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declining to consider whether discretionary transfer orders are appealable final judgments under Curcio given that "the legislature has manifested a clear intent to prohibit interlocutory appeals" from such orders
Summary of this case from Smith v. SuppleOpinion
No. 19153.
2014-08-19
In re TYRIQ T.
Joshua Michtom, assistant public defender, with whom was Sharon Elias, assistant public defender, for the appellant (respondent). Nancy L. Chupak, senior assistant state's attorney, with whom were Francis Carino, supervisory assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and John Davenport, supervisory assistant state's attorney, for the appellee (state).
Joshua Michtom, assistant public defender, with whom was Sharon Elias, assistant public defender, for the appellant (respondent). Nancy L. Chupak, senior assistant state's attorney, with whom were Francis Carino, supervisory assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and John Davenport, supervisory assistant state's attorney, for the appellee (state).
Marsha L. Levick and Hannah Benton filed a brief for the National Center for Youth Law et al. as amici curiae.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
ESPINOSA, J.
This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Palmer was not present when the case was argued before the court, he has read the record and briefs and listened to a recording of the oral argument prior to participating in this decision.
In this certified appeal, we are called upon to decide whether a trial court's interlocutory order granting a motion seeking a discretionary transfer of a respondent's case from the docket for juvenile matters to the regular criminal docket of the Superior Court pursuant to General Statutes (Supp.2014) § 46b–127 (b)(1) is a final judgment for purposes of appeal. In the present case, the respondent, Tyriq T., appealed to the Appellate Court after his juvenile case was transferred to the regular criminal docket pursuant to § 46b–127 (b)(1). The Appellate Court dismissed the appeal for lack of a final judgment, and the respondent appealed to this court. We granted the respondent's petition for certification, limited to the following question: “Did the Appellate Court properly dismiss the [respondent's] appeal for lack of a final judgment?” In re Tyriq T., 309 Conn. 904, 68 A.3d 659 (2013). We answer the question in the affirmative, concluding that the clear intent of the legislatureis to prohibit interlocutory appeals from discretionary transfer orders. Accordingly, we affirm the judgment of the Appellate Court.
General Statutes (Supp.2014) § 46b–127 (b)(1) provides: “Upon motion of a prosecutorial official, the superior court for juvenile matters shall conduct a hearing to determine whether the case of any child charged with the commission of a class C, D or E felony or an unclassified felony shall be transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court. The court shall not order that the case be transferred under this subdivision unless the court finds that (A) such offense was committed after such child attained the age of fourteen years, (B) there is probable cause to believe the child has committed the act for which the child is charged, and (C) the best interests of the child and the public will not be served by maintaining the case in the superior court for juvenile matters. In making such findings, the court shall consider (i) any prior criminal or juvenile offenses committed by the child, (ii) the seriousness of such offenses, (iii) any evidence that the child has intellectual disability or mental illness, and (iv) the availability of services in the docket for juvenile matters that can serve the child's needs. Any motion under this subdivision shall be made, and any hearing under this subdivision shall be held, not later than thirty days after the child is arraigned in the superior court for juvenile matters.”
Although § 46b–127 was amended after the respondent was transferred; see Public Acts 2013, No. 13–258, § 5; the amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute codified in the 2014 supplement.
The record reveals the following relevant procedural background. The respondent, who was sixteen years old at the time of his arrest, was charged as a juvenile with carrying a pistol without a permit in violation of General Statutes (Rev. to 2011) § 29–35(a), possession of a weapon in a motor vehicle in violation of General Statutes § 29–38, and theft of a firearm in violation of General Statutes § 53a–212. The state filed a motion to transfer his case to the regular criminal docket of the Superior Court at Waterbury and, pursuant to § 46b–127, the trial court held a hearing over two days. After making the requisite factual findings, the court granted the state's motion and ordered the respondent's case to be transferred to the regular criminal docket.
The respondent filed a timely appeal to the Appellate Court. Thereafter, the Appellate Court, sua sponte, ordered the parties to appear and argue whether the respondent's appeal should be dismissed due to the lack of a final judgment. After a hearing, the court dismissed the respondent's appeal. This certified appeal followed.
The Appellate Court ordered: “In the following matter, counsel are ordered to appear and give reasons, if any, why the respondent's appeal from the order granting the state's motion to transfer the respondent's case from the juvenile docket to the regular criminal docket should not be dismissed for lack of a final judgment. See In re Michael S., 258 Conn. 621 (2001); In re Juvenile Appeal (85–AB), 195 Conn. 303 (1985).”
The order read: “After a hearing as to why the respondent's appeal from the order granting the state's motion to transfer the respondent's case from the juvenile docket to the regular criminal docket should not be dismissed for lack of a final judgment; see In re Michael S., 258 Conn. 621 (2001); In re Juvenile Appeal (85–AB), 195 Conn. 303 (1985); it is hereby ordered that the appeal is dismissed.”
On appeal, the respondent argues that it is clear that the legislature did not intend to prohibit interlocutory appeals of discretionary transfer orders because § 46b–127 (b) is silent as to whether an interlocutory appeal can be taken from a discretionary transfer order. He maintains also that the genealogy of the discretionary transfer provision and language from a related provision in § 46b–127 that was added in 2010 support his position. Public Acts, Spec. Sess., June, 2010, No. 10–1, § 30 (adding subsection [f] to General Statutes [Supp.2010] § 46b–127). In response, the state argues that the intent of the legislature to prohibit interlocutory appeals of discretionary transfer orders is evidenced by the deletion of the final judgment language from General Statutes (Rev. to 1993) § 46b–127. Public Acts, Spec. Sess., July, 1994, No. 94–2, § 6.
In the alternative, the respondent argues that if the legislature's intent is unclear, this court's decision in In re Juvenile Appeal (85–AB), 195 Conn. 303, 307, 488 A.2d 778 (1985), which concluded that pursuant to State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983) a discretionary transfer order was not a final judgment for purposes of appeal, should be overruled given the development of our understanding of adolescent cognitive development. Because we conclude that the legislature has manifested a clear intent to prohibit interlocutory appeals of discretionary transfer orders, we need not address whether such orders are final judgments pursuant to Curcio.
We agree with the state that the legislature expressed a clear intent to prohibit the immediate appeal of discretionary transfer orders. As we explain herein, although the current statutory text of § 46b–127 does not resolve the question of whether a discretionary transfer order constitutes a final judgment for purposes of appeal, we conclude, on the basis of the genealogy of the transfer provisions, read together with this court's interpretation of the legislative intent evident from the prior amendments to those provisions, that under the current statutory language a discretionary transfer order cannot be immediately appealed. This interpretation of the discretionary transfer provision results in a harmonious and consistent body of law with respect to all of the transfer provisions currently contained in § 46b–127.
It is well settled that this court has subject matter jurisdiction only over appeals from final judgments. Abreu v. Leone, 291 Conn. 332, 338, 968 A.2d 385 (2009). “The legislature may, however, deem otherwise interlocutory actions of the trial courts to be final judgments, as it has done by statute in limited circumstances. See, e.g., General Statutes § 31–118 (authorizing appeals from temporary injunctions in labor dispute); General Statutes § 52–278 l (authorizing appeals from prejudgment remedies); see also W. Horton & K. Bartschi, [Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2009 Ed.) ], §§ 61–2 through 61–11.” Abreu v. Leone, supra, at 338, 968 A.2d 385. Because “[t]he right of appeal is purely statutory”; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); we must consider whether the legislature has deemed discretionary transfer orders final judgments.
