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State v. B.T.D.

Alabama Court of Criminal Appeals

May 24, 2019

STATE of Alabama
B.T.D. B.T.D.
State of Alabama

         Rehearing Denied June 28, 2019.

         Appeal from Tuscaloosa Circuit Court (CC-17-3009)

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          Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant/cross-appellee Sate of Alabama.

          Gary L. Blume, Northport; and Marsha L. Levick, Philadelphia, for appellee/cross-appellant B.T.D.

          Ebony Howard, Grace Graham, and Kathryn Sadasivan, Montgomery, for amicus curiae Southern Poverty Law Center, in support of the appellee/cross-appellant B.T.D.

         McCOOL, Judge.

         The State of Alabama appeals a judgment of the Tuscaloosa Circuit Court dismissing an indictment charging B.T.D. with second-degree assault, see § 13A-6-21, Ala. Code 1975, based on the circuit court's conclusion that § 12-15-204, Ala. Code 1975, is unconstitutional. B.T.D. cross-appeals. For the reasons set forth herein, we reverse the judgment and remand the cause for further proceedings.

         Facts and Procedural History

         On August 25, 2017, a Tuscaloosa County grand jury returned an indictment charging B.T.D. with the second-degree assault of C.H. Although B.T.D. was 17 years old at the time of the alleged assault, in which C.H. allegedly suffered a broken leg, § 12-15-204 required that B.T.D. be tried as an adult for the alleged assault. Specifically, § 12-15-204(a) provides:

"(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged and who is charged with the commission of any act or conduct, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:

"(1) A capital offense.

"(2) A Class A felony.

"(3) A felony which has as an element thereof the use of a deadly weapon.

"(4) A felony which has as an element thereof the causing of death or serious physical injury.

"(5) A felony which has as an element thereof the use of a dangerous instrument against any person who is one of the following:

"a. A law enforcement officer or official.

"b. A correctional officer or official.

"c. A parole or probation officer or official.

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"d. A juvenile court probation officer or official.

"e. A district attorney or other prosecuting officer or official.

"f. A judge or judicial official.

"g. A court officer or official.

"h. A person who is a grand juror, juror, or witness in any legal proceeding of whatever nature when the offense stems from, is caused by, or is related to the role of the person as a juror, grand juror, or witness.

"i. A teacher, principal, or employee of the public education system of Alabama.

"(6) Trafficking in drugs in violation of Section 13A-12-231, or as the same may be amended.

"(7) Any lesser included offense of the above offenses charged or any lesser felony offense charged arising from the same facts and circumstances and committed at the same time as the offenses listed above. Provided, however, that the juvenile court shall maintain original jurisdiction over these lesser included offenses if the grand jury fails to indict for any of the offenses enumerated in subsections (a)(1) to (a)(6), inclusive. The juvenile court shall also maintain original jurisdiction over these lesser included offenses, subject to double jeopardy limitations, if the court handling criminal offenses dismisses all charges for offenses enumerated in subsections (a)(1) to (a)(6), inclusive."

(Emphasis added.)

         On December 6, 2017, B.T.D. filed a motion seeking to have the circuit court dismiss the indictment and to declare § 12-15-204 unconstitutional. According to B.T.D., § 12-15-204 violates the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Art. I, § 6, of the Alabama Constitution of 1901. In support of that argument, B.T.D. cited Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in which, he said, the United States Supreme Court "held that the transfer of a child from juvenile to adult court imposes a significant deprivation of liberty" and therefore "made clear that a transfer proceeding must provide due process protections." (C. 44.) Specifically, B.T.D. contended that Kent requires the juvenile court to make a "full investigation ... into the facts of the alleged offense" and consider certain factors before a juvenile offender can be tried as an adult. (C. 45.) Thus, B.T.D. argued, § 12-15-204, which automatically requires that certain juvenile offenders be tried as an adult, "lacks the core requirements of Kent" (C. 45) because "procedural protections ... [are] nonexistent." (C. 49.) In further support of his due-process claim, B.T.D. also argued that juveniles have "a substantive due process right to have their youthfulness and its attendant characteristics considered as a mitigating factor at every stage of delinquency and criminal proceedings, ... especially regarding automatic transfer." (C. 55.) In support of that argument, B.T.D. cited Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); J.D.B. v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). According to B.T.D., in those cases, the United States Supreme Court "repeatedly emphasized the importance of the hallmark features of adolescence to our laws of criminal procedure" (C. 42) and "demanded individualized consideration of those features before children can be exposed

