FOR IMMEDIATE NEWS RELEASE                                                               NEWS RELEASE #52
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 11th day of December, 2019, are as follows:




PER CURIAM:
       2019-KA-01061        STATE OF LOUISIANA VS. HUNTER FUSSELL (Parish of St. Tammany)
                            We find defendant here failed to carry that burden of showing that Children’s Code
                            art. 305(A) is unconstitutional. Accordingly, we vacate the district court’s ruling,
                            which declared Article 305(A) unconstitutional and quashed defendant’s transfer
                            to the district court, and we remand to the district court for further proceedings
                            consistent with the views expressed here.
                            VACATED AND REMANDED.
                            Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, heard this
                            case as Justice pro tempore, sitting in the vacant seat for District 1 of the Supreme
                            Court. She is now appearing as an ad hoc for Justice William J. Crain.
                            Retired Judge James Boddie Jr., appointed Justice ad hoc, sitting for Justice Marcus
                            R. Clark.
                            Johnson, C.J., dissents and assigns reasons.
                            Hughes, J., dissents for the reasons assigned by Johnson, C.J.
                            Chehardy, J., dissents for the reasons assigned by Johnson, C.J.
12/11/19

                        SUPREME COURT OF LOUISIANA



                                    No. 2019-KA-01061

                                STATE OF LOUISIANA

                                            versus

                                   HUNTER FUSSELL


           ON APPEAL FROM THE TWENTY-SECOND JUDICIAL
              DISTRICT COURT, PARISH OF ST. TAMMANY


PER CURIAM:*

       Children’s Code article 305(A), pertaining to divestiture of juvenile court

jurisdiction and original criminal court jurisdiction over children, provides:

       A. (1) When a child is fifteen years of age or older at the time of the
       commission of first degree murder, second degree murder, aggravated
       or first degree rape, or aggravated kidnapping, he is subject to the
       exclusive jurisdiction of the juvenile court until either:

       (a) An indictment charging one of these offenses is returned.

       (b) The juvenile court holds a continued custody hearing pursuant to
       Articles 819 and 820 and finds probable cause that he committed one
       of these offenses, whichever occurs first. During this hearing, when
       the child is charged with aggravated or first degree rape, the court
       shall inform him that if convicted he shall register as a sex offender
       for life, pursuant to Chapter 3-B of Title 15 of the Louisiana Revised
       Statutes of 1950.

       (2) Thereafter, the child is subject to the exclusive jurisdiction of the
       appropriate court exercising criminal jurisdiction for all subsequent
       procedures, including the review of bail applications, and the court
       exercising criminal jurisdiction may order that the child be transferred
       to the appropriate adult facility for detention prior to his trial as an
       adult.

Defendant Hunter Fussell was indicted for a first degree rape of a victim under the


*Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, heard this case as Justice
pro tempore, sitting in the vacant seat for District 1 of the Supreme Court. She is now appearing
as an ad hoc for Justice William J. Crain. Retired Judge James Boddie Jr., appointed Justice ad
hoc, sitting for Justice Marcus R. Clark.
age of thirteen, La.R.S. 14:42(A)(4), that he was alleged to have committed on or

shortly after his fifteenth birthday. At that point, pursuant to Article 305(A),

defendant became subject to the exclusive jurisdiction of the Twenty-Second

Judicial District Court exercising its criminal jurisdiction.

         Defendant filed motions contending that the automatic transfer provision of

Article 305(A) violates several constitutional provisions, both state and federal, as

well as evolving United States Supreme Court jurisprudence recognizing the

special characteristics of juveniles that can affect their capabilities and culpability.

In response, the district court ultimately ruled that this automatic transfer provision

violates due process and that a transfer hearing, comparable to the one provided in

Children’s Code art. 862, 1 is constitutionally required before a juvenile can be


1
    Children’s Code art. 862 provides:

         A. In order for a motion to transfer a child to be granted, the burden shall be upon
         the state to prove all of the following:

         (1) Probable cause exists that the child meets the requirements of Article 857.

         (2) By clear and convincing proof, there is no substantial opportunity for the
         child’s rehabilitation through facilities available to the court, based upon the
         following criteria:

         (a) The age, maturity, both mental and physical, and sophistication of the child.

         (b) The nature and seriousness of the alleged offense to the community and
         whether the protection of the community requires transfer.

         (c) The child’s prior acts of delinquency, if any, and their nature and seriousness.

         (d) Past efforts at rehabilitation and treatment, if any, and the child’s response.

         (e) Whether the child’s behavior might be related to physical or mental problems.

         (f) Techniques, programs, personnel, and facilities available to the juvenile court
         which might be competent to deal with the child’s particular problems.

         B. The court shall state for the record its reasons for judgment.

         C. (1) The court shall transmit the order rendered after the hearing or a certified
         copy thereof, without delay, to the clerk of court having jurisdiction of the
         offense.