Whether the legislature intended discretionary transfer orders issued pursuant to § 46b–127 (b)(1) to be final judgments for purposes of appeal presents a question of statutory interpretation over which we exercise plenary review. See Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532 (2012). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter....” (Internal quotation marks omitted.) Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013).
Consistent with these principles of statutory interpretation, we turn first to the language of the statute. The current version of § 46b–127 provides for three types of transfers of a case that charges a juvenile with an offense: (1) mandatory transfers from the docket for juvenile matters to the regular criminal docket of the Superior Court (mandatory transfer provision); General Statutes (Supp.2014) § 46b–127 (a); (2) discretionary transfers from the docket for juvenile matters to the regular criminal docket of the Superior Court (discretionary transfer provision); General Statutes (Supp.2014) § 46b–127 (b); and (3) transfers of cases of youths age sixteen or seventeen from the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters, to the docket for juvenile matters (youthful offender transfer provision). General Statutes (Supp.2014) § 46b–127 (f).
General Statutes (Supp.2014) § 46b–127 (a) provides: “(1) The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of a capital felony under the provisions of section 53a–54b in effect prior to April 25, 2012, a class A or B felony or a violation of section 53a–54d, provided such offense was committed after such child attained the age of fourteen years and counsel has been appointed for such child if such child is indigent. Such counsel may appear with the child but shall not be permitted to make any argument or file any motion in opposition to the transfer. The child shall be arraigned in the regular criminal docket of the Superior Court at the next court date following such transfer, provided any proceedings held prior to the finalization of such transfer shall be private and shall be conducted in such parts of the courthouse or the building in which the court is located that are separate and apart from the other parts of the court which are then being used for proceedings pertaining to adults charged with crimes.
“(2) A state's attorney may, at any time after such arraignment, file a motion to transfer the case of any child charged with the commission of a class B felony or a violation of subdivision (2) of subsection (a) of section 53a–70 to the docket for juvenile matters for proceedings in accordance with the provisions of this chapter.”
General Statutes (Supp.2014) § 46b–127 (f) provides: “Upon the motion of any party or upon the court's own motion, the case of any youth age sixteen or seventeen, except a case that has been transferred to the regular criminal docket of the Superior Court pursuant to subsection (a) or (b) of this section, which is pending on the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters, where the youth is charged with committing any offense or violation for which a term of imprisonment may be imposed, other than a violation of section 14–227a or 14–227g, may, before trial or before the entry of a guilty plea, be transferred to the docket for juvenile matters if (1) the youth is alleged to have committed such offense or violation on or after January 1, 2010, while sixteen years of age, or is alleged to have committed such offense or violation on or after July 1, 2012, while seventeen years of age, and (2) after a hearing considering the facts and circumstances of the case and the prior history of the youth, the court determines that the programs and services available pursuant to a proceeding in the superior court for juvenile matters would more appropriately address the needs of the youth and that the youth and the community would be better served by treating the youth as a delinquent. Upon ordering such transfer, the court shall vacate any pleas entered in the matter and advise the youth of the youth's rights, and the youth shall (A) enter pleas on the docket for juvenile matters in the jurisdiction where the youth resides, and (B) be subject to prosecution as a delinquent child. The decision of the court concerning the transfer of a youth's case from the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters shall not be a final judgment for purposes of appeal.”
The transfer provision at issue in the present case, the discretionary transfer provision, provides: “Upon motion of a prosecutorial official, the superior court for juvenile matters shall conduct a hearing to determine whether the case of any child charged with the commission of a class C, D or E felony or an unclassified felony shall be transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court. The court shall not order that the case be transferred under this subdivision unless the court finds that (A) such offense was committed after such child attained the age of fourteen years, (B) there is probable cause to believe the child has committed the act for which the child is charged, and (C) the best interests of the child and the public will not be served by maintaining the case in the superior court for juvenile matters. In making such findings, the court shall consider (i) any prior criminal or juvenile offenses committed by the child, (ii) the seriousness of such offenses, (iii) any evidence that the child has intellectual disability or mental illness, and (iv) the availability of services in the docket for juvenile matters that can serve the child's needs. Any motion under this subdivision shall be made, and any hearing under this subdivision shall be held, not later than thirty days after the child is arraigned in the superior court for juvenile matters.” General Statutes (Supp.2014) § 46b–127 (b)(1).
In the current version of the statute, both the discretionary transfer and mandatory transfer provisions are silent as to whether those transfers are final judgments for purposes of appeal. Thus, one reasonably could conclude that the legislature did not intend to allow interlocutory appeals of discretionary transfers. See Marchesi v. Board of Selectmen, 309 Conn. 608, 618, 72 A.3d 394 (2013) (“it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly ... or to use broader or limiting terms when it chooses to do so” [citation omitted; internal quotation marks omitted] ). In contrast, the youthful offender transfer provision explicitly provides that a transfer pursuant to that subsection is not a final judgment for purposes of appeal. General Statutes (Supp.2014) § 46b–127 (f). Thus, solely on the basis of the statutory text, one also could conclude that the legislature did not intend to prohibit interlocutory appeals of discretionary transfer orders because it did not state so explicitly, as it did in the youthful offender transfer provision. See M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996) (omission of language in one provision of statute that is included in provision of statute of similar subject matter suggests different legislative intent). Because the statutory text is susceptible to two reasonable interpretations, and does not definitively resolve the interpretation issue presented, we turn our attention to extratextual sources. See State v. Heredia, 310 Conn. 742, 759, 81 A.3d 1163 (2013).
The legislature's intent to prohibit interlocutory appeals of discretionary transfer orders is evident after examining the genealogy of the transfer provisions, as well as the case law that has interpreted the previous revisions of those provisions. Section 46b–127 did not always contain three transfer provisions. In 1979, the legislature amended the transfer provisions, so that the mandatory transfer provision was set forth in § 46b–127; see General Statutes (Rev. to 1981) § 46b–127; and the discretionary transfer provision was set forth in § 46b–126 (a). See General Statutes (Rev. to 1981) § 46b–126 (a). The youthful offender transfer provision had not yet been enacted. At that time, both the discretionary and mandatory transfer statutes were silent as to whether those transfer orders were final judgments for purposes of appeal. From 1979 until 1985, the statutes were amended several times, but none of the changes addressed whether those transfer orders were final judgments for purposes of appeal.
Public Acts 1979, No. 79–581, § 3.
General Statutes (Rev. to 1981) § 46b–127 provides: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, if such violation was committed after such child attained the age of fourteen, provided such child has previously been adjudicated a delinquent for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has caused an investigation to be made as provided in section 46b–134 and has found, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”
Public Acts 1979, No. 79–581, § 2.
General Statutes (Rev. to 1981) § 46b–126 (a) provides: “The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, or for any serious juvenile offense if such child has previously been adjudicated a delinquent for a serious juvenile offense, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has caused an investigation to be made as provided in section 46b–134 and has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment and (3) the sophistication, maturity and previous adjudications of the juvenile are such that the facilities used for regular criminal sessions of the superior court provide a more effective setting for the disposition of the case and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”
See Public Acts 1979, No. 79–581, §§ 2 and 3; Public Acts 1983, No. 83–402, § 1; Public Acts 1984, No. 84–252.
