When a juvenile and domestic relations court transfers a juvenile to circuit court for trial as an adult and nobody appeals, does the circuit court still have to enter a separate 'enabling order' before the prosecutor can seek an indictment?

Plain-English summary

Chief Judge V. Thomas Forehand, Jr., of the First Judicial Circuit, asked whether the procedure for moving juvenile cases to circuit court for adult prosecution still required an "enabling order" from the circuit court when no one appealed the juvenile court's transfer decision. The question matters in practice because under the pre-1996 version of § 16.1-269.6(B), the Supreme Court of Virginia had held in Jackson v. Commonwealth, 255 Va. 625 (1998), that the circuit court had to examine the papers in every transfer case and enter an order before an indictment could issue. If the statute still worked that way after 1996, then any indictment obtained without a circuit court enabling order would face a jurisdictional defect.

Acting AG William Mims concluded that the 1996 amendment had eliminated the universal review requirement. The amended § 16.1-269.6(B) reads as a conditional: the circuit court must conduct the review and enter the order only if a party has appealed the transfer decision. The Supreme Court of Virginia itself recognized the change in Jackson, in a footnote observing that the post-1996 statute "does not require the review if the transfer decision is not appealed." The Court of Appeals followed in Lampkins v. Commonwealth, 44 Va. App. 709 (2005), holding that the review provision "only applies when either party appeals a transfer decision."

The opinion also drove the result by considering the alternative. If an enabling order were jurisdictionally required, but enabling orders could only follow an appeal, no indictment could ever issue in a case where no one appealed the transfer decision. The General Assembly cannot have intended that absurd outcome. The AG concluded that, when no appeal is noted, the Commonwealth's attorney may seek an indictment once the appeal period has expired.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's juvenile-transfer scheme runs through Title 16.1, Chapter 11. Under § 16.1-269.1(A), a juvenile and domestic relations district court may transfer a juvenile to circuit court for prosecution as an adult based on a series of statutory criteria after a probable-cause hearing. Section 16.1-269.6(B) governs what the circuit court does with the transferred case.

The pre-1996 statute required the circuit court, "within a reasonable time after receipt of the case," to (i) examine all papers, reports, and orders; (ii) if either party appealed, conduct a hearing on the issue of transfer to test substantial compliance with § 16.1-269.1; and (iii) enter an order either remanding the case to the juvenile court or advising the prosecutor that he could seek an indictment. The Supreme Court in Jackson interpreted that text to require the examination of papers and entry of an order in every case, treating the appeal step as an additional layer when one was noted.

The 1996 amendment (1996 Va. Acts ch. 755) restructured the section. The amended text directs the circuit court, "within 45 days after receipt of the case from the juvenile court," to (i) if either party has appealed the transfer decision, examine the papers and conduct a hearing on the transfer issue, and (ii) enter an order either remanding the case or advising the Commonwealth's attorney that he may seek an indictment. The amendment merged the papers-review and hearing steps and conditioned both on the existence of an appeal. The AG read that change as a substantive narrowing of the circuit court's pre-indictment role.

Common questions

Can the prosecutor seek an indictment immediately after the juvenile court transfers the case?

The opinion says no, the prosecutor must wait for the appeal period to expire before seeking an indictment, provided no appeal has been noted. The juvenile or the prosecutor has the right to appeal the transfer decision, and proceeding to indict before that right has run would deprive the defendant of meaningful appeal review.

What happens if a party does appeal the transfer decision?

In that scenario, § 16.1-269.6(B) requires the circuit court, within 45 days of receiving the case, to examine the papers, hold a hearing on whether there was substantial compliance with § 16.1-269.1, and enter an order either remanding the case to juvenile court or advising the Commonwealth's attorney that he may seek an indictment. The hearing does not redetermine probable cause, only substantial compliance with the transfer procedure.

Why did the General Assembly change the statute in 1996?

The opinion does not delve into legislative intent beyond the text. The presumption it relies on is the standard rule that when the General Assembly amends a statute, it intends to change existing law, and the amendment is presumed to have meaning. The 1996 amendment dropped the unconditional review-of-papers step and tied review to the existence of an appeal, which the opinion took as a deliberate reduction in the circuit court's mandatory pre-indictment workload.

Does this opinion change Jackson v. Commonwealth?

It does not change Jackson. Jackson interpreted the pre-1996 statute. The AG explicitly cited the Jackson footnote acknowledging that the post-1996 statute "does not require the review if the transfer decision is not appealed." The opinion is consistent with the Supreme Court's own gloss on the amendment.

Citations

• Va. Code Ann. § 16.1-269.1(A) (juvenile transfer to circuit court)
• Va. Code Ann. § 16.1-269.6(B) (circuit court review and enabling order procedure)
• 1996 Va. Acts ch. 755 (amendment narrowing review to appealed cases)
• Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538 (1998) (pre-1996 statute required review in every case; noting post-1996 change)
• Lampkins v. Commonwealth, 44 Va. App. 709, 607 S.E.2d 722 (2005) (post-1996 review applies only when a party appeals)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-031-Forehand.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

June 26, 2009

The Honorable V. Thomas Forehand, Jr.
Chief Judge, First Judicial Circuit of Virginia
307 Albemarle Drive, Suite 400A
Chesapeake, Virginia 23322-5580

Dear Judge Forehand:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

When a juvenile is transferred to circuit court by a Juvenile and Domestic Relations District Court ("juvenile court") pursuant to § 16.1-269.1(A) and the decision is not appealed, you inquire whether the circuit court must enter an enabling order pursuant to § 16.1-269.6(B)(ii). If so, you ask concerning the jurisdictional consequence of an indictment absent an enabling order.

