On Reconsideration: A Major Shift in Philosophy in Juvenile Jurisprudence? State v. Aalim, Part II.

On May 25, 2017, the Supreme Court of Ohio granted reconsideration in State v. Aalim, No. 2017-Ohio-2956, and this time has upheld the mandatory juvenile transfer statutes it struck down December 22, 2016, in State v. Aalim 2016-Ohio-8278.

Case Background

A complaint was filed in juvenile court against then 16-year-old Matthew Aalim, alleging that he was involved in what would be aggravated robbery if committed by an adult. The complaint included a firearm specification. The state moved to transfer Aalim to adult court pursuant to R.C. 2152.10(A)(2)(b) and 2152.12 (A)(1)(b). After having a hearing, the juvenile court found, per the statutory requirements, that Aalim was 16 at the time of the alleged offense and that there was probable cause to believe he had committed what was alleged in the complaint.  So, as is required by the statutes, Aalim’s case was automatically transferred to the general division of the common pleas court.

Aalim I

In Aalim I, by a vote of 4-3, the court held that 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. The court held that “the right to due process under the Ohio Constitution requires that all children have the right to an amenability hearing before transfer to adult court.”

These are the statutes at issue: (collectively, “the mandatory transfer statutes.”)

R.C. 2152.10(A)(2)(b)

Transfer for a child alleged to be delinquent is mandatory when the child is charged with a category two offense, was sixteen or older at the time of the commission of the offense, and the child had a firearm.

R.C. 2152.12(A)(1)(b)

Transfer is mandatory if the child is 16 or 17, and there is probable cause to believe the child committed the act charged.

Key Precedent

Ohio Constitution, Article I, Section 2 (guarantees for all people, as the source of political power, the equal protection and benefit of the law)

Ohio Constitution Article I, Section 16 (ensures access to courts for every person that has sustained an injury—to person or property—and ensures remedy through due course of law.)

Ohio Constitution, Article IV, Section 4(B) (grants exclusive authority to the Ohio General Assembly to define the jurisdiction of the courts of common pleas.)

United States Constitution, Fourteenth Amendment (No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.)

Washington v. Glucksburg, 521 U.S. 702 (1997) (In determining whether a substantive due process right exists courts must look at two factors, such rights may be established by either; (1) the history and tradition of the United States; or (2) the right must be inherent in the concept of ordered liberty.)

Lassiter v. Durham Cty. Dept. of Social Servs., 452 U.S. 18 (1981) (the Due Process Clause has never been specifically defined; rather, courts are concerned with the ‘fundamental fairness’ in dealing with the particular issues in a given case rather than applying a bright-line rule.)

United States v. Kent, 383 U.S. 541 (1966) (due process is satisfied when the juvenile court issues a decision and states the reasons for the jurisdictional transfer after considering numerous factors about the individual case, including, but not limited to: a full investigation of the case and a complete history of the child.)

Gregory v. Ashcroft, 501 U.S. 452 (1991) (the Supreme Court has repeatedly held that age is not a suspect classification which would demand a more rigorous level of scrutiny under the Equal Protection Clause.)

Mathews v. Eldridge, 424 U.S. 319 (1976) (procedural due process is satisfied after three factors have been met: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.)

In re Gault, 387 U.S. 1 (1967) (“[d]ue process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” Due process rights apply to children as well as to adults. )

In re D.M., 2014-Ohio- 3628 (holding that bindover hearings are critically important proceedings and must measure up to the essentials of due process and fair treatment under the law.)

State v. D.W., 2012-Ohio-4544 (juveniles should not be transferred to adult courts without a hearing, effective assistance of counsel, and a clear statement of reasons for the transfer.)

Reconsideration Granted

The court granted reconsideration in this case by a vote of 4-3, with Justices Kennedy, French, O’Donnell, and DeWine voting for reconsideration.  Justice Fischer, who had already declared earlier this year in State v. Gonzales, Slip Opinion No. 2017-Ohio-777, that he would not vote to grant reconsideration in a case he had not heard, joined the minority on this point.  But in Gonzales, Fischer also declared that if a majority voted for reconsideration, he would rule on the merits.  In Aalim II he joined the majority in upholding the mandatory transfer statutes, making the vote on the merits 5-2.  Justice DeWine also wrote a separate concurrence, in an opinion joined only by Justice O’Donnell.  Chief Justice O’Connor dissented, joined by Justice O’Neill, who also wrote a separate solo dissent.  We’ll look more closely at all of this.

