State Ex Rel. Coats v. Johnson

OPINION

BRETT, Judge:

On January 29,1979, the respondent, Seventh Judicial District Judge, Sandra Johnson, declared 10 O.S.Supp.1978, §§ 1104.2 and 1112(b), unconstitutional on the grounds (1) that the statutes deny equal protection of the law; (2) that Section 1112(b) creates a constitutionally impermissible presumption that 16 and 17-year-olds accused of serious crimes should be treated as adults; (3) that the statutes impermissi-bly shift the burden of persuasion on the question of whether a 16 or 17-year-old accused of a serious crime should be treated as a juvenile or as an adult; and (4) that the statutes are unconstitutionally vague. Pursuant to 22 O.S.Supp.1978, § 1053.1, the petitioner filed in this Court an application to assume original jurisdiction on a reserved question of law.¹

In light of our holding on the question of vagueness, we shall not make a detailed analysis of the other constitutional infirmities raised. That the statute has a valid interest in protecting its citizens from young people who commit violent crimes few would deny. Whether a penal statute against 16 and 17-year-olds need only be rationally related to that legitimate State interest (Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 [1957]) or whether such a statute must meet the test of strict scrutiny, i. e., that it be narrowly drawn to protect a-compelling State interest because juveniles are a “suspect class” (Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 [1976]) is more open to debate.

The case before us involves a youth against whom probable cause has been found that he committed robbery with a dangerous weapon. Whether the facts shown at the hearing at which the statutes were declared unconstitutional actually showed prosecutive merit to the charge is not before us; nor is the question of whether any of the other enumerated crimes in Sections 1104.2 and 1112(b) would meet the applicable equal protection test. Nevertheless, whichever test is applicable, that robbery with a dangerous weapon if committed by an adult is punishable by a maximum sentence of life imprisonment (21 O.S.Supp. 1978, § 801), is indicative of the gravity with which society and the Legislature view its commission. Even using the strict scrutiny test, it would seem that protecting society from youthful armed robbers would be a compelling state interest. Whether or not the statutes are narrowly enough drawn is a question which we need not answer.

The respondent next ruled that Section 1112(b) created a constitutionally impermissible presumption that 16 and 17-year-olds accused of serious crimes should be treated as adults. The panel of judges held that the amendment created an invalid presumption of competence. The amicus curiae brief stresses that Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and 10 O.S.Supp.1978, § 1112, with the exception of subsection (b), create a presumption of incompetence to stand trial in persons under 18. We fail to find that presumption in the statute, in Kent, or in any of our eases. In fact, the only Oklahoma statute we can find dealing with the incompetence of children to commit crimes is 21 O.S.1971, § 152, which provides that children under 7 years are incapable of committing crimes and that children over 7 and under 14 are incapable of committing crimes in the absence of proof that at the time of committing the act or neglect charged against them, they knew of its wrongfulness. Nor do we find that the amendments create a presumption of a fact which by law must be proven before a 16 of 17-year-old can be tried as an adult. We do not need at this point to determine whether somewhere implicit in the United States Constitution is the requirement that for purposes of criminal prosecution, a person must be treated as a juvenile until he is 18, as both sides submit that had the Legislature wished it, it simply could have chosen to define juveniles as anyone under 16.

Third, the respondent ruled that the amendments to the statutes impermissibly shift the burden of persuasion to the juvenile on the question of whether he should be treated as a juvenile or as an adult, an argument based on the holding of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that the State must prove each and every element of a crime beyond a reasonable doubt. Without discussing the question in any detail, we note that the later case of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), refused to extend the holding in Mullaney to affirmative defenses.

Finally, the respondent ruled that Sections 1104.2 and 1112(b) are unconstitutionally vague. With that ruling we must agree. Since it became effective on October 1,1978, Oklahoma’s reverse certification statutes have been interpreted at various times to create concurrent juvenile and felony division jurisdiction, to vest initial exclusive jurisdiction in the felony division, to confer discretion on the prosecutor to determine where to file, and to create exclusive initial juvenile division jurisdiction. There is some justification for each of the four interpretations.

First, 10 O.S.Supp.1978, § 1101(a), did not change the definition of child as “any person under the age of eighteen (18) years.” Title 10 O.S.Supp.1978, § 1112(a), states that “Except as hereinafter provided," children shall be tried in juvenile proceedings rather than in criminal actions. That would indicate that proceedings would start in juvenile court, and that in order for the child to be tried as an adult, the juvenile court would still have to waive jurisdiction and certify the child.

On the other hand, Section 1104.2 uses the words “charged,” “preliminary hearing,” and “defendant” in referring to a 16 of 17-year-old charged with one of the 11 enumerated crimes. These words ordinarily are used in adult criminal prosecutions and not in juvenile proceedings. Furthermore, that statute indicates that the prehearing detention options are not available to such juveniles. That of course leaves the question of whether or not the juvenile accused of one of the enumerated crimes is entitled to a 10 O.S.Supp.1978, § 1107, detention hearing.

Another problem is that Section 1104.2 refers to certifying a “defendant” as a child to the juvenile division, whereas Section 1112(b) refers to certifying a child as an adult. Section 1104.2 also refers to serving the child with a “certified copy of information,” and it says that upon arrest and detention, such a 16 of 17-year-old shall have all the statutory and constitutional rights and protections of an adult accused of a crime. From those Sections, we are unable to determine whether a 16 of 17-year-old accused of one of the 11 enumerated crimes should seek to have bond set in juvenile court or in the criminal division of the District Court.

Further, Section 1112(b) refers to manda-torily certifying a child as an adult after the court has found that “probable cause” exists to believe that he is guilty of one of the 11 enumerated crimes. We are unable to determine whether that is a reference to prosecutive merit during the first stage of a certification hearing or if that means a finding of probable cause on preliminary hearing.

We cannot glean from the statutes what procedures are required if a 16 of 17-year-old is accused of one of the 11 enumerated crimes; nor can we determine what are the rights and responsibilities of either the State or of accused juveniles. For this Court to determine what it thinks would be an acceptable procedure, would not be a matter of interpretation of the statute but would rather be an exercise in judicial legislation. We cannot rewrite the statute on the pretext of construction. See Lingo-Leeper Lumber Co. v. Carter, 161 Okl. 5, 17 P.2d 365 (1932). Therefore, we hold that 10 O.S.Supp.1978, § 1104.2 and § 1112(b) are void and without effect.

We therefore uphold the ruling of the respondent and decline to issue a writ of mandamus or in the alternative a writ of prohibition.

CORNISH, P. J., specially concurs. BUSSEY, J., specially concurs.

1 . The District Judges and Associate District Judges of the Seventh Judicial District adopted a rule requiring that an advisory panel of judges determine the validity of any statute, the constitutionality of which is raised in that District. On February 28, 1979, a panel of judges appointed under that rule declared 10 O.S.Supp.1978, §§ 1104.2 and 1112(b), unconstitutional on the grounds (1) that the statutes are procedurally vague; (2) that the classification created in the statutes does not bear a substantial relationship to the purpose of the legislation; and (3) that the statutes rest upon an invalid presumption regarding the competence of 16 and 17-year-olds accused of serious crimes.