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SJC-11745

            COMMONWEALTH   vs.   BRIAN FREEMAN & another.1



         Suffolk.       February 4, 2015. - August 27, 2015.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.


Jurisdiction, Superior Court, Juvenile Court. Superior Court,
     Jurisdiction. Juvenile Court, Jurisdiction. Constitutional
     Law, Equal protection of laws. Statute, Retroactive
     application.



     Indictments found and returned in the Superior Court
Department on September 10, 2013.

    Questions of law were reported by Carol S. Ball, J.

     The Supreme Judicial Court granted an application for direct
appellate review.


     Barbara Kaban, Committee for Public Counsel Services, for
Micah Martin.
     Donna Jalbert Patalano, Assistant District Attorney, for the
Commonwealth.
     Craig R. Bartolomei, for Brian Freeman, was present but did
not argue.
     Afton M. Templin, for Children's Law Center of Massachusetts
& another, amici curiae, submitted a brief.

    1
        Micah Martin.
                                                                    2

     Lael E.H. Chester & Naoka Carey, for Citizens for Juvenile
Justice & others, amici curiae, submitted a brief.


     DUFFLY, J.   On June 12, 2013, the defendants, Brian Freeman

and Micah Martin, both seventeen years of age, were arraigned in

the Dorchester Division of the Boston Municipal Court Department

on charges of unarmed robbery and assault and battery.    Three

months later, on September 10, 2013, a grand jury returned

indictments against the defendants on the same charges.   On

September 18, 2013, the Governor signed "An Act expanding

juvenile jurisdiction," St. 2013, c. 84 (act), which, with

certain exceptions, extended the jurisdiction of the Juvenile

Court to children who are seventeen years of age at the time of

committing an offense.2   The act provides that "no criminal

proceeding shall be begun against any person who prior to his

eighteenth birthday commits an offense against the laws of the

[C]ommonwealth . . . without first proceeding against him as a

delinquent child."   G. L. c. 119, § 74, as amended through

St. 2013, c. 84, §§ 25, 26.

     The defendants filed motions to dismiss, arguing that the

     2
       "General Laws c. 119, § 74, as amended through St. 2013,
c. 84, §§ 25, 26, expressly excludes from the scope of the
'criminal proceedings' to which it refers certain minor motor
vehicle violations, as well as charges of murder in the first and
second degrees." Watts v. Commonwealth, 468 Mass. 49, 51 n.6
(2014).
                                                                    3

act stripped the Superior Court of jurisdiction over their

pending charges, and that the Juvenile Court therefore had sole

jurisdiction.   The defendants argued that the act should be

applied retroactively to seventeen year old defendants who had

criminal charges pending against them as of the act's effective

date, and that a failure to apply the act retroactively as to

such defendants would violate the equal protection guarantees

provided by the Fourteenth Amendment to the United States

Constitution and art. 1 of the Massachusetts Declaration of

Rights.   Pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass.

1501 (2004), a judge of the Superior Court reported the following

two questions of law to the Appeals Court:

         "1. Whether An Act to Expand Juvenile Jurisdiction,
    Increase Public Safety and Protect Children from Harm (the
    "[a]ct") should be applied retroactively to a defendant who
    commits an offense prior to his eighteenth birthday for
    which a criminal proceeding commenced prior to the effective
    date of the [a]ct?"

         "2. Whether the answer to question one [if no]
    violates the equal protection guarantees provided by the
    Fourteenth Amendment to the United States Constitution and
    art. 1 of the Massachusetts Declaration of Rights, as
    amended by art. 106 of the Amendments?"3

    3
       Pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass.
1501 (2004), a Superior Court judge may report questions of law
to the Appeals Court; "an appellate court is not obligated to
answer them." Meshna v. Scrivanos, 471 Mass. 169, 170 n.6
(2015). See Commonwealth v. Valerio, 449 Mass. 562, 563 (2007)
("Because our discussion resolves the basic issues presented by
the defendant's motion to suppress, we need not answer directly
the reported questions").
                                                                   4


     The Appeals Court stayed proceedings on the defendants'

appeals pending our decision in Watts v. Commonwealth, 468 Mass.