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to the harshest consequences of the adult criminal justice system." (C. 42-43.)

         B.T.D. also argued that § 12-15-204 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[1] In support of that argument, B.T.D. noted that, under § 12-15-203, Ala. Code 1975, a juvenile offender who is 14 or 15 years old can be tried as an adult, regardless of the offense, only after a hearing at which the juvenile court must consider certain factors.[2] However, B.T.D. noted, a juvenile who has attained the age of 16 years and is charged with an offense enumerated in § 12-15-204 is automatically prosecuted as an adult. Relying on Roper, Graham, J.D.B., Miller, and Montgomery, B.T.D. argued that "no ground can be conceived to justify the distinctions drawn between older and younger children" in § 12-15-204. (C. 57.)

         Finally, B.T.D. argued that § 12-15-204(a)(4) — the specific paragraph of § 12-15-204 mandating that he be tried as an adult — is unconstitutionally vague and overly broad. As noted, § 12-15-204(a)(4) requires that a juvenile offender who has attained the age of 16 years be tried as an adult for committing "[a] felony which has as an element thereof the causing of death or serious physical injury." According to B.T.D., however, the phrase "serious physical injury" lacks sufficient clarity and is "so broad and vague that it invites arbitrary... prosecution." (C. 54.)

         The State filed a response to B.T.D.'s motion in which it argued that this Court has already decided the constitutionality of § 12-15-34.1, Ala. Code 1975 — the predecessor to § 12-15-204 — in Price v. State, 683 So.2d 44 (Ala.Crim.App. 1996).[3] On June 25, 2018, the circuit court heard oral arguments from the parties regarding B.T.D.'s due-process and equal-protection challenges to § 12-15-204 and his vagueness

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and overbreadth challenges to § 12-15-204(a)(4).

         On August 30, 2018, the circuit court entered a judgment dismissing the indictment against B.T.D. based on the court's findings that § 12-15-204 violates a juvenile offender's due-process rights and that § 12-15-204(a)(4), specifically, is unconstitutionally vague and overly broad. In support of its conclusion that § 12-15-204 violates due-process principles, the circuit court relied on Roper, Graham, J.D.B., Miller, and Montgomery to find that a juvenile has "a constitutionally protected liberty interest in his status as a juvenile." (C. 1248.) (For ease of reference in this opinion, we hereinafter refer to Roper, Graham, J.D.B., Miller, and Montgomery as "the Roper line of cases.") In reaching that conclusion, the circuit court reasoned that the Roper line of cases "recognized that youth are developmentally different from adults" (C. 1241) and therefore "mandate[s] an individualized approach before youth may be subjected to adult consequences." (C. 1243.) Specifically, the circuit court contended that Kent "listed several factors that should be considered before a child may be transferred to adult criminal court." (C. 1246.) Thus, the circuit court concluded, because § 12-15-204 "does not allow for consideration of any of the Kent factors," the statute "violates due process by mandating that certain children automatically be treated as adults, thereby foreclosing any consideration of their individual attributes and circumstances."[4] (C. 1247.) As to § 12-15-204(a)(4), specifically, the circuit court concluded that the legislature's use of the phrase "serious physical injury" renders § 12-15-204(a)(4) unconstitutionally "vague and overly-broad." (C. 1251.) According to the circuit court, under § 12-15-204(a)(4), "[a] child can be deprived of her/his liberty interest in remaining in juvenile court ... in virtually every circumstance involving allegations of a felony with an injury." (C. 1251-52.) Finally, the circuit court rejected the State's argument that this Court upheld the constitutionality of § 12-15-204 in Price. According to the circuit court, this Court did not address the appellant's due-process arguments in Price because those arguments had been waived for appellate review. The circuit court also noted that Price "makes no mention of Kent" and "was decided ... before the current automatic transfer provision, § 12-15-204, was even adopted, and without the Supreme Court's current doctrinal view of children's constitutional rights under the Constitution." (C. 1252-53.)

