Denied June 28, 2019.
from Tuscaloosa Circuit Court (CC-17-3009)
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Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen.,
for appellant/cross-appellee Sate of Alabama.
L. Blume, Northport; and Marsha L. Levick, Philadelphia, for
Howard, Grace Graham, and Kathryn Sadasivan, Montgomery, for
amicus curiae Southern Poverty Law Center, in support of 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.
and Procedural History
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, §
"(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
"a. A law enforcement officer or official.
"b. A correctional officer or official.
"c. A parole or probation officer or official.
"d. A juvenile court probation officer or official.
"e. A district attorney or other prosecuting officer
"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),
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
to the harshest consequences of the adult criminal justice
system." (C. 42-43.)
also argued that § 12-15-204 violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. 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. 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.)
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.)
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). 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
and overbreadth challenges to § 12-15-204(a)(4).
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." (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.)
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.)
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.
"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
"`[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
"955 So.2d at 1017."
State v. Worley, 102 So.3d 435, 448-49
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.
Process and Equal Protection
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.
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
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
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).
these general principles in mind, we turn to a discussion of
whether § 12-15-204 violates ...