49 (2014) (Watts).   We held in that case that as a matter of

legislative content and statutory construction the act did not

apply "retroactive[ly] to criminal cases begun and pending before

September 18, 2013, against persons who were seventeen years of

age at the time of the alleged offense."   Id. at 50.   Watts,

however, did not present a constitutional claim.

     We allowed the defendants' application for direct appellate

review.   The defendants argue, in essence, that our

interpretation of the act in Watts, supra, which renders the act

inapplicable as to them, such that they may be proceeded against

as adults in criminal proceedings begun in the Superior Court,

has resulted in a violation of their rights to equal protection

of the law as guaranteed by the State and Federal Constitutions.

Because we conclude that the Legislature had a rational basis on

which to determine that the retroactive application of the act

would result in "unavoidable complexities and [the] attendant

need for staff and services," id. at 60, we answer both reported

questions in the negative.4



     4
       We acknowledge the amicus brief submitted by the
Children's Law Center of Massachusetts and Citizens for Juvenile
                                                                   5

     Discussion.   1.   Equal protection classification.   The

defendants argue that there are two grounds for applying a

heightened scrutiny analysis to their equal protection claim.

They argue, first, that the act created an age-based

classification and, second, that the act deprived seventeen year

old defendants who were arraigned prior to the act's effective

date of the important right to have their claims proceed, at least

initially, in the Juvenile Court.5

     An equal protection claim under art. 1, that a statute

either discriminates on the basis of a suspect classification,

see Lowell v. Kowalski, 380 Mass. 663, 666 (1980), or burdens the

exercise of a fundamental right, see Blixt v. Blixt, 437 Mass.

649, 655-656 (2002), cert. denied, 537 U.S. 1189 (2003), subjects

the statute to strict scrutiny.   "All other statutes, which

neither burden a fundamental right nor discriminate on the basis


Justice, as well as the amicus brief submitted by Citizens for
Juvenile Justice, the Criminal Justice Policy Coalition, the Home
for Little Wanderers, Justice Resource Institute, the
Massachusetts Society for the Prevention of Cruelty to Children,
Hon. Gail Garinger, Hon. Nancy Gertner, and Francine Sherman.
     5
       "The review of an equal protection claim under the
Massachusetts Constitution is generally the same as the review of
a Federal equal protection claim, . . . although we have
recognized that the Massachusetts Constitution is, if anything,
more protective of individual liberty and equality than the
Federal Constitution" (quotations and citations omitted). See
Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 376
(2006) (Spina, J., concurring).
                                                                    6

of a suspect classification, are subject to a rational basis

level of judicial scrutiny."6   Finch v. Commonwealth Health Ins.

Connector Auth., 459 Mass. 655, 668-669 (2011), S.C., 461 Mass.

232 (2012).

     Given that the act does not classify on the basis of age, we

reject the defendants' arguments that juveniles are a suspect

class under that statute.   Rather, the act treats those seventeen

year olds who were charged before its effective date differently

from those seventeen year olds who were charged after the act

became effective.   The act classifies on the basis of the date of

arraignment, and not the age of a particular defendant.

     The defendants argue that heightened scrutiny nevertheless

is appropriate here because defendants who were charged prior to

the effective date of the act are unable to obtain jurisdiction

in the Juvenile Court and, accordingly, have thereby been denied

what the defendants term an "important" right.   We acknowledge

     6
       The defendants suggest that, rather than analyze the act
under a rational basis or strict scrutiny review, we should,
instead, adopt a third, intermediate level, of scrutiny. We
decline this invitation. See English v. New England Med. Ctr.,
Inc., 405 Mass. 423, 428-429 (1989), cert. denied, 493 U.S. 1056
(1990). We note, however, that "characterizing the tests to be
applied to determine the constitutional validity of legislation
as 'reasonable relation' and 'strict scrutiny' is a 'shorthand
for referring to the opposite ends of a continuum of
constitutional vulnerability determined at every point by the
competing values involved.'" Id., quoting Marcoux v. Attorney
Gen., 375 Mass. 63, 65 n.4 (1978).
                                                                    7

that "[t]he differences between being tried in the Superior Court

and in the Juvenile Court are considerable."   Commonwealth v.