         The State filed a timely notice of appeal in which it argues that the circuit court erred by holding that § 12-15-204 violates due-process principles and by holding that § 12-15-204(a)(4) is vague and overly broad. B.T.D. filed a cross-appeal in which he argues that the circuit court erred by refusing to find § 12-15-204 unconstitutional in its entirety. However, B.T.D.'s cross-appeal is due to be dismissed because there is no adverse ruling to B.T.D. from which he can appeal. It is true that B.T.D. requested the circuit court find § 12-15-204 unconstitutional in its entirety, and it is also true that, in the introductory paragraph of its judgment, the circuit court stated that § 12-15-204(a)(4) violates due-process principles but that the court was denying B.T.D.'s request to declare § 12-15-204 unconstitutional in its entirety. (C. 1238-39.)

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However, it is evident from the substance of the circuit court's judgment that, although the court's vagueness and overbreadth analysis is specific to § 12-15-204(a)(4), its due-process analysis is applicable to § 12-15-204 in its entirety. That is to say, if § 12-15-204(a)(4) "violates due process by mandating that certain children automatically be treated as adults" (C. 1247), as the circuit court concluded, then § 12-15-204 in its entirety violates due-process principles for the same reason. Thus, because the circuit court's statement that it did not find § 12-15-204 unconstitutional in its entirety is inconsistent with the court's due-process analysis, that statement constitutes dicta. See Brookwood Health Servs., Inc. v. Affinity Hosp., LLC, 101 So.3d 1221, 1224 (Ala.Civ.App. 2012). As a result, B.T.D. received the relief he sought — a judgment declaring § 12-15-204 unconstitutional — and therefore did not receive an adverse ruling from which he can appeal. Id. Accordingly, we dismiss the cross-appeal and proceed with a discussion of the constitutionality of § 12-15-204.

         Standard of Review

"The Alabama Supreme Court has discussed the principles applicable to a challenge to the constitutionality of a statute, noting first that review of a challenge is de novo. State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala. 2006). The Court stated:

"`[A]cts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala. 1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala. 1999) ("In reviewing the constitutionality of a legislative act, this Court will sustain the act `"unless it is clear beyond reasonable doubt that it is violative of the fundamental law."'" White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala. 1989) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944))). We approach the question of the constitutionality of a legislative act "`"with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government."'" Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala. 2000) (quoting Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (Ala. 1991), quoting in turn McAdory, 246 Ala. at 9, 18 So.2d at 815).

"`Moreover, in order to overcome the presumption of constitutionality,... the party asserting the unconstitutionality of the Act ... bears the burden "to show that [the Act] is not constitutional." Board of Trustees of Employees' Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). See also Thorn v. Jefferson County, 375 So.2d 780, 787 (Ala. 1979) ("It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....").'

"955 So.2d at 1017."

State v. Worley, 102 So.3d 435, 448-49 (Ala.Crim.App. 2011).