What Did the Court Miss on Round One?

Reconsideration is supposed to be based on a new fact or legal argument that the court failed to consider the first time.  The justices disagree on this point in this case.

According to the majority, the court failed to consider the “General Assembly’s exclusive constitutional authority to define the jurisdiction of the courts of common pleas under Article IV, Section 4(B) of the Ohio Constitution.”

According to footnote 2 of Chief Justice O’Connor’s dissent, that argument was raised during the oral argument of the case, (and the blog agrees) making reconsideration unwarranted here.   And Justice Kennedy did address this in her dissent in Aalim I in paragraphs 39 and 40.

Due Process and Equal Protection

Aalim I was decided strictly on due process grounds, under Article I, Section 16 of the Ohio Constitution, which is Ohio’s Due Course of Law Clause, the equivalent of the federal Due Process Clause.  Although Aalim also made an equal protection challenge in that case, the majority did not consider it.  Both are analyzed on reconsideration.

Substantive or Procedural Due Process in Aalim I?

The majority decision in Aalim I never expressly uses the term “substantive due process” in its analysis or its holding.  The majority held that juveniles are entitled to fundamental fairness, further explaining that fundamental fairness may require additional procedural protections for juveniles.

“We now recognize that because children are constitutionally required to be treated differently from adults for purposes of sentencing, juvenile procedures themselves also must account for the differences in children versus adults,” Lanzinger wrote.

Of the writing justices in Aalim II, Justices Kennedy and O’Neill see Aalim I as grounded in both substantive and procedural due process (Justice French clearly thinks so too, as her dissent in Aalim I is particularly instructive on this point); Justice DeWine, now joined by Justice O’Donnell, sees Aalim I as a muddled and misguided substantive due process standard incorporated into the Ohio Constitution, while Chief Justice O’Connor sees Aalim I as premised on procedural due process.

Reconsideration: The Roadmap

Aalim’s Arguments

Due Process

  • Fundamental fairness requires that all juveniles get a chance to show a capacity for change.
  • Youth must always be considered a mitigating, not an aggravating, factor.
  • The irrebutable presumption of transfer is fundamentally unfair.
  • Juveniles have a substantive due-process right to have their youth and its attendant characteristics taken into account during a bind-over proceeding.

Equal Protection

  • The mandatory transfer statutes create classes of similarly situated juveniles who are treated different based solely on their ages.
  • Juvenile status is a suspect class for purposes of equal protection analysis.
  • Age-based distinctions in the mandatory transfer statutes are not rationally related to the purpose of juvenile delinquency proceedings.

State’s Response

  • Mandatory transfer statutes provide all constitutionally required procedural safeguards and meet procedural due process.
  • There is no substantive due process right to an amenability hearing.
  • There is no fundamental right implicated here, and the mandatory transfer statutes are rationally related to a legitimate government interest.

Why Was Aalim Automatically Transferred to Adult Court?

Because of his age, and the type of offense committed.  The firearm specification also made transfer mandatory.


First, A Little Dig at Prior Takes on the New Judicial Federalism?

Justice Kennedy takes the opportunity to state that the court has long considered the protections of its Due Course of Law Clause to be co-extensive with the Due Process Clause of the 14th Amendment of the U.S. Constitution.  Now-retired Justice Lanzinger, who wrote the majority decision in Aalim I solely on state due course of law grounds, was inclined to find greater protections under the Ohio due course of law provision, as she also did in State v. Bode, 2015-Ohio-1519, for example—a position Justice French, now in the majority on this point, seriously challenged.

Substantive Due Process

In Aalim II substantive due process is clearly addressed. Justice Kennedy disposes of the substantive due process claim in short order. She mostly distills what Justice French wrote more extensively in her dissent in Aalim I.