Walczak, 463 Mass. 808, 827 (2012) (Lenk, J., concurring).     We

have long recognized that "[i]mportant consequences flow from the

recognition of delinquency as something legally and

constitutionally different from crime."   Metcalf v. Commonwealth,

338 Mass. 648, 651-652 (1959).   Nonetheless, we have not extended

strict scrutiny to statutes that implicate such interests by

providing certain juveniles, but not others, access to Juvenile

Court jurisdiction.   See Charles C. v. Commonwealth, 415 Mass.

58, 69 (1993); Commonwealth v. Wayne W., 414 Mass. 218, 226

(1993); News Group Boston, Inc. v. Commonwealth, 409 Mass. 627,

631-632 (1991).7

     Moreover, "[s]tripped to its essentials, [the defendants']

     7
       The United States Supreme Court and this court have
recognized that juvenile offenders present "unique
characteristics" germane to the analysis of their rights under
the Eighth Amendment to the United States Constitution and
art. 26 of the Massachusetts Declaration of Rights. See Miller
v. Alabama, 132 S. Ct. 2455, 2460 (2013); Graham v. Florida, 560
U.S. 48, 68-69 (2010); Roper v. Simmons, 543 U.S. 551, 569-571
(2005); Diatchenko v. District Attorney for the Suffolk Dist.,
466 Mass. 655, 659 (2013), S.C., 471 Mass. 12 (2015). We note
also that the constitutional protections extended to juveniles
are to be continuously reviewed "in light of evolving
constitutional standards." See Goodridge v. Department of Pub.
Health, 440 Mass. 309, 343 (2003). Cf. McDuffy v. Secretary of
the Exec. Office of Educ., 415 Mass. 545, 620 (1993) (duties
"which the Constitution places on the Commonwealth necessarily
will evolve together with our society").
                                                                     8

claim challenges the basic validity of all prospective

lawmaking."   Commonwealth v. Tate, 424 Mass. 236, 240, cert.

denied, 522 U.S. 832 (1997), quoting Baker v. Superior Court, 35

Cal. 3d 663, 670 (1984).   All prospective legislation must have a

beginning date, and "as we previously have held, '[t]he mere fact

that some persons were at some later date governed by a law more

favorable to them than the law which applied to the defendant is

insufficient to strike down an otherwise valid statute; to hold

the opposite would be either to eradicate all new statutes or to

make them all retroactive.'"   Commonwealth v. Galvin, 466 Mass.

286, 290 n.10 (2013), quoting Commonwealth v. Tate, supra.8     It

remains "a general rule of statutory construction [that] a newly

     8
       Other jurisdictions have viewed equal protection
challenges to prospective legislation with skepticism. See,
e.g., United States v. Blewett, 746 F.3d 647, 658-659 (6th Cir.
2013) (en banc), cert. denied, 134 S. Ct. 1779 (2014); Comerford
v. Massachusetts, 233 F.2d 294, 295 (1st Cir.), cert. denied, 352
U.S. 899 (1956); State v. Ferrell, 126 Ariz. 1, 2 (1980); Baker
v. Superior Court, 35 Cal. 3d 663, 668-670 (1984); Fleming v.
Zant, 259 Ga. 687, 688 (1989) (amendment "distinguishes between
cases that have been tried and those that have not. This
classification is neither arbitrary nor discriminatory. The
legislature had to choose some effective date"); Carter v. State,
512 N.E.2d 158, 170 (Ind. 1987); State ex rel. Lemmon v. Adult
Parole Auth., 78 Ohio St. 3d 186, 188 (1997); Burch v. Department
of Correction, 994 S.W.2d 137, 138-139 (Tenn. Ct. App. 1999);
Delgado v. State, 908 S.W.2d 317, 319 (Tex. Ct. App. 1995); Abdo
v. Commonwealth, 218 Va. 473, 479-480 (1977). See also Sperry &
Hutchinson Co. v. Rhodes, 220 U.S. 502, 505 (1911) (Holmes, J.)
("the Fourteenth Amendment does not forbid statutes and statutory
changes to have a beginning, and thus to discriminate between the
rights of an earlier and later time").
                                                                      9

enacted [penal] statute is presumptively prospective."

