In the Interest of D.E.G. v. Juvenile Officer of Jackson County

SUPREME COURT OF MISSOURI
en banc
IN THE INTEREST OF D.E.G., ) Opinion issued June 16, 2020
)
Appellant, )
)
v. ) No. SC97869
)
JUVENILE OFFICER OF )
JACKSON COUNTY, )
)
Respondent. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable J. Dale Youngs, Judge

D.E.G. challenges the juvenile division’s judgment dismissing its jurisdiction over

him and allowing his case to be transferred to a court of general jurisdiction following a

section 211.071 1 hearing. D.E.G. seeks to appeal directly from the juvenile division’s

judgment and challenges the constitutional validity of his section 211.071 hearing.

This Court holds a juvenile has the statutory right to appeal from any final juvenile

division judgment. Accordingly, the case is retransferred to the court of appeals, Western

District, for a determination of the merits of D.E.G.’s claims.

1
All statutory references are to RSMo 2016, unless otherwise indicated.
 Factual and Procedural Background

In April 2018, the Juvenile Officer of Jackson County, Lori L. Stipp, filed a

petition alleging D.E.G. required care and treatment due to his alleged conduct that would

have been a crime had he been an adult. The Juvenile Officer requested a section

211.071 hearing to dismiss D.E.G. from the juvenile division’s jurisdiction. The Juvenile

Officer’s certification report recommended D.E.G. be certified to stand trial in a court of

general jurisdiction.

Following the certification hearing, the juvenile division entered its judgment of

dismissal pursuant to section 211.071 that dismissed the juvenile petition and transferred

jurisdiction over D.E.G. to a court of general jurisdiction. D.E.G. was released and

discharged from the juvenile division. The state never filed charges against D.E.G.

In October 2018, the Juvenile Officer filed another petition alleging D.E.G.

required care and treatment because he committed conduct that, had he been an adult,

would have constituted first-degree assault and armed criminal action. On October 29,

2018, the Juvenile Officer filed a motion for a certification hearing pursuant to

section 211.071. The Juvenile Officer’s certification report recommended D.E.G. be

certified to stand trial in a court of general jurisdiction. The certification hearing was

scheduled for January 2, 2019.

On January 2, 2019, D.E.G. filed a motion to deny certification, challenging the

constitutional validity of Missouri’s certification process. D.E.G.’s motion was

overruled; the certification hearing proceeded.

2
 The only testimony at the certification hearing was provided by the Deputy

Juvenile Officer Sandy Rollo-Hawkins (hereinafter, “Rollo-Hawkins”). Rollo-Hawkins’

testimony consisted of a summary of secondary resources she compiled to generate the

certification report recommendation. D.E.G. objected to Rollo-Hawkins’ testimony

regarding the report because she had no personal knowledge of the information it

contained, it constituted hearsay, and it violated his constitutional right to confrontation.

Rollo-Hawkins’ summary included details of the alleged conduct in the petition, details

of prior unadjudicated referrals to the juvenile office, details of D.E.G.’s conduct in

detention, statements made by D.E.G.’s mother, details of D.E.G.’s medical and mental

health, and D.E.G.’s educational background. Rollo-Hawkins conceded she had no

personal knowledge of any information contained in her report but merely compiled and

reviewed other sources for the certification report.

Following the hearing, the juvenile division entered its judgment of dismissal

pursuant to section 211.071 that dismissed the juvenile petition and transferred

jurisdiction over D.E.G. to a court of general jurisdiction. D.E.G. was released and

discharged from the juvenile division.

D.E.G. appealed the juvenile division’s dismissal judgment to the court of appeals.

This Court granted transfer prior to opinion. Mo. Const. art. V, sec. 10.

Appealability

D.E.G. raises six points on appeal, challenging the constitutional validity of his

certification hearing. However, prior to addressing any constitutional challenge D.E.G.

3
presents, this Court must determine whether this appeal properly is before it. 2 D.E.G.

requests this Court review the appeals process established by In re T.J.H., 479 S.W.2d

2
Judge Fischer’s dissenting opinion seeks to resolve all of the issues D.E.G.
presented. However, the issues − other than whether certification was final for appeal −
are not issues this Court must address at this time.
“Even though a jurisdictional allegation may be proper on its face, this Court will
not entertain the appeal if the allegation is pretextual.” Rodriguez v. Suzuki Motor Corp.,
996 S.W.2d 47, 51 (Mo. banc 1999). “If the United States Supreme Court or Missouri
Supreme Court has addressed a constitutional challenge, the claim is merely colorable
and the intermediate appellate court has jurisdiction.” State v. Henry, 568 S.W.3d 464,
479 (Mo. App. E.D. 2019).
D.E.G.’s constitutional challenges are all colorable rather than real and substantial.
His due process claims concern the quality and the weight of evidence presented in the
hearing. The due process considerations in a section 211.071 proceeding have been
addressed by Kent v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045, 16 L.Ed.2d 84
(1966), and State v. Nathan, 404 S.W.3d 253, 260 (Mo. banc 2013). D.E.G.’s equal
protection claims may also be addressed by the court of appeals prior to any potential
necessary resolution by this Court. See Johnson v. State, 366 S.W.3d 11, 27 (Mo. banc
2012) (addressing equal protection from racial gerrymandering in an opinion after
transfer from the court of appeals); Thompson v. ICI Am. Holding, 347 S.W.3d 624, 635-
36 (Mo. App. W.D. 2011) (addressing equal protection claims of disparate treatment of
employers and employees); Tenenbaum v. Mo. State Comm. of Psychologists, 226
S.W.3d 922, 923 (Mo. App. W.D. 2007) (discussing equal protection claims of disparate
discipline in professional licensing). Similarly, separation of powers claims have been
addressed by the court of appeals, and D.E.G. could receive the relief he seeks from that
court. See Barrett v. Greitens, 542 S.W.3d 370, 379-80 (Mo. App. W.D. 2017) (finding
the governor’s withholding of expenditures to the public defender did not violate
separation of powers); Pepper v. St. Charles Cty., Mo., 517 S.W.3d 590, 601-02 (Mo.
App. E.D. 2017) (discussing whether a charter amendment invaded the province of the
judiciary); Mitchell v. Nixon, 351 S.W.3d 676, 679 (Mo. App. W.D. 2011) (addressing
separation of powers issues in determining whether an administrative agency usurped the
judiciary’s role); State v. Woodworth, 941 S.W.2d 679, 697 (Mo. App. W.D. 1997)
(finding a party failed to develop his argument to support the contention “that because the
juvenile officer is appointed by the juvenile division judge, the certification procedure
creates a direct conflict of interest and violates the separation of powers”).

4
433 (Mo. banc 1972). The Juvenile Officer asserts the juvenile division no longer has

jurisdiction over D.E.G.’s proceedings and requests this appeal be dismissed. 3

“Under article V, section 5, it is for the legislature to set the requirements for the

right to appeal.” Goldsby v. Lombardi, 559 S.W.3d 878, 883 (Mo. banc 2018). “The

right to appeal is purely statutory and, where a statute does not give a right to appeal, no

right exists.” First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n Inc.,

515 S.W.3d 219, 221 (Mo. banc 2017) (quoting State ex rel. Coca-Cola Co. v. Nixon, 249

S.W.3d 855, 859 (Mo. banc 2008)). Section 211.261 currently governs the right to

appeal in juvenile cases. 4 However, because the right to appeal in a juvenile case is

defined by statute and the statute conferring that right has been amended since T.J.H. was

decided, this Court must revisit whether a dismissal from juvenile division is appealable.