                                                   2
transferred to a district court exercising criminal jurisdiction. In reaching those

conclusions, the district court relied on United States Supreme Court jurisprudence

holding that juveniles are constitutionally different from adults for purposes of

sentencing.2 The district court also relied heavily on Kent v. United States, 383

U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), for the propositions that transfer

from juvenile court imposes a significant deprivation of liberty and therefore

warrants protection under the due process clause, and that a transfer from juvenile

court should not occur unless the due process protections provided to juveniles are

satisfied. A probable cause determination based solely on the nature of the offense

alleged and evidence defendant committed the offense is inadequate to satisfy due

process, the district court found, without a judicial determination that the juvenile

will not benefit from the special protections and opportunities for rehabilitation

offered by the juvenile court. The district court also found that a juvenile who is

subject to the automatic transfer provision is denied the equal protection of law.

Thus, the district court quashed the transfer of defendant from the juvenile to

district court.

       Because the district court declared the automatic transfer provision of

Article 305(A) to be unconstitutional, that declaration is appealable to this court



       (2) Any party may request the court to provide a complete or partial transcript of
       the testimony of the witnesses; however, neither the record of the hearing nor the
       reasons for the transfer shall be admissible in evidence in any subsequent criminal
       proceedings, except for the purpose of impeachment of a witness.
2
  See generally Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1, 29 (2005)
(holding the Eighth and Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes were committed.); Graham v. Florida,
560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding the Constitution prohibits the
imposition of life without parole sentences on juvenile offenders convicted of a non-homicide
offense); Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that
mandatory life imprisonment without parole for juvenile homicide offenders violates Eighth
Amendment prohibition against cruel and unusual punishment).

                                               3
pursuant to La. Const. Art. V, § 5(D). Before determining the correctness of the

trial court’s declaration, this court must first decide whether the issue of

constitutionality was properly raised below. “[A] constitutional challenge may not

be considered by an appellate court unless it was properly pleaded and raised in the

trial court below.” State v. Hatton, 07-2377, p. 13 (La. 7/1/08), 985 So.2d 709,

718. In Hatton, the court described the proper procedure for challenging the

constitutionality of a statute, expressing the challenger’s burden as a three-step

analysis. “First, a party must raise the unconstitutionality in the trial court; second,

the unconstitutionality of a statute must be specially pleaded; and third, the

grounds outlining the basis of unconstitutionality must be particularized.” Id., 07-

2377, p. 14, 985 So.2d at 719.

       In the present case, a review of the record shows that defendant properly

raised, pleaded, and particularized his challenge under the Due Process Clause, and

its state constitution counterpart, and the district court’s declaration of

unconstitutionality on that ground is properly before this court on appeal.

Defendant’s equal protection challenge, however, was not specially pleaded.3

Nonetheless, we will briefly address equal protection for the sake of completeness

and expediency.

       This court held that when a statute classifies persons on the basis of any of

the six enumerated grounds in La. Const. Art. I § 3, including age, the statute is

unconstitutional unless the proponents are able to prove that the legislative

3
 Defendant contended in his motion filed in the district court (which is nearly identical to his
motion filed earlier in the juvenile court) that “Louisiana’s Children’s Code Art. 305 violates the
Fourteenth Amendment Due Process Clause and the Eighth Amendment of the United States
Constitution, Article I, Section 2, 16, 19, 20 and 22 of the Louisiana State Constitution, . . . and
goes against the spirit of United States Supreme Court Case law . . . .” Nowhere in that filing
does defendant mention the Equal Protection Clause (or its state counterpart in La. Const. Art. I
§ 3). Defendant’s first mention of equal protection is during argument at the hearing on his
motion.

                                                 4
classification “substantially furthers an appropriate state purpose.” Manuel v. State,

95-2189, p. 4 (La. 3/8/96), 692 So.2d 320, 323, quoting Sibley v. Board of

Supervisors of Louisiana State University, 477 So.2d 1094, 1108 (La. 1985).

Defendant here contends that the automatic transfer provision draws a suspect age-

based distinction between juveniles that not only fails to further an appropriate

state purpose but defeats one—i.e., the rehabilitative purpose of having a separate

juvenile court system—because the transfer is automatic without regard to whether

the juvenile could benefit from the rehabilitative opportunities afforded by a

juvenile court. However, in scrutinizing La.R.S. 13:1570(A)(5),4 which was a

predecessor to Article 305(A), this court found that provision furthered the state’s

interest in protecting the public from serious, violent felonies. State v. Perque, 439

So.2d 1060, 1064 (La. 1983); see also State v. Leach, 425 So.2d 1232, 1236–37

(La. 1983) (“In the instant case the classifications embodied are not arbitrary and

bear a rational relationship to a legitimate state interest, the protection of its

citizens by exposing older minors who are accused of committing serious and


4
 This statute, which pertained to the jurisdiction of the juvenile courts and became effective
September 12, 1980, provided:

       Except as otherwise provided herein, the [juvenile] court shall have exclusive
       original jurisdiction in proceedings:

       A. Concerning any child whose domicile is within the parish or who is found
       within the parish:

       ...