Response

It is my opinion that a circuit court is not required to enter an enabling order where the transfer decision of the juvenile court has not been appealed. It further is my opinion that a Commonwealth's attorney may seek an indictment after the period for an appeal has expired, provided no appeal has been noted.

Applicable Law and Discussion

Section 16.1-269.6(B) provides, in part, that:

The circuit court, when practicable, shall, within 45 days after receipt of the case from the juvenile court pursuant to subsection A of § 16.1-269.1, (i) if either the juvenile or the attorney for the Commonwealth has appealed the transfer decision, examine all such papers, reports and orders and conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with subsection A of § 16.1-269.1, but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and (ii) enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment.

In interpreting a statute, the principal objective is to give effect to the legislative intent.[1] Where a statute is not ambiguous, the rules of statutory construction are not necessary, and the statute is given effect in accordance with its plain meaning.[2] "'The manifest intention of the legislature, clearly disclosed by its language, must be applied.'"[3]

When the General Assembly amends a statutory provision, a presumption arises that the legislature intended to change existing law.[4] A related presumption is that the amendment to a law is intended to have some meaning and is not intended to be unnecessary or vain.[5]

The 1996 Session of the General Assembly amended § 16.1-269.6(B) (the "1996 Amendment").[6] Prior to the 1996 Amendment, § 16.1-296.6(B) provided that:

The circuit court shall, within a reasonable time after receipt of the case from the juvenile court, (i) examine all such papers, reports and orders; (ii) if either the juvenile or the attorney for the Commonwealth has appealed the transfer decision, conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with § 16.1-269.1, but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and (iii) and enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment.[7]

The Supreme Court of Virginia has interpreted the prior version of § 16.1-269.6(B) to require that a circuit court examine the papers, hold a hearing if an appeal of the transfer decision was noted, and enter an order either remanding the case or directing the attorney for the Commonwealth to seek an indictment.[8] The Court found that entry of an enabling order was necessary before indictment because the statute required an examination of the papers in every case, whether the transfer decision had been appealed or not.[9] However, the Court noted that the 1996 Amendment effected a substantive change: "[t]he statute presently in effect does not require the review if the transfer decision is not appealed."[10]

Likewise, in interpreting § 16.1-269.6(B) in its current form, the Court of Appeals of Virginia noted that "[b]y its own terms, this provision only applies when either party appeals a transfer decision."[11]

Thus, prior to the 1996 Amendment, § 16.1-269.6(B) clearly provided that a circuit court must examine the papers in every case in which jurisdiction was transferred from the juvenile court.[12] Further, the court had to enter an order either remanding the case to the juvenile court or directing the Commonwealth's attorney to seek an indictment.[13] However, subsequent to the 1996 Amendment, a circuit court must examine the papers and enter the enabling order only when the transfer decision is appealed by one of the parties.[14]

Statutes should not be interpreted to produce absurd results or irrational consequences.[15] If an indictment could only be obtained after entry of an enabling order, and an enabling order could only be required after considering a transfer decision on appeal, the result would be that no indictment could be obtained or jurisdiction acquired by the circuit court unless the transfer decision was appealed. In my opinion, the General Assembly did not intend such a result.

Conclusion

Accordingly, it is my opinion that a circuit court is not required to enter an enabling order where the transfer decision of the juvenile court has not been appealed. It further is my opinion that a Commonwealth's attorney may seek an indictment after the period for an appeal has expired, provided no appeal has been noted.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See 2009 Op. Va. Att'y Gen. No. 08-108, *2, available at http://www.vaag.com/OPINIONS/2009opns/08-108-Greer.pdf.
2. Id.
3. See Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)), quoted in 2009 Op. Va. Att'y Gen. No. 08-096, *2-3, available at http://www.vaag.com/OPINIONS/2009opns/08-096-Curcio.pdf.
4. See Wisniewski v. Johnson, 223 Va. 141, 144, 286 S.E.2d 223, 224-25 (1982); 2003 Op. Va. Att'y Gen. 52, 54.
5. See 2003 Op. Va. Att'y Gen., supra note 4, at 54 (citing Cape Henry Towers, Inc. v. Nat'l Gypsum Co., 229 Va. 596, 600, 331 S.E.2d 476, 479 (1985)).
6. See 1996 Va. Acts ch. 755, at 1315, 1338-39.
7. See VA. CODE ANN. § 16.1-296.6(B) (Supp. 1995).
8. See Jackson v. Commonwealth, 255 Va. 625, 642, 499 S.E.2d 538, 549 (1998).
9. Id.
10. Id. at 642 n.4, 499 S.E.2d at 549 n.4 (citing 1996 Va. Acts ch. 755, at 1338).
11. Lampkins v. Commonwealth, 44 Va. App. 709, 718, 607 S.E.2d 722, 727 (2005) (emphasis in original).
12. See supra notes 7 and 9 and accompanying text.
13. Id.
14. See § 16.1-269.6(B) (Supp. 2008); Jackson, 255 Va. at 642 n.4, 499 S.E.2d at 549 n.4; Lampkins, 44 Va. App. at 718, 607 S.E.2d at 727.
15. See McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952); 2005 Op. Va. Att'y Gen. 121, 124 n.5.