In 1985, this court concluded in In re Juvenile Appeal (85–AB), 195 Conn. 303, 306, 488 A.2d 778 (1985), that discretionary transfer orders pursuant to General Statutes (Rev. to 1981) § 46b–126 (a) were not final judgments for purposes of appeal. See footnote 10 of this opinion. Relying on State v. Curcio, supra, 191 Conn. at 27, 463 A.2d 566, this court concluded that it did not have jurisdiction to consider the transfer order because it did not satisfy the second prong of Curcio, namely that the order did not so conclude the rights of the parties that further proceedings could not affect them. In re Juvenile Appeal (85–AB),supra, at 307–14, 488 A.2d 778. Thus, the court concluded that the discretionary transfer order was not a final judgment. Id., at 306, 488 A.2d 778. The court rejected the defendant's contention that the confidentiality of juvenile proceedings could not be restored and that incarceration of a juvenile in an adult prison while awaiting trial or pending appeal may result in irreparable harm. Id., at 307–308, 312–13, 488 A.2d 778. The court notedthat “[t]he practical considerations which have led us to dismiss interlocutory appeals from the denial of applications for youthful offender treatment [in State v. Longo, 192 Conn. 85, 90, 469 A.2d 1220 (1984) ] apply with virtually equal force to the transfer of [the] defendant from the juvenile division to the regular criminal session of the Superior Court.” In re Juvenile Appeal (85–AB),supra, at 312, 488 A.2d 778. Thus, the court was not “persuaded that the potential for harm to juvenile offenders from erroneous transfer orders is so much greater in kind or degree than that which a seventeen year old, improperly denied the benefits of youthful offender treatment, may suffer in awaiting redress on appeal from a final judgment that a different conclusion from that reached in State v. Longo, supra, [at 90, 469 A.2d 1220] as to the availability of an interlocutory appeal is warranted.” In re Juvenile Appeal (85–AB),supra, at 313, 488 A.2d 778.
In 1986, in response to this court's decision in In re Juvenile Appeal (85–AB), the legislature amended both the discretionary and mandatory transfer statutes by inserting the following language into both §§ 46b–126 and 46b–127: “An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.” The inclusion of such language expressed a clear legislative intent to permit interlocutory appeals of those transfer orders. See Abreu v. Leone, supra, 291 Conn. at 338, 968 A.2d 385.
Public Acts 1986, No. 86–185, §§ 1 and 2.
The legislature made mostly identical changes to the discretionary and mandatory transfer statutes between 1989 and 1993, but in 1994, the legislature amended only the mandatory transfer statute, § 46b–127, removing the final judgment language from that provision. Because § 46b–126 was not amended at that time, the final judgment language remained in the discretionary transfer statute.
The legislature amended only the discretionary transfer statute, § 46b–126, in 1989, making the transfer hearing discretionary rather than mandatory. Public Acts 1989, No. 89–273, § 2. Identical changes were made to §§ 46b–126 and 46b–127 when they were amended in 1990. Public Acts 1990, No. 90–136, §§ 1 and 2; Public Acts 1990, No. 90–187, §§ 1 through 3.
Public Acts, Spec. Sess., July, 1994, No. 94–2, § 6 (1994 amendment).
In In re Daniel H., 237 Conn. 364, 366–67, 678 A.2d 462 (1996), although the issue was whether the 1994 amendment applied retroactively to the respondents, this court was required to interpret the changes made by the 1994 amendment. In doing so, the court concluded that the amendment “eliminated the right to an immediate appeal from a court order transferring a juvenile matter to the regular criminal docket....” Id., at 367, 678 A.2d 462. Thus, the court decided that the 1994 amendment deleting the final judgment language from § 46b–127 was a “postponement of the respondents' right to appeal, until after a final judgment had been rendered....” Id., at 375–76, 678 A.2d 462; see also In re Michael S., 258 Conn. 621, 630–31 n. 11, 784 A.2d 317 (2001) (This court observed that during the debate on the amendment that deleted the final judgment language from the mandatory transfer provision, “Senator George Jepsen stated that the ability to appeal from a transfer order ‘has been the focus of much of the problems associated with Juvenile Court actions because by the time an appeal is taken, the juvenile is no longer a juvenile.’ ... Representative Edward C. Graziani stated that ‘when you take an appeal [from a transfer order], you can extend the period of time before a resolution is done. The child is typically over [sixteen years old by the time the appeal is decided], so the whole issue is moot. Therefore, the state's advocates do not proceed to try to even attempt under our existing law to get a transfer because the law is really defective. [Under t]his new law ... there is no appeal. You cannot appeal, so you cannot stop the clock when the system goes forward, so the child doesn't become [sixteen] before justice is followed through.’ ” [Citation omitted.] ).
Moreover, although the current version of the mandatory transfer provision in § 46b–127 does not create any mechanism or opportunity for challenging a transfer pursuant to that provision, when this court decided In re Daniel H. in 1996, a mandatory transfer was valid only after a probable cause hearing had been held, with the trial court making a written finding of probable cause, and the respondent could request a hearing following the probable cause determination challenging the transfer for a number of reasons. See General Statutes (Rev. to 1995) § 46b–127; see also In re Daniel H., supra, 237 Conn. at 366 n. 1, 678 A.2d 462. Thus, a respondent could challenge rulings and orders made by the trial court under that version of the mandatory transfer provision.
The legislature again addressed the issue of the finality of discretionary transfer orders in 1995, one year after removing the final judgment language from the mandatory transfer statute, when it reorganized the juvenile justice statutes. As part of the reorganization, the legislature moved the discretionary transfer provision from § 46b–126 (a) to § 46b–127 (b). When the discretionary transfer provision was moved to § 46b–127 (b), the final judgment language was omitted from the new statutory provision. From 1995, when the discretionary transfer provision was integrated into § 46b–127, until 2009, no amendments added final judgment language to the discretionary or mandatory transfer provisions. Although the 2010 amendment added the youthful offender transfer provision, and its language prohibiting interlocutory appeals of those transfers, none of the changes to § 46b–127 since the addition of the youthful offender transfer provision has affected our interpretation of the deletion of the final judgment language from the mandatory transfer provision.
The language that remained in § 46b–126 was as follows: “There shall be established or designated by the Department of Children and Families a secure facility or facilities within the state devoted to the care and treatment of children, which children are under the jurisdiction of the Superior Court. A consideration for admission to such a facility shall be adjudication for a serious juvenile offense.” General Statutes (Rev. to 1997) § 46b–126.
Public Acts 1995, No. 95–225, §§ 13 and 39.
1997 until 2009, § 46b–127 was amended seven times, once each in 1998, 2007, and 2009, and twice in 1997 and in 2004. Public Acts 1997, No. 97–4, § 1, and Public Acts 1997, No. 97–319, § 21; Public Acts 1998, No. 98–256, § 3; Public Acts 2004, No. 04–127, § 2, and Public Acts 2004, No. 04–148, § 1; Public Acts, Spec. Sess., June, 2007, No. 07–4, § 75; Public Acts, Spec. Sess., September, 2009, No. 09–7, §§ 71, 84 and 122.
Public Acts, Spec. Sess., June, 2010, No. 10–1, § 30.
Public Acts 2011, No. 11–157, § 18; Public Acts 2012, No. 12–5, § 10; Public Acts, Spec. Sess., June, 2012, No. 12–1, § 280.
