Commentary: Dueling Visions of Chief Justice Maureen O’Connor and Justice Sharon Kennedy

By Professor Emerita Marianna Bettman

Be forewarned. This is a wonky post. Well, I am a retired law professor.

Chief Justice O’Connor and Justice Kennedy don’t see eye to eye very much, especially in matters regarding juveniles.  One very clear example of this was in State v. Morgan, 2017-Ohio-7565. The issues in that case were whether the juvenile court committed reversible error by failing to appoint a guardian ad litem (“GAL”) for the juvenile at an amenability hearing, and whether the failure to do so affected the outcome of the proceedings. Justice Kennedy wrote the majority opinion for the court. The Chief wrote the dissent.

All seven justices agreed that R.C. 2151.281(A)(1) and Juv.R 4(B)(1) require the appointment of a GAL at an amenability hearing for a juvenile whose parents are deceased, and the juvenile is not required to ask for one. And all seven agreed that the failure to appoint one in this case was error. But the court split 4-3 on the standard of review for failure to appoint a GAL in this circumstance where plain error was involved, and whether plain error was demonstrated in the case. This is where the real disagreement came to a head between Kennedy and O’Connor.

Kennedy’s majority opinion found that when a juvenile fails to object, the error is subject to criminal plain-error review and Morgan would have to show that the error affected the outcome of the proceedings. Kennedy determined that in 2000–when the legislature added several factors to the purpose of juvenile dispositions, including protecting the public interest, safety, and holding delinquents accountable to the law– the criminal aspect of delinquency proceedings became undeniable. Thus, Kennedy found criminal plain error review was appropriate in this case.

“While we continue to characterize juvenile proceedings as civil rather than criminal in nature…the criminal aspect of delinquency proceedings is undeniable,” wrote Kennedy. The majority found that in this case Morgan had failed show plain error under this standard.

Chief Justice O’Connor, who is zealous in the protection of juveniles, wrote in dissent:

“Today’s majority decision reinforces the criminal aspects of juvenile proceedings, not for the purpose of safeguarding a juvenile’s constitutional rights, but to limit appellate review of juvenile proceedings. The exercise is misguided and ultimately, intended or not, serves to further limit the efficacy of the juvenile-justice system in rehabilitating child offenders.”

The dissenters in the case would find that failure to appoint a GAL here met the civil plain error standard, and would vacate Morgan’s conviction and remand to the juvenile court for a proper amenability hearing after the appointment of a GAL.

O’Connor and Kennedy again disagreed in State v. Hand,  2016-Ohio-5504, a 4-3 decision holding that it  is unconstitutional to use a juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a later crime. That case was decided while Justices Lanzinger, Pfeifer, and O’Neill were still on the court. Those three joined Chief Justice O’Connor in the majority, with Justice Lanzinger writing the majority opinion. Justice Kennedy joined Justice O’Donnell’s dissent which would find that imposing a mandatory sentence under R.C. 2929.13(F) based on a prior nonjury juvenile adjudication does not violate due process or run afoul of Apprendi v. New Jersey.

Hand comes back to haunt and to underscore the differences between O’Connor and Kennedy in several recent decisions.

State v. Parker, Slip Opinion No. 2019-Ohio-3848, involves an untimely petition for postconviction relief. R.C. 2953.23(A)(1) provides limited exceptions to the bar on untimely or successive petitions for postconviction relief.  One of those exceptions is a petition based on a new state or federal right recognized by the U.S Supreme Court.

Corey Parker was convicted in 2011 of aggravated robbery with a prior conviction specification, which in his case was a prior juvenile adjudication of delinquency for felonious assault. Parker received an aggregate sentence of eight years in prison, all of which was mandatory because of the specification. By 2013, Parker had exhausted all his appeals, none of which was successful.

However, after the court decided Hand in August of 2016, Parker moved to vacate his mandatory sentence two months later. Parker argued that enhancing his adult sentence based on a prior juvenile adjudication ran afoul of Hand. The lower courts agreed with him, but in a 4-3 decision authored by Justice Kennedy, the Supreme Court of Ohio did not. To Kennedy, R.C. 2953.21(A)(1) clearly and unambiguously only allows a court to consider an untimely petition based on a new right established by the U.S. Supreme Court, and no other court. Only Justice DeWine joined Kennedy’s opinion in full. Justices French and Fischer concurred in judgment only.

Chief Justice O’Connor harshly disagreed with Kennedy’s interpretation of R.C. 2953.21(A)(1). She found that Kennedy’s interpretation demeans the role and importance of state courts in our system of dual sovereignty.

First, the Chief noted that Parker had raised exactly the same issue in his appeals that the Ohio high court ultimately accepted and decided in Hand-that it was unconstitutional to use a juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a later crime. But more significantly, she chastised Kennedy for finding that R.C. 2953.23(A)(1) only refers to decisions from the U.S. Supreme Court:

“The statute’s reference to a “state right” makes no sense if R.C. 2953.23(A)(1)(a) does not apply to petitions based on decisions of this court. It is universally understood that the United States Supreme Court does not recognize new rights under state law, much less make them retroactive.”

