State v. Bills

495 S.W.2d 722, 1973 Mo. App. LEXIS 1579

• Court: Missouri Court of Appeals
• Decided: May 7, 1973
• Docket: KCD 26291
• Status: Published

Opinions

SHANGLER, Judge.

In this original proceeding in prohibition the juvenile relator seeks our rule to prevent the respondent magistrate from the exercise of an unlawful jurisdiction in criminal causes wherein relator stands accused of possession and sale of marijuana. The petition alleges that the adjudication under § 211.071, RSMo 1969, whereby the juvenile court relinquished jurisdiction to the general law, and thus to the magistrate, does not comport with due process in particulars and that the statute itself is constitutionally infirm because lacking standards for that purpose. Accordingly, relator seeks the discontinuance of the prosecutions pending before the respondent and seeks also to be restored to the exclusive jurisdiction of the juvenile court.

This proceeding is a sequel to In Re T. J. H, 479 S.W.2d 433 (Mo. banc 1972), wherein relator was appellant, an opinion respondent contends precludes our jurisdiction here. In Re T. J. H. determined that the order of the juvenile court relinquishing jurisdiction to deal with the child under the Juvenile Act was not a final appealable order and that the proper method of review was by a motion in the circuit court to dismiss the information or indictment under Rule 25.06, V.A.M.R.¹. This is the law of the case by which we are bound. Butcher v. Main, 426 S.W.2d 356, 358 [2] (Mo.1968). Since the denial of a Rule 25.06 motion is not a final order from which an appeal may be taken (Evans v. Barham, 184 S.W.2d 424 [2] (Mo. 1944), a necessary implication of the In Re T. J. H. holding is that appellate review of a juvenile court waiver order is deferred until the primary issue of guilt has been determined by the criminal law.

From this, respondent asserts in his motion to dismiss that In Re T. J. H. discountenances any form of interlocutory review of the waiver order, whether by ordinary appellate process or by extraordinary writ. This contention, however, is not justified by the law of the case. In dismissing that appeal, the Supreme Court neither identified the legal basis asserted for the appeal, nor ruled it, nor precluded resort by the appellant (this relator) to extraordinary remedy.

The issuance of a writ of prohibition is not an appellate process. A proceeding in prohibition is distinct and independent of the original action. It is substantially a proceeding between two judicial authorities, a superior and an inferior, and is a means by which the superior judicial authority exercises its superintendence over the inferior authority to keep it within the bounds of its lawful jurisdiction. State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415, 418 [1] (Mo.App.1957); State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 67 [10-13] (banc 1956); High’s Extraordinary Legal Remedies (3rd ed.), p. 715. This concept of ordered exercise of jurisdiction, so dominant in the common law, has been adopted into our constitution (Mo.Const. Art. V, § 4) and laws (Chapter 530, RSMo 1969) as the primary means by which this court may exercise its superintendent control over the inferior courts. State ex rel. Boll v. Weinstein, supra, 1. c. 67 [10-13]; 73 C.J. S., Prohibition, § 2.

A prohibition will not issue to correct the error of a court of conceded jurisdiction where the remedy by appeal is adequate. State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765, 770 [8-10] (Mo.banc 1968); Rule 84.22. Where there is an entire lack of jurisdiction over the subject matter of the action or over the person of the defendant, relief by prohibition will be granted in order to secure regularity in judicial proceedings. State ex rel. Boll v. Weinstein, supra, 295 S.W.2d 1. c. 67 [10]; State ex rel. Warde et al. v. McQuillin, 262 Mo. 256, 171 S.W. 72, 74 [2] (1914); State ex rel. Judah v. Fort, 210 Mo. 512, 109 S.W. 737 (banc 1908). In consonance with these basic principles, a prohibition will issue to prevent an inferior court from acting in a proceeding of which another inferior court has exclusive jurisdiction. State ex rel. Lipic v. Flynn, 358 Mo. 429, 215 S.W.2d 446, 451 [7] (banc 1948); State ex rel. Walker v. Murphy, 132 Mo. 382, 33 S.W. 1136 (1896). And, in all events, a prohibition does not issue ex debito justitiae, but only in the discretion of the court. State ex rel. McCaffery v. Aloe, 152 Mo. 466, 54 S.W. 494, 498 (1899).