Statutory interpretation is an issue of law, which is subject to de novo review.

Henry v. Piatchek, 578 S.W.3d 374, 378 (Mo. banc 2019). “This Court’s primary rule of

statutory interpretation is to give effect to legislative intent as reflected in the plain

language of the statute at issue.” State ex rel. Robison v. Lindley-Myers, 551 S.W.3d 468,

472 (Mo. banc 2018) (quoting Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670,

672 (Mo. banc 2009)). “In construing a statute, the Court must presume the legislature

was aware of the state of the law at the time of its enactment.” Suffian v. Usher,

19 S.W.3d 130, 133 (Mo. banc 2000) (quoting In re Nocita, 914 S.W.2d 358, 359 (Mo.

3
The Juvenile Officer also filed a separate motion to dismiss with this Court. The
motion to dismiss is overruled because the underlying motion to dismiss D.E.G. from the
juvenile division’s jurisdiction is appealable.
4
Rule 120.01(a) provides: “An appeal shall be allowed as provided by statute.”
5
banc 1996)). Accordingly, when the legislature amends a statute, we presume the

legislature intended to change the existing law. State ex rel. Hillman v. Beger,

566 S.W.3d 600, 607 (Mo. banc 2019).

In 1972, this Court was tasked with determining whether an order from the

juvenile division terminating proceedings and transferring jurisdiction of a child to a

court of general jurisdiction pursuant to section 211.071, RSMo Supp. 1957, was “a final

order from which an appeal shall be allowed.” T.J.H., 479 S.W.2d at 434. This Court

incorrectly quoted both sections 211.071 and 211.261. 5 Id. However, there was never

any discussion, analysis, or examination of the statutory language at issue.

This Court determined an order dismissing a petition and relinquishing juvenile

division jurisdiction was not a final, appealable order. Id. This Court proffered two

reasons for its decision, based upon precedent and policy concerns expressed by other

jurisdictions: (1) to allow an appeal would delay criminal prosecution; and (2) a juvenile

division’s waiver of jurisdiction could be challenged by filing a motion to dismiss an

indictment in a court of general jurisdiction. Id. at 434-35. 6 This Court, noting Missouri

5
The legislature enacted section 211.261 in 1957, and modified it in 1994. The Court in
T.J.H. cited section 211.261, RSMo Supp. 1969. However, the Court incorrectly quoted
from section 211.261, as there is no reference to the appealability from only specific
sections of chapter 211.
6
Judge Powell’s dissenting opinion asserts the resolution of this case demonstrates how a
criminal case in the circuit court can be delayed due to appealing a judgment dismissing a
juvenile from the jurisdiction of the juvenile division. While the goal should be a just,
speedy resolution of any case in the judicial system, those concerns extend beyond the
issues in this case and are subservient to the vested interest all juveniles have in
remaining under the jurisdiction of the juvenile division rather than pursuing remedies in
a court of general jurisdiction. The purpose of the juvenile code “is to protect and
safeguard the best interests of the juvenile.” State v. Salmon, 563 S.W.3d 725, 732 (Mo.
6
permits the filing of a motion to dismiss an indictment after the case is filed in a court of

general jurisdiction pursuant to Rule 25.06, 7 summarily dismissed the juvenile’s appeal

without any recognition or discussion of the statutory right to appeal. Id. at 435.

Since T.J.H., Missouri courts consistently have held that once the juvenile division

dismisses a case and transfers the cause to a court of general jurisdiction, there is no final

judgment for purposes of appeal. See, e.g., State v. Thomas, 970 S.W.2d 425 (Mo. App.

W.D. 1998); State v. K.J., 97 S.W.3d 543, 546 (Mo. App. E.D. 2003). T.J.H. continued

to be cited as valid precedent without any additional research or commentary regarding

the actual statutory language at issue.

In 1994, the Missouri legislature amended section 211.261. Section 211.261.1

provides, “An appeal shall be allowed to the child from any final judgment, order or

decree made under the provisions of this chapter and may be taken on the part of the

child by its parent, guardian, legal custodian, spouse, relative or next friend.” (Emphasis

added). Further, the legislature added language in section 211.261.1 allowing “the

juvenile officer [to appeal] from any final judgment, order or decree made under this

chapter, except that no such appeal shall be allowed concerning a final determination

App. E.D. 2018). This is demonstrated by the confidentiality of juvenile records. Should
a juvenile wrongly be dismissed from the jurisdiction of the juvenile division and have to
pursue a remedy in the court of general jurisdiction, that juvenile’s records no longer are
confidential, thereby thwarting the protections and safeguards designed to ensure the best
interests of all our juveniles.
7
At the time T.J.H. was decided, Rule 25.06 (1972) pertained to the scope and form of
motions and waiver of defenses. Such language now appears in Rule 24.04.
7
pursuant to subdivision (3) of subsection 1 of section 211.031.” 8 The legislature also

included two additional subsections to this statute that allow the juvenile officer to seek

an interlocutory appeal from proceedings pursuant to section 211.031.1(3),

notwithstanding the prior provision, and from orders suppressing evidence, a confession,

or an admission.

In this case, the juvenile division entered a “Judgment of Dismissal pursuant to

section 211.071” on January 9, 2019. In its judgment, the juvenile division set forth

detailed reasoning to dismiss D.E.G. from its jurisdiction. 9 The juvenile division

concluded it was “ordered and adjudged” D.E.G was released and discharged from its

jurisdiction. Finally, the judgment was signed by the judge. 10 Hence, the judgment

dismissing the juvenile division’s jurisdiction over D.E.G. was a final, appealable

judgment. See Rule 74.01(a); c.f. In re M.P.W., 983 S.W.2d 593, 597-98 (Mo. App.

W.D. 1999) (finding the decision by the juvenile division to assume jurisdiction is an

appealable judgment).

8
“Section 211.031 gives exclusive original jurisdiction to the juvenile justice system over
all children under the age of 17.” State v. Andrews, 329 S.W.3d 369, 371 (Mo. banc
2010).
9
The primary purpose of the juvenile division “is to facilitate the care, protection and
discipline of children who come within [its] jurisdiction ….” Section 211.011.
10
Following the judge’s signature, the judgment had another heading titled, “Notice of
Entry of Judgment.” This section informed the parties “you may have a right to appeal
from this judgment under Rule 120.01 and section 211.261…” and it was signed by the
deputy court administrator.
8
 T.J.H.’s Validity

This Court’s decisions “should not be lightly overruled.” Eighty Hundred Clayton

Corp. v. Dir. of Revenue, 111 S.W.3d 409, 411 n.3 (Mo. banc 2003). “Stare decisis

‘promotes stability in the law by encouraging courts to adhere to precedents.’” State v.

Blurton, 484 S.W.3d 758, 792 (Mo. banc 2016) (Draper, J., concurring in result) (quoting

State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013)).

Adherence to precedent is especially vital … with respect to prior cases
interpreting statutes. Justice Louis Brandeis said it well in 1932:
Stare decisis is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it be settled
right. This is commonly true even when the error is a matter of serious
concern, provided correction can be had by legislation.

Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 387 (Mo. banc 2014) (Fischer, J.,

dissenting) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-10, 52 S. Ct.

443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting) (internal citations omitted), overruled

in part by Helvering v. Mountain Producers Corp., 303 U.S. 376, 387, 58 S. Ct. 623, 82

L.Ed. 907 (1938)).

