Schaffer v. Green, A--17216

• Citation: 496 P.2d 375
• Decision Date: 27 March 1972
• Docket Number: No. A--17216,A--17216
• Parties: Larry SCHAFFER, Petitioner, v. Honorable Robert G. GREEN, District Judge of the 14th Judicial District of Tulsa County, Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 375

496 P.2d 375

Larry SCHAFFER, Petitioner, v. Honorable Robert G. GREEN, District Judge of the 14th Judicial District of Tulsa County, Oklahoma, Respondent.

No. A--17216.

Court of Criminal Appeals of Oklahoma.

March 27, 1972.

Rick Loewenherz, Tulsa, for petitioner.

Larry Derryberry, Atty. Gen., Raymond Naifeh, Asst. Atty. Gen., for respondent.

BUSSEY, Presiding Judge:

This is an original proceeding in which an application to assume original jurisdiction and issue a Writ of Mandamus against the Honorable Robert G. Green, having been filed in the Supreme Court and transferred by the Chief Justice thereof to this Court for the reason that the issues arise out of a criminal proceeding pending in the District Court of Tulsa County, Oklahoma.

The Petitioner, age 17, was charged by Information on the 29th day of September, 1971, with the crime of Burglary in the Second Degree in the District Court of Tulsa County. On the 30th day of November, 1971, a hearing was held by the Honorable Robert G. Green, District Judge, on a motion to transfer the case to the Juvenile Division filed by the Petitioner herein. Whereupon, Judge Green overruled the said Motion and retained jurisdiction of the cause of action in the District Court. Thereafter, the Petitioner perfected his petition for Writ of Mandamus to require Judge Green to transfer the cause to the Juvenile Division of the District Court of Tulsa County.

Petitioner asserted several propositions, only one of which we deem necessary to discuss in this opinion. Petitioner argues that 10 O.S. § 1101 is unconstitutional in that it allows females under the age of 18 years the benefits of juvenile court proceedings, while limiting those same benefits to males under the age of 16 years. We must consider the issue here presented in the light of the unprecedented decision of the Tenth Circuit Court of Appeals, delivered in Lamb v. Brown, 456 F.2d 18 (See Appendix B), on the 16th day of March, 1972, which, in effect, overturned this Court's decision in Lamb v. State, Okl.Cr., 475 P.2d 829 (See Appendix A), and its progeny.

In Lamb v. Brown, the Circuit Court of Appeals spoke with unmistakable clarity, holding that 'Because the purpose of the disparity in the age classification between 16--18 year old males and 16--18 year old females has not been demonstrated, we hold that 10 Okl.St.Ann. § 1101(a) is violative of the equal protection clause. This ruling shall not apply retroactively.'

The provisions of 10 O.S. § 1101(a) enacted by the Oklahoma Legislature in 1968 (See Appendix C), having been stricken as being unconstitutional by virtue of the equal protection clause of the 14th Amendment, we must, of necessity, consider the validity of 10 O.S. § 1101A, enacted in 1970 (See Appendix D), which presents the identical discriminatory age between males and females fixing the age of responsibility of 16 years for males and 18 years for females. Although not specifically dealt with by the Circuit Court of Appeals in Lamb v. Brown, it is readily apparent At first blush, it would appear that the provisions of 10 O.S. § 1101 A which state that the term 'child' means any person under the age of 18 years must suffice to allay the uncertainty created by Lamb v. Brown; however, an examination of this section and its title reflect that although fulfilling the requirements of the equal protection clause of the 14th Amendment of the United States Constitution, it is constitutionally defective and, therefore, unconstitutional in the light of Article V, Section 57 of the Oklahoma Constitution, which provides:

the Circuit Court, had they considered the validity of 10 O.S. § 1101A, would have held it to be unconstitutional and in violation of the 14th Amendment for the reasons set forth in Lamb v. Brown. Thus, it is clear that the legislative intent to hold males of the age of 16 years and above, and females of the age of 18 years and above, responsible as adults, does not conform with the equal protection clause of the 14th Amendment. Since both provisions of 10 O.S. § 1101A and 10 O.S. § 1101(a) are unconstitutional and invalid, we must consider what, if any, legislative guidelines exist defining 'child,' 'dependent and neglected child' and delineating, without discrimination between the sexes, those persons criminally responsible as adults for the commission of crimes.

'Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.' (Emphasis added)

The provision defining 'child' is not embraced in the title and is unconstitutional as being in derogation of that portion of Article V, Section 57 of the Oklahoma Constitution, stating: 'Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.'

The responsible legislative leadership of both the House and the Senate of the Oklahoma State Legislature have galvanized into action, during the closing days of the session, to fill the legislative void created by Lamb v. Brown, but during the interim, it becomes the Court's responsibility to determine if any prior legislative enactment is still effective defining the age and classifications of persons responsible for criminal acts as adults, and those not responsible, to fill the constitutional requirements of the 14th Amendment of the Federal Constitution; notwithstanding how primitive and punitive the terms may be. Such legislation does exist and became operative upon the pronouncement rendered in Lamb v. Brown, for in 1910, the Legislature originally enacted 21 O.S. § 152 which has never been expressly repealed, nor could it be repealed by inference, by the enactment of unconstitutionally invalid subsequent legislation. Title 21 O.S. § 152 provides, in pertinent part:

'All persons are capable of committing crimes, except those belonging to the following classes:

1. Children under the age of seven years.

2. Children over the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness. * * *'

The members of this Court share the shock and distaste which all responsible legislators, parents and citizens will feel by the recognition that the provisions of 21 O.S. § 152 are still effective, and we are In order to allay the great confusion existing in our courts since the pronouncement of Lamb v. Brown, and until new effective legislation can be enacted, we deem it necessary to set forth the following guidelines for the use of the courts, attorneys, and juvenile officers.

confident that the legislative leaders will, without delay, enact effective and humane constitutionally effective legislation to correct the harshness of this law. It is not within the constitutional authority of this Court to exercise legislative authority when constitutional legislation exists. The invasion of legislative functions by courts not only violates the doctrine of separation of powers, but has brought the courts of the nation into great conflict and disrepute and this author views such action as not only a violation of the constitution, but the oath of judicial office.

(1) From the effective date provided in Lamb v. Brown as being prospective, or, if later decided to be retroactive by the Federal Courts, the provisions of 21 O.S. § 152 shall control until superseded by constitutional legislative enactment in defining as adults all persons over the age of 14.

(2) All persons over the age of seven and under the age of 14, not certified in the manner prescribed by 10 O.S. § 1112(b) as being capable of standing trial as an adult, shall be treated as a child, dependent child, or dependent and neglected child under the provisions of 10 O.S. § 1112 (See Appendix E), relating to juveniles.

(3) The District Attorneys in filing an application to certify, and Judges before whom any certification hearing of a person under the age of 14 years may be certified to stand trial as an adult, have wide discretion to take into consideration the sociological, environmental and humane advancements made since the original enactment of 21 O.S. § 152 before certifying as an adult any person under the age of 14.

(4) No child under the age of 16 years shall be confined in any police station, prison, jail or lockup, or be transported or detained in association with criminal, vicious or dissolute persons; except that a child 12 years of age, or older, may, with the consent of the judge or director, be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults. See 10 O.S. § 1107(c).

The Petitioner, being of the age of 17 years, may be tried as an adult without certification under the provisions of 21 O.S. § 152.

The writ prayed for is accordingly denied.

SIMMS, J., specially concurs.

BRETT, J., dissents.

APPENDIX

A. The pertinent part of Lamb v. State, Okl.Cr., 475 P.2d 829, provides:

'* * * as we view the section of the statutes, we do not find it to be so repugnant to the Constitution of the United States as defendants would attempt to lead the Court to believe. As we view the situation, the statute exemplifies the legislative judgment of the Oklahoma State Legislature, premised upon the demonstrated facts of life; and we refuse to interfere...