due process as guaranteed by Article I, Section 16 of the Ohio Constitution.                                                                                                                               

Aalim was a blockbuster decision in the area of juvenile law. On January 3, 2017, the state filed a motion for reconsideration in this case. The court has stayed the execution of its holding striking down the mandatory transfer statutes, which the blog hears is creating turmoil around the state. The Ohio Prosecuting Attorneys’ Association filed a memorandum as amicus in support of reconsideration (an amicus cannot request reconsideration directly).

Obviously Justices Lanzinger and Pfeifer cannot rule on the motion for reconsideration in Aalim, since they retired December 31. So newly elected Justices DeWine and Fischer, whose terms began in January, are being asked to rule on this motion for reconsideration in a case they did not hear.  This isn’t the only such case. On December 23, 2016, in State v. Gonzales 2016-Ohio-8319, (Gonzales I) the court decided by a vote of 4-3, with Justice Kennedy concurring in judgment only, that in prosecuting cocaine offenses involving mixed substances, the state has to prove the weight of the actual cocaine without any filler. Justice Lanzinger wrote the majority opinion, which Justices Pfeifer and O’Neill joined. And yet, despite the fact that Justices DeWine and Fischer had not heard the original case, the current court granted reconsideration in the case. On March 6, 2017, in State v. Gonzales 2017-Ohio-777, (Gonzales II) the court reversed itself, now holding that filler can be used to prove the cocaine offenses.

What is very clear from the Gonzales cases is that our two newest justices see granting reconsideration in a case they didn’t hear very differently. In Gonzales, Justice DeWine voted for reconsideration; Justice Fischer against, although once a majority ruled to reconsider, Fischer then felt obligated to consider the merits, and joined the majority. Here’s what each said:

Justice DeWine:

“A case wrongly decided in late December 2016 is still a case wrongly decided. The state filed its motion for reconsideration on January 3, 2017—to the current court—in accordance with the rule. It is the duty of this court to address the motion. And a majority of this court determines that State v. Gonzales, __ Ohio St.3d__, 2016-Ohio-8319, ___ N.E.3d ___, is fundamentally flawed. Far better for the administration of justice in Ohio to correct that erroneous holding now than to put off the task for a future case. Reconsideration exists for a very good reason; we should not employ it lightly, but we neglect our duty if we do not employ it to right wrongs when necessary.”

Justice Fischer:

“This court issued a number of decisions at the end of 2016 in which motions for reconsideration were not ripe for review until after the beginning of this year. The timing of these motions places this court in the unusual position of being asked to put itself in the shoes of the previous court to determine whether that court erred in its deliberations to the extent that its decisions need to be corrected. Recognizing that I was not privy to the previous court’s deliberations and respecting the precedent established by that court’s decisions, I have voted to deny all motions asking this court to reconsider decisions issued before I took my seat on the bench.

“Because this court grants the motion for reconsideration in this case, a new question arises that is separate and distinct from the question whether I should vote to grant reconsideration in a case decided by this court before I joined it: once a majority of the court has decided to grant reconsideration in such a case, should I participate in a decision on the merits of that case? I believe that it is my duty to do so.” Fischer then went on to explain why he felt as he did, and then joined the new majority in overturning the previous decision on the merits.

Ok, now back to Aalim.

The U.S. Supreme Court has held, in Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina, that “For all its consequences, ‘due process’ has never been, and perhaps can never be, precisely defined,” and is an “uncertain enterprise.” The key is fundamental fairness, which is clearly contextual. Reasonable minds can differ on what due process entails in different contexts. The majority in Aalim found that “all children are entitled to fundamental fairness in the procedures by which they may be transferred out of juvenile court for criminal prosecutions” and that the “one-size-fits-all approach” of the mandatory transfer statutes doesn’t cut it.  Just because the state has a different interpretation of due process doesn’t make it suddenly right. The state made its argument, and persuaded three justices, but not four. Just because there are new justices on the court shouldn’t give the state another chance at the same argument.

The state argues that “In the end, an attendant consequence of this Court’s decision is to judicially-repeal a legitimate act of the Ohio General Assembly to help fight and reduce violent crime, solely to achieve what a majority of this Court thinks would be a more “fair” system of laws.” Hold on a sec. Isn’t it the responsibility of the courts to strike down laws that are unconstitutional? Is the state saying there should be no judicial review of lawmaking in the area of criminal justice and public safety? And it’s not as if Aalim and other juveniles have been “saved” from being sent to adult court, or put right back out onto the streets to do more harm. It’s just that under the court’s ruling, the juvenile judge has been given the discretion to decide whether or not Aalim and others similarly situated are amenable to the care and rehabilitation offered in the juvenile system.  If not, Aalim could and will still be bound over to adult court.

The bar for a motion for reconsideration is very high. Such motions are rarely granted, and properly so. Reconsideration is supposed to call to the court’s attention an obvious error in the decision or any issue that was not properly considered. According to the Supreme Court’s own rules of practice, it is not to be a re-argument of the case. It is definitely not to be a second bite at the apple, just because the moving side lost the first time. It is clear that the state and its amicus are very unhappy with the majority decision in Aalim. But it looks to me like their points on reconsideration were very strongly argued initially, and got plenty of play in the dissents in the decision.  For example, in dissent, Justice Kennedy wrote:

“The question whether a juvenile offender of the kind described in R.C. 2152.12(A)(1)(b) is amenable to care or rehabilitation within the juvenile system does not implicate fundamental fairness. It is a policy decision that is firmly in the hands of the General Assembly…By elevating a juvenile’s statutory right to an amenability hearing under R.C. 2152.10 and 2152.12 to a constitutional right mandated by Article I, Section 16, the majority will allow this court to invalidate any statutory or procedural rule that four members of this court believe is unfair.”

And Justice French wrote:

“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.”

French also makes it very clear that the majority was wrong to rely  on Eighth Amendment sentencing decisions in this due process context—a point much emphasized in the amicus memorandum as one of the bases for reconsideration.

It’s clear that there is a major philosophical disagreement here. But it has already been hashed out and decided. That, and an intervening election of two new members of the court, should not be the basis for reconsideration.

If reconsideration is granted in Aalim, (which will require Justice DeWine’s vote if all the original dissenters agree to grant it, since Justice Fischer has said he wouldn’t grant reconsideration if he didn’t hear the case ), and the holding is reversed, it could signal the end of a long line of cases providing special protections for juveniles, an issue Chief Justice O’Connor cares about very much.

Just sayin’.

 

 

 

 

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