However, absolute devotion to precedent is not unrestricted. Templemire, 433

S.W.3d at 379. “[T]he passage of time and the experience of enforcing a purportedly

incorrect precedent may demonstrate a compelling case for changing course.” Med.

Shoppe Int’l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 335 (Mo. banc 2005). “The rule

of stare decisis is never applied to prevent the repudiation of decisions that are patently

9
wrong and destructive of substantive rights.” O’Leary v. Ill. Terminal R.R. Co., 299

S.W.2d 873, 879 (Mo. banc 1957). 11

A judgment dismissing a juvenile from the juvenile division’s jurisdiction is final

and appealable. In T.J.H., this Court relied on misquoted statutory language and

misguided concerns voiced in other jurisdictions that led our Court to erroneously

determine the only manner in which a judgment dismissing a juvenile from the juvenile

division’s jurisdiction could be challenged was in a court of general jurisdiction. T.J.H.,

479 S.W.2d at 434-35. The right to appeal in Missouri is a statutory right. This Court

looks to Missouri statutes to determine when a party has the right to appeal rather than

policy concerns voiced by other jurisdictions. T.J.H. ignored the fundamental

constitutional obligation to follow statutory guidance provided by the legislature.

11
Rather than engaging in a meaningful analysis of the law, Judge Powell’s dissenting
opinion argues this Court should perpetuate its erroneous precedent. Judge Powell’s
dissenting opinion cites First Bank v. Fischer & Frichtel, Inc., 364 S.W.3d 216, 224 (Mo.
banc 2012), for the proposition that stare decisis should not overrule precedent when a
decision has remained unchanged for many years. However, in First Bank, the subject at
issue was not addressed by any statute; accordingly, there could be no statutory analysis.
Id. Judge Powell’s dissenting opinion further cites Crabtree v. Bugby, 967 S.W.2d 66,
71-72 (Mo. banc 1998), explaining this Court should not disturb its precedent for a mere
disagreement with prior statutory analysis. While Bugby is no longer good law, see
Templemire, 433 S.W.3d at 373, this concern is valid. However, the T.J.H. Court failed
to engage in any statutory analysis to support its decision, even though the right to appeal
is defined statutorily. The notion that the primary importance is for the law to be settled
rather than correct
would result in a society in which insidious discrimination still would
subject school children to being segregated into schools that were
purportedly separate but equal, women could not serve on juries, interracial
marriage still would be subject to criminal prosecution, and crime victims
would be prohibited from offering impact testimony during the punishment
phase of death penalty trials.
Id. at 380 n.9.
10
 “This Court’s primary rule of statutory interpretation is to give effect to legislative

intent as reflected in the plain language of the statute at issue.” Sun Aviation, Inc. v. L-3

Commc’ns Avionics Sys., 533 S.W.3d 720, 723 (Mo. banc 2017) (quoting Parktown

Imps., 278 S.W.3d at 672). “This Court interprets statutes in a way that is not

hyper-technical but, instead, is reasonable, logical, and gives meaning to the statute and

the legislature’s intent as reflected in the statute’s plain language.” St. Louis Rams LLC

v. Dir. of Revenue, 526 S.W.3d 124, 126 (Mo. banc 2017). “The rules of statutory

interpretation are not intended to be applied haphazardly or indiscriminately to achieve a

desired result. Instead, the canons of statutory interpretation are considerations made in a

genuine effort to determine what the legislature intended.” Parktown Imps., 278 S.W.3d

at 672.

This Court must look to the actual statutory provisions and determine whether

D.E.G. has the right to appeal from the juvenile divisions’s dismissal. 12 Section

211.261.1’s plain language is clear and unambiguous. Section 211.261.1 allows for an

appeal from “any final judgment, order or decree made under the provisions of this

chapter ….” (Emphasis added). Therefore, there is no need for this Court, or any other,

to engage in a policy discussion or analysis of other jurisdictions in order to effectuate the

12
Judge Powell’s dissenting opinion claims this principal opinion rests upon a
reexamination of section 211.261 due to the amendment made in 1994. That assertion is
clearly incorrect. This opinion examines section 211.261 in the first instance because
T.J.H. never engaged in any statutory analysis of the proper statutory language at issue.
11
legislature’s intent. D.E.G. has the right to appeal from the juvenile division’s judgment

dismissing him from its jurisdiction. 13

Further, because T.J.H. and its progeny failed to follow section 211.261’s plain

language, T.J.H. and all other cases holding a juvenile’s dismissal from a juvenile

division’s jurisdiction may be challenged only in a court of general jurisdiction are

overruled and should no longer be followed. 14 As provided by section 211.261, an

aggrieved party may appeal from any final judgment in chapter 211.

Conclusion

A juvenile may appeal from a final judgment in the juvenile division, including the

juvenile division’s decision to dismiss a case from its jurisdiction following a

section 211.071 hearing. Accordingly, this Court overrules T.J.H.’s contrary holding and

any other case not allowing a juvenile to appeal directly following a judgment dismissing

the juvenile from the juvenile division’s jurisdiction after a section 211.071 hearing. The

13
Judge Powell’s dissenting opinion prefers to rely upon policy statements from another
court made almost a half-century ago rather than the plain statutory language. Judge
Powell’s dissenting opinion seems to believe that allowing the determination as to
whether a juvenile is certified properly may be resolved promptly in a criminal case in a
court of general jurisdiction. However, as this case demonstrates, D.E.G.’s concurrent
criminal case in a court of general jurisdiction still is pending and illustrates merely
allowing a case to proceed to the court of general jurisdiction does not ensure its prompt
resolution. Further, once a juvenile is subject to the court of general jurisdiction, the
juvenile loses all protections put in place to protect our young citizens, including the
juvenile’s anonymity.
14
Conspicuously absent from Judge Powell’s dissenting opinion is any sort of
disagreement about the plain language of the statutory right to appeal. Judge Powell’s
dissenting opinion would ignore the legislature’s role in determining when a party may
appeal, which is inappropriate.
12
case is retransferred to the Missouri Court of Appeals, Western District, for its review of

the underlying merits of the juvenile division’s judgment. 15

_____________________________
GEORGE W. DRAPER III, CHIEF JUSTICE

Russell, Breckenridge and Stith, JJ., concur; Powell, J., dissents in separate opinion filed;
Wilson and Fischer, JJ., concur in opinion of Powell, J.; Fischer, J., dissents in separate
opinion filed; Wilson and Powell, JJ., concur in opinion of Fischer, J.

15
When this Court is called upon to determine the finality or appealability of judgments,
it has made that determination and then regularly retransferred to the court of appeals for
a determination of the underlying merits. See Meadowfresh Solutions USA, LLC v.
Maple Grove Farms, LLC, 578 S.W.3d 758, 762 (Mo. banc 2019) (determining an
interlocutory order was final for purposes of appeal and retransferring to the court of
appeals for resolution of the remaining points on appeal); Barron v. Shelter Mut. Ins. Co.,
220 S.W.3d 746, 747 (Mo. banc 2007) (following the court of appeals’ determinations
that the underlying petition failed to state a claim, this Court transferred the case,
determined the petition did state a claim, and retransferred to the court of appeals for
resolution of the issues on appeal); Brooks v. Brooks, 98 S.W.3d 530, 531 (Mo. banc
2003) (following this Court’s grant of transfer from the court of appeals, this Court
determined a qualified domestic relations order was appealable and retransferred for the
court of appeals to consider the merits); Williams v. Williams, 41 S.W.3d 877, 878 (Mo.
banc 2001) (retransferring to the court of appeals for a determination on the merits after
the court of appeals transferred the case to this Court due to a conflict between the
districts); Paulson v. Dir. of Revenue, 724 S.W.2d 511, 513 (Mo. banc 1987) (granting
transfer due to confusion of the requirements for a final judgment and retransferring to
the court of appeals for a determination on the merits).