       (5) Who violates any law or ordinance, except a child who, after having become
       fifteen years of age or older is charged with having committed first degree
       murder, second degree murder, manslaughter, aggravated rape, or a person who,
       after becoming sixteen years of age or older, is charged with having committed
       armed robbery, aggravated burglary, or aggravated kidnapping. Once such a child
       has been charged with having committed any offense listed in this Paragraph, the
       district court shall retain jurisdiction over his case, even though the child pleads
       guilty to, or is convicted of, a lesser included offense, and a plea to, or conviction
       of, a lesser included offense shall not revest the court exercising juvenile
       jurisdiction of such a child.

                                                 5
violent felonies to the usual procedures and sanctions of the state’s criminal law

system.”). Defendant fails to persuade the court erred there (even if this claim was

properly before the court now). The automatic transfer provision is the product of

the balancing of policy considerations involving not only those relating to the

special treatment of juveniles but also public safety. It is the prerogative of the

legislature to engage in this balancing calculus.

      The Perque decision also informs our analysis of due process. In Perque,

this court discussed Kent v. United States, which figures prominently in

defendant’s arguments and the district court’s reasons here. The juvenile court in

Kent opted to waive its jurisdiction over a 16-year-old child without holding a

hearing, making any findings, or providing any reason for the waiver. The United

States Supreme Court found the waiver invalid because it violated the procedures

established by statute in that jurisdiction. Kent, 383 U.S. at 557, 86 S.Ct. at 1055.

The Supreme Court’s statutory interpretation was informed by “constitutional

principles relating to due process and assistance of counsel.” Id. The Supreme

Court noted that the juvenile’s right to assistance of counsel in conjunction with

the waiver would be “meaningless—an illusion, a mockery—unless counsel is

given the opportunity to function” at a waiver hearing. Kent, 383 U.S. at 561, 86

S.Ct. at 1057. In addition, the Supreme Court found the waiver hearing “must

measure up to the essentials of due process and fair treatment.” Kent, 383 U.S. at

562, 86 S.Ct. at 1057; see also Application of Gault, 387 U.S. 1, 12–13, 87 S.Ct.

1428, 1436, 18 L.Ed.2d 527 (1967). In Perque, we distinguished the statutory

framework in Kent from that under the predecessor to Article 305(A):

      The situation in the case at bar, however, is easily distinguishable
      from that in Kent. In this case, there are no statutory rights of which
      defendants are being deprived. Once a sixteen-year-old is charged

                                          6
       with armed robbery, the question is not one of “transfer” of
       jurisdiction. Rather, the juvenile court is automatically divested of
       jurisdiction. This divestiture is not a matter of discretion on the part of
       the juvenile court or the district attorney, but is controlled by the
       statute defining the jurisdiction of the juvenile courts, La.R.S. 13:1570
       A(5).

       Since the defendants are not being deprived of “important statutory
       rights,” the question is not one of due process, but of whether La.R.S.
       13:1570 A(5) is a valid exercise of the State’s police powers. We have
       already held that classifications by age and seriousness of the offense
       are not arbitrary or capricious, and that the classifications bear a
       rational relationship to the legitimate state interest of protecting the
       public from serious, violent felonies. State v. Leach, supra. Further,
       since the legislative intent is clearly that those fifteen and sixteen year
       olds charged with the enumerated offenses be treated in all respects as
       adults, we see no reason to depart from the rule that the district
       attorney has “entire charge and control of every criminal prosecution
       instituted and pending in his district, and determines whom, when and
       how he shall prosecute.”

Perque, 439 So.2d at 1064 (citations omitted).

       Defendant here contends our analysis in Perque is rendered obsolete by

more recent United States Supreme Court jurisprudence, such as Roper v.

Simmons, Graham v. Florida, and Miller v. Alabama, which recognizes that

juveniles are developmentally different from adults and therefore must be treated

differently from adults. Those decisions, however, are based on the Eighth

Amendment’s prohibition against cruel and unusual punishments and address the

importance of considering the unique characteristics of juveniles in sentencing.5

None have declared that a juvenile has a liberty interest in juvenile court

adjudication that requires certain procedural due process before the juvenile can be

tried as an adult. While we recognize the importance and necessity that juveniles

5
  Defendant also cites J.D.B. v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d 310
(2011), which (while not grounded in the Eighth Amendment) held that “so long as the child's
age was known to the officer at the time of police questioning, or would have been objectively
apparent to a reasonable officer, its inclusion in the [Miranda] custody analysis is consistent with
the objective nature of that test.” J.D.B., 564 U.S. at 277, 131 S.Ct. at 2406.


                                                 7
receive individualized sentencing determinations, we do not agree with the district

court that the same principles also apply pretrial to require a waiver hearing

focused on a juvenile’s potential for rehabilitation,6 which overrides the

legislature’s decision as to how to structure the jurisdiction of the juvenile courts.