In light of the genealogy of the transfer provisions, therefore, it is clear that the intent of the legislature is to prohibit an immediate appeal of a discretionary transfer order. After this court's decision in In re Juvenile Appeal (85–AB), the legislature inserted and subsequently deleted express language dictating that mandatory and discretionary transfer orders of cases from the docket for juvenile matters to the regular criminal docket are final judgments for purposes of appeal. After this court decided In re Daniel H. in 1996, and the discretionary transfer provision was incorporated into § 46b–127, the legislature amended § 46b–127 more than ten times. Significantly, none of those amendments sought to legislatively overrule this court's conclusion regarding the effect of the deletion of the final judgment language from the mandatory transfer provision. “Although we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent non-action may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d 1150 (2013). By choosing not to legislatively overrule In re Daniel H., the legislature has acquiesced to this court's interpretation that the deletion of the final judgment language from the mandatory transfer provision was the elimination of the right to an immediate appeal.
See footnotes 18, 19 and 20 of this opinion.
We see no reason why this court's conclusion in In re Daniel H. regarding the mandatory transfer provision should not apply equally to the deletion of the final judgment language from the discretionary transfer provision. When the discretionary and mandatory transfer provisions were located in separate statutes, the legislature frequently amended both statutes at the same time. Moreover, from 1986, when the legislature added the final judgment language, until 1995, when the mandatory and discretionary transfer provisions were integrated into one statute, four of the six amendments made identical changes to the statutes. These legislative actions support our conclusion that the legislature intended these similar provisions to be treated similarly. Thus, in accordance with the holding in In re Daniel H., supra, 237 Conn. at 367, 678 A.2d 462, we conclude that when the legislature eliminated the final judgment language from the discretionary transfer provision in P.A. 95–225, it “eliminated the right to an immediate appeal from a court order transferring a juvenile matter to the regular criminal docket....” Id.
Our conclusion that the legislature intended to prohibit interlocutory appeals of discretionary transfer provisions, furthermore, is grounded in our presumption that the legislature intended to create a harmonious and coherent body of law. It is a well settled principle that “the legislature is always presumed to have created a harmonious and consistent body of law.... [T]his tenet of statutory construction ... requires [this court] to read statutes together when they relate to the same subject matter.... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 238–39, 915 A.2d 290 (2007). Our conclusion regarding the right to interlocutory appeals of discretionary transfer orders is consistent not only with our interpretation of the mandatory transfer provision but also with the language regarding final judgments from the youthful offender transfer provision, thus, rendering the statutory scheme both logical and coherent. When the legislature added the youthful offender transfer provision to § 46b–127 in 2010, it did so fourteen years after this court had interpreted the effect of the deletion of the final judgment language from the mandatory transfer provision. See In re Daniel H., supra, 237 Conn. at 364, 678 A.2d 462. Because the youthful offender transfer provision codified a new type of transfer procedure, and in order to assure consistency with our interpretation regarding the availability of interlocutory appeals of mandatory transfer orders, it is reasonable that the legislature would include express language prohibiting the interlocutory appeal of transfer orders to the docket for juvenile matters. See Thomas v. Dept. of Developmental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010) (“the legislature, in amending or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law” [internal quotation marks omitted] ). By clearly expressing its intent to prohibit interlocutory appeals of youthful offender transfers, the legislature ensured a consistent interpretation of all of the transfer provisions in § 46b–127.
Public Acts, Spec. Sess., June, 2010, No. 10–1, § 30.
When viewed in relation to the genealogy of the transfer provisions, the legislature's intent is clear: a transfer order made pursuant to the discretionary transfer provision in § 46b–127 (b)(1) is not a final judgment for purposes of appeal. The failure to legislatively overrule this court's decision in In re Daniel H., analyzed in conjunction with the unequivocal language prohibiting interlocutory appeals of youthful offender transfer orders, only confirms our determination that when the legislature removed the final judgment language from the discretionary transfer provision, it intended to prohibit interlocutory appeals of discretionary transfer orders. To come to an opposite conclusion would lead to an incoherent construction of the statutory scheme.
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and PALMER, ZARELLA and McDONALD, Js., concurred.
EVELEIGH, J., with whom ROBINSON, J., joins, dissenting.
I respectfully dissent. Until today, this court has never held that an interlocutory order that requires a determination of the best interests of the child was not immediately appealable. In fact, “[t]his court has a long history of concluding that, within the context of family matters, orders that would otherwise be considered interlocutory constitute appealable final judgments.” Khan v. Hillyer, 306 Conn. 205, 213, 49 A.3d 996 (2012). The statute governing the discretionary transfer of cases from the juvenile matters docket to the regular criminal docket of the Superior Court, General Statutes (Supp.2014) § 46b–127 (b)(1)(C), requires the judge to consider, inter alia, whether “the best interests of the child and the public will not be served by maintaining the case in the superior court for juvenile matters.” I see no reason to abandon our long-standing precedent of holding that an otherwise interlocutory order that involves a determination of the “best interests of the child” is immediately appealable where there is no clear legislative mandate to the contrary. Therefore, I respectfully dissent.
As the majority notes, § 46b–127 has recently been amended in a manner not relevant to the present appeal. See footnote 1 of the majority opinion; see also Public Acts 2013, No. 13–258, § 5. Hereinafter, unless otherwise noted, all references to § 46b–127 are to the version appearing in the 2014 supplement to the General Statutes.
The majority holds that, in light of the genealogy of § 46b–127, coupled with the relevant legislative history, it is clear that the legislature did not intend for the discretionary transfer of a juvenile from juvenile court to adult court based upon a C, D, E or unclassified felony to be a final judgment. I disagree. The majority concludes that “the clear intent of the legislature is to prohibit interlocutory appeals from discretionary transfer orders.” The majority continues: “We agree with the state that the legislature expressed a clear intent to prohibit the immediate appeal of discretionary transfer orders. As we explain herein, although the current statutory text of § 46b–127 does not resolve the question of whether a discretionary transfer order constitutes a final judgment for purposes of appeal, we conclude, on the basis of the genealogy of the transfer provisions, read together with this court's interpretation of the legislative intent evident from the prior amendments to those provisions, that under the current statutory language a discretionary transfer order cannot be immediately appealed. This interpretation of the discretionary transfer provision results in a harmonious and consistent body of law with respect to all of the transfer provisions currently contained in § 46b–127.” I respectfully disagree.
Furthermore, I disagree with the majority's failure to analyze the question of whether an order under § 46b–127 (b)(1) is immediately appealable under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Despite acknowledging that the statute is silent as to whether the transfer order is immediately appealable, and acknowledging that it is necessary to resort to legislative history to interpret the statute, the majority fails to engage in the analysis required by Curcio.
In my view, statutory language currently set forth in § 46b–127 is completely different from previous versions, the legislative history is silent on the issue of the finality of the judgment, our philosophy toward juveniles has changed in recent years, and United States Supreme Court case law has changed. Furthermore, this court has routinely held that, where the best interests of the child are a consideration, an otherwise interlocutory ruling must be considered a final judgment. I disagree with the majority that reading § 46b–127 (b)(1) in connection with other transfer statutes mandates a conclusion that the legislature clearly intended that a transfer order under § 46b–127 (b)(1) is not immediately appealable. Rather, I would read § 46b–127 (b)(1) in a manner consistent with other statutes under which this court has considered the best interests of the child and uniformly held that otherwise interlocutory orders were immediately appealable under the second prong of Curcio. Therefore, I would conclude that since § 46b–127 (b)(1) is silent as to whether a transfer is immediately appealable, and that, under the second prong of Curcio, the discretionary transfer of a juvenile from the Superior Court for juvenile matters to adult court is immediately appealable because such a transfer so concludes the rights of the juveniles such that further proceedings cannot affect them. Accordingly, I would conclude that a juvenile may immediately appeal from an order under § 46b–127 (b)(1) and that the juvenile is entitled to a stay of that order pending appeal.