13
 SUPREME COURT OF MISSOURI
en banc
IN THE INTEREST OF D.E.G., )
)
Appellant, )
)
v. ) No. SC97869
)
JUVENILE OFFICER OF )
JACKSON COUNTY, )
)
Respondent. )

DISSENTING OPINION

I respectfully dissent. Under this Court’s precedent, a juvenile certification ruling

is not appealable. Therefore, I would dismiss this appeal.

As the principal opinion notes, “In Missouri, the right to appeal is purely statutory,

and ‘where a statute does not give a right to appeal, no right exists.’” Fannie Mae v.

Truong, 361 S.W.3d 400, 403 (Mo. banc 2012) (quoting Farinella v. Croft, 922 S.W.2d

755, 756 (Mo. banc 1996)). In this juvenile matter, the right to appeal is governed by

section 211.261. 1 This section provides in relevant part: “An appeal shall be allowed to

the child from any final judgment, order or decree made under the provisions of this chapter

1
All statutory references are to RSMo 2016, unless otherwise noted.
and may be taken on the part of the child by its parent, guardian, legal custodian, spouse,

relative or next friend.” § 211.261.1. This Court, in In re T.J.H., 479 S.W.2d 433, 434

(Mo. banc 1972), interpreted this statutory language and determined a juvenile certification

resulting in the dismissal of a petition in the juvenile division is not a final judgment, order,

or decree from which an appeal is authorized.

The principal opinion justifies reexamining this Court’s decision in T.J.H. by the

legislative amendments made to section 211.261 in 1994. Ordinarily, this Court presumes

the legislature intends to change the law when it amends a statute. State ex rel. Hillman v.

Beger, 566 S.W.3d 600, 607 (Mo. banc 2019). However, “this is not always the case.” Id.

If a statute is amended only in part, this Court presumes the legislature intended the

unchanged section of the statute continues to operate as it did before the amendment.

Citizens Bank & Trust Co. v. Dir. of Revenue, 639 S.W.2d 833, 835 (Mo. 1982) (citing

State ex re. Dean v. Daues, 14 S.W.2d 990, 1002 (Mo. 1929)). “[T]he General Assembly

must be presumed to have accepted the judicial and administrative construction of its

enactments . . . .” State ex rel. Howard Elec. Co-Op v. Riney, 490 S.W.2d 1, 9 (Mo. 1973);

see also State v. Grubb, 120 S.W.3d 737, 742 (Mo. banc 2003) (Teitelman, J., dissenting)

(stating the General Assembly is presumed to know the law in enacting statutes and it had

implicitly adopted a prior court of appeals decision by amending the law but not overruling

the case).

Section 211.261 was amended in 1994, after this Court decided T.J.H. Before the

amendments, the statute provided:

2
 An appeal shall be allowed to the child from any final judgment, order or
decree made under the provisions of sections 211.011 to 211.431 and may
be taken on the part of the child by its parent, guardian, legal custodian,
spouse, relative or next friend.

§ 211.261, RSMo Supp. 1957 (emphasis added). After the legislative amendments in 1994,

this statutory provision remained largely unchanged. The amendments maintained the

language that an appeal is allowed from “any final judgment, order or decree made under

the provisions of this chapter . . . .” The same phrase existed in the statute when this Court

in T.J.H. interpreted section 211.261 and determined that a juvenile certification resulting

in the dismissal of a petition in the juvenile division is not a final judgment, order or decree

from which an appeal is authorized. The principal opinion’s reliance on the 1994

amendments, therefore, overlooks the fact that these amendments did not modify the

operative statutory language affecting the right of appeal in this case.

If a juvenile certification resulting in the dismissal of the petition in the juvenile

division was not a “final judgment, order or decree” in 1972, it cannot be so now after the

General Assembly’s amendment retained the language upon which T.J.H. relied. For that

reason, even if this Court disagrees with the analysis and holding reached in T.J.H., we

should continue to follow it. As this Court repeatedly has emphasized, “a decision of this

Court should not be lightly overruled.” Eighty Hundred Clayton Corp. v. Dir. of Revenue,

111 S.W.3d 409, 411 n.3 (Mo. banc 2003). As the United States Supreme Court has stated,

stare decisis “permits society to presume that bedrock principles are founded in the law

rather than in the proclivities of individuals, and thereby contributes to the integrity of our

constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery,

3
474 U.S. 254, 265-66 (1986). Moreover, stare decisis is more strictly observed in cases

involving statutory interpretation. Our Court has stated “stare decisis is most essential

regarding prior statutory interpretations because it is there that the rule of law and respect

for the separation of powers meet.” Templemire v. W & M Welding, Inc., 433 S.W.3d 371,

387 (Mo. banc 2014) (Fischer, J., dissenting). This is because the legislature can alter

statutory precedent by enacting new legislation. For this reason, it is significant that the

legislature amended section 211.261 after T.J.H. was decided but left in place the language

T.J.H. relied upon and based its decision.

To be sure, stare decisis is not a rigid inevitability but, instead, a doctrine that

“promotes security in the law by encouraging adherence to previously decided

cases.” Indep.-Nat’l Educ. Ass’n v. Indep. Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc

2007). In considering whether to overrule precedent, this Court has considered several

factors: whether a decision “has remained unchanged for many years,” First Bank v.

Fischer & Frichtel, Inc., 364 S.W.3d 216, 224 (Mo. banc 2012); whether it is clearly

erroneous and manifestly wrong, Novak v. Kan. City Transit, Inc., 365 S.W.2d 539, 546

(Mo. banc 1963); and whether it violates a constitutional right. Watts v. Lester E. Cox

Med. Ctrs., 376 S.W.3d 633, 644 (Mo. banc 2012). Other pragmatic considerations include

whether the rule defies practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116

(1965); whether the law has evolved such that the prior rule is merely an anachronism,

Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989), superseded on other

grounds by 42 U.S.C. § 1981(b); and whether circumstances have changed such that

application of old rule harms public interest. Burnet v. Colo. Oil & Gas Co., 285 U.S. 393,

4
412 (1932) (Brandeis, J., dissenting), overruled on other grounds by Helvering v. Mountain

Producers Corp., 303 U.S. 376, 387 (1938). 2

This Court may disagree with the Court’s statutory interpretation of section 211.261

in T.J.H., but the statutory interpretation in T.J.H., now nearly 50 years old, has not proven

to violate an individual’s constitutional rights. It has not become unworkable or an absurd

vestige. Moreover, circumstances have not changed such that application of T.J.H. harms

public interest. To the contrary, the policy reasons this Court provided in T.J.H. for not

allowing appeal of a dismissal from juvenile court still exist today. An appeal would

“obviously delay the prosecution of any proceeding” in either juvenile court or the circuit

court, jeopardizing the chance of a speedy and just disposition for alleged juvenile

offenders, victims, witnesses, and the community at large. 3 T.J.H., 479 S.W.2d at 434