As Kennedy notes, substantive due process has been limited to protection of those fundamental rights and liberties deeply rooted in “this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” and generally protects against government intrusion into private conduct like sex between consenting adults, the right to use contraception, and the right to marry and to raise children. To her, the right to an amenability hearing just doesn’t rise to that level, either historically, or substantively.

Turning next to procedural due process, Kennedy begins with the often stated point that due process is a flexible concept that varies depending on what is involved. So, fundamental fairness is contextual. She observes that the Supreme Court of Ohio has never “explicitly articulated what ‘fundamental fairness’ means in a juvenile proceeding.”

U.S. v. Kent

The majority and dissent disagree over the significance of this case, decided in 1966, in which the U.S. Supreme Court determined that due process principles applied to juveniles, and addressed what was necessary to satisfy due process in the bindover context.

Chief Justice O’Connor takes the position that Kent requires that the juvenile court judge make an individualized assessment, based on a complete investigation and consideration of the entire history of the juvenile involved, before transferring the juvenile to adult court.

The majority takes the position that Kent was based on the unique requirements of the particular statute involved, and was not a vehicle to apply all adult constitutional guarantees to juveniles.  The majority also emphasizes that under Article IV, Section 4(B), the General Assembly determines the jurisdiction of the juvenile court, and has made the decision that juveniles of a certain age charged with certain crimes will be bound over to adult court.

Bottom Line of Majority Decision on Due Course of Law and Due Process

Aalim had a hearing. He was represented by counsel and a parent was present. He had all the protections juveniles have been given at that hearing—the right remain silent, to present evidence, to cross examine witnesses, and to notice of the charges against him. The judge determined his age and that there was probable cause to believe that he had committed the conduct alleged in the complaint.  Only then was he transferred to adult court.  That’s good enough.

Equal Protection

Juveniles are not a suspect class. So that means rational-basis review. Rational basis review means great deference to the General Assembly.  The legislature determined that between 1965 and 1990, juvenile arrests for violent crimes skyrocketed.  So the legislature decided to get tough on older juvenile violent offenders, by allowing the most serious juvenile offenders to be prosecuted in a court where there are harsher punishments.  So the mandatory bind-over statutes are rationally related to the legitimate state interest of increased punishments for serious juvenile offenders.  No equal protection violation.

Bottom Line, Majority Opinion

Mandatory transfer statutes comport with due process and equal protection under both the Ohio and U.S. Constitutions.

Justice DeWine’s Separate Concurrence

Justice DeWine believes reconsideration was warranted in this case because he thinks Aalim I was analyzed incorrectly.  He also takes issue with the court’s application of the Due Course of Law Clause of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment. He uses his separate concurrence to set forth what he thinks is the proper way to analyze procedural and substantive due process, and along the way, sharply criticizes retired-Justices Pfeifer and Lanzinger, authors of In Re CP, 2012-Ohio-1446, and Aalim I, respectively, for muddling the two:

“Quite a feat: in C.P., the court takes a procedural due process standard and transforms it into a substantive one; in Aalim I, that substantive due-process standard is transplanted into the Ohio Constitution. Fortunately, our rules provide us an opportunity to reconsider that decision.”

Because the challenge to the mandatory transfer statutes is a challenge to a generalized legislative determination, DeWine sees it as a substantive due process challenge, and he sees no constitutional violation, state or federal.   He notes, as did the majority opinion, that at the time the Due Course of Law Clause was adopted, there were no juvenile courts in Ohio, so there is no deeply rooted tradition mandating that a juvenile receive an amenability hearing.  Noting the troubled history of federal substantive-due-process-challenges, he urges the court to “step back from the addition of this new substantive-due-process standard of fundamental fairness to the Ohio Constitution.”

“Fundamental fairness makes perfect sense as a procedural standard,” wrote DeWine. “But to transform fundamental fairness into a substantive standard simply invites courts to substitute their policy preferences for those of the legislature without any standards to guide such a task. It may well be a good idea to end all mandatory bindovers. But it is not our call to make.”

Justice O’Donnell joined this concurrence.