And then:

“As a result, the majority’s view of R.C. 2953.23(A)(1)(a) results in an impossibility and is absurd. The United States Supreme Court does not issue decisions authoritatively recognizing new state rights; that would run against our federal system and usurp Ohio’s sovereignty. The majority ignores this impossibility and treats this court’s decisions on questions of Ohio law as inferior to those of the United States Supreme Court.”

Finally:

“An individual’s constitutional rights are guaranteed by both the United States and Ohio Constitutions, and this court interprets both. The majority improperly reads R.C. 2953.23(A)(1)(a) as minimizing this court’s role and authority in constitutional jurisprudence.”

The Chief would interpret this statute as allowing Parker’s untimely petition, which is based on a decision of the Supreme Court of Ohio recognizing a new right under state law. And she also urges the General Assembly to correct the (to her) mistaken view of the majority opinion by amending R.C. 2953(A)(1)(a) to make it clear that an untimely petition for postconviction relief can be based on a decision from the Ohio high court recognizing a new state right.

With viewpoints similar to their respective positions in Parker, the Chief and Justice Kennedy disagreed in their respective positions in State v. Moore, 2016-Ohio-8288 (analysis here) about whether Moore’s application for delayed reconsideration should have been granted-one of the issues in that case.

The Chief and Justice Kennedy have disagreed on several occasions on the issue of reconsideration of recent precedent. Again, a bit of background is needed.

On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Aalim, 2016-Ohio-8278 (Aalim I). In a 4-3 opinion written by Justice Lanzinger, the court struck down, on due process grounds under the Ohio Constitution, the mandatory transfer of juveniles to adult court. Chief Justice O’Connor and Justices Pfeifer and O’Neill joined the majority opinion.  Then, at the end of December, Justices Lanzinger and Pfeifer retired from the court because of the court’s mandatory retirement age. With those two justices gone at the end of 2016, and the more conservative Justices Fischer and DeWine taking office January 1, 2017 and January 2, 2017, respectively, the state filed for reconsideration in Aalim I on January 3, 2017. While Justice Fischer did not vote on the reconsideration motion, considering it wrong for a justice who hadn’t heard the case to do so, he also explained that if a majority voted for reconsideration (which it did, with Justice DeWine voting to reconsider) he would participate in the merit decision.

Reconsideration is supposed to be based on a new fact or legal argument that the court failed to consider the first time.  The justices disagreed about whether that happened in this case.

According to the majority granting reconsideration, the court in Aalim I failed to consider the “General Assembly’s exclusive constitutional authority to define the jurisdiction of the courts of common pleas under Article IV, Section 4(B) of the Ohio Constitution.” This time around, in  State v. Aalim, 2017-Ohio-2956 (Aalim II),  by a vote of 5-2 in an opinion written by Justice Kennedy, the court upheld the mandatory transfer statutes as comporting with due process and equal protection under both the Ohio and U.S. Constitutions. Chief Justice O’Connor wrote a passionate 24-page dissent. And then-Justice O’Neill posited that reconsideration should not have been granted because there was nothing new to reconsider, and the only change was the make-up of the court.

As they say, what’s sauce for the goose is sauce for the gander. On December 19. 2018, in State v. Braden, 2018-Ohio-5079 (Braden I), in a 5-2 opinion written by Justice Kennedy, joined by Justices Fischer and DeWine, then-Justice DeGenaro, and Judge Michael Powell, sitting for then-Justice O’Donnell, the Court answered the following certified conflict question in the negative:

Does a trial court have jurisdiction, pursuant to the current version of R.C. 2947.23(C), to waive, modify or suspend court costs for those cases in which the defendant’s conviction and sentence became final prior to the enactment of * * * R.C. 2947.23(C)?

Justice French dissented, joined by Chief Justice O’Connor.

Braden filed for reconsideration on December 31, 2018. Justices Stewart and Donnelly joined the court in January of 2019. On October 16, 2019, in State v. Braden, Slip Opinion No. 2019-Ohio-4204 (Braden II), in an opinion written by Justice French, the Court granted reconsideration, holding that Braden had not just reargued his case, but that upon reflection, Braden I  had been decided in error, and this time, answered the certified question in the affirmative.  French was joined by Chief Justice O’Connor and Justices Donnelly and Stewart.

Justice Kennedy wrote the lengthy lead dissent, insisting that Braden had just reargued the same things he had argued before. Further, Justice Kennedy noted that while it was not unprecedented for the court to reconsider a decision after a change in the make-up of the court (citing Aalim as one example of several), it was generally not a good idea to do that because “a perception that changes in the law result solely from changes in court composition would threaten our legitimacy as a court of law, as opposed to a court of individuals, and would invite defiance of our prior decisions by subordinate courts whenever such a change has occurred.” Kennedy noted that the court has agreed that the standards to be applied in deciding whether to grant reconsideration are “onerous,” quoting Chief Justice O’Connor in State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Probate Div., 2016-Ohio-7382 at ¶ 45.

Justice Fischer urged the court to stop the practice of reconsidering cases at the beginning of a new term when there is a change in the composition of the court because of an election.

Need a couple more examples from the blog of very strong disagreement between Chief Justice O’Connor and Justice Kennedy? See, Cleveland v. State, Slip Opinion No. 2019-Ohio-3820;  (analysis here) and  In re Adoption of B.I.,2019-Ohio-2450 (analysis here).