2
This list is not exhaustive. Courts around the country have offered many considerations
to balance, allowing for a case-by-case, individualized evaluation of the merits of
renouncing precedent. See, e.g., State v. Wetrich, 412 P.3d 984, 991 (Kan. 2018) (weighing
the benefits of stare decisis against promoting the goal of consistent application of the law
across jurisdictions); Vitro v. Mihelcic, 806 N.E.2d 632, 635 (Ill. 2004) (stating that a
settled rule of law ought to be followed “unless it can be shown that serious detriment is
thereby likely to arise prejudicial to public interests”) (quoting Maki v. Frelk, 239 N.E.2d
445, 447 (Ill. 1968)); McCulloch v. Maryland, 17 U.S. 316, 401 (1819) (“An exposition of
the constitution, deliberately established by legislative acts, on the faith of which an
immense property has been advanced, ought not to be lightly disregarded.”). As the
Supreme Court stated in Vasquez, “the careful observer will discern that any detours from
the straight path of stare decisis in our past have occurred for articulable reasons[.]” 474
U.S. at 266.
3
This case presents a perfect example of the delays that result from an appeal of the
certification ruling. On October 26, 2018, D.E.G., a 16-year-old juvenile, was detained by
the juvenile division for alleged conduct that would be a crime if committed by an adult.
A little more than two months later, the juvenile division certified D.E.G. as an adult and
transferred the proceedings to the circuit court. D.E.G. remained detained and was moved
from juvenile detention to the Jackson County jail, where he remains detained as of the

5
(citing People v. Jiles, 251 N.E.2d 529, 531 (Ill. 1969)). Justice delayed is justice denied,

whether in the juvenile division or circuit court proceedings. “To permit interlocutory

review would subordinate that primary issue and defer its consideration while the question

of the punishment appropriate for a suspect whose guilt has not yet been ascertained is

being litigated in reviewing courts.” Id. (citing Jiles, 251 N.E.2d at 531).

These public policy considerations would not allow this Court to ignore legislative

changes to the statutory provision, but in the absence of such changes, the valued policy

date of this opinion. On February 6, 2019, D.E.G. formally requested a speedy trial, and
the circuit court immediately set the matter for trial. On February 8, 2019, D.E.G. filed his
notice of appeal of the juvenile certification ruling. While the appeal was pending, D.E.G.
filed a motion to continue the trial setting on July 24, 2019, in part because of this pending
appeal. In the motion to continue, D.E.G. specifically waived his request for speedy trial.
The circuit court granted D.E.G.’s request for continuance and reset the trial for February
18, 2020. On February 3, 2020, D.E.G. filed a second motion to continue the trial setting,
again in part because of this pending appeal. The circuit court granted the motion and reset
the trial for May 4, 2020. Because of the prohibition on in-person proceedings due to the
COVID-19 pandemic, the circuit court again continued the trial setting on May 4, 2020.
Based on the history of the case, however, D.E.G. presumably would have requested
another continuance based in part on this pending appeal regardless of the health crisis.
D.E.G.’s case is currently set for case management conference on July 10, 2020. Due the
delays caused by this appeal and the additional challenges presented by the COVID-19
pandemic, it is difficult to imagine the circuit court resetting D.E.G.’s jury trial before
October 2020, two years after his initial detention in this matter. Of course, D.E.G. could
appeal any resulting adjudication or conviction from either the juvenile division or the
circuit court that will further delay a final resolution of this matter. Clearly, this appeal has
forfeited D.E.G.’s request for a speedy and just disposition of this matter at his own expense
as he remains detained in jail, and at the expense of the alleged victims, the witnesses, and
the community at large. Such a delay also frustrates the purpose of the juvenile code. The
philosophy of the juvenile code is multifaceted and includes the value our society places
on redirecting and rehabilitating youths, as well as the State’s interests in protecting
citizens from crime while protecting the best interests of the juvenile. See State v.
Arbeiter, 408 S.W.2d 26, 29 (Mo.1966) (citing State v. Shaw, 378 P.2d 487 (Ariz. banc
1963)).

6
concerns further support application of stare decisis. Law practitioners and the public

expect this Court to maintain its prior holdings and positions unless compelling reasons

exist to do otherwise, and no such compelling reason is apparent here. “[T]his Court should

not lightly disturb its own precedent. Mere disagreement by the current Court with the

statutory analysis of a predecessor Court is not a satisfactory basis for violating the doctrine

of stare decisis, at least in the absence of a recurring injustice or absurd results.” Crabtree

v. Bugby, 967 S.W.2d 66, 71-72 (Mo. banc 1998), overruled on other grounds by

Templemire, 433 S.W.3d at 373. The amendments to section 211.261 did not change the

language establishing the right to appeal from a final judgment, order, or decree. In

consideration of these factors, this Court should not deviate from the law established in

T.J.H.

Conclusion

For the reasons above, I would follow our precedent in T.J.H. and dismiss this

appeal. Therefore, I respectfully dissent. 4

___________________
W. Brent Powell, Judge

4
I also concur with Judge Fischer’s dissenting opinion’s conclusion that this matter should
not be retransferred if this appeal is not dismissed. Even if this Court has the authority to
retransfer this matter back to the court of appeals pursuant to article V, section 10 and prior
case law, this Court, in its discretion, should not exercise this authority in this case. As
Judge Fischer’s dissenting opinion notes, some of the issues raised in this appeal are real
and substantial and fall under this Court’s direct appeal jurisdiction. Nonetheless, all the
issues in this case have been fully briefed and argued, and this appeal should be resolved
expeditiously due to the nature and status of the case, making retransfer inappropriate. See
supra note 3. I also concur with Judge Fischer’s dissenting opinion that section 211.071 is
constitutional on its face and as applied to D.E.G.’s certification hearing.
7
 SUPREME COURT OF MISSOURI
en banc
IN THE INTEREST OF D.E.G., )
)
Appellant, )
)
v. ) No. SC97869
)
JUVENILE OFFICER OF )
JACKSON COUNTY, )
)
Respondent. )

DISSENTING OPINION

I. Introduction

D.E.G. is alleged to have committed two acts that, if committed as an adult, would

constitute crimes of first-degree assault and armed criminal action. In accord with

§ 211.071, the juvenile division held a certification hearing and, thereafter, dismissed the

juvenile petition and certified D.E.G. for prosecution by the State in a court of general

jurisdiction. D.E.G. appealed the juvenile division's judgment originally to the court of

appeals and thereafter filed an application for transfer prior to opinion, requesting this

Court reexamine its prior holding that a certification order pursuant to § 211.071 is not an

appealable order. His notice of appeal, application for transfer, and brief on appeal to this

Court challenge the constitutional validity of the juvenile certification process. The
principal opinion holds that a juvenile certification and order of dismissal pursuant to

§ 211.071 is an appealable order, but then refuses to decide the issues presented in that

appeal. Instead, the principal opinion purports to retransfer the case to the court of

appeals to decide those issues, including the issues of whether Missouri statutes are

constitutional. As a result, the principal opinion's decision to retransfer this case to the

court of appeals makes the jurisdictional determination that D.E.G.’s constitutional

challenges are merely colorable and not real and substantial. Even assuming this

conclusion is correct, and it is not, this Court should not pick and choose from among the

questions presented. Instead, it should decide both the threshold issue of appealability as

well as the constitutional and non-constitutional claims already briefed and argued in this

Court. Because the Missouri statutes are constitutionally valid and D.E.G. received all of

the process he was due pursuant to § 211.071, which is all that is required by Supreme

Court of the United States precedent, I respectfully dissent.