Our provisional rule in prohibition issued upon relator’s petition, and presumptive proofs, that the order of the juvenile court relinquishing jurisdiction of relator to the general law under § 211.071 was void on its face as a matter of law because it gave no statement of reasons for that determination, in violation of due process requirements of the United States Supreme Court and of the Missouri Supreme Court. In consequence of the invalid waiver order, the petition further asserts, the juvenile relator remains within the exclusive jurisdiction of the juvenile court and is not amenable to the respondent magistrate’s criminal process. Thus, relator asserts that respondent lacks jurisdiction in the most fundamental sense, that because relator remains within the exclusive jurisdiction of the juvenile court, the conduct alleged against him is not a matter of cognizance for the criminal law and therefore respondent magistrate has no power to adjudicate the felony complaints nor to bind relator to that determination. §§ 211.031 and 211.091, RSMo 1969; In re V_, 306 S.W.2d 461 (Mo. banc 1957). In Re T. J. H. does not propose that the remedy of prohibition be withheld from a petitioner upon such a showing nor that this court exercise any less assiduously its constitutional function of superintendence over courts subordinated to its judisdiction.

The relator contends that § 211.-071, RSMo 1969² violates constitutional due process and is void for vagueness in that it provides no standards as to when a juvenile is not “a proper subject” to be dealt with under the juvenile act and, thus, the juvenile court order entered under its provisions is void and imparts no jurisdiction to a criminal court for prosecution under the general law. This precise contention has been considered and rejected by two recent decisions of the Missouri Supreme Court. In State v. Williams, 473 S. W.2d 382 (Mo.1971), the court noted first that the juvenile law is integral and each section must be construed in terms of the others. The court then determined that the provisions of the juvenile law, including § 211.071 which prescribes the waiver procedure and § 211.011 which declares the purpose of the juvenile law, are expressed in terms of common understanding, and that when construed together an explicit statutory standard for waiver appears: A child may be determined by the juvenile court judge not a proper subject to be dealt with under the juvenile law if, after receiving an investigation report and hearing evidence, it reasonably appears that the continued exercise of such jurisdiction will not “facilitate (the child’s) care, protection and discipline . . . and (provide him) such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the state”. § 211.011. Then in Coney v. State, 491 S.W.2d 501 (Mo.1973), the Supreme Court determined the same rationale for §§ 211.071 and 211.-011, without reference to Williams, and also rejected the constitutional argument relator raises here. An earlier decision of the Supreme Court had articulated, more tersely, an equivalent standard for waiver under § 211.071: “The ultimate purpose of the transfer of a juvenile ... is to protect the public in those cases where rehabilitation appears impossible.” State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377 [4] (Mo. banc 1968).

The other serious contention raised by relator is that the waiver order of the juvenile court is void and cannot confer jurisdiction on respondent because it contains no statement of reasons for the waiver, thereby denying the juvenile fundamental fairness and due process of law. The constitutional principle relator asserts is that announced by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and reaffirmed in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Kent arose from procedures applicable to the District of Columbia Juvenile Court. In its opinion, the court observed that the statutory scheme under consideration, much like our own, conferred special rights and immunities upon a juvenile. Therefore, a statutory procedure whereby a court may determine to deny such benefits to a juvenile is critically important and is overlain with certain fundamental constitutional limitations, 383 U.S. 1. c. 557, 86 S. Ct. 1. c. 1055:

[W]e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel. (Emphasis supplied.)

In re Gault, supra, made it emphatically clear that the procedures applicable to a waiver hearing are governed by constitutional principles, 387 U.S. 1. c. 30, 87 S.Ct. 1. c. 1445:

In Kent v. United States, supra, we stated that the Juvenile Court Judge’s exercise of the power of the state as parens patriae was not unlimited. We said that “the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” With respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense committed by a youth, we said that “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 statement of reasons.”