I agree with the factual and procedural history set forth by the majority in its opinion. I agree with the majority that, in the first instance, “[w]hether the legislature intended discretionary transfer orders issued pursuant to § 46b–127 (b)(1) to be final judgments for purposes of appeal presents a question of statutory interpretationover which we exercise plenary review. See Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532 (2012). When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013).” (Internal quotation marks omitted.)
I would add, however, the following regarding final judgments: “The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51–197a and 52–263; Practice Book § [61–1].... The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.... In some instances, however, it is unclear whether an order is an appealable final judgment. In the gray area between judgments which are undoubtedly final and others that are clearly interlocutory ... this court has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, [supra, 191 Conn. at 31, 463 A.2d 566].... Solomon v. Keiser, 212 Conn. 741, 745–46, 562 A.2d 524 (1989).” (Internal quotation marks omitted.) Canty v. Otto, 304 Conn. 546, 554–55, 41 A.3d 280 (2012).
With these principles in mind, and in accordance with § 1–2z, I begin with the text of the statute. General Statutes (Supp.2014) § 46b–127 (b)(1) provides as follows: “Upon motion of a prosecutorial official, the superior court for juvenile matters shall conduct a hearing to determine whether the case of any child charged with the commission of a class C, D or E felony or an unclassified felony shall be transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court. The court shall not order that the case be transferred under this subdivision unless the court finds that (A) such offense was committed after such child attained the age of fourteen years, (B) there is probable cause to believe the child has committed the act for which the child is charged, and (C) the best interests of the child and the public will not be served by maintaining the case in the superior court for juvenile matters. In making such findings, the court shall consider (i) any prior criminal or juvenile offenses committed by the child, (ii) the seriousness of such offenses, (iii) any evidence that the child has intellectual disability or mental illness, and (iv) the availability of services in the docket for juvenile matters that can serve the child's needs. Any motion under this subdivision shall be made, and any hearing under this subdivision shall be held, not later than thirty days after the child is arraigned in the superior court for juvenile matters.” The statute itself then is silent as to whether it is a final judgment for purposes of appeal.
Nevertheless, when considering § 46b–127 (b)(1) in relation to the rest of that statute, I note that in General Statutes (Supp.2014) § 46b–127 (f) the legislature did explicitly provide that “[t]he decision of the court concerning the transfer of a youth's case from the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters shall not be a final judgment for purposes of appeal.” I would conclude that the legislature's decision to include language in § 46b–127 (f) explicitly providing that a transfer under that subsection is not a final judgment for purposes of appeal indicates that the legislature knows how to include such language if it chooses to do so, and the fact that it did not do so in § 46b–127 (b)(1) suggests that the legislature may have intended for the other transfers to be final judgments for purposes of an appeal. As we have frequently stated, “it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly; e.g., Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010); or to use broader or limiting terms when it chooses to do so. See, e.g., Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989).” Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183, cert. denied, ––– U.S. ––––, 133 S.Ct. 425, 184 L.Ed.2d 255 (2012).
The state asserts, however, that the absence of any language indicating that a transfer pursuant to § 46b–127 (b)(1) is a final judgment for purposes of appeal indicates that the legislature intended that it not be a final judgment for purposes of appeal. The state asserts that an interlocutory order is only appealable if the legislature chooses to make it so in the statutory language and we cannot read such language into a statute. Because I find that § 46b–127 (b)(1) is subject to two reasonable interpretations regarding whether a transfer pursuant to that section constitutes a final judgment for purposes of appeal, I would conclude that § 46b–127 (b)(1) is ambiguous, and, therefore, resort to legislative history and extratextual sources.
I begin with the history of § 46b–127 (b)(1). In In re Juvenile Appeal (85–AB), 195 Conn. 303, 306, 488 A.2d 778 (1985), this court first considered whether an order transferring a case from the juvenile docket to the regular criminal docket was a final judgment for the purposes of appeal. In that case, this court held that such an order does not: (1) constitute a final judgment for the purpose of appellate review; or (2) fall within the exceptions to the final judgment rule outlined in Curcio.Id., at 306–307, 488 A.2d 778. At that time, the statute governing the discretionary transfer of juvenile cases to the regular criminal docket, General Statutes (Rev. to 1981) § 46b–126, required a judge to determine that the juvenile had attained the age of fourteen, find probable cause, and determine that the nature of the charge qualified for transfer. I note that the respondent in In re Juvenile Appeal (85–AB) did not argue that the transfer order was a final judgment, only that one of the Curcio exceptions applied. In re Juvenile Appeal (85–AB),supra, at 307, 488 A.2d 778. It cannot be disputed that, since the date of that decision, American jurisprudence regarding juveniles has undergone tremendous change motivated by the prevailing scientific understanding of adolescents' cognitive development. As a result of this new understanding, Connecticut has now classified both sixteen year olds and seventeen year olds as juveniles. See Public Acts, Spec. Sess., June, 2007, No. 07–4, § 73.
As noted by the majority, the legislature moved the statutory provision governing discretionary transfers from § 46b–126 (a) to § 46b–127 (b) in 1995. See Public Acts 1995, No. 95–225, §§ 13 and 39.
The statute considered in In re Juvenile Appeal (85–AB), General Statutes (Rev. to 1981) § 46b–126, like the current version of § 46b–127 (b)(1), contained no language indicating the legislature's intent to either permit or forbid interlocutory appeals of transfers. Accordingly, this court did not engage in any analysis of whether the legislature intended to allow interlocutory appeals, instead concluding that the transfer was not a final judgment and, therefore, should be analyzed under the exceptions to the final judgment rule set forth in Curcio.
Since our decision in the case of In re Juvenile Appeal (85–AB), the legislature has made various changes to the statutory language governing the discretionary transfer of juvenile cases to the regular criminal docket. Initially, the legislature responded to this court's decision in In re Juvenile Appeal (85–AB) by adding explicit statutory language making such transfers immediately appealable. See Public Acts 1986, No. 86–185, § 1; see also In re Michael S., 258 Conn. 621, 624 n. 3, 784 A.2d 317 (2001). Specifically, the amendment added language providing that “[a]n order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.” Public Act 86–185, § 1.
In 1994, the legislature convened a special session to address gun violence and, therein, undertook a revision of the statute governing mandatory transfers in relation to certain gun related offenses. See Public Acts, Spec. Sess., July, 1994, No. 94–2, § 6. The revised statute did not explicitly bar interlocutory appeals, but omitted the final judgment language that the legislature had added in 1986. Spec. Sess. P.A. 94–2, § 6. In 1995, the legislature moved the statutory language governing discretionary transfers from § 46b–126 (a) to § 46b–127 (b). See footnote 2 of this opinion. In the course of making this amendment, the legislature again chose to omit the final judgment language that was added in 1986. Public Acts 1995, No. 95–225, §§ 13 and 39. The majority suggests that the removal of the final judgment language from § 46b–127 indicates an intention by the legislature to abandon the final judgment rule it put into place in 1986. In many instances, I would find this argument persuasive. See State v. Johnson, 227 Conn. 534, 543, 630 A.2d 1059 (1993) (“[w]hen the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose”). This court has recognized many times, however, that some statutory amendments may be structural or linguistic and not substantive. See Gonsalves v. West Haven, 232 Conn. 17, 24, 653 A.2d 156 (1995) (listing cases in which general rule presuming that legislature intended to change meaning of statute was not applied).