II. Factual and Procedural History

The allegations against D.E.G. are as follows: On October 24, 2018, D.E.G. was

with several fellow juveniles when he expressed an interest in confronting several nearby

members of a gang. He had a gun with him. The victim refused to go with D.E.G., and

D.E.G. pointed his gun at the victim asking for the victim's gun. When the victim

refused, D.E.G. struck him in the head with his gun and grabbed the victim's backpack

containing the gun. The victim stood up to try to grab the backpack and D.E.G. shot him

at point-blank range three times and fled the scene. The victim remains paralyzed from

the waist down because of the shooting.

2
 On October 26, 2018, the Juvenile Officer of Jackson County filed a petition

alleging D.E.G. required care and treatment as a result of his actions. The Juvenile

Officer filed a motion for a certification hearing pursuant to § 211.071 and a certification

report recommending D.E.G. be certified to stand trial in a court of general jurisdiction.

D.E.G. received written notice of the hearing containing a description of the certification

process. The written notice provided, in part:

The purpose of the [certification] hearing is to determine whether the
juvenile is a proper subject to be dealt with under the provisions of the
juvenile code, and if the Court finds the juvenile is not a proper subject, the
petition will be dismissed to allow prosecution of the juvenile under general
law. 1

The juvenile division held the certification hearing on January 2, 2019. D.E.G.

was present and represented by counsel. Deputy Juvenile Officer Sandy Rollo-Hawkins

testified to the contents of the Certification Report she prepared for the juvenile division

pursuant to § 211.071(6). She testified she prepared the Report using "information from

the social file, which includes police reports, court documents, prior certification reports

that were completed, school records, mental health records," and also interviewed

D.E.G.'s mother. She also consulted information from prior certification reports filed

1
The description D.E.G. received is consistent with § 211.071's express purpose:
A written report shall be prepared in accordance with this chapter developing
fully all available information relevant to the criteria which shall be considered by
the court in determining whether the child is a proper subject to be dealt with
under the provisions of this chapter and whether there are reasonable prospects
of rehabilitation within the juvenile justice system.
§ 211.071.6 (emphasis added). It is also consistent with the aims of juvenile certification
proceedings, as outlined by the Supreme Court of the United States: "[T]ransfer provisions
represent an attempt to impart to the juvenile-court system the flexibility needed to deal with
youthful offenders who cannot benefit from the specialized guidance and treatment contemplated
by the system." Breed v. Jones, 421 U.S. 519, 535 (1975).

3
with the juvenile division. When the Report was offered into evidence, D.E.G. objected

to its admittance on the ground the report was hearsay and violates his right to

confrontation. 2 The juvenile division overruled the objection and admitted the Report.

Rollo-Hawkins also testified to the Report's contents. D.E.G. lodged a "continuing

objection to hearsay as this line of questioning is regarding the allegations in the incident

which Ms. Rollo-Hawkins has no personal knowledge[.]." In overruling the objection,

the juvenile division reasoned:

I understand. The report contemplates that [Rollo-Hawkins] will get
information from other sources. And I do note your hearsay objection to it
but it is overruled. And as I do, periodically, note that as it relates to the
allegations that have been lodged against the juvenile, I'm not assuming
they're true for purposes of the hearing today. This is simply a recitation of
her understanding of the allegations. So they're received for that purpose
and no other and your objection is overruled.

Cert. Tr. at 8. Rollo-Hawkins used the report to answer questions directed at each of the

criteria outlined in § 211.071.6. Id. at 10-24. D.E.G.'s counsel extensively cross-

examined Rollo-Hawkins. Id. at 25-33.

Several days later, the juvenile division issued a judgment of dismissal pursuant to

§ 211.071. The redacted judgment is attached to this opinion as "Exhibit A." The

judgment includes findings determining the court had jurisdiction of the cause and

parties, that D.E.G. was represented by counsel, that the hearing was held in the presence

of D.E.G. and his counsel, and the reasons underlying the juvenile division's decision—

2
D.E.G.'s counsel failed to specify whether he was objecting based on the confrontation clause
of the Missouri Constitution or the confrontation clause of the United States Constitution. Either
way, a juvenile certification hearing is not a "criminal prosecution[]," it is a statute-based, non-
adjudicatory procedure to which neither confrontation clause applies. See U.S. Const. amend.
VI; Mo. Const. art. I, § 18(a); § 211.071.

4
specifically tailored to each of the § 211.071.6 factors. Pursuant to the judgment,

jurisdiction over D.E.G. was transferred to a court of general jurisdiction. D.E.G.

appealed the juvenile division’s judgment to the court of appeals and applied to this Court

for transfer prior to opinion. Mo. Const. art. V, § 10; Rule 83.01.

In addition to asking this Court to decide whether the current statutes permit an

appeal from the outcome of a certification proceeding, the application for transfer prior to

opinion of the court of appeals claimed "Missouri's certification process … and Missouri

Supreme Court Rule 129.04, as applied in this jurisdiction, and as applied to D.E.G., are

unconstitutional." The application for transfer prior to opinion also claimed this case

presented questions of general interest and importance and in support of his application

for transfer, D.E.G. stated:

The process fails constitutional requirements by applying a presumption of
guilt upon the Juvenile at certification hearing. It fails constitutional
requirements by routinely and systematically ignoring the rules of
evidence[,] … denying the right to confront witness and concluding in a
decision based exclusively on hearsay[.] … its vague or nonexistent burden
of proof[,] … [and] the court's consideration of prior unadjudicated
referrals[.]

App. for Transfer, at 7-8. In the section of the notice of appeal originally filed in the

court of appeals labeled "Issues Expected To Be Raised On Appeal," D.E.G. provided, in

part: "Missouri's certification process is unconstitutional in numerous ways." D.E.G.'s

brief raised several constitutional challenges to § 211.071, including that Missouri's

certification process violates equal protection, due process, and separation of powers.

"[A]ppellate review of a juvenile division's decision to terminate jurisdiction as to

a youthful offender is limited to a determination of whether in the totality of the

5
circumstances the court abused its discretion." A.D.R. v. Rone, 603 S.W.2d 575, 580-81

(Mo. banc 1980). A court abuses its discretion "when the ruling is clearly against the

logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the

sense of justice and indicates a lack of careful, deliberate consideration." Howard v. City

of Kansas City, 332 S.W.3d 772, 785-86 (Mo. banc 2011).

III. This Court Cannot Retransfer the Case to the Court of Appeals and, Even If
It Can, It Should Not Do So

I dissent from the principal opinion's holding that this Court should grant transfer

in this case, decide only the issue it wants to decide, and then retransfer the case to the

court of appeals to decide the remaining issues. 3

"This Court has an obligation, acting sua sponte if necessary, to determine its

authority to hear the appeals that come before it." First Nat'l Bank of Dieterich v. Pointe

Royale Prop. Owners' Ass'n, Inc., 515 S.W.3d 219, 221 (Mo. banc 2017). Article V, § 3

of the Missouri Constitution provides this Court has "exclusive appellate jurisdiction in

all cases involving the validity … of a statute … of this state[.]" "[T]his Court's

exclusive appellate jurisdiction is invoked when a party asserts that a state statute directly

violates the constitution either facially or as applied." McNeal v. McNeal-Sydnor, 472

S.W.3d 194, 195 (Mo. banc 2015). "The constitutional issue must be real and substantial,

not merely colorable." Id. "In the context of the 'not merely colorable' test, the word

'colorable' means feigned, fictitious or counterfeit, rather than plausible." Rodriguez v.