Chief Justice O’Connor’s Dissent

The Chief wrote a passionate 24 page dissent, joined by Justice O’Neill. Here are some of her key points. Gloves are off:

“The majority blindly affirms the constitutionality of the mandatory-transfer statute’s process without even a perfunctory analysis of its due-process implications…. But make no mistake: the court’s decision approves the arbitrary deprivation of access to the juvenile system and what should be the sine qua non of juvenile-transfer hearings—the determination whether the juvenile is amenable to rehabilitation. The majority does so by affording blind deference to the legislature, ignoring the requirements of due process and fairness, and artificially constraining the United States Supreme Court’s commands that we must consider juvenile offenders differently than adult offenders.” (citing recent cases on sentencing of juvenile offenders.)

Taking On The Separate Concurrence

The Chief clearly sees Aalim I as a procedural due process decision.  She expressly says so in footnote 6. Going further, she find the concurrence “unpersuasive on its merits,” and its characterization of the procedural due process standard “flawed,” particularly the statement that “when the legislature passes a law of general application, there is no question about the adequacy of the procedures; the legislative process provides all the process that is due.” The Chief’s rejoinder—“This statement is remarkably overbroad and offered without any context.”

 Juvenile Courts

Ohio has had juvenile courts since 1937. So, children charged with violations of the criminal law have a statutory right to be dealt with by judges with expertise in this system. Juvenile courts have different objectives from adult court.  Adjudications are civil.  The state’s role is one of parens patriae.  Rehabilitation is key.  Juveniles are misguided and immature, but they are capable of change and worthy of redemption.

Separation of Powers

If the legislature overreaches and tries to restrict the constitutional protections owed to juveniles, it is the job of the courts to restore these.

“But the suggestion that this court is not authorized to invalidate a transfer statute that does not pass constitutional muster offends the doctrines of separation of powers and checks and balances, both hallmarks of our republic,” wrote O’Connor.

Procedural Due Process

Merely having to decide the child’s age and whether he or she has committed a mandatory-transfer-eligible offense is not good enough to vindicate a child’s significant liberty interest in retaining juvenile status. Additionally, mandatory transfer does not comport with fundamental fairness for juveniles at risk of being deprived of a liberty interest.

O’Connor sharply takes issue with the majority for failing to consider the balancing test applicable for determining what process is due to a juvenile at a mandatory-transfer hearing. Here is the framework that should have been applied, as established in Mathews v. Eldridge:

1. The private interest that will be affected by the official action. It is undisputable that a child’s liberty interest in retaining juvenile status is substantial. Child offenders in adult court receive harsher sentences, and face numerous collateral consequences of conviction. They also have higher recidivism rate.

2. The risk of an erroneous deprivation through the process offered. High. Under the mandatory-transfer statutes, the judge decides almost nothing. The judge is not allowed to consider mitigating evidence like mental illness, emotional or psychological immaturity, duress, or whether the child is amenable to rehabilitation, which is supposedly the whole point of the juvenile justice system.

3. The government’s interest, including costs and administrative burdens. Virtually nil.  And any burdens to the state are outweighed by the child’s liberty interest involved.

Bottom line here: mandatory-transfer statutes are fundamentally inadequate and unconstitutional.

Fundamental Fairness and the Kent case

The Chief firmly believes this is the applicable due process standard in juvenile proceedings, as developed by the seminal case, In Re Gault. It’s pretty clear Justice Lanzinger did as well.  O’Connor also clearly sees Kent, which dealt with a juvenile court judge’s decision to waive the jurisdiction of juvenile court, as instructive.  As indicated above, she and the majority differ on the import of Kent.

The Chief sees Kent as grounded on the origins and purpose of juvenile court, which “has emphasized individualized assessment of the juvenile followed by rehabilitation and reintegration into society, rather than rote assessments focused only on the child’s age and misconduct, with the ultimate goal of punishment.”  Just deciding whether the child is 16 or 17 and has committed a mandatory-transfer-eligible offense is just ministerial.  That doesn’t fit with the parens patriae role. It’s just not enough.  As Kent put it, “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statements of reasons” (emphasis added).

And finally, yes, the juvenile punishment cases from the U.S. Supreme Court are relevant here. The mandatory transfer statutes are part of Ohio’s get-tough approach to crimes committed by juveniles.  At oral argument, the state asserted that the transfer to adult court was all about punishment, so that precedent is totally relevant.