The 1986 amendment that made transfers subject to an interlocutory appeal evinced the intention of the legislature unequivocally; it added specific language to the more general statute that this court interpreted in In re Juvenile Appeal (85–AB) and, in so doing, reversed the effect of this court's decision. See In re Michael S., supra, 258 Conn. at 624 n. 3, 784 A.2d 317. Had the legislature intended to reverse that clear policy, it could have replaced the final judgment language with phrasing indicating that juvenile transfers are not final judgments for purposes of appeal. See, e.g., General Statutes (Supp.2014) § 46b–127 (f). As we have frequently stated, “it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly ... or to use broader or limiting terms when it chooses to do so.” (Citation omitted.) Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, supra, 304 Conn. at 219, 38 A.3d 1183. Instead, the legislature simply returned to the nonspecific language that gave rise to In re Juvenile Appeal (85–AB). This omission does little to suggest a clear legislative intention to abandon the prior rule. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954).
I recognize, however, that the legislative history of the statutory language governing transfers may best be described as equivocal, with supportive arguments being offered on both sides of the issue depending upon the legislator whom one chooses as authority. For instance, we stated in In re Michael S., supra, 258 Conn. at 630–31 n. 11, 784 A.2d 317 as follows: “We note that the problem presented by aging juveniles was recognized by the legislature when it enacted Spec. Sess. P.A. 94–2, § 6, deleting the final judgment language from [the statute governing mandatory transfers]. During debate on the proposed legislation, Senator George Jepsen stated that the ability to appeal from a transfer order ‘has been the focus of much of the problems associated with Juvenile Court actions because by the time an appeal is taken, the juvenile is no longer a juvenile.’ 37 S. Proc., Pt. 10, July 13, 1994, Spec. Sess., p. 3630. Representative Edward C. Graziani stated that ‘when you take an appeal [from a transfer order], you can extend the period of time before a resolution is done. The child is typically over [sixteen by the time the appeal is decided], so the whole issue is moot. Therefore, the state's advocates do not proceed to try to even attempt under our existing law to get a transfer because the law is really defective. [Under this] new law ... there is no appeal. You cannot appeal, so you cannot stop the clock when the system goes forward, so the child doesn't become [sixteen] before justice is followed through.’ 37 H.R. Proc., Pt. 27, July 13, 1994 Spec. Sess., p. 9955.” In contrast, when Representative Michael Lawlor, the cochairman of the Judiciary Committee, presented the bill to the House of Representatives, he said: “This bill does not in any significant way change the meaning of the juvenile transfer language.” 37 H.R. Proc., supra, pp. at 9786–87.
Further, when the legislature undertook a more comprehensive reform of the statutes governing the juvenile justice system the following year, the removal of the provision regarding interlocutory appeals from the statute governing discretionary transfers was never explicitly discussed. See 38 H.R. Proc., Pt. 8, 1995 Sess., pp. 2933–42, remarks of Representative Lawlor. In fact, during legislative debate on the 1995 reforms, Representative Dale Radcliffe, a vocal opponent of the initial version of the bill because it failed, in his view, to transfer enough children to adult court, criticized the amendmentthen under debate because the only thing it did to speed transfers was eliminate probable cause and competency hearings in juvenile court. Id., pp. 2956–57. It is certainly arguable that the implication of Representative Radcliffe's remarks was that he understood that the revisions being considered continued to allow interlocutory appeals. The fact that this understanding was shared by many of the other legislators is underscored by Representative Lawlor's failure to mention the fact that the elimination of the final appeal language from the provisions governing discretionary transfers would change a substantive part of the law, despite presenting the bill to the chamber and summarizing the provisions. Id., pp. 2933–42. Legislative debate surrounding subsequent revisions of and amendments to the juvenile transfer statute, including adoption of the iteration of the statute at issue in the present case, has not touched upon the question of interlocutory appeals.
On the basis of this legislative history, I would conclude that the intent of the legislature in removing the statutory language indicating that a transfer represented a final judgment for the purpose of an interlocutory appeal is far from definitive. In my view, it is so unclear that we must resort to a Curcio analysis in order to determine if an appeal should be allowed. As I stated previously in this opinion, “[i]n some instances, however, it is unclear whether an order is an appealable final judgment. In the gray area between judgments which are undoubtedly final and others that are clearly interlocutory ... this court has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, [supra, 191 Conn. at 31, 463 A.2d 566].” (Citation omitted; internal quotation marks omitted.) Solomon v. Keiser, supra, 212 Conn. at 746, 562 A.2d 524.
I also would conclude that, in view of the many judicial opinions and scientific studies which have changed the entire landscape of juvenile law, it is necessary to reevaluate our conclusions in In re Juvenile Appeal (85–AB), which concluded that discretionary transfers pursuant to General Statutes (Rev. to 1981) § 46b–126 did not satisfy the second prong of Curcio, and In re Daniel H., 237 Conn. 364, 367, 678 A.2d 462 (1996), which concluded that the legislature's decision to remove the final judgment language from the mandatory transfer provision “eliminated the right to an immediate appeal from a court order transferring a juvenile matter to the regular criminal docket....” I disagree with the majority's reliance on In re Daniel H., because that case addressed the statute for the mandatory transfer of juveniles and not the discretionary transfer statute involved in this case. The mandatory transfer provision, it must be stated, contains no language regarding the best interests of the child. My principal issue with the majority is that, in my view, this is an entirely new statute, with new findings to be made by the trial judge, which is different from statutes that this court has previously considered. It is important, in my opinion, that we examine this new statute through the current lens of evolving juvenile justice principles.
I would conclude that we must reexamine this court's Curcio analysis in In re Juvenile Appeal (85–AB) because, in the years since that opinion was issued, there have been numerous substantial changes to our understanding of juvenile justice principles. For instance, since that time, our nation has stopped executing people who were children when they committed their crimes. Roper v. Simmons, 543 U.S. 551, 568–69, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). We have stopped imposing sentences of life in prison without the possibility of parole upon people who were children when they committed their crimes. Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We have changed our state laws to recognize that sixteen and seventeen year olds are still children, and should remain, whenever possible, within the jurisdiction of the juvenile court. See Spec. Sess. P.A. 07–4, § 73. All of these developments were erected on the foundation of a body of scientific knowledge not available to this court in 1985.
An examination of these seminal United States Supreme Court cases involving juvenile justice is instructive to our understanding of the changing views of juvenile justice. In Roper v. Simmons, supra, 543 U.S. at 555–56, 125 S.Ct. 1183 the United States Supreme Court reversed itself on a question, presented just sixteen years earlier in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), of whether the eighth amendment to the United States constitution permits imposing the death penalty on a person convicted of a crime committed as a minor. In holding that the execution of such offenders was unconstitutional, the United States Supreme Court relied heavily on the large number of states that had abolished the execution of juvenile offenders since the Stanford ruling. Roper v. Simmons, supra, at 568, 125 S.Ct. 1183. In explaining this trend, the court cited three reasons: (1) “[A]s any parent knows and as the scientific and sociological studies ... tend to confirm, [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”; (2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and (3) “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.” (Internal quotation marks omitted.) Id., at 569–70, 125 S.Ct. 1183.
Two years after Roper was decided, Connecticut joined the vast majority of sister states in extending juvenile court jurisdiction to sixteen and seventeen year olds. See Spec. Sess. P.A. 07–4, § 73. An examination of the testimony considered by the legislature prior to enacting this change indicates that the legislature was attuned to the changing understanding of adolescence reflected in Roper and the nationwide trends noted therein. It also shows how much of the current information about adolescents was unavailable to this court when it decided In re Juvenile Appeal (85–AB). In my view, if this information were available to this court when it decided that case in 1985, a different result would have been reached.