       Unlike in Kent, the Louisiana legislature has not provided certain juvenile

offenders with a statutorily protected liberty interest in juvenile court adjudication

but instead has specifically denied such when the juvenile is accused of a violent

and serious felony. Therefore, defendant, as a 15-year-old charged with first degree

rape, does not have the same statutorily protected liberty interest in juvenile court

adjudication as the juvenile in Kent, which would entitle him to procedural due

process through a transfer hearing before he could be subjected to adult court

jurisdiction. The juvenile court here is not vested with the discretion to retain or

waive jurisdiction. Instead, the Louisiana legislature has made the divesture of

jurisdiction mandatory, and defendant is now “subject to the exclusive jurisdiction

of the appropriate court exercising criminal jurisdiction for all subsequent

procedures[.]” La.Ch.C. art. 305(A)(2).

       Finally, we note that the state constitution specifically authorizes the

legislature to create a provision like Article 305(A):

       The determination of guilt or innocence, the detention, and the
       custody of a person who is alleged to have committed a crime prior to
       his seventeenth birthday shall be pursuant to special juvenile
       procedures which shall be provided by law. However, the legislature
       may (1) by a two-thirds vote of the elected members of each house
       provide that special juvenile procedures shall not apply to juveniles
       arrested for having committed first or second degree murder,

6
  In fact, in Miller v. Alabama the Supreme Court appeared somewhat skeptical of a judge’s
ability to determine a juvenile’s potential for rehabilitation at the pretrial transfer-stage: “Even
when States give transfer-stage discretion to judges, it has limited utility. . . . [T]he
decisionmaker typically will have only partial information at this early, pretrial stage about either
the child or the circumstances of the offense.” Miller, 567 U.S. at 488, 132 S.Ct. at 2474.

                                                 8
      manslaughter, aggravated rape, armed robbery, aggravated burglary,
      aggravated kidnapping, attempted first degree murder, attempted
      second degree murder, forcible rape, simple rape, second degree
      kidnapping, a second or subsequent aggravated battery, a second or
      subsequent aggravated burglary, a second or subsequent offense of
      burglary of an inhabited dwelling, or a second or subsequent felony-
      grade violation of Part X or X-B of Chapter 4 of Title 40 of the
      Louisiana Revised Statutes of 1950, involving the manufacture,
      distribution, or possession with intent to distribute controlled
      dangerous substances, and (2) by two-thirds vote of the elected
      members of each house lower the maximum ages of persons to whom
      juvenile procedures shall apply, and (3) by two-thirds vote of the
      elected members of each house establish a procedure by which the
      court of original jurisdiction may waive special juvenile procedures in
      order that adult procedures shall apply in individual cases. The
      legislature, by a majority of the elected members of each house, shall
      make special provisions for detention and custody of juveniles who
      are subject to the jurisdiction of the district court pending
      determination of guilt or innocence.

La. Const. Art. V § 19. Article 305 was originally enacted as part of Acts 1991,

No. 235, which originated as HB 939. By passing Article 305, the legislature

“provide[d] that special juvenile procedures shall not apply to” persons who have

been arrested and subsequently indicted for aggravated (now first degree) rape,

among other enumerated crimes. Given that the state constitution contains an

explicit grant of authority, it is difficult to conclude the legislature violated the

state constitution when it exercised that authority.

      Statutes are presumed constitutional, and any doubt is to be resolved in the

statute’s favor. State v. Fleury, 01-0871, p. 5 (La. 10/16/01), 799 So.2d 468, 472;

State v. Brenner, 486 So.2d 101, 103 (La. 1986); Theriot v. Terrebonne Parish

Police Jury, 436 So.2d 515, 520 (La. 1983). This court has consistently held that

such presumptively constitutional legislative enactments should be upheld when

possible. State v. Caruso, 98-1415, p. 1 (La. 3/2/99), 733 So.2d 1169, 1170. The

party challenging the constitutionality of a statute bears a heavy burden in proving

that statute unconstitutional. State v. Brooks, 541 So.2d 801, 811 (La. 1989). The

                                           9
constitutionality of the predecessor to Article 305 has been repeatedly upheld by

this Court. See State v. Foley, 456 So.2d 979, 981 (La. 1984); State v. Perique,

supra; State v. Leach, supra. Likewise, for the reasons above, we find defendant

here failed to carry that burden of showing that Article 305(A) is unconstitutional.

      Accordingly, we vacate the district court’s ruling, which declared Children’s

Code art. 305(A) unconstitutional and quashed defendant’s transfer to the district

court, and we remand to the district court for further proceedings consistent with

the views expressed here.

VACATED AND REMANDED




                                         10
12/11/19

                      SUPREME COURT OF LOUISIANA

                                 No. 2019-KA-01061

                              STATE OF LOUISIANA

                                           VS.

                                HUNTER FUSSELL

      ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT,
                   PARISH OF ST. TAMMANY

JOHNSON, Chief Justice, dissents and assigns reasons.