This Case Needs to Go to the U.S. Supreme Court

Want to know how many times the Chief suggests this? Five.

{¶ 60} “Given the importance of the constitutional issue before us, and the Supreme Court’s silence on the constitutionality of juvenile-transfer statutes since its decision more than 50 years ago in United States v. Kent, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), today’s majority opinion warrants discretionary review by the United States Supreme Court.”

{¶ 75} “Given the paucity of precedent concerning juvenile-transfer statutes, this case will offer the United States Supreme Court the opportunity to provide further guidance in this area.”

{¶ 105} “Given the majority’s failure today to recognize what the Supreme Court has repeatedly held regarding the rehabilitative potential of juvenile offenders and the importance of that determination in juvenile-transfer proceedings, this case implores a closer look by the high court.”

{¶ 106} “And this court, like all state courts (which handle almost all of the nation’s juvenile criminal cases), is in need of guidance given the paucity of constitutional guideposts and the dramatic increase in the states’ use of mandatory transfer after Kent and Gault—”

{¶ 107} “Thus, today’s opinion is ripe for further review under the United States Supreme Court’s authority to define the protections and limits of the federal Constitution.”

The last time I remember the Chief feeling so strongly about a case needing to go to the U.S. Supreme Court was with Ohio v. Clark, a case in which she urged the prosecution to take the case up. It did, and her position was vindicated.  This time she is urging the defense to do so.

Justice O’Neill’s Dissent

First, O’Neill posits, as he did in Gonazles, that reconsideration should not have been granted because there was nothing new to reconsider, and the only change was the make-up of the court.

O’Neill sees the essence of Aalim I as the determination by the court that  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 [R.C. 2152.12(B)] is required to satisfy that fundamental fairness.”

He describes the requirements of the mandatory transfer statutes as “a formulaic solution to a complex problem.” He accuses the majority of abandoning the idea that children are constitutionally required to be treated differently from adults.

Substantive and Procedural Due Process

O’Neill sees Aalim I as being grounded in both substantive and procedural due process.

As for the procedural aspect, O’Neill would find that a transfer hearing cannot be meaningful without the procedures found in the discretionary-transfer provisions for juveniles (which were upheld in Aalim I).  Those procedures take into account amenability to rehabilitation within the juvenile justice system.

O’Neill sees the substantive due process component as the recognition of a child’s liberty interest in being recognized and treated as a child, finding that Aalim I was “the expression of our social conscience.”  He criticizes the majority for its literal, cramped historical-only view of substantive due process.

Concluding Observations

It was pretty apparent that a motion for reconsideration that was filed in early January, but still undecided by the end of May was going to result in some kind of dramatic reversal. So the fact that Aalim I was reversed is not surprising, but it is, to me, disturbing.  I agree with the dissenters that nothing new was argued that wasn’t argued the first time.  Has the court now changed the bases for reconsideration?

I am completely with Chief Justice O’Connor on this one. I confess that I, too, originally read Aalim I strictly as a procedural due process case.  I find substantive due process to be a murky undertow. But now, after studying it some more, and talking with one of my constitutional law colleagues, I can see that Aalim I probably contains aspects of both, although I still see it as mostly procedural.  As for substantive due process, I just didn’t buy Justice DeWine’s take on it.

To me, though, key is what Justice Lanzinger wrote in the first place—that fundamental fairness may require additional procedural protections for juveniles. I don’t know where to “slot” fundamental fairness, but I certainly agree with that. To me, requiring the juvenile court judge to decide nothing except age and whether there is probable cause to believe a mandatory-transfer-eligible offense has been committed hardly meets any kind of due process.  And I can see a liberty interest in maintaining status as a juvenile, especially given the recent juvenile sentencing decisions from the U.S. Supreme Court. I think those are highly relevant to these mandatory transfer proceedings–a position with which the new majority disagrees.

And of course the Supreme Court of Ohio has the right—indeed the obligation—to strike down any unconstitutional statute regardless of Article IV, Section 4(B).

It is worth remembering in all of this that even with an amenability hearing, a juvenile can still be transferred to adult court. And if, as the Chief suggests, these statutes are out of step with the times, they could also be repealed, leaving discretionary transfer as the only option. One can naively hope.


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