In In re Juvenile Appeal (85–AB), supra, 195 Conn. at 312–13, 488 A.2d 778, this court considered whether the exceptions to the final judgment rule set forth in State v. Curcio, supra, 191 Conn. at 31–34, 463 A.2d 566, were applicable to juvenile transfer orders. As I explained previously in this opinion, Curcio establishes that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., at 31, 463 A.2d 566.
Tyriq T., the respondent in this case, does not claim that the first Curcio exception applies. The Court in
In re Juvenile Appeal (85–AB) considered two arguments regarding the second prong of Curcio. First, it considered the loss of privacy because matters are held in public in the adult court as opposed to the privacy of the juvenile court. In re Juvenile Appeal (85–AB), supra, 195 Conn. at 307–308, 488 A.2d 778. Second, there was concern about the juveniles having direct contact with the adult prison population. Id., at 310, 488 A.2d 778. The court held that the first ground did not satisfy the second prong of Curcio and assumed that the Department of Correction would provide children in its custody with age appropriate services or transfer them to any other appropriate state institution as their needs required. Id., at 308 and 310 n. 5, 488 A.2d 778.
In 2007, the legislature heard testimony from then Commissioner of Correction, Theresa Lantz, indicating that sixteen and seventeen year old children in the custody of the Department of Correction were not receiving developmentally appropriate services in the way they would if they were in the juvenile system, notwithstanding the creation of a special facility for them. Commissioner Lantz testified as follows: “I took all the [sixteen] and [seventeen] year olds out of the jails.... And we've tailored programs for that particular population.... And so one of the things that we've really tried to concentrate [on] is giving them specific programs, but we don't provide the same level of services that the juveniles get in the juvenile court system.” Conn. Joint Standing Committee Hearings, Executive and Legislative Nominations, Pt. 1, 2007 Sess., pp. 229–30.
The admitted inadequacy of services provided to children held in the custody of the Department of Correction—even when they are segregated from adult prisoners—presents a very real risk of irreparable harm when considered in the context of the current understanding of the importance of the adolescent years to human cognitive and emotional development. “Adolescence is a crucial and necessary period of plasticity when brain circuitry and behavior are beginning to be established. These changes in brain circuitry and functioning that occur during adolescence most significantly impact brain regions associated with response inhibition, planning, the calibration of risk and reward, and emotion regulation. Moreover, the opportunities and constraints created by a child's environment play an important role in this period of development.” (Footnotes omitted.) A. Giannetti, “The Solitary Confinement of Juveniles in Adult Jails and Prisons: A Cruel and Unusual Punishment,” 30 Buff. Pub. Int. L.J. 31, 45–46 (2011–2012). “Once the developmental window passes for a juvenile, the brain cannot go back and redevelop at some point in the future; the developmental effects are likely permanent.” Id., 46–47.
It is important to note the long-term effects of the inadequate provision of services to the children when they are in adult detention. As Attorney Christina Ghio noted when she testified in 2007 on behalf of the Office of the Child Advocate in favor of legislation to raise the juvenile jurisdiction age: “The inadequacy of the adult criminal system to address the emotional and developmental needs of teenagers is substantiated through research demonstrating that youth incarcerated in adult facilities are more likely to reoffend and commit more serious crimes than youth who are tried and treated in the juvenile system for the same crimes.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6096. Research has shown that even facilities specifically designed for children tend to have suboptimal educational outcomes, and to provide inadequate ancillary services such as specialeducation, social work, and psychology. See K. Burdick et al., “Creating Positive Consequences: Improving Education Outcomes for Youth Adjudicated Delinquent,” 3 Duke F. for L. & Soc. Change 5, 10–12 (2011). The shortcomings of these resources often lead to greater high school dropout rates and greater subsequent involvement with the adult criminal justice system. Id., 13 n. 50.
Legal developments subsequent to the change in the age of juvenile jurisdiction in Connecticut indicate that the evolution in legal understanding of the needs of adolescents has continued. First, in 2010, the United States Supreme Court ruled that life imprisonment without parole for crimes committed by juveniles was also unconstitutional. See Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011. In Graham, the United States Supreme Court relied in a large part on the reasoning of Roper, concluding that “[n]o recent data provide reason to reconsider the [c]ourt's observations in Roper about the nature of juveniles. As the petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Id., at 68, 130 S.Ct. 2011.
Then, in 2012, the Connecticut legislature provided the detailed procedure, at issue in this case, for determining which juvenile cases are transferred to the adult criminal docket. See Public Acts, Spec. Sess., June 2012, No. 12–1, § 280. This enactment made clear that hearings on discretionary transfers from juvenile court to adult court should occur, for the first time, in the juvenile court, rather than in the adult court as required by State v. Fernandes, 300 Conn. 104, 106, 12 A.3d 925, cert. denied, ––– U.S. ––––, 131 S.Ct. 2469, 179 L.Ed.2d 1213 (2011). See id., at 129–30, 12 A.3d 925 ( Eveleigh, J., dissenting). The reason for this change was reflected in the testimony of Judge Christine Keller to the Judiciary Committee in support of the bill: “We felt that, number one, that due process hearing should take place before they get over to adult court. We know what services are available in juvenile court. We know what we can apply to that child from the juvenile court array of services and diversions. We may know the child a lot better than the adult court, because we may have had the child in front of us previously. Probation, one of the differences between an adult court and a juvenile court is in juvenile court, a probation officer is assigned the minute the child walks into the courthouse ... we don't wait until ... the case is disposed of to assign a probation officer. So the juvenile judge would waive the totality of circumstances, the seriousness of the offense, the child's history with the juvenile court, and what we could do for the child in the juvenile court and then determine whether, okay, there's not much more we can do for this child, off they go to adult court or say, no, it's going to stay here on the discretionary transfers, not the most serious ones.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 13, 2012 Sess., pp. 4167–68.
As this testimony before the legislature demonstrates, because of the unique nature of juvenile court and the unique services provided there, a juvenile who is transferred from juvenile court to adult court suffers an irreparable harm. The harm suffered by a wrongly transferred juvenile is truly irreparable, for when “the developmental window passes for a juvenile, the brain cannot go back and redevelop at some point in the future.” A. Giannetti, supra, 30 Buff. Pub. Int. L.J. 46–47. I would add that, in my view, the lack of privacy is irreparable. Once the juvenile has a public hearing he cannot go to a judge to retrieve his privacy. Further, we should not, in my view, ignore the fact that once the juvenile goes to adult court his conviction could result in a criminal record, unless he is granted youthful offender status. Certainly, the imposition of a criminal record on an individual is irreparable and is something for which the juvenile may suffer repercussions the rest of his life. A juvenile does not incur a criminal record in juvenile court. Once the transfer occurs the possibility of a criminal record exists. Further, the juvenile that is transferred to adult court may face the decision of having to post bond through a bail bondsman, which would result in an irreparable loss of money that would not be incurred in juvenile court. We have previously held an immediate appeal was appropriate because the order required the aggrieved party to engage in some coercive action, such as paying money that could not be recovered on a subsequent appeal. Litvaitis v. Litvaitis, 162 Conn. 540, 548–49, 295 A.2d 519 (1972) (concluding pendente lite order for payment of support was final judgment); Hiss v. Hiss, 135 Conn. 333, 336–38, 64 A.2d 173 (1949) (concluding pendente lite order for temporary support was final judgment). Certainly, the juvenile would never have the opportunity to recover the funds needed to post bond. Further, if a juvenile in adult court cannot make bond, he will receive less frequent reviews of his detention. See Practice Book § 30–10 (requiring that juveniles receive detention review hearing every fifteen days). Hearings in the juvenile court also ensure that, to the court's satisfaction, the juvenile is receiving the proper services. The juvenile loses the use of the juvenile probation officer if a transfer is ordered.