      Because I agree with the district court that Louisiana Children’s Code article

305(A) is unconstitutional, I must respectfully dissent.

      La. Ch. C. art. 305(A) provides, in relevant part (emphasis added):

      A. (1) When a child is fifteen years of age or older at the time of the
      commission of first degree murder, second degree murder, aggravated
      or first degree rape, or aggravated kidnapping, he is subject to the
      exclusive jurisdiction of the juvenile court until either:

      (a) An indictment charging one of these offenses is returned.

      (b) The juvenile court holds a continued custody hearing pursuant to
      Articles 819 and 820 and finds probable cause that he committed one of
      these offenses, whichever occurs first. During this hearing, when the
      child is charged with aggravated or first degree rape, the court shall
      inform him that if convicted he shall register as a sex offender for life,
      pursuant to Chapter 3-B of Title 15 of the Louisiana Revised Statutes of
      1950.

      (2) Thereafter, the child is subject to the exclusive jurisdiction of the
      appropriate court exercising criminal jurisdiction for all subsequent
      procedures, including the review of bail applications, and the court
      exercising criminal jurisdiction may order that the child be transferred
      to the appropriate adult facility for detention prior to his trial as an adult.

Hunter Fussell was 15 years and four days old when he was arrested and charged with

first degree rape, indecent behavior with a juvenile, and sexual battery. He was

therefore subject to the exclusive jurisdiction of the juvenile court pursuant to Article



                                            1
305(A)(1). However, because a grand jury subsequently returned an indictment

charging Hunter with one count of first degree rape, Article 305(A)(2) mandated that

he was thereafter automatically subject to the jurisdiction of the district court

(referred to as “adult court” herein). In my view, this statutory mandate violates the

Fourteenth Amendment Due Process Clause and violates the fundamental principles

underlying United States Supreme Court jurisprudence set forth in Roper v. Simmons,

543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d 1 (2005), Graham v. Florida, 560 U.S.

48, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010), J.D.B. v. North Carolina, 564 U.S. 261,

131 S.Ct. 2394, 180 L.Ed. 2d 310 (2011), and Miller v. Alabama, 567 U.S. 460, 132

S.Ct. 2455, 183 L.Ed. 2d 407 (2012).

      Under the Fourteenth Amendment of the United States Constitution and Article

I, §2 of the Louisiana Constitution, a citizen is protected against deprivations of life,

liberty, or property without “due process of law.” Procedural due process requires that

before an individual is deprived of a property or liberty right, the individual must be

provided with notice and an opportunity to be heard. State v. Golston, 10-2804 (La.

7/1/11); 67 So. 3d 452, 463. This court has held “[t]he fundamental requirement of

due process is the opportunity to be heard at a meaningful time and in a meaningful

manner.” State v. Bazile, 12-2243 (La. 5/7/13), 144 So. 3d 719, 732.

      La. Const. art. V, § 19 provides special procedures for juveniles alleged to have

committed crimes before the age of 17, yet also sets forth a procedure to allow the

legislature to provide that such special procedures will not apply in certain

circumstances. La. Const. art. V, § 19 states (emphasis added):

      The determination of guilt or innocence, the detention, and the custody
      of a person who is alleged to have committed a crime prior to his
      seventeenth birthday shall be pursuant to special juvenile procedures
      which shall be provided by law. However, the legislature may (1) by
      a two-thirds vote of the elected members of each house provide that
      special juvenile procedures shall not apply to juveniles arrested for

                                           2
       having committed…aggravated rape…and (2) by two-thirds vote of
       the elected members of each house lower the maximum ages of persons
       to whom juvenile procedures shall apply, and (3) by two-thirds vote of
       the elected members of each house establish a procedure by which the
       court of original jurisdiction may waive special juvenile procedures in
       order that adult procedures shall apply in individual cases. The
       legislature, by a majority of the elected members of each house, shall
       make special provisions for detention and custody of juveniles who are
       subject to the jurisdiction of the district court pending determination of
       guilt or innocence.

Article 305(A) was enacted by the legislature pursuant to this constitutional authority.

Notably and relevant to this case, Article 305(A) did not track the language of Article

V, § 19 in that it does not provide that special juvenile procedures shall not apply to

juveniles arrested for first degree (aggravated) rape. Rather, Article 305(A)

specifically mandates such juveniles are subject to juvenile court jurisdiction (making

special juvenile procedures applicable) until an indictment is returned, or until the

court holds a continued custody hearing and finds probable cause. Thus, although the

legislature provided for the divestiture of juvenile court jurisdiction in certain

situations, it also chose to vest jurisdiction initially in the juvenile court in those same

situations.

       A comprehensive juvenile system was established by the Louisiana Legislature

to protect and rehabilitate juvenile offenders and to “insure that he shall receive...the

care, guidance, and control that will be conducive to his welfare and the best interests

of the state....” In re State ex rel. A.J., 09-0477 (La. 12/1/09), 27 So. 3d 247, 267; La.