Commonwealth v. Galvin, supra at 290.    See id., quoting G. L. c.

4, § 6, Second ("The repeal of a statute shall not affect any

punishment, penalty or forfeiture incurred before the repeal

takes effect").    See Watts, 468 Mass. at 54 (act is penal statute

to which G. L. c. 4, § 6, applies).    Applying strict scrutiny

merely because the act affords greater protections to the liberty

interests of future defendants would shear the statutory

presumption of meaning.   Cf. Commonwealth v. Didas, 471 Mass. 1,

9 (2015) ("If it were otherwise, every amendment or partial

repeal and amendment of a criminal statute would need to be given

retroactive effect, in direct conflict with the presumption of

prospectivity").

    2.   Rational basis analysis.     "We have repeatedly said that

those who challenge the constitutionality of a statute that does

not burden a suspect group or a fundamental interest 'carry a

heavy burden in seeking to overcome the statute's presumption of

constitutionality.'"    English v. New England Med. Ctr., Inc., 405

Mass. 423, 427 (1989), cert. denied, 493 U.S. 1056 (1990),

quoting Blue Hills Cemetery, Inc. v. Board of Registration in

Embalming & Funeral Directing, 379 Mass. 368, 371 (1979).

Although rational basis review "includes a requirement that an

impartial lawmaker could logically believe that the
                                                                     10

classification would serve a legitimate public purpose that

transcends the harm to the members of the disadvantaged class,"

English v. New England Med. Ctr., Inc., supra at 429, quoting

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985)

(Stevens, J., concurring), "[i]t is not our function to consider

the expediency of an enactment or the wisdom of its provisions."

Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 544 (1974).

See Federal Communication Comm'n v. Beach Communications, Inc.,

508 U.S. 307, 313 (1993) (rational basis review "is not a license

for courts to judge the wisdom, fairness, or logic of legislative

choices").

    In Watts, 468 Mass. at 59, we observed that the Legislature

received reports that warned that "significant impacts would

result were the act to pass and that additional staff and

services were anticipated in order to implement the act going

forward."    These reports "anticipated that implementation of the

new legislation will be prospective."    Id. at 58.   The act was,

therefore, "passed with an informed understanding that the actual

implementation of such reform would likely require additional

staff and services," id. at 61-62, and "[p]rospective application

of the act takes these considerations into account, as well as

the legal complexities and impact of the opposite construction."

Id. at 62.   In much the same way that we view "[p]rospective
                                                                   11

application of the act [as] not 'repugnant' to the purpose of the

act," id. at 60, we also consider that prospective application is

rationally related to legitimate State interests where "it is a

realistic and informed recognition of the unavoidable

complexities and attendant need for staff and services implicated

in implementing the act."     Id.   See Amado v. Superintendent,

Mass. Correctional Inst. at Walpole, 366 Mass. 45, 49 (1974),

quoting South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966)

("[L]egislative solutions must be respected if the 'distinctions

drawn have some basis in practical experience'").

       Conclusion.   We answer the first reported question "no."

The act does not apply retroactively to a defendant who commits

an offense prior to his or her eighteenth birthday for which a

criminal proceeding commenced prior to the effective date of the

act.    We also answer the second reported question "no."

Prospective application of the act does not violate the equal

protection guarantees provided by the Fourteenth Amendment to the

United States Constitution and art. 1 of the Massachusetts

Declaration of Rights, as amended by art. 106 of the Amendments.

       The matter is remanded to the Superior Court for further

proceedings consistent with this opinion.

                                      So ordered.