         The issues before this Court are whether § 12-15-204 violates due-process and equal-protection principles and whether § 12-15-204(a)(4), specifically, violates the doctrines of vagueness and overbreadth.[5]


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          I. Due Process and Equal Protection

         "The Due Process Clause of the Fourteenth Amendment prohibits state governments from depriving `any person of life, liberty, or property, without due process of law....' U.S. Const. amend. XIV, § 1. This clause has two components: the procedural due process and the substantive due process components." Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). Although procedural and substantive due process "are not mutually exclusive" doctrines, Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (quoting Albright v. Oliver, 510 U.S. 266, 301, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Stevens, J., dissenting)), "[t]he two components are distinct from each other because each has different objectives, and each imposes different constitutional limitations on government power." Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996).

         "`[P]rocedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one's life, liberty, or property interest are about to be affected by governmental action.'" Ex parte Fountain, 842 So.2d 726, 729 (Ala. 2001) (quoting Brown's Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala. 1992)). Thus, the essential threshold inquiry in a procedural due-process claim is whether the claimant can establish governmental interference with a protected liberty or property interest. See Stephenson v. Lawrence Cty. Bd. of Educ., 782 So.2d 192, 200 (Ala. 2000) (noting that a "protected property interest" is "an essential threshold requirement for establishing a claim based on an alleged deprivation of procedural due process"); and Crawford v. State, 92 So.3d 168, 171 (Ala.Crim.App. 2011) (noting that, "[t]o prevail on a procedural-due-process claim," the claimant "must show that the [government] deprive[d] him of a protected liberty interest"). In the absence of a protected liberty or property interest, procedural due process is not required in conjunction with government interference. See Stephenson, 782 So.2d at 201 (holding that the appellant was not entitled to procedural due process because she did not have a "protectable property interest" in her employment); and Crawford, 92 So.3d at 172 (considering whether the appellant satisfied "the first prong of the procedural due-process analysis," i.e., establishing a "protected liberty interest," before considering "whether the procedure accompanying the deprivation of his liberty interest was constitutionally adequate"). See also Rezaq v. Nalley, 677 F.3d 1001, 1017 (10th Cir. 2012) (holding that, because the appellants "lack a cognizable liberty interest" in avoiding transfer between prisons, "no due process protections were required before they were transferred"); and Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998) ("Since no protected liberty interest is being impaired, no due process is required.").

         The substantive due-process component of the Fourteenth Amendment, on the other hand, "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them.'" Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (emphasis added)). It prohibits governmental interference with individual

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liberty that is "unreasonable, arbitrary, or capricious," Walter v. City of Gulf Shores, 829 So.2d 181, 186 (Ala.Crim.App. 2001), by "forc[ing] courts to step beyond merely assuring ... that a state actor fairly followed a particular procedure (procedural due process) and to examine whether the particular outcome was itself `fair' or whether it was impermissibly `arbitrary or conscience shocking.'" Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala. 2004) (quoting Waddell v. Hendry Cty. Sheriff's Office, 329 F.3d 1300, 1305 (11th Cir. 2003)). In doing so, substantive due process "protects those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition,' and `implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citations omitted). Of course, substantive due process is not an absolute prohibition of governmental interference with individual liberty but, rather, requires courts to balance the sanctity of individual liberty against the necessity of the government's interference with that liberty. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011); Norris v. Engles, 494 F.3d 634, 638 (8th Cir. 2007). Similarly, although the Equal Protection Clause provides, as its name implies, that the government shall not "deny to any person within its jurisdiction the equal protection of the laws," U.S. Const., Amend. XIV, § 1, the right to equal protection of the laws is not absolute. See Wilkins v. Gaddy, 734 F.3d 344, 347 (4th Cir. 2013) (noting that the right to equal protection of the laws "is not and cannot be absolute" (citing Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996))); and Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (noting that "there are obviously limits beyond which the equal protection analysis may not be pressed"). As in a substantive due-process analysis, courts addressing an equal-protection claim must weigh competing interests, i.e., the burden imposed by the discriminatory classification against the government's justification for the discrimination. Van Allen v. Cuomo, 621 F.3d 244, 248 (2d Cir. 2010).

         With these general principles in mind, we turn to a discussion of whether § 12-15-204 violates ...

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