[213]*213On Rehearing
T. M. Kávanagh, C. J.
In December, 1968 the Circuit Court of Washtenaw County ruled that MCLA 712A.4; MSA 27.3178(598.4), allowing the probate court to waive jurisdiction over certain juveniles, thus allowing them to be tried as adults, was not unconstitutional. The Court of Appeals, upon remand from this Court, upheld this decision. 30 Mich App 390; 186 NW2d 15 (1971). This Court granted leave and entered a decision reversing these lower courts. 388 Mich 66; 199 NW2d 217 (1972). Rehearing was granted and the case was again before us for decision. Justices Black and Adams each circulated proposed opinions. Before final decision, the terms of Justices Black and Adams on the Court expired.
On January 22, 1973, on the Court’s own motion, the Court granted rehearing without oral argument and upon the briefs previously filed. We hereby adopt the opinion of Justice Adams, circulated November 20, 1972. This author has added footnotes 3 and 4 to bring the opinion to date and has changed the wording in the third sentence from the end on page 221, but not the content thereof.
Justice Black, in the opening paragraph of his first opinion in this case (People v Fields, 388 Mich 66; 199 NW2d 217 [1972]), stated the issue as follows:
"The reviewable question is whether 1948 CL 712A.4; MSA 27.3178(598.4) is unconstitutional for want of standards governing probate determination of how a juvenile over the age of 15 years, accused of any act the nature of which constitutes a felony, may be waived to circuit court for trial.” (Emphasis added.)
Judge Mary Coleman, in her Amicus Curiae [214]*214brief of Michigan Probate and Juvenile Court Judges Association, stated the issue as follows:
"The principal issue being argued in this case is the extent to which the legislature may delegate power to another body or agency. Such delegation must include sufficient standards so as to obviate any delegation of legislative power. The legislature may not delegate the power to make laws.” (Emphasis added.)
In my first opinion (People v Fields, 388 Mich 66 [1972]), I said (p 75):
"It is important to understand the precise issue in this case. It is not whether the constitutional requirements of due process stated in Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), were met. Rather, it is whether the lack of standards in the statute preclude a waiver proceeding.” (Emphasis added.)
At this time, it is necessary to state what is not involved in this case because so much has been written that tends to obfuscate the issue. This case was decided by Probate Judge O’Brien on August 16, 1968. The Juvenile Court Rules of 1969 were adopted December 5, 1968 and went into effect March 1, 1969. The Juvenile Court Rules were not in effect when this case was decided by the probate judge. They have no application to the issue in this case.
It is true that, among other reasons, the Juvenile Court Rules of 1969 were written in response to Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966). The study draft of Rule 11, circulated to the committee in January 1968 notes as follows:
"Provision for a finding of probable cause in a waiver proceeding appears in Green v United States, 308 F2d [215]*215303 (1962) and appeared to be the conclusion of conference and committee discussion. Notice provisions are drawn from requirements of the Gault case, and provisions for the right to counsel, access to social records, and written statements of ñndings from Kent v U.S. (1966) 383 U.S. 541.”1 (Emphasis added.)
While this Court cannot enact substantive laws, it does have the authority to decide upon the procedures to be followed in the courts of this state. Such authority has been exercised by adopting the General Court Rules for courts of general jurisdiction, the District Court Rules for the district courts, and the Juvenile Court Rules. Being [216]*216fully cognizant of the problems created by the decisions of the United States Supreme Court in Kent, supra and In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), the Probate Court Committee of this Court, of which I was then chairman, undertook with the help of the probate judges, to insure procedural due process in the handling of juvenile court cases. Any question pertaining to JCR 1969, 11, is not before the Court in this case since it was not in effect at the time the action of the probate judge herein reviewed took place.
It is perhaps unfortunate that the issue in this case was framed in terms of standards rather than in the more usual terminology used to attack an ambiguous or unclear statute — void because of vagueness or overbreadth. The fundamental question revolves around the concept that ours is a government of laws and not of men. If we have a viable law that can be applied by the probate judges of this state, the decision of the lower cohrts should be upheld.. On the other hand, if the law is so vague that its application is nothing more than a carte blanche grant of discretion to each probate judge to exercise his own wisdom and compassion as to what he thinks should be done in each case that comes before him upon a request for waiver, the previous decision of this Court was correct and should be reaffirmed.