Suzuki Motor Corp., 996 S.W.2d 47, 52 (Mo. banc 1999). A clear indicator of a "real and

3
I concur in the dissenting opinion of Judge Powell.

6
substantial" constitutional challenge is when it raises an issue of first impression with this

Court. Dieser v. St. Anthony's Med. Ctr., 498 S.W.3d 419, 429 (Mo. banc 2016).

D.E.G.'s constitutional challenges to § 211.071 are real and substantial, not merely

colorable, because they raise several issues of first impression with this Court. This

Court has not addressed whether the certification process outlined in § 211.071 violates

equal protection nor whether the juvenile division system violates the separation of

powers. In addition, his due process challenge, though not novel in its entirety, raises

novel constitutional challenges including whether juveniles have a due process right to

the strict application of the rules of evidence in certification proceedings. Accordingly,

these claims fall within this Court's exclusive appellate jurisdiction and cannot be

retransferred to the court of appeals.

The principal opinion explicitly holds that D.E.G.'s constitutional claims regarding

§ 211.071 and the Missouri juvenile certification process are not real and substantial, but

merely colorable. Slip op. at 4, n.2. In my view, these claims – even though they

ultimately lack merit – have been preserved and fall within this Court's "exclusive

appellate jurisdiction" under article V, section 3, of the Missouri Constitution. This

Court has steadfastly held that, even when the challenge is ultimately rejected by this

Court on the merits, it holds no bearing on whether the challenge was real and

substantial. Rodriguez, 996 S.W.2d at 52 (citing a number of this Court's previous

decisions in which the "Court's jurisdiction was properly based on novel constitutional

challenges even though the challenges were ultimately rejected on the merits, and indeed,

were rejected by unanimous vote.").

7
 Even if the principal opinion's jurisdictional analysis was correct, and it is not, the

practice of deciding parts of cases and retransferring them to the court of appeals to

decide the remainder – however convenient, judicially efficient, and even good policy it

may be – lacks any explicit support in the Constitution. Art. V, § 10 provides, in

pertinent part: "The supreme court may finally determine all causes coming to it from

the court of appeals, whether by certification, transfer, or certiorari, the same as on

original appeal." (Emphasis added). In my view, once this Court grants transfer from the

court of appeals, it should determine all issues properly before it unless some

extraordinary circumstance justifies doing less. Id. 4 Therefore, even though the principal

opinion answers the question of whether an aggrieved party may appeal from the

outcome of a juvenile certification proceeding, in my view it shirks this Court's

responsibility, 5 after full briefing and argument, to resolve the other questions presented,

including whether Missouri's certification process and D.E.G.'s hearing met statutory and

constitutional standards.

IV. D.E.G.'s Hearing Complied with Statutory and Constitutional Standards

"Constitutional challenges to a statute are reviewed de novo." St. Louis Cty. v.

4
This Court's Rules recognize only a single exception to this obligation. Rule 83.09 provides:
Any case coming to this Court from a district of the court of appeals, whether by
certification, transfer or certiorari, may be finally determined the same as on
original appeal. If, however, in cases transferred on order of this Court, the Court
concludes that the transfer was improvidently granted, the case may be
retransferred to the court of appeals
5
Even if the principal opinion's determination that D.E.G.’s constitutional challenges are merely
colorable and not real and substantial enough to implicate this Court's exclusive appellate
jurisdiction, which it is not, the Court should not retransfer this case to the court of appeals
because these issues and others have been fully briefed and argued in this Court and a retransfer
will needlessly delay the resolution of this case.

8
Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. banc 2011) (internal quotations

omitted). Statutes are presumed constitutionally valid and will not be overturned unless

the person challenging the validity of the statute meets their burden of proving the statute

"clearly and undoubtedly violates the constitution." Id. (internal quotations omitted).

A. Due Process

D.E.G. argues his hearing did not meet statutory or constitutional standards

because Rollo-Hawkins testified about the contents of the investigatory report, including

allegations against D.E.G., that were outside Rollo-Hawkins' personal knowledge. This

argument, however, mistakenly conflates a juvenile certification hearing with an

adjudicatory criminal proceeding. The certification process merely considers "the nature

of the offenses alleged, not whether the juvenile did (or did not) commit them." State v.

Nathan, 404 S.W.3d 253, 260 (Mo. banc 2013). A juvenile certification proceeding need

not "conform with all of the requirements of a criminal trial or even of the usual

administrative hearing[,]" but must "measure up to the essentials of due process and fair

treatment." Kent v. United States, 383 U.S. 541, 562 (1966). In Nathan, this Court relied

on Kent in holding:

The process is constitutional if a hearing is provided, the juvenile is given
the right to counsel and access to his or her records, and it results in a
decision that sets forth the basis for the decision to relinquish jurisdiction in
a way that is sufficient to permit meaningful appellate review.

404 S.W.3d at 260.

The certification process outlined in § 211.071 is not a constitutional right, it is a

statutory right. Kent, 383 U.S. at 557. D.E.G., as a youthful offender, "was by statute

9
entitled to certain procedures and benefits as a consequence of his statutory right to the

exclusive jurisdiction of the Juvenile [Division]." Id. (internal quotations omitted). In

Kent, the Supreme Court answered the due process question by looking to the controlling

statute, determining what process is guaranteed to the juvenile offender by statute, and

then applying the law to what process the juvenile offender received. Id. at 557, 559-64.

As a statutory right, the process due to juvenile offenders before certification is defined

purely by statute, as "the Court has never attempted to prescribe criteria for, or the nature

and quantum of evidence that must support, a decision to transfer a juvenile for trial in

adult court." Breed, 421 U.S. at 537. Therefore, to determine whether D.E.G.'s right to

due process was violated, this Court must determine whether the juvenile division

adhered to § 211.071 when it dismissed him from juvenile division and transferred his

case to a court of general jurisdiction.

Section 211.071 requires the juvenile be given written notification of a transfer

hearing containing a statement describing the certification procedure. § 211.071.4. The

juvenile is entitled to a hearing. § 211.071.1. Section 211.071.6 provides, in full:

A written report shall be prepared in accordance with this chapter
developing fully all available information relevant to the criteria which
shall be considered by the court in determining whether the child is a
proper subject to be dealt with under the provisions of this chapter and
whether there are reasonable prospects of rehabilitation within the juvenile
justice system. These criteria shall include but not be limited to:
(1) The seriousness of the offense alleged and whether the protection
of the community requires transfer to the court of general
jurisdiction;
(2) Whether the offense alleged involved viciousness, force and
violence;
(3) Whether the offense alleged was against persons or property with
greater weight being given to the offense against persons, especially

10
 if personal injury resulted;
(4) Whether the offense alleged is a part of a repetitive pattern of
offenses which indicates that the child may be beyond rehabilitation
under the juvenile code;
(5) The record and history of the child, including experience with the
juvenile justice system, other courts, supervision, commitments to
juvenile institutions and other placements;
(6) The sophistication and maturity of the child as determined by
consideration of his home and environmental situation, emotional
condition and pattern of living;
(7) The age of the child;
(8) The program and facilities available to the juvenile [division] in
considering disposition;
(9) Whether or not the child can benefit from the treatment or
rehabilitative programs available to the juvenile [division]; and
(10) Racial disparity in certification.