Ch. C. art. 801. This court has recognized that “the hallmark of the juvenile system

was its disposition, individually tailored to address the needs and abilities of the

juvenile in question, and the unique nature of the juvenile system is manifested in its

non-criminal, or ‘civil,’ nature, its focus on rehabilitation and individual treatment

rather than retribution, and the state’s role as parens patriae in managing the welfare

of the juvenile in state custody.” A.J., 27 So. 3d at 267 (internal quotations and


                                             3
citations removed). The special procedures applicable to juvenile adjudication

proceedings confer special rights and immunities. For instance, juvenile records are

confidential (regrettably, Hunter has already lost this right); juveniles are typically not

jailed with adults; juveniles are not confined past the age of 21; and juveniles are

protected from the stigma of a permanent criminal record. These special rights

necessarily emphasize rehabilitation over punishment, and provide a far better

opportunity for rehabilitation at a much lower cost to the state than a convicted adult.

In this case, Hunter was arrested on December 14, 2018, and was initially subject to

the exclusive jurisdiction of the juvenile court. Thus, he was statutorily vested with

all of the attendant benefits and rights to special procedures and had a liberty interest

in his status as a juvenile, subject to juvenile court jurisdiction. To take away these

rights and benefits by mandating an automatic divestiture of juvenile court

jurisdiction after the grand jury handed down the indictment on February 27, 2019,

implicates due process concerns.

       The lack of a hearing vitiates the due process standards mandated by the

Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed. 2d 84

(1966). In Kent, the Court recognized the import of transferring juveniles to the adult

system:

       [T]here is no place in our system of law for reaching a result of such
       tremendous consequences without ceremony-without hearing, without
       effective assistance of counsel, without a statement of reasons. It is
       inconceivable that a court of justice dealing with adults, with respect to
       a similar issue, would proceed in this manner. It would be extraordinary
       if society’s special concern for children, as reflected in the District of
       Columbia’s Juvenile Court Act, permitted this procedure. We hold that
       it does not.

383 U.S. at 554. While the majority essentially limits application of Kent based on the

specific language of the D.C. statute involved, I do not find it should be read so

narrowly. Kent, especially when read in conjunction with the Court’s subsequent


                                            4
opinion in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527 (1967),

prescribes constitutional duties by finding that a determination by a juvenile court on

the issue of whether it should waive jurisdiction over a juvenile is a critical stage in

a criminal proceeding, and therefore requires a hearing conforming to the basic

requirements of due process. As stated by the Court in Gault, “In Kent v. United

States…we considered the requirements for a valid waiver of the ‘exclusive’

jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could

be tried in the adult criminal court of the District. Although our decision turned upon

the language of the statute, we emphasized the necessity that ‘the basic requirements

of due process and fairness’ be satisfied in such proceedings.” 387 U.S. at 12. The

decision in Kent rested on the crucially important distinction between the treatment

afforded children in an adult court and that granted them in juvenile court. Although

the Kent decision was partially based on the particular statute, it is clear to me the

Court did not intend to limit the protections solely based on the procedural aspects

of that case. Here, the majority contends Hunter “does not have the same statutorily

protected liberty interest in juvenile court adjudication as the juvenile in Kent...,” but

the relevant due process concerns do not disappear simply because Article 305(A)

does not provide for a hearing as did the statute at issue in Kent. The fact that our

legislature made the divestiture of jurisdiction mandatory does not eliminate due

process concerns, and the impact on the juvenile remains the same. Kent and Gault

considered together make it clear that juvenile court proceedings affecting a

juvenile’s substantial rights must measure up to the essentials of due process and fair

treatment. I find that juvenile offenders have a constitutionally protected liberty

interest in their status as a juvenile, subject to juvenile court jurisdiction. As a result,

procedural due process mandates that juvenile offenders are entitled to a meaningful

hearing before they can be removed from the jurisdiction of the juvenile court and

                                             5
subjected to adult court jurisdiction pursuant to Article 305(A).

      I recognize this court has previously upheld the constitutionality of Louisiana’s

juvenile jurisdiction statutory scheme in both State v. Leach, 425 So. 2d 1232 (La.

1983) and State v. Perique, 439 So. 2d 1060 (La. 1983). However, I find it relevant

that these cases directly addressed La. R.S. 13:1570(A)(5), the predecessor to Article

305(A). That statute established adult court jurisdiction for juveniles fifteen years or

older who were charged with certain enumerated offenses.1 Thus, this case is the first

wherein our court has addressed the constitutionality of Article 305(A), which

establishes juvenile court jurisdiction at the time a juvenile is arrested and charged

until an indictment is returned or the juvenile court makes a finding of probable

cause. Unfortunately, the majority erroneously finds Article 305(A) constitutional.