Review is an essential part of the judicial process. While a vast majority of cases, both criminal and civil, are decided by a single judge, an all-important element in the decision making process is the ever-present possibility in every case that the decision of a judge will be subjected to appellate review. If that possibility is removed, the judge becomes a monarch from whose ruling— [217]*217good, bad or indifferent — there is no recourse. As was said in Kent, supra (p 561):
"Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not 'assume’ that there are adequate reasons, nor may it merely assume that 'full investigation’ has been made.”
Under the statute, the provisions of which I discussed at length in my first opinion, the law leaves it solely up to the judgment of each probate judge to formulate his own criteria. The basis for waiver could be as varied as the number of probate judges. For example, see Appendix A setting forth three possible sets of standards.
The difficulty with the statute has been overcome by the enactment of 1972 PA 265; MCLA 712A.4; MSA 27.3178(598.4).
There remains the question as to whether the decision of this Court should be given retroactive or prospective effect. Volumes have been written on this subject.2 We are concerned with the consti[218]*218tutionality of a statute in which the decision by a probate-juvenile judge, under the statute, can result in a person, classified as a juvenile, being waived from that classification and treated as an adult in a prosecution for a criminal offense.
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[213]*213On Rehearing
T. M. Kávanagh, C. J.
In December, 1968 the Circuit Court of Washtenaw County ruled that MCLA 712A.4; MSA 27.3178(598.4), allowing the probate court to waive jurisdiction over certain juveniles, thus allowing them to be tried as adults, was not unconstitutional. The Court of Appeals, upon remand from this Court, upheld this decision. 30 Mich App 390; 186 NW2d 15 (1971). This Court granted leave and entered a decision reversing these lower courts. 388 Mich 66; 199 NW2d 217 (1972). Rehearing was granted and the case was again before us for decision. Justices Black and Adams each circulated proposed opinions. Before final decision, the terms of Justices Black and Adams on the Court expired.
On January 22, 1973, on the Court’s own motion, the Court granted rehearing without oral argument and upon the briefs previously filed. We hereby adopt the opinion of Justice Adams, circulated November 20, 1972. This author has added footnotes 3 and 4 to bring the opinion to date and has changed the wording in the third sentence from the end on page 221, but not the content thereof.
Justice Black, in the opening paragraph of his first opinion in this case (People v Fields, 388 Mich 66; 199 NW2d 217 [1972]), stated the issue as follows:
"The reviewable question is whether 1948 CL 712A.4; MSA 27.3178(598.4) is unconstitutional for want of standards governing probate determination of how a juvenile over the age of 15 years, accused of any act the nature of which constitutes a felony, may be waived to circuit court for trial.” (Emphasis added.)
Judge Mary Coleman, in her Amicus Curiae [214]*214brief of Michigan Probate and Juvenile Court Judges Association, stated the issue as follows:
"The principal issue being argued in this case is the extent to which the legislature may delegate power to another body or agency. Such delegation must include sufficient standards so as to obviate any delegation of legislative power. The legislature may not delegate the power to make laws.” (Emphasis added.)
In my first opinion (People v Fields, 388 Mich 66 [1972]), I said (p 75):
"It is important to understand the precise issue in this case. It is not whether the constitutional requirements of due process stated in Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), were met. Rather, it is whether the lack of standards in the statute preclude a waiver proceeding.” (Emphasis added.)
At this time, it is necessary to state what is not involved in this case because so much has been written that tends to obfuscate the issue. This case was decided by Probate Judge O’Brien on August 16, 1968. The Juvenile Court Rules of 1969 were adopted December 5, 1968 and went into effect March 1, 1969. The Juvenile Court Rules were not in effect when this case was decided by the probate judge. They have no application to the issue in this case.
It is true that, among other reasons, the Juvenile Court Rules of 1969 were written in response to Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966). The study draft of Rule 11, circulated to the committee in January 1968 notes as follows:
"Provision for a finding of probable cause in a waiver proceeding appears in Green v United States, 308 F2d [215]*215303 (1962) and appeared to be the conclusion of conference and committee discussion. Notice provisions are drawn from requirements of the Gault case, and provisions for the right to counsel, access to social records, and written statements of ñndings from Kent v U.S. (1966) 383 U.S. 541.”1 (Emphasis added.)
