“While we continue to characterize juvenile proceedings as civil rather than criminal in nature…the criminal aspect of delinquency proceedings is undeniable.”
Justice Kennedy, majority opinion.
“Today’s majority decision reinforces the criminal aspects of juvenile proceedings, not for the purpose of safeguarding a juvenile’s constitutional rights, but to limit appellate review of juvenile proceedings. The exercise is misguided and ultimately, intended or not, serves to further limit the efficacy of the juvenile-justice system in rehabilitating child offenders.”
Chief Justice O’Connor, dissenting opinion.
On September 13, 2017, the Supreme Court of Ohio handed down a merit decision in State v. Morgan, Slip Opinion No. 2017-Ohio-7565. The issue in the case is whether a juvenile court committed reversible error when failing to appoint a guardian ad litem (“GAL”) for an amenability hearing, and whether the failure to do so affected the outcome of the proceedings. The court issued a split decision in this case. Justice Kennedy authored the majority opinion for the court, joined by Justices O’Donnell, DeWine and Fischer. Chief Justice O’Connor dissented, joined by Justices French and O’Neill. The case was argued February 8, 2017.
Raymond Morgan, then aged 16, went on a two-day crime spree during which three victims were shot. The state filed three separate delinquency complaints against Morgan in juvenile court, and moved to transfer all three cases to the general division of the court of common pleas.
Morgan’s father was dead, but his mother was present at several of the proceedings. At one of the probable-cause hearings in which the state had asked for a continuance, Morgan requested a new lawyer, but the court refused. When the probable-cause hearing took place, Morgan stipulated that there was probable cause that he had committed the charged offenses, and the judge ordered a social and mental health evaluation and scheduled an amenability hearing. Morgan’s mother was present at this hearing.
Barbara Bergman, PhD, conducted an evaluation of Morgan, and did have the chance to interview Morgan’s mother, who died after that interview. Dr. Bergman concluded that Morgan had a high degree of amenability to rehabilitation in the juvenile system, and that his likelihood of future violence was low.
On October 24, 2012, the court held an amenability hearing. The state presented numerous reasons in support of bindover. Morgan’s lawyer argued against bindover, relying on Dr. Bergman’s report, and informed the court of the recent death of Morgan’s mother. Morgan’s lawyer also identified a “godsister” of Morgan’s in the courtroom. Neither Morgan nor his lawyer asked for the appointment of a GAL. The judge concluded that of the nine statutory factors in favor of bindover, four existed in Morgan’s case, while none of the factors weighing against transfer were present.
Morgan was transferred to adult court, where he was charged with thirteen criminal counts. He pled guilty to one count of burglary, two counts of felonious assault, and one count of robbery, with accompanying firearm specifications. He was sentenced to a total of 18 years in prison.
Morgan appealed, arguing that the juvenile court committed plain error when it failed to appoint a GAL for his amenability hearing. The Tenth District Court of Appeals agreed that it was error to fail to appoint a GAL, but held that a showing of prejudice was required, and Morgan had failed to show prejudice. The case was reversed and remanded on sentencing issues unrelated to this appeal.
R.C. 2151.281(A)(1) (“The court shall appoint a guardian ad litem . . . to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when . . . [t]he child has no parent, guardian, or legal custodian.”)
Ohio Juv.R. 4(b)(1) (If a child is without parents or a legal guardian, then the court must appoint a GAL.)
Crim.R. 52(B) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”)
R.C. 2152.01 (Stating the purpose of juvenile dispositions, which the legislature amended to include “protect[ing] the public interest and safety.”)
Ohio Sup. R. 48(D) (Describing the guidelines for guardians ad litem (“GAL”), including a requirement on the GAL to represent the “best interest” of the child even if incongruent with the expressed interest of the child. It is also necessary for the GAL to make an independent factual investigation upon which a recommendation is made to the court in accordance with the best interest of the child.)
United States v. Atkinson, 297 U.S. 157, 159 (1936) (The plain-error doctrine is based on “considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.”)
Cope v. Campbell, 175 Ohio St. 475 (1964) (Juvenile proceedings are civil in nature.)
