KENT v. REID

No. 16698 Argued April 10, 1962.

No. 17068 Argued November 27, 1962.

WASHINGTON, Circuit Judge.

On September 5, 1961, the appellant was arrested by the Metropolitan Police of the District of Columbia on charges of having committed 14 serious offenses, all of which would, if committed by an adult, be felonies and three of which could be punished by death. At the time of his arrest appellant was 16 years of age and had been under probation in the Juvenile Court for the preceding two years. On September 12, 1961, the Juvenile Court signed a waiver of its jurisdiction over the offenses and ordered the appellant held for trial for such offenses under the regular procedure in the United States District Court. The order recited that the waiver was made "after full investigation." Appellant immediately filed a petition for writ of habeas corpus in the District Court, challenging its jurisdiction to try the case, and also appealed the order of waiver to the Municipal Court of Appeals.1 Both proceedings were based on the claim that the Juvenile Court had failed to make a "full investigation" before issuing the order of waiver, and hence that its order was invalid under Section 11-914 of the District of Columbia Code (1961).2

On September 19, 1961, the District Court dismissed the habeas corpus petition and discharged the writ.3 Its order is before us by appeal in No. 16,698. On April 13, 1962, the Municipal Court of Appeals affirmed the order of the Juvenile Court waiving its jurisdiction. In Re Kent, D.C.Mun.App., 179 A.2d 727 (1962). We allowed an appeal from the affirmance, now before us in No. 17,068.

I.

In No. 16,698 we must decide whether habeas corpus will lie, prior to indictment and trial, to raise collaterally the question whether, before waiving its jurisdiction over a juvenile, the Juvenile Court made the "full investigation" recited in its waiver. We think that habeas corpus is not the proper remedy for that purpose.

Appellant argues that his petition presents a "jurisdictional" issue which may be tested by habeas corpus. But even if the question raised could be regarded as a true jurisdictional issue — and we think it is "jurisdictional" only in a marginal sense4 — it by no means follows that a pre-trial habeas corpus proceeding will be available to test it. As the Supreme Court said in Henry v. Henkel, 235 U.S. 219, 228, 35 S.Ct. 54, 56, 59 L. Ed. 203 (1914):

See also Sunal v. Large, 332 U.S. 174, 179, n. 11, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Indeed appellant says on brief that "to identify the subject as jurisdictional does not automatically establish the propriety of invoking habeas corpus." He points out that the availability of the writ depends on weighing various factors, and that the exposure of the juvenile to trial in the District Court is an important element to be considered. We agree, but that is not the only consideration. Here remedies other than pre-trial habeas corpus are available for adjudication of the point at issue under the ordinary processes of law administration, to test whether the juvenile should be exposed to trial as an adult in the District Court.5

There is now pending in the District Court a motion filed by appellant to dismiss the indictment for lack of jurisdiction because a full investigation was not made by the Juvenile Court before it waived its jurisdiction. We have recently stated that, in a new trial pursuant to remand, the District Court "upon sufficient allegations, should conduct such proceedings as may be necessary to determine whether `full investigation' was made by the Juvenile Court * * *." Green v. United States, 113 U.S.App.D.C. 348, 351, 308 F.2d 303, 306 (1962); see Wilhite v. United States, 108 U.S.App.D.C. 279, 280, 281 F.2d 642, 643 (1960). Such proceedings will be available upon the motion to dismiss the indictment in this case if sufficient allegations are made.6 See United States v. Stevenson, 170 F.Supp. 315 (D.D.C. 1959). If the District Court should deny appellant's motion in this case, its order will be reviewable by this court in the event appellant is ultimately convicted. See Briggs v. United States, 96 U.S.App. D.C. 392, 226 F.2d 350 (1955). Moreover, as we pointed out in Pee v. United States, 107 U.S.App.D.C. 47, 51, 274 F.2d 556, 560 (1959), and see also Green v. United States, 113 U.S.App.D.C. at 350-351, 308 F.2d at 305-306, after the Juvenile Court has waived jurisdiction in a case like the present one, "the District Court may proceed [under D.C.Code § 11-914 (1951)] in all respects exactly as the Juvenile Court would proceed in the case." See United States v. Anonymous, 176 F.Supp. 325 (D.D.C.1959). Appellant has not yet requested this form of relief from the regular processes of the criminal law, so far as we are advised. But if such a request were made and granted by the District Court, it would effectively moot the objections appellant now seeks to raise. It seems unnecessary to note that the appellant will have in the District Court all the rights in relation to his alleged psychiatric problems that he would have in the Juvenile Court.