      Moreover, even if our earlier decisions in Leach and Perique are directly

relevant to our analysis of the constitutionality of Article 305(A), the district court

correctly noted those decisions should be revisited in light of subsequent

developments in case law, science, and policy. Most importantly, our understanding

of juvenile behavior has evolved over time since those decisions were issued. In

recent years, the United States Supreme Court has recognized and reinforced the

special status of juveniles in a series of cases discussing the culpability of juvenile

      1
          La. R.S. 13:1570(A)(5) provided:

      Except as otherwise provided herein, the court shall have exclusive original jurisdiction in
      proceedings:

      A. Concerning any child whose domicile is within the parish or who is found within the
      parish:

      (5) Who violates any law or ordinance, except a child who, after having become fifteen years
      of age or older is charged with having committed first degree murder, second degree murder,
      manslaughter, aggravated rape, or a person who, after becoming sixteen years of age or older,
      is charged with having committed armed robbery, aggravated burglary, or aggravated
      kidnapping. Once such a child has been charged with having committed any offense listed
      in this Paragraph, the district court shall retain jurisdiction over his case, even though the
      child pleads guilty to, or is convicted of, a lesser included offense, and a plea to, or
      conviction of, a lesser included offense shall not revest the court exercising juvenile
      jurisdiction of such a child.

                                                6
offenders.

      In Roper v. Simmons, supra, the Court held the Constitution bars capital

punishment for juvenile offenders. Noting that the death penalty is reserved for a

narrow category of crimes and offenders, the Court recognized three general

differences between juveniles and adults which demonstrate that juvenile offenders

cannot reliably be classified among the worst offenders:

      First,…[a] lack of maturity and an underdeveloped sense of
      responsibility are found in youth more often than in adults and are more
      understandable among the young. These qualities often result in
      impetuous and ill-considered actions and decisions.*** In recognition
      of the comparative immaturity and irresponsibility of juveniles, almost
      every State prohibits those under 18 years of age from voting, serving
      on juries, or marrying without parental consent.

      The second area of difference is that juveniles are more vulnerable or
      susceptible to negative influences and outside pressures, including peer
      pressure. *** This is explained in part by the prevailing circumstance
      that juveniles have less control, or less experience with control, over
      their own environment.

      The third broad difference is that the character of a juvenile is not as
      well formed as that of an adult. The personality traits of juveniles are
      more transitory, less fixed.

543 U.S. at 569-70 (internal quotations and citations omitted). Further, the Roper

Court explained:

      The susceptibility of juveniles to immature and irresponsible behavior
      means their irresponsible conduct is not as morally reprehensible as that
      of an adult. Their own vulnerability and comparative lack of control
      over their immediate surroundings mean juveniles have a greater claim
      than adults to be forgiven for failing to escape negative influences in
      their whole environment.... The reality that juveniles still struggle to
      define their identity means it is less supportable to conclude that even
      a heinous crime committed by a juvenile is evidence of irretrievably
      depraved character. From a moral standpoint it would be misguided to
      equate the failings of a minor with those of an adult, for a greater
      possibility exists that a minor’s character deficiencies will be reformed.
      Indeed, the relevance of youth as a mitigating factor derives from the
      fact that the signature qualities of youth are transient; as individuals
      mature, the impetuousness and recklessness that may dominate in
      younger years can subside.

Id. at 570 (internal quotations and citations omitted).

                                          7
      Subsequently, in Graham v. Florida, supra, the Court held the Eighth

Amendment does not permit a juvenile offender to be sentenced to life in prison

without parole for a nonhomicide crime. In so holding, the Court recognized

“developments in psychology and brain science continue to show fundamental

differences between juvenile and adult minds.” 560 U.S. at 68. The Court reasoned:

      Juveniles are more capable of change than are adults, and their actions
      are less likely to be evidence of irretrievably depraved character than are
      the actions of adults. It remains true that from a moral standpoint it
      would be misguided to equate the failings of a minor with those of an
      adult, for a greater possibility exists that a minor’s character deficiencies
      will be reformed. These matters relate to the status of the offenders in
      question; and it is relevant to consider next the nature of the offenses to
      which this harsh penalty might apply.

560 U.S. at 68-69 (internal quotations and citations omitted).

      In J.D.B. v. North Carolina, supra, the Court held that a child’s age properly

informs the Miranda custody analysis, so long as the child’s age was known to the

officer at the time of police questioning, or would have been objectively apparent to

a reasonable officer. The Court explained:

      A child’s age is far more than a chronological fact. It is a fact that
      generates commonsense conclusions about behavior and perception.
      Such conclusions apply broadly to children as a class. And, they are
      self-evident to anyone who was a child once himself, including any
      police officer or judge.
                                          ***
      Time and again, this Court has drawn these commonsense conclusions
      for itself. We have observed that children generally are less mature and
      responsible than adults, that they often lack the experience, perspective,
      and judgment to recognize and avoid choices that could be detrimental
      to them; that they are more vulnerable or susceptible to...outside
      pressures than adults, and so on.
                                          ***
      Our various statements to this effect are far from unique. The law has
      historically reflected the same assumption that children characteristically
      lack the capacity to exercise mature judgment and possess only an
      incomplete ability to understand the world around them.
                                         ***
      Like this Court’s own generalizations, the legal disqualifications placed
      on children as a class—e.g., limitations on their ability to alienate
      property, enter a binding contract enforceable against them, and marry
      without parental consent—exhibit the settled understanding that the

                                           8
      differentiating characteristics of youth are universal.
                                          ***
      As this discussion establishes, our history is replete with laws and
      judicial recognition that children cannot be viewed simply as miniature
      adults.