As I explained previously in this opinion, General Statutes (Supp.2014) § 46b–127 (b)(1)(C) requires that the court find, inter alia, that “the best interests of the child and the public will not be served by maintaining the case in the superior court for juvenile matters.” It is this “best interests” finding that separates this statute from the youthful offender statute and makes any comparison to other transfer statutes inapposite. The youthful offender statute does not carry any “best interests of the child” language. In fact, it is difficult to conjure up a scenario when the best interests of the child would ever be served by a transfer to adult court given the absence of privacy, inadequate services and the possibility of a public record.
Further, the very presence of the best interests test is an important new element in any consideration under the second prong of Curcio. It is my position that this statute has changed so substantively that any resort to an analysis based upon its genealogy is misplaced. A hearing regarding the best interests of the child was simply not required in prior revisions of the statute. The adequacy of that hearing and the court's findings must be subject to appellate review before the transfer is completed. If there is no review at that time, in my view, the purpose and meaning of Curcio has become meaningless. In State v. Fernandes, supra, 300 Conn. at 127, 12 A.3d 925 this court held that “[t]herefore, when, as here, treatment as a juvenile is the presumptive norm, and treatment as an adult is the exception, the right to juvenile status vests in the juvenile, and the discretionary transfer to criminal court, which is a revocation of juvenile status, constitutes a deprivation of a liberty interest cognizable under the due process clause.” In order to protect these due process rights the legislature now requires that the court consider, as one of the requirements of transfer, that the best interests of the child will not be served by maintaining him in the juvenile system. This required finding represents a sea change in the statute that did not exist when: (1) we decided In re Juvenile Appeal (85–AB); (2) the 1994 or 1995 amendments were passed; or (3) we decided In re Daniel H. Therefore, any reliance on those cases, or on the genealogy of § 46b–127 (b)(1), is misplaced and it is more appropriate to engage in an analysis under Curcio.
We have previously determined that orders of temporary custody under General Statutes § 46b–56, which require a finding on the best interests of the child, are immediately appealable. Madigan v. Madigan, 224 Conn. 749, 750–51, 620 A.2d 1276 (1993). In considering orders for temporary custody under § 46b–56, this court has stated that “we consider orders of temporary custody in light of these constitutional considerations and reaffirm our conclusion that an immediate appeal of [a court order of temporary custody] is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected.” (Internal quotation marks omitted.) In re Shamika F., 256 Conn. 383, 404, 773 A.2d 347 (2001). This court continued: “[T]he best interest of the children, especially their interest in family stability, supports our analysis.... Therefore, we conclude that temporary custody orders are immediately appealable not only to protect a parent's interests in their children, but also to protect the individual interests of the children.” Id., at 405–406, 773 A.2d 347. Likewise, in In re Jeisean M., 270 Conn. 382, 404–405, 852 A.2d 643 (2004), this court held that an extension of commitment, which also requires a factual finding regarding the child's best interests, is an immediately appealable final judgment.
As the foregoing demonstrates, this court has routinely determined that, where the individual best interests of a child are concerned, orders affecting those interests are appealable final judgments. This is the harmonious body of law which, in my view, we should maintain. In fact, my research has not revealed a case involving a statute that contained language regarding the “best interests” of a child in which this court has not allowed an immediate appeal from an interlocutory order of any kind. Certainly, the revocation of juvenile status, which we have held to be a liberty interest; see State v. Fernandes, supra, 300 Conn. at 111, 12 A.3d 925; must constitute an appealable judgment under Curcio. Indeed, once the juvenile is transferred he loses valuable services and his privacy. Further, he loses the right to have his detention reviewed every fifteen days. He may lose the right to be released to his parents or guardian, or other suitable person or agency without the possibility of having to incur the expense of posting a bond, which may or may not become problematic. In this case, the required finding regarding best interest was recently added to the statute. When a court makes a ruling that may affect those interests, it follows that Curcio requires that ruling to constitute an appealable final judgment.
The opinion of the majority, in my view, leads to the absurd result that before a juvenile can challenge a judge's decision to transfer the juvenile to adult court, the juvenile must give up his or her right to privacy, be hindered by a public criminal record, and give up valuable services that may aid his or her development while an appeal is pending. The majority contends that this result is mandated by the deletion of the final judgment wording in the statute. As noted earlier, I respectfully disagree with this conclusion because the wording of this statute is completely different from the earlier versions, and both our case law and our acceptance of scientific studies regarding juveniles mandate a different result. There are specific findingswhich now must be made by the trial court prior to ordering the transfer. What if, for instance, the judge failed to make the best interest finding, yet ordered the transfer to adult court? Is the majority's position such that a juvenile would have to wait for a trial in adult court before the juvenile could appeal the judge's clear error committed in juvenile court? The consequences of such a result are much too severe for the juvenile and, in my view, directly contrary to the intent of Curcio.
During legislative debates in 1994, some of the legislators remarked that the final judgment clause should be removed from the mandatory transfer provision because the transfer appeals took too long. It is noteworthy that the appellate system of the Judicial Branch of this state has recognized this deficiency and instituted a system in which all juvenile appeals are expedited and the number of extensions has been significantly reduced. Presently, the average case takes a total of approximately six months from the time the appeal is filed until the appellate decision. In the Appellate Court the period is 185.94 days. In the Supreme Court the period is 183.44 days. These statistics demonstrate a vast improvement in the time period within which an appeal involving juvenile matters is presently heard. In the present case, the respondent was transferred to adult court on November 15, 2012. The order was not stayed. At the time of oral argument on March 20, 2014, his case still had not been heard in adult court. He has lost sixteen months of services he could have had in juvenile court. He has also lost the benefit of having sixteen months of supervision by a juvenile probation officer. His hearings have been open to the public, and he now faces the possibility of having a criminal record. How could this transfer have possibly been in his best interests? If indeed, the 1994 act omitted the provision providing for an immediate appeal from mandatory transfers was because those appeals took too long, the pendulum has swung 180 degrees; in the absence of a speedy trial motion, it takes far longer to try the juvenile in adult court, compared to the time in which the juvenile could have an appeal heard in the appellate system.
Obviously, in the vast minority of juvenile cases in which certification is granted from the Appellate Court to the Supreme Court, which represents a very small percentage of the overall statistics, the time period from filing to decision is longer.
I would, therefore, conclude that the discretionary transfer order of a juvenile from the Superior Court for juvenile matters to the Superior Court for adult matters meets the second prong of Curcio and, therefore, is an appealable interlocutory order. In view of the potential irreparable harm to the juvenile, I would conclude that a stay should be in place while the appeal is pending, and the juvenile should continue to receive juvenile services during the course of the appeal. He should also continue to be supervised by his juvenile probation officer. The effect on both the juvenile and his or her family is too devastating to allow a discretionary order to languish while the juvenile endures a criminal trial without the benefit of having the transfer order reviewed by an appellate court.
I would conclude both that the order was an appealable final judgment under Curcio and that the best interests of the juvenile demanded that he stay within the jurisdiction of the Superior Court for juvenile matters while the appeal was pending. Accordingly, I would reverse the judgment of the Appellate Court. Therefore, I respectfully dissent.