Kent v. United States, 383 U.S. 541, 562 (1966) (Children, like adults, are entitled to “due process and fair treatment.”)
Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102 (1971) (Absent a “clear and unequivocal legislative intent” to the contrary, “shall” should be construed as a mandatory requirement.)
Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279 (1993) (“When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue.”)
Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997) (Plain error review as applied to civil cases is disfavored, and must be limited to “extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.”)
State v. Barnes, 94 Ohio St.3d 21 (2002) (Plain error requires a three-prong showing: (1) an error, (2) that was “plain” or “obvious,” and (3) that this error affected “substantial rights,” and therefore, affecting the outcome of the proceedings. These errors should only be recognized in order to “prevent a manifest miscarriage of justice.”)
State v. Rogers, 2015-Ohio-2459, ¶ 24 (“We have never recognized the hybrid type of plain error . . . that is presumptively prejudicial and is reversible error per se.”)
In re D.S., 2016-Ohio-7369 (Kennedy, J., concurring in the judgment) (In a prior juvenile case involving a juvenile’s admission of guilt, Justice Kennedy applied criminal plain-error to a mutual mistake of law, which caused a “manifest injustice,” without considering whether this error was outcome determinative.)
Here’s the Breakdown, and the Executive Summary
All seven justices agreed that R.C. 2151.281(A)(1) and Juv.R 4(B)(1) require the appointment of a GAL at an amenability hearing for a juvenile whose parents are deceased, and the juvenile is not required to ask for one. And all seven agreed that the failure to appoint one in this case was error. But the court split 4-3 on the standard of review for failure to appoint a GAL in this circumstance, and whether plain error was demonstrated in the case. The majority found that when a juvenile fails to object, the error is subject to criminal plain-error review, and must therefore show that the error affected the outcome of the proceedings. In this case, Morgan failed to make such a showing, so the court of appeals was affirmed on different grounds. The dissenters take issue with a criminal plain error standard review in what have long been held to be civil proceedings. They would find that failure to appoint a GAL here meets the civil plain error standard, and would vacate Morgan’s conviction and remand to the juvenile court for a proper amenability hearing after the appointment of a GAL.
Appointment of a GAL
Morgan had argued that in the absence of a parent or equivalent, a child does not need to request a GAL at a juvenile court proceeding. While the majority determined that argument was too broad, the court did agree that where, as here, the juvenile has no parent, guardian, or legal custodian (and all the justices agreed the “godsister” present at one of the hearings was not an equivalent) the appointment of a GAL at an amenability hearing is mandatory, whether the juvenile requests one or not. There is no burden on the juvenile to make such a request.
All Agree Plain Error Occurred Here
Morgan had argued that if the court agreed that plain error applied, then prejudice must be presumed from the failure to appoint a GAL here. While all the justices agreed that plain error occurred in this case, a significant difference between the majority and the dissent is in the proper plain-error standard of review that should be applied.
Matter of First Impression: Civil versus Criminal Plain Error
The majority acknowledges that the court has never addressed the question of whether plain-error review should be applied in juvenile-delinquency proceedings the same way it is applied in criminal or civil proceedings. According to Morgan, civil plain error focuses on the impact on the fairness of the proceedings, while criminal plain error focuses on the impact on the outcome of the proceedings. The appeals court applied a civil plain-error standard of review, which the majority rejects.
The rules of criminal procedure, specifically Crim.R. 52 (B) addresses plain error, while there is no equivalent in the rules of civil procedure. Both are to be used with the utmost caution, in rare cases.
Majority Applies Criminal Plain-Error Standard of Review Here
Yes, the court has long held that juvenile proceedings are civil, not criminal in nature. But since Kent and In Re Gault, the U.S. Supreme Court has determined that juveniles must be afforded many of the same protections as adult criminal offenders. And the Ohio General Assembly and the Supreme Court of Ohio have followed suit.
Justice Kennedy noted that when the legislature amended R.C. 2152.01, it added protecting the public interest and safety, and holding delinquents accountable to the purposes of delinquency dispositions. The majority concludes that applying the civil plain error standard set forth in the syllabus of Goldfuss to a juvenile delinquency case is incompatible with the legislative purpose of R.C. 2152.01. The majority finds the civil standard too burdensome:
“The protection of individual liberty should never depend on an individual’s ability to prove that the error affected the fairness of the whole judicial process in order to seek redress. That is too great a burden to bear,” wrote Kennedy.