564 U.S. at 272-74 (internal quotations and citations omitted).

      Additionally, in Miller v. Alabama, supra, the Court held the Eighth

Amendment forbids a sentencing scheme that mandates life without parole for

juvenile offenders. The Court noted that Roper and Graham emphasized “that the

distinctive attributes of youth diminish the penological justifications for imposing the

harshest sentence on juvenile offenders, even when they commit terrible crimes.” 567

U.S. at 472. The Court further explained that the mandatory penalty scheme at issue

prevented the sentencer from taking into account these considerations. “By removing

youth from the balance—by subjecting a juvenile to the same life-without-parole

sentence applicable to an adult—these laws prohibit a sentencing authority from

assessing whether the law’s harshest term of imprisonment proportionately punishes

a juvenile offender.” 567 U.S. at 474.

      The majority finds these decisions inapplicable because they involve

sentencing issues under the Eighth Amendment. The majority fails to acknowledge

that a law mandating adult court jurisdiction, such as Article 305(A), necessarily

exposes juveniles to more severe punishment and longer sentences, thus implicating

Eighth Amendment concerns and making these Supreme Court decisions directly

relevant. Moreover, while Roper, Graham and Miller concern Eighth Amendment

issues, these decisions, as well as J.D.B, supra, are rooted in the Court’s

acknowledgment of the special status of juveniles based on documented differences

between children and adults. The mandatory nature of the Article 305(A) precludes

consideration of a host of characteristics and circumstances attendant to the juvenile’s

age. The need to recognize the unique characteristics of youthful offenders is

                                           9
inconsistent with a statute that mandates a transfer of jurisdiction to adult

court—based solely on age and the offense charged—without giving the juvenile a

right to a hearing. In my view, these incremental cases from the Supreme Court have

prompted the need to reevaluate the constitutionality of Article 305(A). It would be

nonsensical to recognize the significance and necessity of considering juvenile

characteristics solely in the context of sentencing.

      Moreover, it is troubling to me that Article 305(A) provides no judicial

safeguard to juveniles alleged to have committed the enumerated offenses—no

judicial counterweight to any arbitrary charging authority by the state. The state has

full control and discretion to seek an indictment on a particular charge, and this

unilateral charging decision can effectively establish the jurisdiction over the

juvenile. There is no provision to transfer the juvenile back to juvenile court if

warranted by a particular situation, such as where a charge is eventually reduced or

when a juvenile is convicted of a lesser crime that would not have subjected him to

adult court jurisdiction initially. A meaningful hearing, informed by specific criteria

to determine whether a juvenile is suitable to the rehabilitative processes available in

juvenile court, prior to removing the juvenile from juvenile court jurisdiction is

essential to withstand constitutional scrutiny.

      Whether a defendant is tried in juvenile or adult court is not merely a matter of

procedure. As the state admitted at oral argument before this court, subjecting a

juvenile to trial in adult court has tremendous consequences and is more significant

than a simple change of venue. Juveniles who are forced into the adult criminal

justice system lose a plethora of benefits that come with adjudicating the alleged

crime in the juvenile justice system, and they are saddled with an adult criminal

record. Our understanding of juvenile culpability has changed dramatically over the

last twenty years, shifting the way we treat accused juvenile offenders. I do not

                                          10
suggest that a juvenile offender should never be subject to the jurisdiction of adult

court. But, that determination should be made on an individual basis. A mandated

automatic transfer provision, based on age and offense alone, is constitutionally

flawed. Considering the import and ramifications involved with subjecting a juvenile

to adult court jurisdiction, I would hold that a juvenile is first entitled to a hearing to

comport with due process requirements to determine whether that juvenile is

amenable to treatment or rehabilitation based on a careful review of relevant

considerations. Because Article 305(A) does not allow for a hearing before the

juvenile court is divested of jurisdiction, I find it is unconstitutional.




                                            11
12/11/19

                    SUPREME COURT OF LOUISIANA

                             No. 2019-KA-01061

                          STATE OF LOUISIANA

                                      VS.

                             HUNTER FUSSELL


     On Appeal from the 22nd Judicial District Court, Parish of St. Tammany


Hughes, J., dissents for the reasons assigned by Johnson, C.J.
12/11/19

                    SUPREME COURT OF LOUISIANA

                             No. 2019-KA-01061


                          STATE OF LOUISIANA

                                      VS.

                             HUNTER FUSSELL


     On Appeal from the 22nd Judicial District Court, Parish of St. Tammany


CHEHARDY, J., dissents for the reasons assigned by Johnson, C.J.