(emphasis added). The hearing must be on the record, the juvenile division must receive

evidence "on whether the juvenile is a proper subject to be dealt with under the juvenile

code[,]" counsel may examine the juvenile officer who prepared the report, and "[a]ll

parties shall be afforded the opportunity to testify, present evidence, cross-examine

witnesses, and present arguments of law and fact and arguments concerning the weight,

credibility and effect of the evidence." Rule 129.04b. If, after the hearing, the juvenile

division exercises its discretion to dismiss the petition and certify the juvenile for

prosecution in a court of general jurisdiction, it must enter a dismissal order including:

(1) Findings showing that the court had jurisdiction of the cause and of the
parties;
(2) Findings showing that the child was represented by counsel;
(3) Findings showing that the hearing was held in the presence of the child
and his counsel; and
(4) Findings showing the reasons underlying the court's decision to transfer
jurisdiction.

§ 211.071.7.

11
 Section 211.071 does not prescribe that the general rules of evidence apply to

juvenile certification proceedings. While this Court has not been previously asked to

address this issue, every federal court that has addressed the issue has held that the rules

of evidence do not strictly apply in juvenile certification proceedings. See United States

v. Juvenile Male, 554 F.3d 456, 460 (4th Cir. 2009); United States v. SLW, 406 F.3d 991,

995 (8th Cir. 2005); United States v. Doe, 871 F.2d 1248, 1255 (5th Cir. 1989); Gov't of

Virgin Islands in re A.M., 34 F.3d 153, 160-61 (3rd Cir. 1994); United States v. Y.A., 42

F.Supp.3d 63, 74-75 (D. D.C. 2013); United States v. C.P.A., 572 F.Supp.2d 1122, 1124-

25 (D.N.D. 2008) United States v. E.K., 471 F.Supp. 924, 930 (D. Or. 1979). Similarly,

several state courts that have addressed the issue have held the general rules of evidence

do not strictly apply to juvenile certification proceedings, absent the statutes expressly

prescribing that the general rules of evidence apply. See In re C.R.M., 552 N.W.2d 324,

326-27 (N.D. 1996); State v. Wright, 456 N.W.2d 661, 664 (Iowa 1990); Commonwealth

v. Watson, 447 N.E.2d 1182, 1185 (Mass. 1983); People v. Taylor, 391 N.E.2d 366, 372

(Ill. 1979); In re Welfare of T.D.S., 289 N.W.2d 137, 140-41 (Minn. 1980); In re Harbert,

538 P.2d 1212, 1217 (Wash. 1975).

It is undisputed the juvenile division adhered to § 211.071.7 when it dismissed the

petition and certified D.E.G. for prosecution in a court of general jurisdiction. D.E.G.

was represented by counsel. He received written notification of his hearing with a

complete description of the certification process. He received a hearing, which was on

the record. Rollo-Hawkins conducted an investigation and provided the juvenile division

with an investigatory report concerning all criteria relevant to the juvenile division's

12
decision to dismiss the petition and transfer the case. Rollo-Hawkins was examined by

counsel and testified about each of the 10 criteria relevant to the juvenile division's

determination. D.E.G.'s counsel cross-examined Rollo-Hawkins and argued against the

juvenile division's dismissal. The juvenile division's detailed findings and conclusions

included its reasoning regarding each of the § 211.071.6 criteria and provided substantial

explanation of why D.E.G. was not a proper subject to be dealt with under the juvenile

code.

B. Equal Protection

D.E.G. argues § 211.071 violates the equal protection clause of the Fourteenth

Amendment as applied to him because the certification process disproportionately applies

certification proceedings to African American juveniles. "The central purpose of the

Equal Protection Clause of the Fourteenth Amendment is the prevention of official

conduct discriminating on the basis of race." Washington v. Davis, 426 U.S. 229, 239

(1976). "Proof of racially discriminatory intent or purpose is required to show a violation

of the Equal Protection Clause." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 265 (1977). Whether a discriminatory intent or purpose exists depends on

consideration of "the totality of the relevant facts, including the fact, if it is true, that the

law bears more heavily on one race than another." Washington, 426 U.S. at 242.

However, the Supreme Court has not "held that a law, neutral on its face and serving ends

otherwise within the power of the government to pursue, is invalid under the Equal

Protection Clause simply because it may affect a greater proportion of one race than of

another." Id.

13
 D.E.G. contends that because he is African American, the certification process

inherently violated his right to equal protection, pointing to statistics purportedly showing

the certification process's disproportionate impact on African American juveniles in

support. However, D.E.G. has failed to point to any part of his certification process

tending to indicate a discriminatory intent. The juvenile division, in line with

§ 211.071.6(1), also considered evidence from D.E.G. regarding the racial disparity in

certification before making its decision. But mere statistical information cannot change

the objective facts that D.E.G. is charged with committing an especially violent offense

resulting in the permanent disfigurement of the victim. There was not sufficient evidence

to support his claim that the certification process was used to violate his right to equal

protection. Instead, when fully considering the statutory factors as applied to D.E.G., and

the nature of the offense as alleged, the juvenile division did not abuse its discretion in

concluding that D.E.G. is not a proper subject to be dealt with under the juvenile code.

C. Separation of Powers

D.E.G. argues Missouri's juvenile division structure violates the separation of

powers established in article II, § 1 of the Missouri Constitution:

The powers of government shall be divided into three distinct departments--
the legislative, executive and judicial--each of which shall be confided to a
separate magistracy, and no person, or collection of persons, charged with
the exercise of powers properly belonging to one of those departments,
shall exercise any power properly belonging to either of the others, except
in the instances in this constitution expressly directed or permitted.

He argues in the juvenile system, the prosecutorial and judicial roles are not distinct in

that juvenile officers and the attorneys for the juvenile officers are officers of the court

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and are responsible for bringing cases against juveniles in front of judges. This structure,

D.E.G. contends violates the separation of powers in that the judiciary exercises the

prosecutorial discretion exclusively reserved for the executive branch.

"[P]roceedings under the juvenile code are civil, not criminal." J.D.H. v. Juvenile

Ct. of St. Louis Cty., 508 S.W.2d 497, 500 (Mo. banc 1974). This is because the juvenile

division's purpose is not punitive, but rather is focused on "continuing care, protection

and rehabilitation of the juvenile[.]" Id. The juvenile certification process does not

involve any exercise of prosecutorial discretion because it does not involve any

prosecution. Nathan, 404 S.W.3d at 260. The juvenile system is in place to rehabilitate

juveniles through a purely civil process in lieu of criminal prosecution, and its structure

does not violate the separation of powers by infringing on the executive branch's

prosecutorial discretion.

V. Conclusion

In my view, D.E.G. made real and substantial constitutional challenges to the

statutes governing his certification hearing and, as a result, those claims fall within the

exclusive appellate jurisdiction of this Court such that retransfer to the court of appeals is

improper. Nevertheless, even if the principal opinion's conclusion—that these

constitutional challenges "are all colorable rather than real and substantial" and, therefore,

do not fall within this Court's exclusive jurisdiction—is correct, this Court should issue

an opinion resolving these issues because they have been fully briefed and argued in this

Court.

Moreover, the issue of whether hearsay testimony is admissible at a juvenile

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certification proceeding is a matter of first impression for Missouri courts and is certainly

generally interesting and important and should be decided by this Court. Consistent with

the federal courts and other state courts, that Rollo-Hawkins testified about matters in the

investigatory report outside of her direct, personal knowledge may go to the weight of her

given testimony in the juvenile division but not does justify reversing and remanding for

another hearing when no statutory or constitutional requirement was violated. The

juvenile division followed all applicable statutory procedures related to the juvenile

certification process, and based on this record, the decision to dismiss the petition and

transfer D.E.G. to a court of general jurisdiction was not an abuse of discretion. The

judgment should be affirmed.

___________________________
Zel M. Fischer, Judge

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Exhibit A

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