Final Step for the Majority: Morgan Fails to Show Outcome Affected
Ok last step. Morgan argued that there is no burden on the juvenile to prove prejudice when the court failed to appoint a GAL. The majority disagrees, and declines to recognize a “presumed prejudicial plain-error standard.”
What does that mean here? Morgan had the burden of proving that the error (failure to appoint the GAL) would have affected the outcome of the proceedings, namely that he would not have been bound over to adult court. And the majority found that Morgan failed to do so. In making that finding the majority emphasized that Morgan had been represented by counsel at all stages of the bindover process, that counsel had advocated against bindover and emphasized Dr. Bergman’s findings in favor of staying in juvenile court, and admitted that some of the information a GAL would have provided at the amenability hearing would have been duplicative. Finally, the majority noted that Morgan never argued his counsel was ineffective in arguing against bindover.
Chief Justice O’Connor, writing for the dissenters, first took issue with the fact that the majority used this case to find that the criminal plain error standard applies to unpreserved errors in juvenile delinquency proceedings when no one had raised this issue. While the majority acknowledged that neither party had addressed the issue directly, Justice Kennedy determined the resolution of the issue was necessary, citing Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., for the proposition that “[w]hen an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue.” The dissenters clearly disagree.
The Chief faults the majority for using a standard that is impossible to meet—proof that the outcome of the amenability hearing would have been different:
“The majority faults Morgan for speculating about the outcome if a court had approved a GAL, stating that “speculation cannot prove prejudice,” majority opinion at ¶ 53, before concluding, based on its own speculation, that a GAL would not have changed the result of the hearing. This approach sets the bar so high that it is difficult to imagine a successful plain-error challenge to a court’s failure to appoint a GAL,” O’Connor wrote.
The Chief made a number of other points in her dissent. She strongly disagrees with applying an adult criminal plain error standard in this, or other aspects of juvenile-delinquency proceedings, noting that Crim R. 52(B) has no analogue in the juvenile rules, and there is no adult equivalent to an amenability hearing. She emphasized again the difference in roles between a GAL and a child’s lawyer, noting specifically that it is the job of the GAL to protect the child’s interest. So, if there is no GAL, it cannot be presumed that the court has considered the child’s best interest. And here is it impossible to know how a judge’s considerations might be affected by what a GAL would have to say—there is just no way of knowing, and asking Morgan to prove otherwise “raises serious fairness concerns.”
The Chief reiterates her view that juvenile court proceedings are civil in nature and any criminal law protections are just that—protections. The dissenters would find that this is one of the rare cases that meets the civil plain error standard, where the error “seriously affected the basic fairness, integrity, and reputation of the judicial process.”
I thought Morgan would win this case. It was quite obvious that failure to appoint a GAL was error, but I thought prejudice was obvious here, too. A majority didn’t. And of course there was no way to predict application of a criminal plain-error standard of review. While each side accuses the other of a standard that is impossible to meet, I think the dissenters have the better view on that.
I think it is fair to say that a seismic shift in the court’s juvenile jurisprudence is occurring. The old juvenile-protection-friendly coalition of Justices Lanzinger, Pfeifer, O’Neill and the Chief is being replaced by a far less juvenile-friendly bloc of Justices O’Donnell, Kennedy, DeWine and Fischer. While Justice French did not join the majority in this case, I think she leans more often toward what I will call the conservative bloc on these juvenile protection issues. She went with the conservative bloc when Aalim was reconsidered in State v. Aalim, Slip Opinion No. 2017-Ohio-2956, joined Justice O’Donnell’s dissent in the sentencing enhancement decision in State v. Hand, 2016-Ohio-5504, and joined the dissenters with her own separate dissent in State v. Moore, 2016-Ohio-8288 about sentencing juvenile non-homicide offenders. But the right argument on due process, particularly fairness in the proceedings, (the trick of course is to figure out what that right argument is) is very much in her wheelhouse, and she joined the Chief in the dissent here.