State ex rel. T. J. H. v. Bills, KCD

• Decision Date: 07 May 1973
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri at the relation of T. J. H., pro ami, Relator, v. The Honorable C. Patrick BILLS, Judge of the Magistrate Court of Clay County, Missouri, Respondent. 26291.
• Court: Missouri Court of Appeals

Page 722

495 S.W.2d 722

STATE of Missouri at the relation of T. J. H., pro ami, Relator,

v.

The Honorable C. Patrick BILLS, Judge of the Magistrate Court of Clay County, Missouri, Respondent.

No. KCD 26291.

Missouri Court of Appeals, Kansas City District.

May 7, 1973.

Richard J. Habiger, T. E. Lauer, Director, National Juvenile Law Center, St. Louis, for relator.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD and WASSERSTROM, JJ.

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, l.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 l.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 jurisdiction.

The relator contends that § 211.071, RSMo 1969 ² 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. l.c. 557, 86 S.Ct. l.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. l.c. 30, 87 S.Ct. l.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...