We reiterate this view, here in connection with a juvenile court adjudication of “delinquency”, as a requirement which is part of the Due Process Clause of the Fourteenth Amendment. (Emphasis supplied.)

Decisions of the United States Court of Appeals have uniformly acknowledged Kent as a declaration of constitutional principle for waiver hearings, including the due process requirement that the order of waiver contain an adequate statement of reasons for the decision of the court.³

The Supreme Court of Missouri has also understood it the purpose of Kent and Gault “to elevate to the status of constitutional protection the right to a hearing on waiver of jurisdiction, the right to representation at such hearing and the right to a statement of the court’s reasons for waiving jurisdiction”. Jefferson v. State, 442 S.W.2d 6, 11 [6] (Mo.1969); Coney v. State, supra.

The record before us indicates that the waiver proceeding under § 211.071 was conducted by the juvenile court with all scrupulous regard for the constitutional requirements of notice, hearing, assistance of counsel for the juvenile, and access by counsel to the reports of investigation made in pursuance of statute. However, one failing appears. The order of waiver that “the petitions here . . be dismissed and that said child T.. J. .'H.. be prosecuted under the general law” is completely devoid of any statement of reasons for the court’s critical decision to relinquish jurisdiction over the child and must be declared invalid. Although Kent “does not specify any particular form or require detailed findings of fact” (Coney v. State, supra), the order of waiver “must set forth the basis for the order with sufficient specificity to permit meaningful review”. Kent v. United States, supra, 383 U.S. 1. c. 561, 86 S.Ct. 1. c. 1057 [19]. The possibility of an effective review, where review is allowed, is an inherent incident of due process of law.

The decisions of the Missouri Supreme Court which expound the explicit statutory standard for waiver also recognize other clear and intelligible principles implied from that standard by which litigants and juvenile courts may be guided in determining when a juvenile is no longer a proper subject to be dealt with under the juvenile act. A juvenile court might reasonably exercise its discretion to relinquish jurisdiction over a child when, from the totality of circumstances, it appears: 1) the child’s “age, maturity, experience and development” are such as to require prosecution under the general law (Coney v. State, supra), 2) the nature and seriousness of the child’s conduct constitutes a threat to the community (State ex rel. Arbeiter v. Reagan, supra, 427 S.W.2d 1. c. 377 [4]; Coney v. State, supra), 3) the conduct was committed in a violent and vicious manner (Coney v. State, supra) ⁴, 4) there is reasonable likelihood that like future conduct will not be deterred by continuing the child under the “care, protection and discipline” of the juvenile law process (State v. Williams, supra, 473 S. W.2d 1. c. 384). We understand these decisions to mean that any factor which tends to predict the suitability or unsuitability of the juvenile law process for rehabilitation of the child is relevant to the determination of whether he is a proper subject to be dealt with under that law.

We have searched the transcript of the waiver proceedings, but in vain, for some expression by the court of the basis for the order relinquishing jurisdiction. A reviewing court will not be remitted to the assumption that a juvenile court which has not expressed the basis for the order of waiver has found the facts necessary to such a judgment. The order of waiver was ineffective to divest the juvenile court of the exclusive jurisdiction over relator under the juvenile law or to invest respondent with jurisdiction over relator under the general law.

We consider and decide also the remaining significant jurisdictional question presented. Relator contends that the order of waiver of the juvenile court is void and cannot confer jurisdiction upon respondent because the motion of the juvenile officer set forth no facts constituting the grounds upon which the court could find that the juvenile was not a proper subject to be dealt with under the juvenile law. It is relator’s position that the principles announced in Kent and Gatilt, supra, dictate that prior to the waiver hearing a juvenile be given notice sufficient to comply with the requirements of due process of law. Although Kent does not specifically address itself to the matter of notice preceding the waiver stage of the juvenile process, it does make clear that the procedures followed must adhere to the minimum essentials of due process and fair treatment. The courts which have considered the question have held with near unanimity that due process timely notice, apprising the juvenile, his parents and counsel of the purpose of such a hearing.⁵