While this Court cannot enact substantive laws, it does have the authority to decide upon the procedures to be followed in the courts of this state. Such authority has been exercised by adopting the General Court Rules for courts of general jurisdiction, the District Court Rules for the district courts, and the Juvenile Court Rules. Being [216]*216fully cognizant of the problems created by the decisions of the United States Supreme Court in Kent, supra and In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), the Probate Court Committee of this Court, of which I was then chairman, undertook with the help of the probate judges, to insure procedural due process in the handling of juvenile court cases. Any question pertaining to JCR 1969, 11, is not before the Court in this case since it was not in effect at the time the action of the probate judge herein reviewed took place.
It is perhaps unfortunate that the issue in this case was framed in terms of standards rather than in the more usual terminology used to attack an ambiguous or unclear statute — void because of vagueness or overbreadth. The fundamental question revolves around the concept that ours is a government of laws and not of men. If we have a viable law that can be applied by the probate judges of this state, the decision of the lower cohrts should be upheld.. On the other hand, if the law is so vague that its application is nothing more than a carte blanche grant of discretion to each probate judge to exercise his own wisdom and compassion as to what he thinks should be done in each case that comes before him upon a request for waiver, the previous decision of this Court was correct and should be reaffirmed.
Review is an essential part of the judicial process. While a vast majority of cases, both criminal and civil, are decided by a single judge, an all-important element in the decision making process is the ever-present possibility in every case that the decision of a judge will be subjected to appellate review. If that possibility is removed, the judge becomes a monarch from whose ruling— [217]*217good, bad or indifferent — there is no recourse. As was said in Kent, supra (p 561):
"Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not 'assume’ that there are adequate reasons, nor may it merely assume that 'full investigation’ has been made.”
Under the statute, the provisions of which I discussed at length in my first opinion, the law leaves it solely up to the judgment of each probate judge to formulate his own criteria. The basis for waiver could be as varied as the number of probate judges. For example, see Appendix A setting forth three possible sets of standards.
The difficulty with the statute has been overcome by the enactment of 1972 PA 265; MCLA 712A.4; MSA 27.3178(598.4).
There remains the question as to whether the decision of this Court should be given retroactive or prospective effect. Volumes have been written on this subject.2 We are concerned with the consti[218]*218tutionality of a statute in which the decision by a probate-juvenile judge, under the statute, can result in a person, classified as a juvenile, being waived from that classification and treated as an adult in a prosecution for a criminal offense. Some legal scholars adhere to the theory that once such a statute is declared to be unconstitutional, the court must also find that it was void and of no effect from the time of enactment. Others feel that the court finding can be given just prospective effect.
In O’Callahan v Parker, 395 US 258; 89 S Ct 1683; 23 L Ed 2d 291 (1969), the United States Supreme Court held that military courts lacked the authority to try a soldier who, while temporarily freed of military responsibility, had been charged with a crime cognizable in a civilian court. The issue of retroactivity of this decision came before the United States Court of Appeals, Fifth Circuit, in Gosa v Mayden, Warden, 450 F2d 753 (CA 5, 1971). Judge Clark, writing the majority opinion, said (p 758):
"It has always been the law that proceedings of a court which is without jurisdiction of the subject matter [219]*219are void, but does this inevitably lead to the necessity for full retrospective application of the court decision which first discovers and announces the jurisdictional deficit? We hold it does not.”
In analyzing the question as applied to Gosa, Judge Clark pointed out (p 759):
"The issue * * * is not whether the accused could be tried at all, but which forum had the right to conduct the proceedings. Not whether, but where.”
