Justice DeWine's concurrence in Aalim II

Yesterday I noted Justice DeWine's concurrence in Aalim II, and promised to write a bit more. And so--as I see Justice DeWine jog down the street past my office window--here is that post.

The majority opinion in Aalim II is a rejection of a due-process challenge to Ohio's statutory scheme providing for mandatory bindover of juveniles to common pleas court if certain factors are met.  Justice DeWine agrees with the conclusion that the scheme is in fact constitutional, but writes separately to emphasize his belief that the Court has conflated procedural and substantive due process standards.

Stick with me--this is more interesting than you might think.

Justice DeWine writes that when the legislature passes a law of general application, that act "provides all the process that is due" in terms of procedural due process, and that any challenge--such as the challenge to the statutory scheme at issue here--must therefore be under the substantive due process doctrine. Despite this, he says, the Aalim I Court decided the case in terms of "fundamental fairness"--a procedural due process doctrine.

This was not the first time that the Court had made this mistake, he writes. In In re C.P., the Court held that Ohio's statute automatically requiring certain juveniles to register as sex offenders for life was unconstitutional for due process reasons, and the majority cited fundamental fairness as the rationale undergirding its holding. What made Aalim I worse than In re C.P., according to Justice DeWine, was that Aalim I went the extra mile and for the first time took fundamental fairness and not only turned it into a substantive due process test, but did so while interpreting the Ohio Constitution, rather than the Fourteenth Amendment.

He calls this "quite a feat," and argues that "Certainly nothing in the language of Article I, Section 16 of our [Ohio] Constitution is even remotely implicated by the mandatory-bindover provision."

Before we go on I should say that it's not immediately obvious to me that either In re C.P. or Aalim I applied the fundamental fairness doctrine as a substantive due process rule rather than a procedural due process rule. In paragraph 85 of In re C.P., for example, the Court wrote that "fundamental fairness may require, as it does in this case, additional procedural safeguards for juveniles in order to meet of the juvenile system’s goals of rehabilitation and reintegration into society"--which, I don't know, sounds a bit like procedural due process to me? In Aalim I, meanwhile, the Court wrote that "juvenile procedures themselves also must account for the differences in children versus adults," and Chief Justice O'Connor in her Aalim II dissent takes Justice DeWine to task for suggesting that this amounts to a substantive due process analysis.

(The Chief Justice also implores the US Supreme Court to grant certiorari to revisit the scope of fundamental fairness--and she does this not just once, but five times. Though I have to say that maybe my favorite part about this dissent is the citation in footnote 6 to Nelson v. Colorado, an April 2017 decision in which the Supreme Court held unconstitutional a Colorado statute that required a defendant whose conviction was overturned to prove actual innocence by clear and convincing evidence before obtaining a refund of court costs and fines. In January I covered a Tenth District case that confronted a similar issue.)

I have no real interest in taking sides between Justice DeWine and Chief Justice O'Connor on this one--after all, I'm certainly not a subject matter expert in either fundamental fairness or the mandatory bindover statute. But I nevertheless am fascinated by the idea that Justice DeWine is adamantly opposed to the creation of a substantive due process doctrine under the Ohio Constitution, urging instead that "we are bound by the text of the document as understood in light of our history and traditions." He writes that "substantive due process has been perhaps the most bedeviling and controversial part of our federal constitutional tradition," and that too often it has become a "license to impose policy preferences unconnected with text and tradition." In other words, the use of substantive due process risks the elevation of the judiciary above the legislature in our system of government.

This a rather bold position to take, and I find myself mulling over whether his view is more akin to Justice Thomas's complete rejection of all substantive due process jurisprudence (see his dissent in Obergefell v. Hodges: "Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim.") or to Chief Justice Roberts's (and Justice Scalia's) acceptance of existing substantive due process doctrines but reluctance (some would say refusal) to expand it any farther (and here I'm thinking of Scalia's McDonald v. Chicago concurrence: "Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights 'because it is both long established and narrowly limited.'").

Perhaps that's a distinction without a difference, as the Ohio Supreme Court obviously cannot abrogate federal substantive due process jurisprudence. But it appears that so long as Justice DeWine is on the bench there will be no expansion of the doctrine under the guise of new federalism.

On balance I think that's a good thing. Substantive due process is complicated. I was (and am) one of those many people who, for example, were relieved at the outcome of Obergefell but were uncomfortable with how the end was achieved. There's no doubt that Justice DeWine is right that substantive due process gives wide license to judges seeking to impose their policy preferences and substitute their judgment for that of the legislature. I'm not entirely sure that that's what happened in Aalim I, but I'm happy to know that Justice DeWine is keeping an eye on efforts to do that in the future.