The pleading which commenced the waiver hearing against relator announced its purpose conspicuously: “MOTION FOR ORDER TERMINATING FURTHER PROCEEDINGS IN JUVENILE COURT AND TRANSFERRING JURISDICTION OF T..J..H.. FOR PROSECUTION UNDER THE GENERAL LAW PURSUANT TO SECTION 211.071, REVISED STATUTES OF MISSOURI, 1969.” The body of the motion alleged conduct amounting to the commission of the felonies of possession of marijuana and sale of marijuana⁶ and alleged further that “said minor is not a proper subject to be dealt with under (the juvenile law), as more fully expressed in prior pleadings and petitions herein.” The prior petitions filed in the juvenile court, and incorporated by reference into the motion, also alleged against the juvenile conduct amounting to the offenses of possession and sale of marijuana. While we conclude, as does relator, that notice sufficient to satisfy the requirements of due process must precede the waiver hearing, we conclude also that such notice as was actually given here, apprising him of the hearing and its purpose, was sufficient. The notice informed relator of the conduct which suggests his unsuitability for the juvenile process, the nature of the hearing and its purpose. This information, when considered with relator’s right of access to the investigative file, fully accorded, made available to relator every fact which could enter into the juvenile court’s determination.

We have determined that juvenile relator is not properly before respondent magistrate. It thus becomes the duty of respondent magistrate to transfer the custody of relator, forthwith and directly, to the Juvenile Court of Clay County, which retains exclusive jurisdiction over relator under the juvenile law. § 211.061(2). It is so ordered.

Respondent’s motion to dismiss proceedings is denied. Our preliminary rule is made absolute and final judgment in prohibition is entered against respondent magistrate.

DIXON, C. J., and WASSERSTROM, J., concur.

PRITCHARD, J., dissents in separate Dissenting Opinion filed in which SWOF-FORD, J., concurs transferring cause to the Supreme Court.

1 . The “review” available under Rule 25.06 is not appellate review in any sense commonly understood. Contentions of trial error — such as that the juvenile court waiver order was not supported by suf-fieient evidence — are not within the scope of the rule. Nor is an order overruling a motion to dismiss under the rule itself a final appealable order. Evans v. Barham, 184 S.W.2d 424 [2] (Mo.1944).

2 . “In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, * * * the petition may be dismissed and such child * * * may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child * * * is not a proper subject to be dealt with” under the provisions of the juvenile law.

3 . United States v. Tate, 151 U.S.App.D.C. 261, 466 F.2d 432, 433 [1] (1972); Hery-ford v. Parker, 396 F.2d 393, 396[l-6] (10th Cir. 1968) ; Kemplen v. Maryland, 428 F.2d 169, 172 (4th Cir. 1970) ; United States ex rel. Turner v. Rundle, 438 F.2d 839, 841 [1] (3rd Cir. 1971). See also, Broadway v. Beto, 338 F.Supp. 827, 833 [1] (N.D.Tex.1971) ; Miller v. Quatsoe, 332 F.Supp. 1269, 1272 [1] (E.D.Wis.1971) ; Hegwood v. Kindrick, 264 F.Supp. 720, 725 (S.D.Tex.1967).

4 . Dictum in Coney suggests that in the circumstances of that case an order of waiver based upon express findings that a nearly 17 year old boy charged with acts of rape, murder and robbery was not a proper subject to be dealt with under the juvenile law “for the reason of his age, maturity, experience and development” satisfies the requirements of Kent.”

5 . See, State v. Halverson, 192 N.W.2d 765, 769 (Iowa 1971) ; James v. Cox, 323 F.Supp. 15, 20 [3] (E.D.Va.1971) ; Reed v. State, 125 Ga.App. 568, 188 S.E. 2d 392, 393 [1] ; Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331, 333 [4] ; L. v. Superior Court of Los Angeles County, 7 Cal.3d 592, 102 CalJRptr. 850, 498 P.2d 1098, 1102[5, 6] (bane 1972).

6 . At the time of the waiver proceeding, § 195.200 had not yet been amended and the conduct alleged against relator was punishable as felonies, if he were to be proceeded against criminally.