Judge Clark applied the tests for refusing retroactive application set forth in Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). Applying the "purpose of the new standard test”, he concluded "that O’Callahan ultimately decides no more on this subject [jurisdiction] than that there is a belief that a civilian court trial with grand and petit jury protections would tend to prevent arbitrariness and repression and be fairer.” Applying the "justified reliance on the old standard test”, he noted that the O’Callahan decision had not been foreshadowed in other opinions. Applying the "effect on the administration of justice of retroactive application test”, he noted that the number of cases which conceivably might be affected and the administrative problems which could arise from them were so considerable as to militate against giving the decision retrospective effect. The United States Supreme Court has granted certiorari (June 19, 1972), 407 US 920; 92 S Ct 2467; 32 L Ed 2d 805 (1972).3
In United States of America ex rel Flemings v Chafee, 458 F2d 544 (CA 2, 1972), the United States Court of Appeals, Second Circuit, in a case [220]*220involving precisely the same issue as in Gosa, supra, reasoned to a contrary result and concluded that O’Callahan must be applied retroactively because that decision was grounded in the absence of jurisdiction to adjudicate. Applying a two pronged test, the Court concluded that, as to the purpose to be served, the United States Supreme Court’s decision in O’Callahan is that court martial procedures employed there raised a "clear danger of convicting the innocent”, and, applying the impact of the retroactivity test, the Court was unimpressed with the claim that the administrative burden of granting full retroactivity would be staggering or that there would be a significant impact on the administration of justice. Certiorari was granted June 19, 1972 in the above case. 407 US 919; 92 S Ct 2461; 32 L Ed 2d 805 (1972).4
We find the reasoning of the Court in Gosa, supra, and in its antecedents going back to the opinion of Justice Cardozo in Great Northern R Co v Sunburst Oil & Refining Co, 287 US 358, 364-366; 53 S Ct 145, 148-149; 77 L Ed 360, 366-367 (1932), and the decision in Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956), followed with approval by this Court in Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960), to be the more persuasive.
For exapple, in the present case, even though the statute was enacted in 1939, it was never seriously challenged until 1968. Prior to the 1960’s and the decisions in Kent and in In re Gault, supra, juvenile courts were considered to be sui generis. This was the situation in Michigan and throughout the United States. Before January 1, [221]*2211964 (see Const 1963, art 6, § 19), a probate-juvenile court judge was not even required to be a lawyer. In keeping with the then , theory of the juvenile courts, these laymen-judges functioned as heads of a broad social rehabilitative process that not only involved court procedures but medical and dental care, foster home supervision, operation and supervision of detention homes, and school and teaching facilities for the neglected or the delinquent child. The probate-juvenile court judge was the pater-familias for such children. Presumably this concept would be followed by the judge in granting waiver of a juvenile. It is scarcely any wonder that the statute went unchallenged. Kent and In re Gault, supra, abruptly brought the juvenile court into the full stream of the judicial process. As in Gosa, supra, the issue here pertains not to whether, but where — in which court is the juvenile to be tried. Both justice and reality will now be served by holding that the decision of this Court in this case be given prospective effect.
We hold that the retroactive effect of this decision is limited to those cases pending prior to October 3, 1972 (the date 1972 PA 265 was signed into law and given immediate effect) in which the issue of waiver was raised before the trial court and properly preserved on appeal. Waivers otherwise granted prior to date of this decision and not contested upon proper preservation of the issue shall not be affected.
We vote to reverse the decisions of the lower courts.
Swainson and Williams, JJ., concurred with T. M. Kavanagh, C. J.
[222]*222
APPENDIX A
I. Standards Used by Judge O’Brien in Making his Decision to Waive.
"There are three tests that apply there:
"(1) 'Where the nature of the offense which in itself was of such an obviously adult character as to make the juvenile court inappropriate.
"(b) 'Where the court has made use of every available disposition and the minor has been unamenable to treatment.’
"And (c) 'Where the minor whose physical and mental development showed a maturation beyond the calendar age and which made the minor unwilling to accept treatment as a minor.’ ”
II. Standards Contained in JCR1969,11.
"In making such determination, the following criteria shall be considered:
"(1) The prior record and character of the child, his physical and mental maturity, and his pattern of living;
"(2) The seriousness of the offense;
"(3) Even though less serious, if the offense is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under the regular statutory juvenile procedures;
"(4) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child;
"(5) Where it is found to be in the best interests of the public welfare and for the protection of the public security, generally, that said juvenile be required to stand trial as an adult offender.”
III. Standards set forth in the Appendix to the Opinion in Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966).
"The determinative factors which will be consid[223]*223ered by the Judge in deciding whether the Juvenile Court’s jurisdiction over such offenses will be waived are the following:
"1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
"2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
"3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
"4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
“5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.
"6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
"7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
"8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have commit[224]*224ted the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.”