We think, in sum, that to allow habeas corpus to be brought in the circumstances of this case would be unnecessary to preserve appellant's rights, would interfere with and unnecessarily delay the orderly processes of the District Court, and would be inconsistent with the precedents developed in this court and the Supreme Court.

The order of the District Court discharging the writ will accordingly be

Affirmed.

II.

In No. 17,068 we must determine whether the waiver of jurisdiction by the Juvenile Court was a "final order or judgment," which could be appealed to the Municipal Court of Appeals within the meaning of Section 11-772(a) of the District of Columbia Code, reading as follows:

We think it was not a final order or judgment in the statutory sense.7

As already pointed out, we held in Green v. United States, supra, that the validity of a waiver can be determined in the District Court under standards indicated in Wilhite v. United States, supra. That court has on occasion inquired into the matter. See United State v. Anonymous, supra, and United States v. Stevenson, supra. A motion to dismiss the indictment has been filed for that purpose in this case. The District Court acquires the case for trial on the merits as a result of the waiver, and it may use the powers and procedures available to the Juvenile Court in conducting and disposing of the case.8 To allow an appeal from the waiver to the Municipal Court of Appeals when the case is awaiting trial or at trial in the District Court may create a number of serious problems, among them unnecessary delay in dealing with the case and other questions suggested by appellant himself on brief in No. 16,698.9 We agree that a challenge to the waiver of "jurisdiction" should take place in the District Court to which "jurisdiction" has been waived. We think that challenges to the policies and practices of the Juvenile Court with respect to waivers can be more promptly and effectively dealt with in the District Court than in the Municipal Court of Appeals. We think also that plainly it was not the intention underlying the statute to treat a waiver as a "final" order for appeal purposes.

Our decision accords with the standards laid down in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for determining when a decision is final and appealable. See United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13 (1952), cert. denied, 345 U.S. 907, 73 S.Ct. 646, 97 L.Ed. 1343 (1953). Here, the waiver had no "final and irreparable effect on the rights" of the juvenile to non-criminal processes. As we have shown, the juvenile's right to raise the validity of the waiver on appeal, if he is convicted, persists. Put another way, the "claimed right" to non-criminal processes is "an ingredient of the cause of action" against the juvenile which requires consideration with it. Barnard v. Schneider, 100 U.S.App.D.C. 152, 243 F.2d 258 (1957), which upheld the appealability of a certification of a case by the District Court to the Municipal Court for trial under D.C.Code § 11-756, is not apposite. One problem facing us in that case was that the District Court's certification would not have been reviewable in the Municipal Court of Appeals after final decision by the Municipal Court, and there would have been no review at all if we had not upheld the right of appeal. Such a situation does not exist here.

Other considerations support our decision that the District Court is the appropriate forum to test validity of a waiver. The record before us and before the Municipal Court of Appeals is woefully inadequate for such a purpose. The Juvenile Court appears to have conducted no formal hearing in this case, and we have held that it is not required to hold such a hearing. Wilhite v. United States, supra. The record consists of two memoranda and a motion with two supporting affidavits filed in the Juvenile Court by appellant's counsel,10 the order of waiver of the Juvenile Court stating that full investigation was made, a motion for leave to file two affidavits filed by appellant's counsel in the Municipal Court of Appeals, the order of that court denying that motion, and the per curiam opinion and order of the Municipal Court of Appeals. We can only speculate that the Juvenile Court may have relied on information in the social and probation reports and other information accumulated during the preceding two years, as well as interviews admittedly had with the juvenile and his mother following his arrest, and perhaps other factors. Patently on such a record, the Municipal Court of Appeals was not in a position to ascertain what investigation was made.

The Juvenile Court did not transmit its "social service file" to the Municipal Court of Appeals, though we are told that it was designated by the appellant for inclusion in the record on appeal.11 The Juvenile Court does, however, transmit such records to the District Court upon order. See, e. g., United States v. Stevenson, supra. And the District Court clearly is entitled to such records. It is entitled to them under D.C.Code § 11-929(b) as a court before which the child appears, and more particularly when it exercises the powers of the Juvenile Court in conducting and disposing of the case, as in United States v. Anonymous, supra. While perhaps not conclusive, all of this suggests that the District Court has been in the past and in the future will be better equipped to determine whether a full investigation was had prior to waiver.

The judgment of the Municipal Court of Appeals is reversed with directions to dismiss the appeal for lack of jurisdiction.

So ordered.