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.
On September 19, 1961, the District Court dismissed the habeas corpus petition and discharged the writ.
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 sense
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.
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.
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
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.
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.
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,
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.
The judgment of the Municipal Court of Appeals is reversed with directions to dismiss the appeal for lack of jurisdiction.
"If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases."
"If the appeal is to the Municipal Court of Appeals, and the adult criminal proceeding is before the District Court, the diversity raises delicate questions of the interrelationship of the two separate systems. Suppose the appeal results in a determination that the waiver of jurisdiction was invalid, and at that stage the case before the District Court is at trial or at the verge of trial. Should the District Court defer to the determination of the Municipal Court of Appeals which is not its hierarchial superior on a question which coequally goes to the District Court's jurisdiction and to the Juvenile Court's jurisdiction? If the District Court does not defer, what is the remedy or is the appeal futile? If the District Court defers and discharges an impanelled jury, has jeopardy attached so as to preclude a second indictment if the Juvenile Court thereafter validly waives jurisdiction? These questions and others that can be put strongly suggest the answer that a challenge to waiver of jurisdiction should take place within the judicial hierarchy of the court to which jurisdiction has been waived."